One can locate this book on the intellectual map by placing it opposite to Leonard Krieger’s The German Idea of Freedom (1957). Krieger maintained that the old authoritarian order survived the upheavals of the French Revolution and was the framework for German history down to 1918: “the monarchical state was the central core of public life, the agency of freedom as well as of order” (p. 80). Krieger’s picture of top-down government resting on the obedience of passive subjects (Untertanen) may seem to be corroborated by many writers. Heinrich Heine, for example, disparaged the myth of the 1813 War of Liberation by saying that the German princes ordered their subjects to rise in defense of their freedom against Napoleon, and the population obediently did so. But such arguments often mistake polemics such as Heine’s for social analyses. Krieger’s thesis was closely linked with the concept of the Sonderweg, Germany’s fateful path which supposedly diverged from a standard Western European route toward democracy. This now looks like a concerted attempt at “othering” Germany. The Sonderweg has never recovered from the damage inflicted on it by David Blackbourn and Geoff Eley in The Peculiarities of German History (1984).
The many historians who have sought a more accurate understanding of German political history are now joined by Colin F. Wilder. His study deals with a particular, highly complex aspect of freedom: the liberty to own, acquire, transfer, and dispose of property. In the late seventeenth and early eighteenth centuries, he argues, the much-used term “German freedom” meant in practice control over one’s property. Personal freedom developed “within the legal institutions governing private property rights” (p. 8). It was not always described as freedom by contemporaries, nor always theorized by academic jurists, but it developed in practice through innumerable legal contests resolved by judicial decisions, often with the help of legal opinions from universities. Hence, Wilder is interested, first and foremost, in what he calls “legal operators,” including private lawyers, lawyers acting for the prince and the state, university law professors, court justices, and chancellors and other administrators.
The materials Wilder draws on are the published (and sometimes unpublished) judgments of academic and nonacademic jurists on a large body of specific cases, written mostly in Latin. He tells us that he has examined several hundred of these and selected about a dozen for detailed scrutiny. His geographical focus is Hessen and adjacent parts of the Rhineland, including the cities of Frankfurt am Main, Giessen, Kassel, and Marbach (which had a distinguished law faculty). His style is lucid and his exposition is easy to follow even for a nonlawyer. His study is further enlivened by many well-chosen and well-reproduced illustrations, including maps, contemporary portraits of figures discussed, and title pages of important juridical works.
While this book is addressed primarily to legal historians, its implications are of much wider interest. This point applies especially to the chapter in which Wilder analyses the concept of “German freedom” (teutsche Freyheit) which came into vogue during the Thirty Years’ War. Its components included the liberty ascribed to the ancient Germans in Tacitus’s Germania and the conception of the Empire as a federation which guaranteed the freedom of its constituent parts. The concept came to comprise property rights, religious toleration, and the right to appeal against unjust decisions by magistrates. To show how long it remained current, Wilder quotes at length a passage from Eckermann’s Conversations in which Goethe describes the value to Germany of having many princely residences instead of one all-dominating capital like France (conversation dated 23 October 1828). Such freedom may have been primarily an ideal rather than a reality. Territorial magnates constantly sought to reduce the autonomy of small local bodies, creating conflicts of which Goethe, himself a trained lawyer, gives a partisan portrayal in his first play, Götz von Berlichingen (1773), whose hero’s dying word is “Freedom!”.
Wilder relates legal developments to the economic expansion that followed the Thirty Years’ War. Increased agricultural production generated surpluses which enabled princes to maintain ostentatious courts, build new fortifications, and support standing armies. Cameralists, trained in the new science of administration, sought to extend the tax base, encourage economic growth, and strengthen property rights. Princess' revenue relied on innumerable commercial transactions which in turn depended on new financial instruments such as paper money and bills of exchange, whereby property in liquid form could be transported securely across great distances. Eighteenth-century Germany, far from being “other,” had much in common with the supposedly more advanced economies of France and Britain. A piece of evidence which Wilder highlights is that Adam Smith’s Wealth of Nations appeared in German translation in the very year (1776) of its initial publication, suggesting that “liberal economic ideas” were rapidly becoming popular in Germany (p. 227). In support of Wilder’s thesis, one could point to Wilhelm von Humboldt’s Ideen zu einem Versuch, die Grenzen der Wirksamkeit des Staates zu bestimmen (1792), a breath-takingly libertarian sketch of what was later called the “nightwatchman state,” which presupposes a large body of similar (if perhaps less radical) thought.
Wilder outlines the enormously complicated structure of legal institutions under the Empire, with, at the apex, not one but two supreme courts, the Reichshofgericht and the Reichskammergericht. It was at the latter, located in Wetzlar, that Goethe was employed in 1772–73. Appeals to higher courts were frequent and generated large amounts of legal business. Substantial, granular chapters deal in turn with rights over landed property, including the right to rent or sell it; with nonpayment of taxes, defended sometimes by claims to specific exemptions (“immunities”) which the courts might or might not uphold; and with the increased flexibility of commercial transactions made possible by the use of paper money.
While Wilder belongs in a powerful current of revisionist historiography, his aim is to make a distinctive contribution, not only by showing that individual civil liberties did exist in early modern Germany, but also by substantiating this claim through minute examination of contemporary juridical discussions. His focus is not on abstract political theory, nor on formal legislation, but on the intricate arguments prompted by legal conflicts which led to new interpretations of laws. In this gradual and incremental process, the consent of the governed was essential: a model centering on domination and servitude would be inapplicable. Extending his horizons in the concluding pages, he draws a comparison with Edmund Burke’s contention in Reflections on the Revolution in France (1790) that important liberties developed, not through deliberate legislation, but incrementally through custom, and refers briefly to similar views held by prominent thinkers of the Scottish Enlightenment.
The arguments in this book will no doubt be debated and refined. One might wonder whether Wilder’s frequent use of the word “liberal” runs the risk of anachronism. And future researchers will need to investigate whether the account given here of legal debates in Hessen and the Rhineland can be extended without qualification to other parts of Germany, for example, Prussia and Saxony. For the present, however, this is a valuable and informative study that deserves attention from all academics concerned with the German Enlightenment.
