Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 123the introductory article to the Zeitschrift für deutsches Recht, Reyscher explained that‘the aim of the journal’ was not ‘merely to provide a meeting point for investigationsinto the field of native German law, but also to contribute towards the encouragementof a national study of law and thereby to the creation of a vaterländisch science oflaw’. 173 He went on to say that ‘the specifically national element’ did not consist of ‘afailure to recognize the merits’ of other nations, and that jurists could ‘therefore, withoutcontravening our principles, regard as our own not merely that which has alreadyestablished itself among us, but we shall also try to incorporate as part of our spiritualpossessions all real progress which we perceive in other countries’. 174 AmongstWilda’s important writings was his Das Strafrecht der Germanen (1842). 175Liberal legal scholars embraced the idea of constitutional transformation, andmany kept one foot in academia and the other in local diets. Germanists’ legal historyand legal antiquarianism were important arteries of liberal constitutionalism, and thepolitical alliance with scholars in other fields, notably history and philology, onlystrengthened the drive toward constitutional transformation. Jacob Grimm describedhis Geschichte der deutschen Sprache (1848), which he dedicated to the historianGeorg Gervinus, as ‘political through and through’. 176 He was joined in this genreof Germanist political writing by many others in the German legal world. In additionto his other publications, Mittermaier also tilted toward legal antiquarianism inhis Polemik des germanischen Rechts: Land- und Lehnrecht (1832). Citing Tacitus,Savigny and Jacob Grimm, he urged that ‘there was no nobility in the time of theancient Germans’. 177It should be emphasized also that, as important as it is to understand the deeppolitics of the Germanists’ scholarship, it is equally important to understand that theywere successful because they developed principles to redress the deficiencies in theexisting laws. Where scholars of the ius commune waited until too late to addresscommercial concerns, this was a core element of Germanist legal scholarship from theoutset. The most important areas of modern German law, including constitutional law,procedural law, family law, inheritance law, company law, bankruptcy law, negotiableinstruments and commercial law were derived from the work of the Germanists. Inaddition, they had a strong impact on the development associations’ law, land law andproperty held jointly or in trust. 178 The programme of legislative revolution was successful,precisely because Germanists developed rules of law to meet the demands,real or imagined, of industry. As the ius commune grew more and more obsolete, liberalswere able to increase their political influence by penetrating the legal structureand offering legal remedies for pressing economic and social concerns.Notes1. Jacob Grimm, quoted in Murray Peppard, Paths through the Forest: A Biographyof the Brothers Grimm (1971), p. 196.