Making of a German Constitution : a Slow Revolution

206 • The Making of a German Constitutionand obligations; in particular, the responsibility of the couple ‘to be true to each other,to stand by each other’s side, to live together and to strive for the attainment of maritalduty’. 115 It would ‘bind’ the couple to the ‘eheliche Lebens-gemeinschaft’. 116 As a resultof its moral nature, marriage had ‘a legal side’, which justified state regulation. 117But marriage is also a legal relationship; it is the basis of the family and our entire socialorder. That is why the State has the right and the duty to lay down the legal rules formarriage. However, in this respect, it will at all times have to consider the moral andreligious character of marriage, as it may not establish any legal rules which conflict withthe moral nature of marriage; on the contrary, the legal rules should as far as possibleserve to fulfill the moral obligations which are established by marriage. In any event, itis the State’s duty to establish the legal rules. 118In the first instance, marriage formed the primary union of those who cannot livewithout each other. The beginning of the family was thus society’s most basic socialunit. As such, the private matter of marriage became a public matter of state. Thisis where civil law was not simply private law, but had public consequences. Whenmarriage and the family became the microcosmic reflection of the social order, inreality it ceased to be totally private. The legal procedure surrounding the closing ofmarriage was public and oral. As Paragraph 1316 of the BGB read, a ‘public summonsshould precede the celebration of marriage’, and the vows had to be givenorally and before a civil servant of the state. 119The bürgerliche family was conceived as an oppositional model to practices of thehereditary nobility as we have seen. These conceptions were also carried over intothe BGB. Paragraph 1310 prohibited marriages between first, second or even thirdcousins as well as others. ‘A marriage’, Paragraph 1310 read, ‘cannot be concludedbetween relatives by blood in the direct line, nor between brothers and sisters of full orhalf-blood, nor between relatives by marriage in the direct line ... [or] between personsone of whom has had sexual intercourse with parents, grandparents, or descendantsof the other.’ 120 Paragraphs 1589 and 1590 took this proscription even further, broadlydefining relatives as ‘persons of whom one is descended from the other are relativesby blood in the direct line’, and ‘persons who are not related by blood in the directline, but are descended from one and the same third person, are related by blood in thecollateral line’. 121 Paragraph 1590 specifically declared that ‘[r]elatives by blood of aspouse are related to the other spouse by marriage ... [and the] relationship by marriagecontinues even if the marriage whereby it was created has been dissolved’. 122The modern constraints on marriage between relatives derived in part from the politicalwritings of Grimm and the Germanists. Under the ancient Germans, he wrote,marriages between ‘close relatives (nahe Verwandtschaft) between parents, childrenand siblings’, relatives by marriage and ‘spiritual relatives’ were forbidden. 123 Thepractice of marriage between relatives began with the nobility: ‘Fürstliche Kinder