Making of a German Constitution : a Slow Revolution

222 • The Making of a German Constitutionserved as the historical foundation for majority rule. Ancient myth, tradition andmortuary symbolism formed the data for a universal law of mankind—a new iusgentium.Multiform and shifting in its outward manifestation, myth nevertheless follows fixedlaws, and can provide as definite and secure results as any other source of historicalknowledge. Product of a cultural period in which life had not yet broken away from theharmony of nature, it shares with nature that unconscious lawfulness which is alwayslacking in the works of free reflection. 19Myth, which replaced fairy tales, housed remnants of law, but from a primordialrather than an ancient epoch. Myth, like the remnants of law it contained, showed theunderlying system; ‘everywhere there is system, everywhere cohesion, in every detailthe expression of a great fundamental law.’ 20 In this primoridial epoch, Bachofenwas free to construct an immemorial alternative anthropology of social and politicalorganization. It was his profoundest conviction that ‘without a return to ancientsimplicity and health of soul, one cannot gain the merest intimation of the greatnessof those ancient times and their thinking, of those days when the human race had notyet, as it has today, departed from its harmony with creation and the transcendentcreator.’ 21 Whereas the Germanists were interested to vest basic rights in a periodpredating the first king, in opposition to this, Bachofen developed a theory of universalprescriptive social-democratic rights by locating their origins in a primordial age.‘I see more and more that one law governs all things’, he wrote, ‘and that primordialman planned and regulated his earthly life with the regularity, as it were, of animalinstinct’. 22This primordial epoch, according to Bachofen, was marked by three stages ofdevelopment and struggles between the sexes. The best example of this comes in hisdiscussion of the ancient Lycians and the gradual transformation from the legal organizationof the ius naturale to a ius civile. The most elementary difference betweenthe two systems was the change of power between the sexes. Ius naturale existedfirst in a pure stage of ‘undifferentiated sexual union’, but in its later developmentwas characterized by exclusive marriage and matriarchy. 23 This later stage may bedefined as a ius gentium. It was followed by the ius civile, where the juridical formulationof marriage was derived from patriarchy. Under the ius gentium, the essentialfactors of the material ius naturale were retained; the predominance of the materialprinciple, matriarchal lineage and the exclusive inheritance rights of daughters. Incontrast, ius civile was defined by patriarchal family authority derived from masculineprinciples; it represented the stage when women and their property fell under theauthority of men. 24 Ius civile, Bachofen wrote, ‘found its purest expression amongstthe Romans [i.e. the Republic]. No other people so fully developed the idea of potestas(authority) over women and children; and consequently no other people soconsciously pursued the corresponding idea of imperium.’ 25