Making of a German Constitution : a Slow Revolution

Last Bastion • 207of tender ages (zarteste Alter) were engaged and married to each other’, and hecited a myth regarding Elisabeth and Ludwig of Thüringia. 124 In his Entwurf einesFamilienrechts für das Deutsche Reich, Planck justified the proscription of cousinmarriage on chiefly moral grounds, but also on scientific grounds: ‘Marriage betweenclose relatives is forbidden [because]’, he wrote ‘the moral sense demands the maintenanceof chastity in the family and, on physiological grounds, the advance of healthyfertilization and breeding between married persons, which is jeopardized in the unity ofthe blood.’ 125 His comments also show how the growing influence of biological sciences,which quite often only sustained pre-existing bürgerliche conceptions of society.As rigorously as the Germanists defined who was Mündigsprechung, women wereidentified with Unmündigkeit. According to the Germanist theory of civil society,women were released from their father’s authority only to fall under the guardianshipof their husbands. Grimm wrote that ‘the wife fell under the power of the husbandlike the child under his father.’ 126 This opinion was confirmed by Kraut, who, citingGrimm, wrote that the term Mündigsprechung was never ‘feminine, but in all Germandialects, only appears as masculine’. 127 He flatly declared that ‘according to thecodes of German laws, women only become free from Altersvormundschaft throughmarriage ... [but] naturally not in the sense of a Mündigsprechung.’ 128 ‘Yes’, he wrote‘they never become Mündig.’ 129The BGB actively disenfranchised German women in every way, reversing women’sprior gains in the century of promise. ‘The right to decide in all matters affectingthe common conjugal life’, under Paragraph 1354, belonged ‘to the husband; hedetermines especially the place of abode and the dwelling’. 130 In a speech deliveredto the Göttingen Women’s Club, Planck justified Paragraph 1354 on the basis of thehistorical morality and tried to placate women with references to Christian principles:‘To conduct the community of married life’, he said, ‘it is necessary for oneparty to have the decisive vote, and the BGB takes up the opinion of Christian andGerman views of marriage, according to which the husband is head (Haupt) of themarriage’. 131Designed to support and reinforce the power of majority rule, marriage was seenas playing a vital role in the security of the constitution of the nation. This explainswhy Paragraph 1354 granted the husband sole decision-making authority and madehim head of his wife and family. Conversely, the BGB bound women and theirproperty to their husbands. Paragraph 1356, for example, required wives ‘to workin the household and in the business of the husband, where such activity is customaryaccording to the circumstances in which the couple lives’. 132 Reversing thenineteenth-century court standards, Paragraph 1362 annulled the right of a wife tofile as a creditor in the case of her husband’s bankruptcy and specifically made herproperty liable for his debts: ‘It is presumed in favor of the creditors of the husbandthat all movables which are in the possession of one of the spouses or of both of thespouses belong to the husband.’ 133