5.11 Juristenrecht and relative natural law

Yet no criticism is capable of casting a shadow over the value of Koschaker’s work, which is considered as one of the most important contributions to Roman law and its reception published since the end of World War II.^{[825] [826]}

Among the many topics dealt with in this book, two further elements deserve our attention.

Furthermore, their role was not only a theoretical, but also a practical one. They were able to analyse the Roman law sources and extrapolate what was needed by the current laws of their time. This style of Juristenrecht, a jurisprudential law, has been a source of law for centuries.^[828] Yet in the 19^th century, as a doctrinal source of law, it was replaced by Professorenrecht, which, according to Koschaker, served the aim of creating a system and the dogmatic pre-requisites for modern legislation, but lost its connection with legal practitioners (Praktiker des Rechts). The Professorenrecht was first created by the Historical School, and later elaborated by the Pandect-science, which in Koschaker’s opinion, was the result of the influence of natural law on the Historical School, despite the fact that the latter seemed contrary to any natural law tendency.^[829] Koschaker wrote that the Pandect-science was no more than the continuation of natural law appropriated by other means.^[830] This set of circumstances led to a clear-cut scission between theory and praxis and to the prevalence of the theoretical elaboration of concepts, according to Koschaker.

Pringsheim was probably right in pointing out that Koschaker’s criticism towards the Professorenrecht was exaggerated, since it was not possible to underestimate the role of Savigny and the Historical School and their influence in Europe outside Germany. Moreover, Pringsheim did not agree with Koschaker’s opinion that Professorenrecht had led to a rupture between theory and praxis in law.^[832] Koschaker’s suggestion, however, was a return to Juristenrecht as opposed to positivism, on the one hand, and as a new bridge between the study of Roman law and Legal history and contemporary legislation, on the other.^[833]

It is particularly interesting then that he should attempt to provide a comparative historical analysis of the social role of jurisprudence in different epochs, focusing initially on its role in ancient Rome, and then in continental Europe and in the Anglo-American world.^[834] The legal-historical and social analysis of the phenomenon of Juristenrecht caused Koschaker himself to consider it as the means to recover the forlorn European legal tradition. By rebuilding European jurisprudence, it would again be possible to establish a ius commune europaeum, based on Roman law,^[835] which led to the question of how to implement this project.

In his work, Jus Europaeum?, D’Ors pointed out that Koschaker’s work was reminiscent of an up-to-date mos italicus, as a methodological tool with which to achieve his stated goal, and in this respect, he was influenced by Riccobono.^[836] Koschaker’s references to the role of the Commentators, as well as the pages he dedicated to the mos italicus in Europa und das römische Recht, might allow one to think that D’Ors was indeed correct in his observation. Yet it can also be observed that Koschaker offered a partly new proposal under the name of relatives Naturrecht (relative natural law). For some reasons, the majority of the scholars who commented and reviewed Europa und das römische Recht almost disregarded this point, with few exceptions.^[837] It would therefore seem appropriate to devote further attention to this methodological stance as it probably represents one of the most interesting aspects of the work.

What does Koschaker mean with the seemingly contradictory idea of a relative natural law? He wrote:

Ein absolutes Naturrecht kommt allerdings nicht in Frage. Es gibt aber auch ein relatives Naturrecht, und um ein solches relatives, d. h. europäisches Naturrecht handelt es sich hier, ein Naturrecht, das nicht spekulativ aus der Vernunft, sondern streng historisch aus der Vergleichung derjenigen Privatrechtssysteme gewonnen wird, die zum rechtlichen Aufbau Europas und darüber hinaus der ganzen Kulturwelt beigetragen haben, an der Spitze das römische Recht, das die Verbindung zwischen diesen Rechtssystemen herstellt; ein Naturrecht, das die Rechtserfahrungen aller Kulturvölker sammelt, die Europa aufbauen geholfen haben. Ihrer Natur nach werden solche Forschungen rechtsgeschichtliche sein, wobei allerdings Dogmen- und Begriffsgeschichte im Vordergrund stehen wird.^[838]

Given that he was influenced by the methodological approach of Mitteis and Rabel,^[839] Koschaker suggested combining legal history research with practical-dogmatic aims;^[840] the former sustaining that the historical approach to the study of Roman law did not conflict with a dogmatic study of private law and of the BGB, whereas Rabel was able to elaborate a combination of history and dogmatic throughout a comparative approach.

Koschaker attempted to summarise the approach as follows: the comparative method would have allowed for an analysis of the different private law systems, but such investigation would need to be carried out both “horizontally”, comparing contemporary laws, and historically, considering modern and ancient laws. In this comparative study, Roman law should play the main role, since it represented the link between European legal systems, but equally, all the other historical systems that have contributed to the creation of the European legal foundations should be taken into consideration.

The perspective of the research should remain historical, because it would involve the study of legal systems of the past and therefore needed to make a historical comparison between institutes and rules. Yet such research should aim to retrace a history of legal dogmata and concepts, Dogmen- und Begriffsgeschichte, and hence be oriented towards a dogmatic and systematic depiction of European legal systems.

De facto, Koschaker’s proposal could be considered as a benchmark for modern comparative legal history, since it combines comparative law and legal history. What is more, Koschaker clearly paved the way for a historical study, but again stressing the need to pursue a dogmatic aim: the difference between himself and the supporters of the Historisierung of Roman law still remained untouched. Any kind of legal research, in his opinion, should serve modern legal dogmatic aims such as the elaboration of rules for modern current laws: a historical study of Roman law thus was not legitimised for itself, even when it was able to display legal principles and the elements of legal reasoning. Koschaker’s methodological stance on relative natural law also makes up the scientific perspective that led him to offer an idealised depiction of Roman law and its reception in European history clearer: a dogmatic and crystallised reconstruction of Roman law was the pre-requisite for research aimed at unearthing common principles and rules from the legal systems of the past, as well as those of contemporary law.

The narrative of European legal history offered by Koschaker in Europa und das römische Recht is thus strictly connected with his methodological proposal.

Further proof of Koschaker’s methodological inclination for a more universalistic and less “German” concept of Roman law and its legal tradition can be found in two letters he sent to Riccobono, in 1949 and 1951.^[843] The latter also stressed the universal value of Roman law, from a legal and, above all, a cultural perspective, in a letter sent to the Roman law scholar and U.S. refugee since 1936, Ernst Levy, just two years before the publication of Europa und das römische Recht, when the latter was appointed magister of the Riccobono Seminar in Washington D.C. for the 1944-1945 academic year.^[844] Riccobono intended to emphasise the cultural universal value of Roman law as a bastion against the barbarity of recent European history that had led to the devastation of the continent. In any case, it became clear that both Riccobono and Koschaker shared a transnational approach to the role of Roman law and its principles at the time.

In the first four-page handwritten letter by Koschaker in Italian, sent to Riccobono from Ankara on 11^th April 1949,^[845] Koschaker replied to the previous letters received from his colleague, apologising for the delay in answering.

[...] Ho trovato, del resto, confermate le mie idee circa l’insegnamento del diritto romano. Va da sĂ© che come fenomeno storico il diritto romano non può esser insegnato che storicamente, ma da punti di vista dommatica. Ciò che importa sono i concetti romani,^[847] la connessione fra loro ed in quanta misura sono passati nei sistemi moderni, trasformati e nondimeno mantenuti in sostanza. Perciò prendo a base il sistema moderno e dommatico. Storia vi è dappertutto.^[848]

The content of this letter is focused on Roman law teaching, explaining again that the historical study of the topic should be carried out from a dogmatic perspective. From this perspective, more than the Roman rules as they were, are important the Roman concepts, the connections between them and how and to what extent they have been inherited from the modern legal systems. For his teaching purposes, Koschaker used the model (and, therefore, the modern institutions and concepts) offered by a modern dogmatic legal system. This approach is peculiar to a dogmatic stance and confirms Koschaker’s beliefs. It would appear to be a comprehensible and useful choice for teaching reasons, although it could run the risk of being anachronistic, if applied to Romanist research, since it would require today’s scholars to look for the institutes and rules of ancient Rome according to their modern depiction of them. Yet it would appear from the text of the letter that Koschaker intended merely to refer to Roman law teaching and not its study.

The second letter written by Koschaker was sent from Walchensee on 31^st March 1951, just a few months before his death. The three-page letter is typewritten in Italian. After describing the situation in Ankara, where he had been visiting professor (Gastprofessor) for two years, and comparing the situation in Turkey to that of Germany,^[849] Koschaker was highly critical of what he referred to as historical positivism (“positivismo storico”) and, more interestingly, he made a clear assertion on the so-called eternal values of Roman law. By historical positivism, Koschaker intended the so-called Historisierung of Roman law, provided this kind of research had no other aim than the historical reconstruction of Roman law, where historical research was indeed an end in itself. Koschaker informed Riccobono that he had successfully demonstrated to Turkish students that the legal reasoning of the Roman jurists could be still used for the solution of modern legal questions. Nonetheless, Koschaker felt uncertain about the future of Roman law, because, as previously mentioned, the majority of Roman law scholars adhered to a historical positivism in their research. In Koschaker’ eyes, on the contrary, it was essential to elaborate the eternal values of Roman law, based on its juridical concepts and their evolution.

He added that Roman law scholars needed to pursue these concepts and principles up to the present day in the major contemporary legal systems.^[850] Koschaker wrote on the second page:

Questo studio - va da sè - sarà storico e non intende di abolire gli studi storici, praticati prevalentemente finora, bensì di rimettersi accanto di loro collo scopo di formare una scienza giuridica generale, basata nelle linee fondamentali sul diritto romano, insegnata al principio degli studi giuridici e destinata a procurar agli studenti la capacità di pensare giuridicamente.^[851]

It can be seen that Koschaker clearly affirmed the historical character of Roman law study, since a historical nature distinguished Roman law itself, but such study should not be exclusively historical. The need and aim of the Romanist research consisted in the creation of a common legal science. This approach was twofold: on the one hand, it served to offer students the tools for a historical approach to the study of legal systems, and, secondly, to allow them to comprehend the inner workings of legal reasoning. Roman law had always played a pedagogical role for the students, in Koschaker’s eyes. Moreover, no other historical experience had been as important as that of Roman jurisprudence in the developments of the premises of legal reasoning.^[852] On the other hand, Koschaker’s methodological approach allowed Roman law scholars to seek for universal values and principles based on Roman law, as had been elaborated and transmitted over the centuries, which represented the foundations of modern legal systems. In this respect, Koschaker’s approach seems to lose, at least in part, its “Germanocentricity” and offer the basis for a true transnational historical comparison, even if - according to Koschaker - it should necessarily be dogmatically-oriented.

This is the meaning of his last methodological proposal, the so-called relative natural law, which is tantamount to a sort of conceptual synthesis of his methodological stances. His historically-based natural law, which was not speculative, could be achieved only through the methods of comparative legal history (vergleichende Rechtsgeschichte) and served the aim of rebuilding European legal systems and, further still, a European legal science; this was his ultimate goal in retracing the links between Roman law and positive contemporary law, as well as determining which principles represent the cornerstones of European legal tradition.

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