Making of a German Constitution : a Slow Revolution

Undermining Absolutism • 151The BGBS is worth examining in some detail for several reasons. First, in Saxony,a vibrant industrial economy centred at Leipzig existed alongside the most backwardpolitical conditions in Central Europe outside the Mecklenburgs. The combination offorces was a harbinger of what was to come in united Germany as the century woreon. Second, and although the Code still reflected older norms, much of what liberalshad only imagined before 1863 became a living reality and there were tremendoussocial ramifications for private relationships in Saxony. Finally, the popular responseof Saxonians to the BGBS foreshadowed what would happen at the national levelfollowing the introduction of the BGB.As I suggested earlier, civil law provided liberals an alternative avenue to installcitizenship and to secure the basic rights of citizens. The Allgemeiner Teil (GeneralPart), as Ahcin notes, was an expression of German customary law principles. 142This section secured the right to personality, defined the legal capacity of natural andjuristic persons and the rights of associations. 143 The second book on Sachenrecht(property rights) offered the nineteenth century’s strongest statement on the right toprivate property and the rights of property owners. 144 Book three defined the right tocontract and obligations in commercial and service relationships. 145 Indeed, it evencontained a section that provided for bankruptcy law. 146 Amongst the most prominentof basic rights conferred on commoners, however, was the right to marry. TheBGBS’s marriage law offers an example of how the regulation of seemingly benignprivate matters was in reality deeply political. The marriage law curbed noble privilegesin private matters and made liberal political and social theory a living reality. Itstruck at the social core of absolutism by redefining and restructuring the family intoone that fit liberal rather than monarchical constructions of society.Saxony’s nobles, as was the case in other parts of Central Europe, were notsubject to any comprehensive laws. Rather, family law came in the form of privateFamilienverträge (family agreements). At the same time, family law did not existfor commoners, but remained a privilege of the nobility, which reinforced theirright to property and power. In Saxony, Familienverträge gradually evolved fromcontracts that were written for all adult members of the noble family into documentsthat governed the entire family of cousins. ‘The competition of noble familieswith each other and with other social groups’, writes Josef Matzerath, ‘causedSaxony’s nobility to make great efforts to place feudal tenures in joint-property,to conclude inheritance associations, to adopt for themselves family regulations,to establish entailed estates and to close the entailed estates of families.’ 147 Althoughthey also regulated education, marriage, conduct and religion, the purposeof these agreements, in the first instance, was to secure that family property remainedwithin the family and within the nobility. This secured the consolidationof property and power.It was this old order that the Family and Guardianship Law of the BGBS beganto undermine in Saxony. Paragraph 1568 read: ‘Engagement is the contract through