Making of a German Constitution : a Slow Revolution

Toward a German Nation • 79diffident of yourselves, and not clearly discerning the almost obliterated constitutionof your ancestors, you had looked to your neighbor in this land, who has kept alive theancient principles and models of the old common law of Europe meliorated and adaptedto its present state by following wise examples, you would have given new examples ofwisdom to the world. 150The Thibaut-Savigny Controversy RevisitedThe mood in the German legal world was jubilant when victory seemed final in 1814.News of German troops marching towards Paris inspired the University of Heidelbergprofessor, Anton Thibaut, to publish his Über die Notwendigkeit eines allgemeinenbürgerlichen Rechts für Deutschland, in June of 1814, calling for a common civil codefor the German lands. ‘Deutschland’, he opened his famous treatise, ‘has restored itshonor through the liberation of its ground and won for itself the hope for a happyfuture.’ 151 ‘I am of the opinion’, he urged, ‘that our civil law (under which falls privatelaw, criminal law and procedure) needs a complete and rapid alteration.’ 152 Savigny wasalso jubilant. He wrote to Leonard Creuzer in February of 1814: ‘I am so lucky that Ilive in this great time and to have been amongst the people who started Germany’s newrising—a time that one can look back on only with admiration.’ 153 However, Savigny’sVom Beruf raised the critical objections to Thibaut’s call for the immediate introductionof a German-wide code, calling instead for a period of progressive jurisprudence.At this juncture, it is important to recall how the constitutional debate of 1814was interpreted in post-Second World War legal historiography. Following Kantorowicz,an argument was put together, which repeatedly cited Savigny’s objectionto Thibaut’s programme as evidence of his reactionary-conservatism. According toWieacker, Thibaut’s treatise was ‘the declaration of an alert and liberal citizen’. 154Hattenhauer charged Savigny with being ‘little more than a political dilettante or atotally apolitical mind’. 155 In the meantime, Wrobel celebrated Thibaut’s views asthe ‘legal expression of the progressive ideals of the bourgeoisie’, while censuringSavigny’s ideals as the ‘legal expression of those forces working for the preservationand restoration of the old system’. 156 However, we should return to Wieacker,because his prose on the controversy was almost poetic:The duel between Savigny and Thibaut was fundamentally one of personal attitudes:aristocratic culture versus the politics of democracy; European tradition against nascentnational feeling; scholarship on the one hand and active practice on the other. One cancompare the positions of Goethe and the young Schiller as regards the French Revolutionand the modern nation: on the one hand the observer concerned with stability, on theother the revolutionary moralist; here the pupil of Plotinus and Spinoza, there the followerof Rousseau and Kant. Like Goethe, Savigny was rooted in the Europe of the eighteenthcentury, and the great movements since 1789 made them feel the earth trembling