Making of a German Constitution : a Slow Revolution

150 • The Making of a German Constitution(1887) are important. 133 In the end, Goldschmidt headed the drafting commission forthe national Handelsgesetzbuch that was enacted in 1897 and introduced as a partof the new legal regime in 1900. 134 It was in commercial legislation, as Wieackerwrote, that ‘the special law of the entrepreneurial class in trade and industry’ wasinstituted in German society. 135 Indeed, special commercial courts were set up for theadjudication of commercial matters. The reason why industrial capitalism provedmore dynamic than agriculture, time and again, in the second half of the nineteenthcentury, was partly because it was helped along by friendly, commercial legislationand judicial arrangements.The Civil Code of SaxonyThe codification of civil law, like procedural and commercial law reform, was boundup with the broader political revision, which rested on a programme of constitutionaltransformation. Whereas procedural reform secured basic judicial rights and themeans to have these rights enforced, civil codes defined specific rights and obligations.The systems and codes that were produced after 1815 reflected the nationalistpolitical and social platform of Vormärz liberals, particularly that of the Germanists.The Dresden Draft of Obligations Law, based on Germanist theory, was cause forcelebration in liberal circles. 136 Draft civil codes were produced in Württemberg,Hesse and Bavaria between the 1850s and 1860s. These earlier state drafts wereimportant to the history of legal reform after unification, because the national codeswere modeled after the earlier state codes. While the Dresden Draft was never introduced,it was the model for the obligations law of the BGB. As a result of thistendency, private law offers a window into the continuity of liberal development inGerman history.Saxony is where the drive for unified civil law had its greatest success prior tounification. Christian Ahcin offers an informative study on the liberal politics thatstood behind the drafting of Saxony’s Civil Code. As he points out, a clear link tothe growth and impact of liberalism in Central Europe can be seen in the history ofthe Code. It had its roots in the early century and represented a culmination of thereformist movement that began after 1815. 137 Primarily, however, work on the Codewas a product of Saxony’s constitution, which had made it possible. 138 As Ahcinwrites, the first draft met with strident conservative criticism, which protested thatthe proposed draft of private law was the fruit of liberal agitation and a concessionto liberalism. 139 Major Germanist figures such as Mittermaier, Arndt and Beselerweighed in favor of the draft and demanded that the content reflect German customarylaw. 140 No other piece of civil legislation shared the spotlight with Hanover’sProceßordnung as much as the Bürgerliche Gesetzbuch für das Königreich Sachsenof 1863 (BGBS). 141 Promulgated in 1863, it went into effect in 1865.