Making of a German Constitution : a Slow Revolution

Prelude to Modern Germany • 51The most important treatise to appear between 1796 and 1798 was the anonymouslypublished three volumes of Kritik der Deutschen Reichsverfassung (1796–1798). Itwas explicitly national and called for the formation of a ‘republican constitution’ forGermany, with the repertoire of modern rights and liberties. It also argued that theReich had already undergone some process of transformation. ‘Deutschland is not amonarchical state’, the anonymous author wrote, but ‘a representative Pantokratie ofthe individual united German states’. The work also reflected the emerging view thatboth German unification and constitutional reformation could be obtained through‘gesetzliche Verbindung’. 121 For Burgdorf, these years represent a ‘Vorweg’, and heconcludes that the beginning of the ‘liberal democratic constitutional tradition inGermany is not in the constitutional document of 1849’, but rather ‘the state reformdiscussions of the last third of the eighteenth century’. 122Although clearly it was evolved over time, German political thought continuedto be organized around law, and the identification of sovereignty with jurisdictioncontinued to serve as the basis of German conceptions of self-governance. We havealso seen that, while German communities were open to the use of more advancedtechnical elements from external legal sources, such as Roman law, they were extremelyresistant to any introduction of actual legal rules and provisions from foreignsources. Loyalty to popes, bishops, emperors and princes, alike, was conditionedon their respect for local legal customs and practices. This characteristic of Germanpolitical identity also emphasized both the need for all members of society toadhere to the rules of law so long as they had been established on a legitimate basis.In addition, the strength of the dual conception of law as the best means to politicalreformation and repeated emphasis on the preference for the legal resolution of conflictswould distinguish German sociopolitical individualism from other Europeancultures. There was considerable truth in Machiavelli’s observation that Germansobserved ‘their laws in such a manner that no one from within or without couldventure upon an attempt to master them’, as we have seen. 123 This was a lesson thatNapoleon would learn the hard way when he ventured to impose his codes on Germansoil in the early nineteenth century. Nothing, as we will see in the next chapter,did more to foment resistance to French rule and the bitter feelings of Germans for acentury than this fatal mistake. It was also the bitter memory of this legal humiliationthat fed the determined drive to rationalize German law in the nineteenth century andwhich served as the backdrop to Friedrich Karl von Savigny’s theory of politics andlegislation, discussed in the next chapter.Notes1. N. Machiavelli, Discourses, in The Prince and The Discourses, Max Lerner(ed.) (1950), p. 253.2. Machiavelli, Discourses, pp. 253–4.