The order and the Volk. Romantic roots and enduring fascination of the German constitutional history

Abstract

For the German legal historians of the 19 th Century, Germany existed as a nation well before the establishment of a unitarian State. Based of shared values and a common spirit, this nation was described as having a constitution (German Verfassung) not enacted by any constitutional power but based on the concrete order of the German communities. After 1920, German social historians took up the torch of this vision of institutional history from the hands of legal historians. Being the most important representative of the German constitutional historiography during the Nazi time, Otto Brunner published a series of essays that largely spread this identitarian view of national laws also outside the borders of Germany. They presented the medieval law as an immanent “order” rather than as a set of State norms. Despite being clearly driven by political and cultural debates of the 19 th-20 th Century Germany, the key concepts of this historiographical stream (called Vefassungsgeschichte) are still used by French and Italian legal historical research. CONTENT. 1. History and Law after the First World War – 2. Verfassung and History – 3. Verfassungsgeschichte as the history of an “order” – 4. Otto Brunner: From German Law to Verfassung and Society – 5. Some examples of the enduring persistence of the idea of a medieval ordo in European historiography – 6. Conclusions * Full Professor in History of Medioeval and Modern Law, Faculty of Law, Roma Tre University. ** This text is a revised version of a talk to the Law Faculty held at Chicago University in April 2016, and appeared in a slightly different version in De rebus divinis et humanis Essays in honour of Jan Hallebeek, ed. Harry Dondorp / Martin Schermaier / Boudewijn Sirks, Göttingen 2019, pp. 37-53. I wish to thank William Sullivan for his substantial help in improving my English. ARTICLES