Making of a German Constitution : a Slow Revolution

78 • The Making of a German Constitutionrunneth not to the contrary.’ 141 In effect, recognition through use by the people iswhat gave law its validity: ‘This it is that gives it its weight and authority.’ 142 ‘Goodness’referred not only to the ‘validity, the legality, the authoritative status, of therule of custom’, but also to the ‘wisdom, justice, or reasonableness of the custom’. 143Three notions—authority/validity, reasonableness, and historical appropriateness areintimately linked, and the continued practice both manifests and reinforces the reasonablenessand historical appropriateness of the rules and concepts of common law.Law exists and is only known through practice and ‘a rule becomes law or a decisionmarks a new departure in the law only if it is taken up into the practice of the community’.144 It is only the public demonstration of the suitability of the rules over timethat qualifies them for status as law. ‘Our constitution’, Burke confirmed in 1782, ‘isa prescriptive constitution ... whose sole authority is, that it has existed time out ofmind,’ and ‘prescription’, he urged ‘is the most solid of all titles, not only to property,but, which is to secure that property, to government.’ 145In the aftermath of the French catastrophe that left no hovel untouched fromthe bloody streets of Paris to burning Moscow, the appeal to classical common lawtheory reacted against the philosophical approach to lawmaking, which was increasinglyseen as the French example. In opposition to this, classical common law theoryoffered an historical approach. There was no louder critic of the French attempt atliberty than Burke, and he located French failure, exactly, in their reliance on philosophicalabstractions. ‘By following those false lights’, he wrote scathingly, ‘Francehas bought undisguised calamities at a higher price than any nation has purchased themost unequivocal blessings’, bought ‘poverty by crime’, and ‘abandoned her interest,that she might prostitute her virtue’. 146Central to Burke’s argument in Reflections on the French Revolution (1790) wasan appeal to classical common law as a superior source of political transformation.‘The (English) Revolution’, as he wrote, ‘was made to preserve our ancient, indisputablelaws and liberties, and that ancient constitution of government which is ouronly security for law and liberty.’ 147 ‘You will observe’, he suggested ‘that fromthe Magna Charta to the Declaration of Right, it has been the uniform policy of ourconstitution to claim and assert our liberties, as an entailed inheritance derived to usfrom our forefathers, and to be transmitted to our posterity, as an estate specially belongingto the people of this kingdom, without reference whatever to any other moregeneral or prior right.’ 148 It was the guiding purpose of the great oracles of law fromCoke to Blackstone ‘to prove the pedigree of our liberties’. 149 The English constitution,he suggested, was only one national expression of what could be derived fromwhat he viewed as a general European common law tradition, and his core criticismof the French was that they had failed to follow this sure course. Instead of representingthe French as a bunch of recently freed ‘Maroon slaves’:Had you made it understood ... that you were resolved to resume your ancient privileges,whilst you preserved the spirit of your ancient and your recent loyalty and honor; or if,