Making of a German Constitution : a Slow Revolution

210 • The Making of a German Constitutionfrom the beginning left her under the guardianship of the stronger and more prudentmen in the public life.’ 155 In his analysis, he relied very heavily on Kraut’s Vormundschaftas well as on Grimm and the French scholars. ‘Every lawfully wedded wife fallsunder the guardianship of her husband. He is her Haupt, her Herr and master; he establisheshis home and its law, and as she finds herself, her entire property is also under hisguardianship power (vormundschaftliche Gewalt), everything is in his hand.’ 156It is, however, through Schroeder’s relationship with Planck that we are offereda clear and decisive example of how Germanist scholarship influenced legislation.By 1875, only a year after he was enlisted for Planck’s committee, Schroeder madethe leap from scholar to scholarly lobbyist for the BGB. In that year, he publishedthe pamphlet Das eheliche Güterrecht Deutschlands in Vergangenheit, Gegenwartund Zukunft (1875), in which he not only offered a condensed version of the past,but suggested what form of marital property relations should be enacted under theBGB. He opened with the familiar attack on the independent control of propertythat contemporary Roman law allowed German women. ‘It is known’, he writes,‘that the marital property relations of the Romans moved in two contradictory legalextremes.’ 157 Under Justinian’s law as it was received in Germany, marriage was‘formless and free’ with the ‘absolute separation of property and independent propertyrights of the wife’. 158 The husband only controlled the wedding gift and, at thesame time, was responsible for the burdens of the marriage. In contrast to Justinian’sCode from the period of Roman decline, under the law of the Republic, the wife andher entire property stood under the ‘hand of her husband’. 159 This latter system wasthe most similar to the ancient German order, where the wife and her entire propertyfell under the Mundium of her husband. 160 The essential difference he identified betweenthe law of the Roman Republic and German law was the distinction betweenGüter einheit and Verwaltungsgemeinschaft. Under the Roman system, the property ofthe wife actually became the property of the husband, whereas, under the Germansystem, the wife’s property remained vested in her person, but the husband retainedmanagement and usufruct rights ‘for the good of the marriage’. 161As for the zukünftige aspect of Schroeder’s analysis, it seems that Planck had ahand in shaping his final opinion and, after the publication of the first draft and thecriticism that followed, Schroeder faced increasing pressure from Planck to providescholarly legitimacy for the proposed law. In a 15 June 1875 letter to Planck,Schroeder did not suggest the reintroduction of the Verwaltungsgemeinschaft, and itappears that the pamphlet on eheliches Güterrecht was produced at Planck’s direction.He wrote that ‘the entire work, and hopefully to your satisfaction, should be inyour hands by late August.’ 162 While he did suggest the Verwaltungsgemeinschaft inthe pamphlet, in his letter, he emphasized that ‘ein Mittelweg’ should be taken. Healso suggested the legislation of Errungenschaftsgemeinschaft and the allgemeineGütergemeinschaft along with the Verwaltungsgemeinschaft. Moreover, he suggestedthat the existing right of couples to contract alternative arrangements should be permittedunder the new law. In this way, he urged that the German people’s longing