5.10 Koschaker’s masterpiece: Europa und das römische Recht

Since 1936, when he moved to Berlin, if not earlier, Koschaker felt deeply involved in the critical situation that Roman law - and Roman law teaching in particular - was facing in German universities.

This sentiment continued to pervade Koschaker’s outlook during the writing of his masterpiece, Europa und das römische Recht, which first appeared in its 1947 edition. As he wrote in the preface to this edition, he had begun to write and had also partly written this book when he was in Tübingen, during the “last quarter” of World War II.^[801]

It has been previously mentioned that Koschaker wrote a letter on 2^nd December 1945 (the addressee is unfortunately unknown), in which he explained that he was composing a manuscript on European private legal science and Roman law (“Europäische Privatrechtswissenschaft und römisches Recht”);^[802] all the evidence points to the fact that he was indeed referring to the book that he would have later named Europa und das römische Recht.

He further explained in the preface how difficult it was to get hold of the literature that he needed during the war, and also after the war, because many German libraries had been bombed and he was not able to borrow books from the libraries of other countries.

Koschaker dedicated his work to his colleague and friend, Salvatore Riccobono, with the following words: “SALVATORE RICCOBONO dem unermüdlichen Vorkämpfer für das Studium des römischen Rechts und dem Freunde.” The dedication of his most important book to Riccobono confirmed once more Koschaker’s high esteem for his Italian colleague and paid tribute to their long-lasting friendship.^[803]

Three further unchanged editions of the book were later published, in 1953, 1958 and 1966. The reason of the republished 1953 version was explained by Kaser, in the preface to the second edition.^[804] The book was not easy to obtain outside Germany after his first publication in 1947. Yet Koschaker repeatedly affirmed that it was necessary to improve his work and this was also the reason for his decision not to have it translated into Spanish at the time. In the meantime, requests for copies of the book, also outside Germany, increased, but Koschaker died on 1^st June 1951 and did not have the opportunity to work again on and modify his text as he had intended. Helene Koschaker, his wife, was therefore hesitant when she was asked by the publisher to allow the publication of a second edition, since the book had not been revised as her husband had desired, but she eventually acquiesced. She then requested Kaser to write the preface; as Kaser explained, there was no other alternative than to publish an unchanged second edition of the book (“Ein anderer Weg als der des unveränderten Neudrucks aber steht nicht offen”). Significantly, he further pointed out that it would not have been possible to rework such a text, given that it so clearly expressed the spirit and lively personality of its author.

This remark by Kaser in fact grasps one of the most distinctive features of Europa und das römische Recht: in this work, the scientific elaboration and analysis blend with the personal and human perspective and sentiments of the scholar and individual, Paul Koschaker.

Despite the difficulties in obtaining a copy of the book outside Germany, as stressed by Kaser in the preface, his work quickly became the object of scholarly scrutiny, and not only of German scholars as the early reviews revealed.^[806]

After the second edition of the book, moreover, translations were published in Spanish and Italian, and later, in Dutch.^[807]

It can be inferred from Koschaker’s preface that the work had been conceived as a far-reaching historical depiction of Roman law in Europe from the time of its reception, as well as the development of a European legal science from the time of Charlemagne up to the 20^th century, and finally, up to the crisis of Roman law. This in-depth description of European legal history was intended show the close connection between Roman law and Europe. These two terms, the European narrative on the reception of Roman law, together with Christianity, represent the two essential ideal cornerstones in Koschaker’s reconstruction.

The work had been originally conceived, therefore, as an extensive development of the arguments already explained by Koschaker in his previous publication Die Krise des römischen Rechts und die romanistische Rechtswissenschaft. Yet the end of World War II, and the devastation of a large part of Europe contributed to Koschaker giving a broader meaning to Europa und das römische Recht over time, eventually leading to his open defence of European legal culture and appeal for its recovery and reconstruction.

Romanists and Legal historians have continuously highlighted the enormous value of Koschaker’s work, as the fruit of years of thought and reflection on the role of Roman law and its reception into European history by one of the most talented legal historians of the 20^th century.^[808]

Scholars such as Wieacker and Pringsheim, and to a lesser extent Julius van Oven, criticised Koschaker’s stance from a scientific and methodological point of view, since they considered a historical approach to the study of Roman law to be the only possible approach after the enactment of the BGB, as a means of investigating Roman law and its sources as they were in ancient Rome prior to the development of the legal stratifications of the following centuries.^[809]

Koschaker, on the contrary, again insisted on the responsibility of the Historisierung of Roman law for its crisis, in his work, as he had already done in Die Krise des römischen Rechts.^[810] Despite the appreciable value of Mittels’ works, which allowed the Roman law scholars to study new fields of legal history and discover new sources, neither the antike Rechtsgeschichte, nor the Interpolationism, the two trends of the Historisierung, were true schools and they were not able to offer any real programmatic works for their research.^[811] These arguments by Koschaker were not new, of course, and echoed the stance he had already taken in his 1938 publication. In any case, the difference of opinions did not impede Wieacker, Pringsheim and Oven, and many more scholars, from paying tribute to a book destined to become a key work on Roman law and its reception in Europe history.

Arguably, the message accompanying the work appeared to be almost more important than its content.

The outline of the structure of the reconstruction of European legal history follows the content of Koschaker’s work on the crisis of Roman law of 1938, as was previously highlighted; for these reasons, since the most important remarks on his historical depiction have been already made, when dealing with Die Krise des römischen Rechts, it is now more appropriate to focus on some other main arguments that come to attention in Europa und das römische Recht.

One of the first aspects to be considered relates to Wieacker’s and Pringsheim’s critical remarks that actually show the difference in perspectives adopted by the latter and Koschaker; moreover, this diverse perspective also reveals a different methodological approach and, ultimately, a different conception of Roman law. In their reviews, Wieacker and Pringsheim criticised Koschaker’s attempt to link Roman law to the needs of modern legislation, on the contrary, defining the approach of the Historisierung as the only possible way to really know and understand Roman law and its sources.^[813] According to Wieacker and Pringsheim, in particular, it was erroneous to link Roman law to utilitarian aims, as it ought to be studied from the perspective of being the greatest legal “experience” ever conceived, and still relevant to contemporary legal education and legal reasoning. Hence, Roman jurisprudence should be considered as an essential toolkit for the study of modern legal systems. Roman law should be studied per se, and also because the Romans had first made a science of law.^[814] At the same time, both scholars considered it necessary to underline the different influences, namely those of the schools of the Eastern Roman Empire in the IV and V century AD, which led to a further evolution of Roman law, and came together in the Compilation of Justinian.

It is clear that Pringsheim and Wieacker’s approaches, on the one hand, and Koschaker’s, on the other hand, were determined by different methodological stances.^[818] Yet beyond this divergence, the scientific disagreement between the latter and Pringsheim and Wieacker should not be overestimated. The point is that through his work Koschaker sought mainly to focus on the cultural idea of Rome, the kulturelle Romidee.^[819] It was the cultural value of Roman law and its reception as a foundation stone for the evolution of European legal history that really interested Koschaker. It is no coincidence that in numerous passages of the work, he underscored the close nexus between the role of Roman law and the role of Christianity in the history of Europe.

Despite the title of the book, Europa und das römische Recht, very little effort is devoted to the questions regarding what Roman law was and how it developed in ancient Rome or what it represented from a legal point of view. Instead Koschaker focused on Roman law as it emerged from the Corpus iuris ^[820] This provided the basis for the systematic depiction of law that has been elaborated over the centuries, in a first incomplete attempt by the Glossators, later and much more in-depth by the Commentators who created the real foundations for the dogmatic reconstruction eventually developed by the Pandectists in the 19^th century. Both the Glossators and the Commentators were influenced by the scholasticism in their exegetical methods and Koschaker grouped them together under the concept of Juristenrecht.^[821] Koschaker’s work, therefore, directed its focus on the elaboration of the dogmatic legal system developed in Europe, based on the study of the Corpus iuris. Hence, the conception of Roman law offered by Koschaker was highly idealised, whereas his depiction of European legal history was affected by the myth of continuity. Unlike Wieacker, Koschaker found a continuity between Roman law and the Glossators, first, and then between the latter and the Commentators; this continuity had been come about through the Romidee and granted that Roman law first and foremost had been the law of the Roman Empire, and later that of the Holy Roman Empire.

The sense of Koschaker’s argumentation is twofold: on the one hand, he wanted to offer an overview of the above-mentioned topics that would reaffirm the role of the Romanist tradition in Europe. In this respect, Koschaker’s work represented the first attempt to describe on such a broad scale the reception of Roman law as a European phenomenon and this is one of its highest merits.^[822] To achieve this goal, he sought to explain this process not in detail, but with reference to the main ideas and questions that have from time to time affected Roman law reception in Europe, as well as its influence throughout continental Europe and beyond, in particular, in England. On the other hand, this was yet again the best description possible to suggest that a dogmatic approach to the study of Roman law was most appropriate and thereby offer a sort of programmatic proposal for the same.^[823]

It is, therefore, no surprise both the criticism on the Historisierung and the fact that this work only to a limited extent touches questions regarding the “Roman law of the Romans” and its development, in particular from the post-classical period to Justinian. As a talented scholar, dealing with problems regarding the interpolations in the Roman law sources and with the laws of Antiquity during his career, Koschaker was clearly aware of the historical evolution of law in ancient Rome; yet the aim of Europa und das römische Recht was not to focus on these matters.

Another aspect that emerged from the book concerns the difficulty in comprehending at times whether Koschaker’s point of view referred to Roman law research or Roman law teaching, or at times, to them both. This ambiguity seems to emerge from the remarks made by Wieacker and Pringsheim too, whereas Oven clearly distinguished the aspects regarding Roman law teaching from the others pertaining its study, in his comments.^[824] Nonetheless, one can observe that a dogmatic approach pervaded both Koschaker’s stances on teaching and research. The difference lay in the fact that it was possible for Roman law research to adopt the methodology of the historical approach as an ancillary tool in order to gain a better understanding of Roman law, as it was and it had developed over the centuries.

In any case, Romanist research should serve the aim of building up a systematic and dogmatic depiction of European private law systems, in Koschaker’s opinion. One of the risks run by his approach towards the study of Roman law allegedly related to the fact that Koschaker focused too heavily on needs and links to contemporary legislation, as has been already stressed during the analysis of Die Krise des römischen Rechts.238