Making of a German Constitution : a Slow Revolution

Toward a German Nation • 83Writing in 1814, Savigny, in fact, agreed with Thibaut’s political ends as he statedin his closing to Vom Beruf. ‘We desire a sound system of law, secure against theencroachments of caprice and dishonesty, as also, the unity of the nation, and theconcentration of its scientific efforts upon the same object,’ but Savigny believedthat a code ‘would only produce the desired unity for one half of Germany, andseparate the rest by a line of demarcation, more strongly marked than before’. ‘I seethe proper means’, he wrote, ‘in an organically progressive jurisprudence, whichmay be common to the whole nation.’ 175 He also had a greater appreciation for theattachment of the German people to their local laws. Whereas Thibaut was the sonof a Hanover military officer, Savigny had grown up in the presence of judicial officialsand lawyers. For this reason, he may have had an instinctive understanding thatpolitical revision, which was fundamentally a question of jurisdiction, was a highlyvolatile matter in the German lands, particularly since the memory of the Frenchlegal imposition was still fresh. Savigny recognized the need for political revisionand worked actively in the Stein-Hardenberg reform circle prior to the liberation.After the war, however, he also had the prudence to recognize the very real potentialfor disaster if reformers pushed too hard, particularly in the northern German regionswhere people were very bitter about the French abrogation of their local autonomy.For anyone hoping to achieve unification and political revision, the Freiheitskriege,which may, in part, be seen as a response to the French legal imposition, offered apowerful lesson and warning. Savigny understood that ordinary Germans might wellhave revolted if anyone had tried to impose, of all things, a new code just as theywere getting rid of the French ones.With an eye toward these considerations and perhaps more wisely than historianshave considered, Savigny recognized the need to find an alternative course forpolitical revision. It was in this environment that he began to develop an idea ofconstitutional transformation, grounded in the traditional German identification ofsovereignty with jurisdiction. By the early years of the nineteenth century when hewrote, he could also draw on classical common law theory, which had been consolidatedon a scientific basis by Blackstone and which also confirmed the efficacy ofbuilding a German system from German customs. His theory of politics and modernlegislation reflected exactly the belief that a German constitution must be fashionedfrom the ancient principles and models of the old common law of Europe, as Burkecalled it. Only this would offer the desired security for German liberties and, moreimportantly, it was the only way Germans would accept and use any national legislation.History rather than philosophy emerged as the critical social science, and themajor work of the historical school involved proving the pedigree of prescriptiveGerman liberties so that they could be rationalized into a system capable of meetingthe needs of an envisioned German nation. In the process, a northern German customarylaw constitutionalism was created, which was distinct from southern writtenconstitutionalism and ultimately had the greatest impact on the course of Germanconstitutional development.