The Making of a German Constitution: A Slow Revolution »

Margaret Barber Crosby is Associate Professor of Modern European History, Department of History, Howard University.

The Making of a German Constitution is one of the first books to explore the important place of the theory and practice of private law (civil law) in the transformation of Modern Germany's fin-de-siècle constitutional arrangements.

Reading sources from early nineteenth-century private law scholarship, the book offers a thought-provoking and novel understanding of German political development. The author argues that the German idea of sovereignty grew out of a dual conception of law not only as the product of socio-political transformation, but also as a means to it.

In the short term, a modern social and political system in Germany was attained through non-violent means and the domestic authority of the Kaiser was severely limited by law. However, the exclusive bourgeois socio-political arrangements that were installed in this era led to considerable discontent in German society, particularly with regard to gender and class tensions. The “slow Bürgerliche Revolution” thus contributed to the traumatic ruptures that mark German history in the first third of the twentieth century.

Preface

Introduction: Transforming the Reich: Toward a New Political History of Modern Germany 1

Historiographical Background 6

Sources and Structure of the Book 14

1 Prelude to Modern Germany: Iurisdictio and the German Idea of Sovereignty 27

Conflict of the Laws 29

Romanization of Local Iurisdictio and the Idea of Sovereignty 36

Classical Humanism and Evangelical Jurisprudence 38

Hermann Conring and Early Modern Legal Radicalism 44

Prelude to Modern Constitutional Transformation 47

2 Toward a German Nation: Friedrich Karl von Savigny and the Growth of Legal Politics 57

Historiography on Savigny 59

Biography 62

War in the Rhineland 66

The Glory of the Emperor? 68

Refining the Old Common Law of Europe 75

The Thibaut-Savigny Controversy Revisited 79

Politics and Modern Legislation 82

3 Images of the Gemeinwesen: The Germanists and the Growth of Customary Law Constitutionalism 99

The Politics of Roman Legal History 100

The Germanists and the Vaterlandisches Recht 106

Legal Antiquarianism and Images of the Gemeinwesen 110

The Age of Recovery 120

4 Undermining Absolutism: The Path of Legalism and Constituting the Nation 1846-1879 131

The Germanisten Conferences 133

Procedural Reform 137

The New Periodicals 144

Commercial Law 147

The Civil Code of Saxony 150

Impact of Unification on Constitutional Transformation 154

5 A Century of Promise: Eheliches Guterrecht, Women's Wealth and Independence in Nineteenth-Century Germany 167

Legal Particularism 168

Marital Property Relations 170

Women's Wealth and Local Courts 179

Women's Economic and Professional Expectations 183

6 Last Bastion: TheBurgerliches Gesetzbuch and the Transformation of German Society 189

The Father of the Code 190

The Lay of the Imperial Land 194

Legislating the Gemeinwesen 201

Articles of Introduction 211

7 Discontent in the Burgerliche Society 1900-1933: Exclusion and Popular Resentment 219

The Politics of Matriarchy 221

Mutterrecht and the Foundations of Social Democratic Constitutionalism 227

Mutterrecht and Motherhood 230

Discontent in the Republics: A Continuity in German History 233

8 Conclusion: The German Idea of Revolution: Some Final Thoughts 251

Bibliography 267

Index 289