Making of a German Constitution : a Slow Revolution

Toward a German Nation • 73earlier era of humanism and his own scientific time, while emphasizing the demandfor academic liberty. 101 In his later ‘Wesen und Werth der deutschen Universitäten’(1832), Savigny wrote that he stood in ‘innere Verbindung’ with Schleiermacher’searlier views. 102 Roman law’s continuing value was in the science of Roman juristsand the history of its development rather than as a source of legal rules. ‘As to thevalue of the substance of the Roman law’, Savigny wrote, ‘there may be many differentopinions, but as to its superiority in juridical method, all are undoubtedlyunanimous who have a voice in the matter.’ 103 The search and recovery of Romanlaw specifically focused on how the constitution was transformed over time and howJustinian’s codification represented its decline. It was this that provided the powerfulhistorical example of the duality of law in the working progress of the state of Romeand as the pillar of a stable and secure representative polity.Legal codification in Prussia was associated with enlightened absolutism and wasalso seen, by liberals, as the legal glory of personal rule. Work on the AllgemeinesLandrecht für die Preußischen Staaten of 1794 (ALR) was precipitated by the needto integrate and consolidate authority over Friederich II’s territorial acquisitions. Itwas envisioned as a replacement for the outdated Roman law system, which hadbeen received in 1495 to serve the interests of emperors and princes. Despite this,the Prussian crown, first encountered resistance to the Allgemeines Gesetzbuch (theoriginal name of the ALR) from the Junker elite, already made edgy by the FrenchRevolution of 1789. The Brandenburg noblemen, Ludwig von der Marwitz, called ita Gleichheitskodex, while Carl August Struensee feared that it represented ‘revolutionfrom above’. 104 Led by Leopold von Danckelmann of Silesia, many objected toexpressions of Recht in the Allgemeines Gesetzbuch, arguing that it should conveyonly Gesetze limited to ‘short expressions of command, prohibition or determinationof the consequences’. 105 As Berkowitz writes, this amounted to ‘an expression of apositivism of nobility in its truest form’, which asserted that Gesetze ‘once positedby a nobleman ... require no justification’. 106While the original, planned introduction of the Allgemeines Gesetzbuch was suspendedwhen the French Assembly issued the declaration of war against Austria in1792, it was later introduced as the ALR in 1794. Despite any expressions of legalsecurity for ordinary Germans, in reality the liberal provisions were removed inthe final version. It confirmed the Standesstaat on a new basis, as Günter Birtschconfirms, proclaiming that the ‘rights of man arise from his birth, from his estate,and from actions and arrangements with which the laws have associated a certaindeterminate effect’. 107 It banned individuals from engaging in certain professionson the basis of birth. 108 Although inspired by enlightened natural law, the ALR wasshaped by backward-looking values of ‘unconditional loyalty’ to an absolute monarchy,a view of law based on social orders and paternalistic thinking. 109 This alsounderscores the unique challenges that German liberals faced. Whereas in France anold regime was still in place, in Central Europe personal rule had been resanctionedand placed on a modernized legal footing. German liberals had to develop effective