Making of a German Constitution : a Slow Revolution

Conclusion • 2611354 granted the husband sole decision-making authority, while §1363 declared that‘by the conclusion of a marriage the property of the wife becomes subject to themanagement and usufruct by the husband.’ Moreover, this system was instituted despitethe fact that existing particularism, combined with the contract rate, indicatedthat the overwhelming majority of German couples, in the regions of French lawwhere it was in effect, rejected this system. The Baden report showed that there weremarital agreements in 48 percent of all marriages, which abandoned outright thestatutory regime of the Civil Code of Baden.The rigid bürgerliche social precepts of the BGB soon gave rise to Gegenpolitik.Here the work of Johann Bachofen proved to be as influential on the development oflegal anthropology as that of Savigny, Eichhorn, Mittermaier, Grimm, Beseler andothers had been on legal history. Das Mutterrecht grew out of Bachofen’s rejectionof the exclusive doctrine of participation, and, as suggested, his work opposed thetheoretical propositions of the Germanists in important ways. Where Grimm and theGermanists argued that the Ausgangspunkt of the Germanic family was characterizedby patriarchy, Bachofen argued that this era had been preceded by an earlierepoch characterized by gynaecocracy. Here, he identified a special moral and socialfunction of women in society, which supported the public participation of women.Bachofen’s work had a significant impact on the development of German socialismand Lewis Henry Morgan’s Ancient Society. Karl Marx and Friedrich Engelsrelied heavily on Morgan and Bachofen in the development of a Marxist position onthe family. From Engels and Marx, Bachofen’s theory of law shaped the ideologicalcharacter of social democracy. Prominent socialist figures, such as Karl Kautsky,Clara Zetkin, Lily Braun and Wilhelm Liebknecht, were well versed on the importanceof Bachofen’s theory. His influence was most apparent, however, in Bebel’s DieFrau und der Sozialismus. Despite the growth of social-democratic constitutionalism,however, this sphere of legal thought was swimming upstream against the BürgerlicheRevolution, which was brought about through major legislations of bürgerlichelaw. The historical school remained firmly entrenched in German legal education forsome time. As a result, even when social democracy came to Germany in the formof the Weimar Republic, this democratic experiment only penetrated the surface ofGerman society. There was no corresponding great body of scholarship to sustain socialdemocracy as there had been for Bürgerliche Revolution and this left the WeimarRepublic teetering on top of bürgerliche laws and judicial institutions. It was, therefore,unable to effect reform in German society beyond the paper of the Constitution,and the pre-war basis of social discontent in German society lingered on to becomeone of the major causes of the second republic’s failure.In addition to the discontent that was reflected at the intellectual level in Germansociety, popular dissatisfaction with the Code’s family law appears to have been significant.Scholars of German history have argued that the rise of alternative culturesintensified during the period of bourgeois cultural consolidation. 37 The BGBetched in stone the supremacy of majority rule and the interest of capital in society,