Making of a German Constitution : a Slow Revolution

Toward a German Nation • 61Savigny’s political views. 21 According to Hans Wrobel, Savigny’s ideals were the‘legal expression of those feudal forces working for the preservation and restorationof the old system’. 22The 1980s saw some thawing of this sharply negative interpretation of Savignyand the historical school of law. The legal historian, Joachim Rückert, brought Savigny’sties to German romanticism into focus, and, the historian James Whitmansuggested that his scholarship marked a revival of Melanchthonian humanism. 23 MichaelJohn acknowledged the closeness of Savigny’s views to those of the reformingminister, Freiherr vom Stein, and suggested that he could not be ‘termed a reactionary’however much ‘his ideas may have been partially appropriated by reactionaryinterest’. 24 Yet, John still placed Savigny in the camp with those who, like Stein andKarl August von Hardenberg, sought bureaucratic revolution from above. Thus, despitethe thaw, it continues to be argued that Prussian officials ‘were increasingly influencedby the conservative ideas of Savigny’s historical school of law in the decadeafter 1807’. 25 Even David Blackbourn suggested that aristocratic hostility to reformreceived support ‘from a growing body of conservative intellectuals like FriedrichJulius Stahl and Friedrich Karl von Savigny’. 26 Most recently, Roger Berkowitz hascharged Savigny with having separated law from justice, which led unintentionallyto the ‘amoral social-scientific positivism of the BGB’. 27 Accordingly, he concludesthat ‘it was no accident that while the Nazi jurists of the 1930s criticized the BGBfor its abstraction and value neutrality, they nevertheless found the Code malleableto their own purposes’. 28In reality, the historical school was bound up with bourgeois interests from itsinception, as Kantorowicz charged. Savigny’s influence on the direction of Germanlegal and constitutional development cannot be emphasized enough, and Kantorowicz’spreoccupation with destroying his legacy offers a clear indication of this. At thesame time, because Savigny’s legacy was politicized and shredded during the hyperpoliticalconflicts following the First World War, in particular, his place in Germanhistory requires significant reconsideration. As a result, this chapter is the longest ofthe book and makes an effort to condense Savigny’s politics and his influence into achapter setting.It is suggested here that Savigny borrowed from the larger European constitutionaltradition and contributed to its progress. From the publication of his Politikund neuere Legislationen, which forms the material sources for Vom Beruf, we areoffered a sense of breadth of thinking that influenced the growth of his own theoryof politics and modern legislation. Some forty names appear on his Notanda Liste:‘Christian [Brentano], Thibaut, Rehberg, Machiavelli, Ernst, Filangieri, Montesquieu,Leibniz, Jacobi, Lessing, Möser, Hugo, Hobbes, Herder, Sismondi, Müller,Klein, Wendt, Blackstone, Gazert, Schlosser, Hagemeister, Haller, Bacon, Aristotle(Schlosser), Leonhardi, Vico, Friedrich Schlegel, Linguet, Hume, Home, A. Smith,Garve, Cicero, Schleiermacher, Goethe, Hofakker, Burke and Meuer’. 29 As we reevaluateSavigny’s place in German political history here, it will be useful to broaden