Making of a German Constitution : a Slow Revolution

76 • The Making of a German Constitutionvibration in political bodies, and correspond with their variations.’ 124 Law, in effect,should be peculiarly adapted to the individual polity. This is important also becauseLeibniz, Vico, Hume, Montesquieu, Filangieri and others that subscribed to theseviews, including Schleiermacher and Linguet, appear on Savigny’s Notanda Liste.In the German world, these ideas emerged clearly in the writings of Immanuel Kant(1724–1804), Johann Gottfried Herder (1744–1803) and Justus Möser (1720–1794).The intellectual nail in the coffin for the law of reason was when Kant disproved thephilosophic basis of both the older natural law and the law of reason, by showing thatethical decisions are conditioned by the context in which they must be determined. 125For Herder, ‘people figure as the torchbearers in the divine plan, determining history;he heard the “voice of the people” in poetry which, being tied to language, was theproduct of the people who spoke it’. 126 At the same time, it is important to keep inmind that Kant’s and Herder’s critical views were also an evolution and product ofthe critique of natural law that was already well underway in Europe. Kant’s viewsinvalidated, in particular, ‘the objectionable way in which absolutist legislatorshad treated the traditional law of [European] peoples’. 127 Herder’s views fueledGerman demands for the interest of the peoples’ sovereignty and demand for selfdeterminationafter the tyranny of the French occupation. Henceforth, the justice oflaw would turn not only on the Kantian view that ‘law must respect the moral autonomyand moral will of the individual’, and ‘permit him the maximum of freedomcompatible with the equal freedom of others in society’, as Wieacker suggested, butalso on the notion derived from Herder that the customs of the German people werethe origin of and only legitimate source of law. 128 Law was no longer seen as a productof rational state legislation, but as a ‘branch of culture “quietly” blossoming inthe collective unconscious of the peoples’. 129Savigny was undoubtedly familiar with Kant’s views, but Kant is not on his NotandaListe. This may have been because Kant continued to support the French Revolutionor perhaps Savigny rejected Kant’s pushing of the ‘race’ concept and sided withHerder in this dispute. Herder does appear on the list. However, in Vom Beruf, Savignymentioned only Hugo and Möser, in this regard. ‘Amongst the German jurists’, Savignywrote, ‘Hugo has the great merit of having, in most of his works, systematicallystriven against the prevailing theories.’ 130 He reserved special merit for Möser, whoseexample, he felt, had been regrettably ‘to a great degree neglected by jurists ... sincehe was not of their craft, and has neither delivered lectures nor composed books.’ 131‘High honor’ was ‘due to the memory of Möser, who generally aimed as interpretinghistory in the most comprehensive sense, and often with particular reference to law’. 132Möser’s Osnabrückische Geschichte had imagined the original freedom of Osnabruckpeasants. Influenced by Montesquieu, Möser’s Patriotische Phantasien (1775–1786)implied a preference for the organic development of a constitution in opposition to thearbitrary imposition of law according to the personal rule of a sovereign.While the theoretical shift away from natural law was of significant importance,the consolidation of classical common law theory and its practice in England shaped