Making of a German Constitution : a Slow Revolution

82 • The Making of a German Constitutionthe first major attempt to do so since Leibniz. The System emphasized the idealsof rational law (Vernunftsrecht), and, here, Recht was both preceded and bound byobligation (Verbindlichkeit). Recht, accordingly, exists as coercive right (Zwangsrecht).170 Thibaut tried to rescue the law of reason and the eighteenth-century approachto enlightened lawmaking, an effort that was doomed by events.Within a few years after the publication of the System, the philosophical approachto lawmaking, which was already in decline following Kant and Herder, wascompletely discredited, in Central Europe, by the experience of the revolutionarywars. More than any other factor, the French legal imposition of les cinq codes contributedto the sharp decline of enlightened lawmaking or, in effect, philosophicalcodification. Its ill repute in the German states was sealed, because since Napoleonwas able to employ it for his despotic political ends, it could not be seen as a reliablesource of legal security. The imposition of the Code civil had undermined thebasis of German private rights, in large measure, by destroying German sovereigntyitself. The French legal imposition left no German untouched and was deeply resentedby ordinary Germans and intellectuals alike. As Isabel Hull has shown forBaden, a major source of discontent had to do with the way the code’s family lawscontradicted its basic principles by energetically installing heinous discriminationagainst women and young persons. 171 Thibaut’s call for the speedy introduction ofa philosophical law code, after the considerable legal upheaval that was the mostsalient feature of the French occupation and just as Germans were, finally, riddingthemselves of Napoleon, legal imposition and all, probably failed because it was outof tune with the mood in Central Europe.Politics and Modern LegislationIn the aftermath of the French occupation, the sociopolitical challenges faced byGerman liberals were far more complicated than the task of doing away with unreformedabsolutism had been for French revolutionaries. On the one hand, reformersfaced the challenge not of undermining age-old absolutism, but of justifying therevision of the legal systems that sustained personal rule on a new and, purportedly,enlightened basis. On the other, the fact that ordinary Germans were in no mood forany more mucking up of their treasured local autonomy and municipal laws wasalso a formidable obstacle. The French legal disruption was resented across CentralEurope, in Baden, Hamburg and the other Hansa cities and in Württemberg as well.When Hamburg’s constitution was restored, the Senate rejected even limited reformsand remained highly suspicious of even moderate reformers. 172 In 1813, when Hanseaticenvoys met in Frankfurt, they were also wary of ‘Prussian attempts to expandin a “French manner” across northern Germany’. 173 Indeed, as James Brophy shows,the imposition of its enlightened law on communities in the Rhineland was one of themany factors that led to violent revolts. 174