Making of a German Constitution : a Slow Revolution

208 • The Making of a German ConstitutionThe BGB awarded women what may only be characterized as paper rights.A classic example of this comes in the much celebrated Schlüsselgewalt. Paragraph1356 continued, ‘the wife is ... entitled to and bound to conduct the joint household.’134 According to Paragraph 1357, ‘the wife is entitled, within the sphere of herdomestic activity, to manage the husband’s affairs for him and to represent him,’ and‘juristic acts which she enters into within such sphere or activity are deemed to beentered into in the husband’s name, if it does not appear otherwise from the circumstances.’135 While Grimm argued that the Schlüssel was the ‘symbol of the powerof the housewife (hausfrauliche Gewalt)’, he emphasized that women were onlythe Schlüsselträgerinnen of their husbands. 136 Hausfrauliche Gewalt was not independentlyheld, but was given by the husband, who could rescind it at any time bysimply retrieving the keys. 137 Some years later, Gierke explained that wives ‘didnot represent the marital community, but rather acted only as “the representative ofthe husband”,’ who could limit or rescind the Schlüsselgewalt at any time. 138 WhenPlanck turned his attention to the position of women within the marriage in his Motives,he opened by pointing out that other modern codes obliged women to do housework.139 According to the German view and morality, ‘it is not only her obligation, buther right to manage the household.’ 140 ‘The Hauptberuf of the wife’, he declared ‘relatesto the inner life of the home and related matters.’ 141 The Motives of the BGB editorscame into force as law along with the Code in 1900. The final version of the BGBreflected Planck’s influence, and Paragraph 1357 further declared that ‘the husbandmay limit or exclude the right of the wife.’ 142 The Schlüsselgewalt was not a right, butwas rather a privilege that women enjoyed at the discretion of their husbands.The clearest legislated expression of the exclusive male citizenship and majorityrule came in the BGB’s regulation of marital property relations. No other area oflaw as actively reinforced male dominion in public matters and disenfranchisedGerman women as the BGB’s statutory regime of marital property relations. The notoriousParagraph 1363 declared ‘by the conclusion of a marriage the property of thewife becomes subject to the management and usufruct by the husband—contributedproperty includes also the property which the wife acquires during the marriage.’ 143This measure did not stand alone but its effects, as Gierke noted, came ‘out of theelaborate joining of disparate elements into a complicated complex of norms’. 144 Noone paragraph would have alerted German women that they would be disenfranchisedafter 1900; it is only by cross-referencing that this reality became clear.A good example of this comes in the underlying gender distinction between contributedproperty and separate property. Paragraph 1365 appeared to leave womenwith independent property rights, declaring ‘the management and usufruct by thehusband does not extend to the separate property.’ 145 Separate property is definedas the wife’s property, while contributed property clearly belonged to the husband.Technically, separate property included personal effects, i.e. clothing, ornaments,etc. (Paragraph 1366), property acquired as a result of the wife’s labor or separatebusiness (Paragraph 1367), property specified in a marriage contract (Paragraph