Making of a German Constitution : a Slow Revolution

A Century of Promise • 175was essentially Dotalrecht under a German name; in many instances women possessedfull disposing capacity and were responsible for their own debts. These two systems,in particular, were the targets of Germanists’ demands for reform.Nevertheless, Hübner’s Grundzüge made it evident that there was a wide rangeof marital property relations prior to 1900. No other area on the German legal mapoffered such a motley of variation. 50 Marital property relations, as he suggested, weremarked by such extreme particularism that the area of law was difficult to survey. 51There was by no means a consensus of legal opinion, which supported the view thatmarital property relations were, historically, characterized by the subjugation of awife’s property to the management and usufruct of her husband. Indeed, developmentin this area was altogether inconsistent, and marital property relations and theposition of women were considerably varied, as Hübner’s historiographical sketchshowed.In the nineteenth century, with the breakdown of ecclesiastical courts and thecollapse of old Geschlechtsvormundschaft ordinances, women enjoyed considerableindependence not only with regard to property rights, but, according to the standardsof the time, basic rights in general. Paradoxically, given that the Family Law of theBGB instituted the Verwaltungsgemeinschaft, the most compelling records, whichshow that gender relations between husbands and wives were more egalitarian, arecontained in the Family Law Commission’s files. In November of 1875, just afterthe code’s various editors were appointed, the chief editor of Family Law, GottliebPlanck, requested reports from the state-level departments of justice on the existingconditions of marital property relations. 52 The November request letter asked forinformation on the existing forms of marital property relations, population in thevarious legal regions, whether or not the nature of marital property relations changedwith the birth of a child, whether or not there were any special exemptions on thebasis of class and, finally, if marital contracts were permitted, and, if so, the statisticson the nature of the contractual regimes. 53 The state reports began trickling into theReichkanzler’s office in the summer of 1876 and were forwarded to the Family LawCommission, under Planck’s authority. More than any other primary source, thesereports demonstrate that the character of gender and marital property relations wasfar more egalitarian than those installed by the BGB and that the editors of FamilyLaw had clear knowledge of this before they drafted its provisions.The ALR has often been cited by historians to support the narrative of wives’subjugation in every way to their husbands’ authority. ‘The Allgemeines Landrecht’,as Richard Evans wrote in his seminal study, The Feminist Movement in Germany(1976), ‘firmly declared that the husband was the head of the family, and made himthe legal guardian of his wife,’ and ‘without his permission she could not take a job,sign a contract or engage in litigation; she was not a “legal person” in civil law’. 54For this reason it will be informative to start with Prussia’s report. It was preparedby the newly appointed Minister of Justice, Adolf Leonhardt, who was famous forhis drafting of the Hanover Prozessordnung. 55 It was forwarded to Bismarck’s office