Making of a German Constitution : a Slow Revolution

226 • The Making of a German Constitutionby an observation of Tacitus, and a corresponding statement from Plutarch aboutRoman customs proves that this is no accidental local notion, but a consistent andfundamental idea.’ 53It hardly seems necessary to point out how many passages in ancient writings, how manyphenomena of matriarchal cultures, were illuminated and made available for this workby Tacitus’ remarks about the far-reaching implications of sisterhood as the basis of theGermanic family. The greater love for the sister leads us into one of the noblest aspectsof matriarchal culture. 54Once dynamic virtue was located in the symbol of the feminine, Bachofen wasfree to describe an alternative society based on matriarchal principles. Whereas the‘paternal principle’ was inherently restrictive and implied limitation of definite groups,the ‘maternal principle’ was universal and ‘like the life of nature itself, knows nobarriers’. 55 ‘Every woman’s womb, the mortal image of the earth mother Demeter’,he wrote, ‘will give brothers and sisters to the children of every other woman; thehomeland will know only brothers and sisters until the day when the development ofthe paternal system dissolves the undifferentiated unity of the mass and introduces aprinciple of articulation.’ 56 In matriarchal society, the ‘universal freedom and equality’of the people was evident in their ‘aversion to restrictions of all sorts’. 57 Lawwas ‘rooted [in] the admirable sense of kinship and fellow feeling which knows nobarriers or dividing lines and embraces all members of a nation alike’. 58 ‘Hence’,Bachofen wrote on the distribution of wealth, ‘the equal right of all to the sea, theseashore, the air; and the communis omnium possessio (common property) may betraced back to the ius naturale.’ 59 These ideas and principles found their expressionin the concept of ‘Mutterland’. 60 Published in 1861, the year Savigny passed on, DasMutterrecht was none other than a call for the study of the mutterländisches Recht incontrast to Savigny’s earlier summons to the vaterländisches Recht that had producedexclusive liberalism. It represented the first major attempt to offer a foundation forthe development of a theory of social democratic constitutionalism and conceptionsof inclusive citizenship and extended participation.While Bachofen’s theory of law offered a powerful support to social-democraticconstitutionalism, both were swimming upstream against the rapid advance ofbürgerliche constitutional transformation in the nineteenth century. This projectdominated the law faculties and legislative practice and as a result, social-democraticconstitutionalism remained underdeveloped. It did not develop the great mass of literatureas then existed in Germanist scholarship and, therefore, was not in a positionto develop a basis for the structural transformations of procedural, criminal or civillaw that would have to accompany any constitution. This underdevelopment wouldprove to be one of the key factors in the failure of the Weimar experiment after theFirst World War.