Making of a German Constitution : a Slow Revolution

62 • The Making of a German Constitutionour scope and consider not only his life and times, but the medley of legal thoughtand its politics that influenced him.Finally, this chapter challenges the received interpretation of Savigny’s place inGerman legal and political historiography, which, despite some revision, continuesto be tainted by notions of German misdevelopment. As discussed in the last chapter,political thought for as far back as the Papal Revolution had been organized aroundjuridical concepts and reflected a dual conception of law, which expressed the ideathat law could also be used as a means to political revision. Savigny’s theory ofpolitics and modern legislation was an expression of traditional German values. Hisinsistence on nonviolent means was drawn from the individual German tradition ofpeaceful political transformation through legal reformatio, which had been passeddown since at least the Reformation. The German tradition emphasized the peacefulresolution of domestic disputes through judicial means. This was a pillar of Germanconstitutionalism in the eighteenth century, as discussed in the last chapter. Inthe aftermath of twenty-two years of violent revolutionary wars, nonviolent politicaltransformation was far more appealing than violent revision. Particular attentionshould be paid to the fact that this was not only the longest conflict since the ThirtyYears War, but the standard of violent political revision also produced revolutionarybloodshed beyond Europe in both the French and Spanish colonies in the Americas.The goal of this chapter, thus, is to reposition Savigny as one the early leading mindsof an individual German tradition of inverted constitutionalism and situate him as anonviolent constitutional transformationist.BiographyIt would be impossible to discern or appreciate Savigny’s constitutionalism withoutfirst understanding his personal history. This biographical information is importantbecause it is the first indicator that he could not have been a reactionary conservative.Savigny was a member of the nobility in name only, and was not ‘an aristocrat[who] brought honor to the teaching of Roman law’ as Whitman suggests. 30 The deSavignys were early Calvinists in the Lorraine region of Catholic France, and Savignywas acutely aware of the persecution that his forebears experienced during thebloody Wars of Religion. 31 The Edict of Nantes (1598) offered only temporary andtenuous security for Huguenots, guaranteeing limited civil liberties to Protestant minorities.These included towns of safety, the right to hold public office, trial in courtsbefore Protestant judges, and liberty of educational and professional pursuits. Withthe coronation of Louis XIV, however, anti-Protestantism again became an officialpolicy in France. The Edict of Nantes was reduced to a scrap of paper and, then,completely revoked by the Edict of Fontainbleu in 1685. It went so far as to ruthlesslyblock off emigration for Protestants wishing to leave France. In 1677 the homeof Savigny’s paternal forebears, who had lived in relative prosperity, was burned