Making of a German Constitution : a Slow Revolution

Conclusion • 253revolution affected slowly, which advances by sensible steps, and takes up ages toreach its termination. It is not, therefore, instantaneous in its nature ... the process ofa revolution in a legislative system is slow, and consequently there is opportunity forits reformation.’ 8 Filangieri’s theory of legislative revolution and Jellinek’s constitutionaltransformation represent two sides of the same coin, and, by linking the twotogether through Savigny’s theory of politics and modern legislation, we are able todetect the German idea of revolution and follow its path.In intellectual historical perspective, the fathers of the idea of making nonviolentBürgerliche Revolution in Germany drew on and rationalized specifically age-old,German political traditions and modes of resistance. Accordingly, in the first instance,delineating the German idea of revolution has involved making the uniquelyGerman conception of sovereignty and its identification with local iurisdictio visible.The conception of sovereignty, as it developed in German-speaking Europe, centredon the power to make and effect law, a rechtliche Weltanschauung and consciousnessthat had its roots not in ideas, but in the practices of the many German city-statesand autonomous regions. The practice of local jurisdiction was not organized ona theoretical basis until it was challenged by the competing suzerain ambitions ofpopes and princes alike during the period of urbanization and Verdorfung betweenthe twelfth and thirteenth century. Local communities faced the need to fend-offthe legal effects of both classical canon law, which was used to effect the PapalRevolution, and the Reception of Roman law, which princes claimed as a basis ofsecular authority. In the midst of this, the development of urban law and inter-cityRechtskreise, particularly amongst the Hansa cities, emerged from local practice andin opposition to would-be authority imposed from outside. It was the Bologneseglossator Azo who offered the first rationalization of local iurisdictio. His viewsshaped the conception of sovereignty that was handed down through Bartolus to keypolitical thinkers in the German world, including Conrad Celtis. Indeed, even beforethe Reformation, the use of the technical element of Roman law to gradually effect arationalization, systematization, professionalization and scientization of German lawwas well underway. The aim of municipal reformatio was to nullify the influence ofclassical canon law, and this was not only a harbinger of the Reformation to come,but shows that legal conflict was at the heart of the Reformation.Continuing identification of jurisdiction as the basis of sovereignty was againa significant factor in the development of Herman Conring’s civic consciousnessand principles of right to self-governance. His Discursus novus (1642) exploded themyth of Roman imperium in German-speaking Europe and with it the legitimacyof Roman law. Here again, it was a matter of time before, by the second half of theeighteenth century, the proto-rationalization of the German law served as a basisfor resistance to would-be absolutism in Württemberg and elsewhere. The strengthof self-governing practice was evident in Johann Jakob Moser’s publication of hisCommunal Ordinance (1758), which was a handbook on self-governance, accordingto the local constitutional arrangements and laws. This traditional and continuing