Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 143Reich Court shall be based on jurors. The same applies to whether and how far this lawis to be regarded as an organic part of the Constitution. 74In addition to the call for procedural reform, there were two other important conceptscontained in this article. First, it reflected an idea that was inherent in liberalconceptions of legislative revolution, essentially, that it would be necessary to executeadditional legal measures to secure full reform. Even more important than this wasthe suggestion that additional laws would be regarded as organic parts of the constitution.The road toward full sociopolitical revision continued, even at Paulskirche, tobe seen as a gradual process rather than as an immediate event. It was this dimensionof constitutional transformation that made it possible for private law, which includedprocedure, to assume the primary function of inverted political revision.When procedural reform followed almost immediately after 1849, spreading fromstate to state, it leveled distinctions by awarding judicial privileges to the commonaltyand in this way undermined the old judicial arrangements. The courts and procedureswere reformed into institutions that reflected liberal political demands. Itshould not come as a surprise that Hanover, where liberalism flourished in the legalcommunity, was the first state after 1848 to introduce procedural reform in 1850.Die bürgerliche Proceßordnung für das Königreich Hanover of 8 November 1850made effective the reforms favored by Vormärz liberals that were contained in theconstitutional document of 1849. The legal historian Werner Schubert has pointedout that in the Hanover legislation, the maxim of new liberal procedural principles,particularly orality and uniformity, were made effective. 75 It made trial procedurepublic and oral, which was a core right included in the constitutional document of1849. Article 178 read, in part: ‘Court proceedings shall be public and oral.’ 76 Interms of the basic right of citizens to uniformity in procedure, Article 182 wouldhave ended administrative justice and police justice. Instead, it held that ‘courts areto decide all matters of the law’. 77Moreover, the Hanover Proceßordnung gave the people greater representationin judicial decisions. It introduced the long-celebrated Schöffengericht. In addition,it guaranteed the right of citizens to legal representation by the lawyer of theirchoice. While these provisions guaranteed basic rights, they also had the doubleimpact of expanding an important liberal political constituency. The right to representationstrengthened and facilitated the expansion of the legal profession. Underthe Proceßordnung, the profession was divided into Advokatanwälte, admitted inrestricted numbers to argue civil cases, and Advokaten, admitted in unlimited numbersto counsel clients and prepare civil cases as well as argue criminal cases. 78 TheHanover Proceßordnung was held in high regard, as the most progressive measure inthe German lands, and it was the model for procedural legislation elsewhere. 79Procedural reform in Saxony, the largest German state next to Prussia and wherenoble privileges were more extensive and deeply entrenched than in other Germanstates, marked a watershed in the history of constitutional transformation at the statelevel. Under the Gerichtsverfassung of 1854, the courts were reorganized, giving