Making of a German Constitution : a Slow Revolution

256 • The Making of a German ConstitutionHere, he has emphasized the recovery of the Nibelungenlied and the importance ofthe Grimm brothers’ fairy tales. 18 Germanist scholarship embodied nothing less thana modern process of rationalization, systematization, professionalization and scientizationof German customs as a basis for German rules of laws, none other thanthe political element. At the same time, there was a strong creative, almost künstlichdimension in the development of envisioning a German Gemeinwesen. The mobilizationand drive for constitutional transformation was sustained at the popular levelby German fairy tales, which Grimm believed contained the remnants of ancientGerman law and customs from the free epoch. This critical detail leaves one withan understanding that the moral of the Grimm’s brothers’ stories impressed liberalsociopolitical and constitutional values in the popular mind.Nowhere is the link between constitutionalism and art made clearer than in theconsideration of the formidable influence of Jacob Grimm on the development ofPrivatrechts-Staatslehre, namely the growth of legal antiquarianism. He also emphasizedthe primacy of the people as the source of law, but called for greater considerationof the sinnliche element. In poetry, language, and fairy tales, Grimm claimedto find remnants of private law, from the so-called ancient German free epoch. Heargued that a Lebendigkeit, or organic relationship, existed between contemporaryfolklore and ancient German law, and, as I have argued, this marked the growth of aGerman common law constitutionalism. His Rechtsalterthümer proved to be one ofthe most influential texts in German legal development and offered a glimpse of theimagined Gemeinwesen. While he clearly outlined the structure of a German publicspace in a free society, his descriptions of social relations defined the parameters ofthat public space in such a way that it depended on dichotomous formations, whichmade inclusion and exclusion interdependent.The organization of the family—and particularly gender relations—was a centralfeature in the Germanists’ writings. Gender relations became the central metaphorfor power relations in public society, and here the capacity for the independent ownershipand distribution of property was a principal concern. A significant portion ofRechtsalterthümer was concerned with private relationships, yet these relationshipswere politically significant. This pattern of political development continued to beevident in the writings of important liberal legal scholars, such as Karl Mittermaier,A. L. Reyscher, Friedrich Dahlmann, and Georg Beseler, and it reemerged in theplatforms of the Germanisten conferences that were held in 1846 and 1847. Constitutionaltransformation, for these reasons, was as concerned about the social questionas it was about political transformation. As a result, social transformations, suchas the reorganization of family relations, also emerged as an important measure ofrevolution; installing the bürgerliche family as the basis of society was a part of therevolutionary strategy from the outset.By the late 1840s constitutional transformation had emerged as a programaticstrategy for political revision. Georg Gervinus wrote to Friedrich Dahlmann in 1847that it would be their place ‘to achieve the advantages of political revision without