Making of a German Constitution : a Slow Revolution

224 • The Making of a German ConstitutionAlthough Bachofen’s theory of law clearly challenged the exclusive liberalism ofthe historical school of law, including the work of the Germanists, he neverthelesswas not able to escape the grip of classical political thought. He essentially adoptedinto his own theory the Aristotelian model of dichotomous formations of virtue andvice, healthy and sick polis (monarchy vs. tyranny, aristocracy vs. oligarchy, democracyvs. mob rule) along with the Polybian ideal of the cycle of constitutions (monarchy,tyranny, aristocracy, oligarchy, democracy, mob rule). Bachofen delineated acycle of constitutions passing from hetaerism to male heterosexual promiscuity tomarriage and family to amazonianism to patriarchy and then to articulation. The ideawas to formulate a legal theory for social democracy that would be capable of standingin opposition to exclusive liberalism. Here again there was the idea, however,that unless prevented society would pass through each of these cycles returning fromarticulation of hetaerism. Bachofen’s system also offered a vision of a representativesystem, but on a social democratic basis. Accordingly, he theorized that it was firstwomen’s defeat of the male tyranny of sex-labor exploitation, and then men’s defeatof the female tyranny of amazonianism, that led mankind into the peace of exclusivemarriage. 39 Marriage, thus, appears as a metaphor of sorts for a secure mixed constitutionon a democratic basis.When Bachofen’s sex narratives are understood as an expression of political theory,their social-democratic colourings become clear. The sex-labor exploitation ofprimordial women was a metaphor for the exploitation of labor that was emergingrapidly with the capitalist economy in mid-century Central Europe. The narrative ofgender evolution revealed a society passing through a kind of dialectical development.Bachofen traced this evolution from hataerian tyranny to the revolt of women,which led to the concord of marriage and matriarchy. Above all else this should beseen as a metaphor for the regulation of capital and industry. Yet, it also housed awarning in showing that continuing male promiscuity in the gynaecocracy resultedin the absolute exclusion in amazonianism, which in turn caused the revolt of menand led to patriarchal marriage under the ius civile. The dialectical evolutionary elementwas contained in these shifts between balanced form and degeneration that ledto corruption of the form.In his analysis of the role of women and religion, Bachofen identified women asthe bearers of the requisite virtue for civic participation, temperance (education),valor, prudence and justice. Aware of the broad gulf between his views and the ‘currenttheories’, he urged that ‘there is only one mighty lever of all civilization andthat is religion.’ 40 His own decadent age, he felt, was in need of rejuvenation, andfor this he looked to the simplicity of the primordial as well as the celestial lawsthat governed all mankind. Religion was woman’s great Otium, which led her to thenegotium; ‘at all times woman has exerted a great influence on men and on educationand culture of nations through her inclination toward the supernatural and divine,the irrational and miraculous’. 41 ‘Prophecy began with women’, and women werethe great ‘keeper[s] of religion’. Although not the preferred method of resolution,