Making of a German Constitution : a Slow Revolution

A Century of Promise • 169in Germany prior to the introduction of the BGB in 1900. Moreover, he continuedthe tradition of Eichhorn, Grimm, Mittermaier, Beseler and other Germanists in hisremarks. The code, he stated, was the fruit of the previous generation’s work and hadbeen drafted with respect for the ‘great interest groups the economic life demands’. 8The conditions so vividly described by Nieberding had serious implications forthe social reality of gender relations in German society before 1900. In no other areaof culture was there more legal fragmentation than in the area of marital propertylaw (eheliches Güterrecht). In Geschichte des ehelichen Güterrechts in Deutschland(1863), the leading Germanist legal historian on marital property relations,Richard Schroeder, pointed out that ‘no other branch of German law has suffered somuch under the particularism of our people’. 9 States one after another had annulledthe old Geschlechtsvormundschaft regulations in the eighteenth century. 10 This, combinedwith legal particularism, left women living in a deregulated environment. Inthis fluid environment, women acquired a relative level of equality and considerablymore independence, legal personality and property rights than ever before. DescribingGerman conditions prior to the BGB, in 1919, Rudolf Hübner recalled a popularview on the ALR in legal circles: ‘Willkür breaks city law, city law breaks territoriallaw, [and] territorial law breaks common law.’ 11 Conditions were not much differentin the southern regions of German-speaking Europe. As late as 1894, a Munichnewspaper reported:As the saying goes, other cities—other girls. So it can be said for the greater part of ourKingdom, other cities—other laws. Indeed, the legal regulations are still often very different,particularly in northern Bavaria, from hamlet to hamlet, village to village, fromaddress to address and even from house part to house part! 12While the Gesetz über die Beurkundung des Personenstandes und die Eheschließung(1875) made civil marriage mandatory, it did not regulate marital propertyrelations. In many areas of Germany, therefore, there continued to be a great dealof fluidity in this area. It also was possible for couples to simply contract their ownmarital property arrangements, whether or not those arrangements were contrary toexisting statutes. As a result, the major reforms that the enlightened law codes weredesigned to produce were foiled by the right to contract. While laws governing maritalproperty relations appeared on the books, German couples could simply ignore thelaw and make their own marital property arrangements. In the deregulated environmentof the nineteenth century, particularism sustained the autonomy of the maritalcommunity, and for this reason the laws before 1900 do not offer an accurate guidefor understanding the reality of gender relations on the ground. Even where civilcodes were produced, with the exception of Saxony, there was little means to enforcethem. Legal procedure remained underdeveloped until the time of the state reformsthat began in Hanover in the 1850s and until the passage of the Reichsjustizgesetze