Making of a German Constitution : a Slow Revolution

Last Bastion • 201magnified onto the national stage after the founding of the Reich in 1871. As it didin 1866, geographical unification resulted in liberal control of structural unification,and this meant more liberal ius civile, which in no small measure was not derivedfrom Prussian sources. It was not simply unification (Vereinigung) that liberals anda broad sector of the German population desired, but unity (Einheit). 74 By the 1870s,civil law was perceived as something fundamental to any modern nation, and leadingNational Liberals, notably Lasker and Planck, manipulated ‘the power of the spirit’by keeping the liberal press cranked up with articles on the merit of civil law. 75 In theearly years of the Reich, National Liberals had a powerful ally in Bismarck. Law wasseen as ‘intrinsically good and as necessary to create a better, more rational society’. 76By 1874, nobody wanted to be responsible for the failure to enact unified civil law. 77There was no question that a civil code would be enacted and introduced in Germany,and this could lead to nothing other than the treasured victory. As Gottlieb Planck’sbiographer, Frensdorff, portentously commented on the BGB’s political significance:‘Die Krönung sollte das Bürgerliche Gesetzbuch bringen’. 78Legislating the GemeinwesenThe BGB and Einführungsgesetz were the apex of a process of constitutional transformationthat had been in the making since the founding of the Reich in 1871. Withthe BGB came the final transfer of sovereignty, constituting an expansion of thebasic rights of German citizens. Article 2 of the Einführungsgesetz stated clearly that‘Law in the meaning of the Bürgerliches Gesetzbuch and of this Act is every principleof Right (Rechtsnorm).’ 79 The BGB comprised 2,385 paragraphs of law whenit was introduced on 1 January 1900, divided into five books, namely the GeneralPart, Obligations, Things (Property), Family Law and Inheritance. While it would beimpossible to examine the entire Code, its sheer size offers an indication of its majortransformative impact on German society. While there was no pronouncement offundamental rights in the Reich Constitution, such fundamental rights as freedom oftravel, some measure of religious equity, penal reform, freedom of industry, privacyof the post, freedom of the press, basic judicial rights, rights of possession and rightsof association (1908) were filled through regular legislation. 80 Rights were againconfirmed, but also expanded in the BGB. ‘Never fading youth’, even Otto Gierkewrote in January 1900, ‘in these changing times, our people will only be successfulin winning cultural renewal and inner peace again and again if we hold true to ourown laws.’ 81 ‘With the achievement of legal unity’, he encouraged, ‘we can abandonthe last century, because the new law—a truly German Volksrecht—will stand up tothe great task of the dawning century.’ 82Of fundamental importance to the modern representative polity was, of course,the bestowing of citizenship. In the BGB, this was delineated first in the GeneralPart, under the title of Natural Persons. ‘The legal status (Rechtsfähigkeit) of a man’,