Making of a German Constitution : a Slow Revolution

254 • The Making of a German ConstitutionGerman identification of sovereignty with jurisdiction formed a vital prelude to modernGerman constitutional theory as it began to emerge in the wake of the Frenchrevolutionary wars.The strength of the traditions of local jurisdiction and self-governance, whichfound their clearest representation in discourses on law, meant that legalism as atraditional mode of civic consciousness was bound to be a distinguishing characteristicof what Margaret Anderson identifies as practicing democracy. 9 In additionto what has been shown in this study, demands for local jurisdiction were the alterego of demands for popular sovereignty, and these demands served as the basis forresistance to the imposition of French law on German soil and Prussianization alike.When Württemberg’s constitutional arrangements (including the Tübinger Vertrag)were abrogated during the Napoleonic rule in 1806, a Waiblingen petition demandedthe restoration of ‘Württembergers’ Magna Charta’, and under the leadership ofHeinrich Bolley, the continuing struggle between prince and people resulted in theformation of an Altrechtlicher party of popular resistance. 10 This not only showedan identification of sovereignty with jurisdiction, it also expressed a popular notionof a basic inviolate law and customary law constitutionalism. 11 Later, Reyscher’sVollständige, historisch und kritisch bearbeitete Sammlung der württembergischenGesetze (1828) would keep knowledge of the Württemberg constitution alive in liberalcircles. 12 ‘First and foremost,’ patriotic Hamburgers and members of the resistanceto the French occupation, as Katherine Aaslestad writes, ‘sought to recover the city’srepublican constitution, independence, and autonomy.’ 13 In the aftermath of unification,Hamburgers rejected Prussianization and increasingly saw its self-governingconstitution as a model for the Reich. ‘Hamburg, Lübeck and Bremen,’ as a popularchildren’s song went, ‘do not have to be ashamed, because they are free cities whereBismarck has no say.’ 14 Recent scholarship has also shown that the demand for localself-governance formed the basis for political mobilization, sometimes violent mobilization,in the Vormärz Prussian Rhineland. 15Accordingly, when Savigny repudiated Thibaut’s call for immediate philosophicalcodification, he did so with the full knowledge that the imposition of French lawwas one of the major impulses behind resistance to Napoleonic rule in Hamburg, resistancethat gave way to the Freiheitskriege themselves. In no way should Savigny’sresponse be seen as a reaction against a purported revolutionary element in Thibaut’streatise. His concern was that a hasty imposition of codified law might incite stillmore violence in the aftermath of nearly a quarter century of warfare on German soil,and there was also the concern not to offer legal support to the reactionary consolidationof power emerging at the Congress of Vienna. While interest in the technique ofRoman law continued to be a source of learning, the study of Roman law itself, moreand more, confirmed the view that the rules of Roman law belonged to the peopleof a bygone Roman epoch. Indeed, even the articles on Roman law that appeared inthe Zeitschrift für geschichtliche Rechtswissenschaft were marked by interest in theconstitutionalism of the Roman Republic rather the practice of the ius commune.