Making of a German Constitution : a Slow Revolution

A Century of Promise • 173scholarly opinion that had been building for a century. As early as the age of the folklaws, he wrote, the idea of an undivided property in the husband was relaxed in favorof the wife. 30 The provisions of the folk laws, ‘by no means [showed] ... a subjugationof the wife’s entire property to her husband’s ownership’, as was peculiar to theoriginal customary law. 31 On the contrary, scholars conceded that the law alreadyrecognized a wife’s ownership of certain portions of the marital property. 32 ‘Thisimportant advance was a consequence’, Hübner wrote, ‘of the gradually increasinglegal and economic independence of women, especially their capacity to inherit.’ 33Here he cited the work of Huber, who had argued that ‘the increasing improvementin woman’s position was the real leaven in the entire later development of the law ofmarital property’. 34 Beginning in the early epoch:As soon as daughters became capable of holding and inheriting property within their ownfamilies, they were in a position to bring with them in marriage property of considerablevalue to their husbands ... Again, when the wife came to be regarded as the subject ofindependent property rights, her husband’s gift ... might become her property. With thisstep the original undivided marital estate necessarily disappeared. It was now possible,for the first time, to speak of an actual marital community of goods in the sense of aregulation of the spouses’ legal rights, created by their marriage, in the property constitutingthe marital estate; for it was only now that property existed in which not merelythe husband but also the wife had rights; it was only thenceforth that there existed, duringmarriage, a wife’s in addition to the husband’s estate. 35Nevertheless, Hübner continued to uphold the Germanist theory of hausherrlicheGewalt, although his own analysis seemed to undermine it. While the wife’s propertywas vested in her person, by virtue of the husband’s Mundium, he held possessionof her property—distinct ownership was maintained, but the entire maritalestate united in the possession of the husband. ‘The result’, he wrote ‘was that asearly as in the folk laws the original undivided property had been replaced, in themain, by a system of community property’. 36 This system, moreover, was variouslyidentified by such figures as Beseler, Johann Bluntschli and Heinrich Brunner as theVerwaltungsgemeinschaft (administrative community), wherein the entire propertywas administered by the husband. Incidentally, it is worth noting that Hübner had infact studied with Beseler.The sociopolitical ideals of Germanist thought were evident in Hübner’s descriptionof the Verwaltungsgemeinschaft, for example, in his emphasis on rights accompaniedby obligations. On the one hand, husbands had the right to profit from theirwives’ estates, but on the other, they were obliged to manage them in a responsiblemanner. 37 The denial of full property rights to women was, again, justified underthe auspices of protection. In other words, the husband was expected to be prudent.While husbands managed and profited from their personal estates as the owners, they