Making of a German Constitution : a Slow Revolution

Toward a German Nation • 71which answered his purpose and prevented a return of the ancient constitution.’ 87The Code civil, framed in conditions wholly unfavorable to legislation, was, thus,the spoiled fruit of corruption, and ‘in all reality, inclined to the recently developeddespotism’. 88Even where French civil law saw some open reception, it was largely in the southernstates, who were gorging on the once autonomous remnants of the Empire andwho needed it to consolidate their own authority, even if of a satellite order. 89 Theremay have been a few supporters, but for the most part, it did not offer, as Wieackeronce suggested, a ‘satisfying legacy of Napoleon’s rule on German territory’. 90 Thecontinuing effect in Alsace-Lorraine of what was forever not only viewed as a symbolof French rule but high legal and constitutional despotism inspired liberal resentmentuntil the enactment of the BGB in 1896. Indeed, copies of the Code civilwere set ablaze at the Wartburgfest in 1817, an act which probably replicated theWittenberg bonfire where Luther, Melanchthon and others burned the books of classicalcanon law.The war against French despotism was over in 1815, but rooting out home-growntyranny would also have to be dealt with. Many of modern Germany’s most influentiallegal scholars were decorated veterans of the Freiheitskriege. Savigny, KarlFriedrich Eichhorn (1781–1854) and Karl Joseph Anton Mittermaier (1787–1867)all held the Iron Cross for their wartime service. These oracles of law and othersemerged from the war determined no longer to live under laws that were not derivedfrom the people’s customs and norms. For this reason, not only French law, butRoman law and the other natural law codes which had been introduced in GermanspeakingEurope became unacceptable as sources for rules of law. Codes were increasinglyseen as forms of imposed law, because the lawmaking process occurredwithout the participation of the people. Of the codes that were sources of legal rulesin the German states, all had been produced by personal-rule bureaucracies and commissions.This was true, not only of les cinq codes, but also of Prussia’s AllgemeinesLandrecht (1794) and Austria’s Allgemeines Bürgerliches Gesetzbuch (1811) not tomention Justinian’s extant corpus iuris civilis. Regardless of how enlightened someof these codes may have been, they were unacceptable to liberals because princelycodification denied the people their right to participation in governance throughelected representatives, and the conception of participation, at bottom, involved exactlylaw-making. The experience of the occupation and the imposition of les cinqcodes sharpened this sentiment. As a result, legal argumentation against laws thatwere not derived from German traditions was battle-hardened during the conflictwith France, and it emerged from the Freiheitkriege as one of the key weapons inthe liberal political arsenal.While Savigny closed his Vom Beruf with a passage from Melanchthon, he, infact, disagreed with him on the question of the reception of the corpus iuris civilisas a source of legal rules in German-speaking Europe. In the face of the Peasants’Revolt, Melanchthon developed an humanist justification for Roman law as the law