Balance Sheet

Even these few intimations provide an impression of how far and in how many respects our perception of the ancient legal world has been enhanced over the past 120 years. Of course, not every new hypothesis has stood the test of time.

Similar observations may be made as far as other approaches are concerned. Thus, modern scholars tend to stress, once again, Justinian's classicism as a cultural coun­terbalance to the Hellenization of Roman law in the East;¹⁵⁹ radical theories according to which the Digest is based on a

^|Γ* See, in particular, the contributions by Gerhard Beseler in vols. 43 (1922) to 50 (1930).

Franz Haymann, 'Textkritische Studien zum romischen Obligationenrecht, Periculum est Emptoris', (1920) 41 ZSS (RA) 48 f. On Haymann, see the obituary by Hermann Nolte, (1950) 67 ZSS (RA) 615 ft.; on the specific problem to which the quotation relates, see, most recently, Martin Bauer, Periculum Emptoris: Eine dogmengeschichtliche Untersuchung zur Gefahrtragung beim Kauf (1998); and see infra, pp. 119 ff.

¹⁵⁸ Cf-, in particular, Max Kaser, 'Zum heutigen Stand der Interpolationen­forschung', (1952) 69 ZSS (RA) 60 ff.; idem, 'Zur Glaubwürdigkeit der romischen Rechtsquellen', in Alli del II Congresso Internazionale della Società Italiana per la Storia del Diritto 1 (1971), 291 if.

¹⁵⁹ Max Kaser, Das romische Privatrecht, second part (2nd edn., 1975), 26 f., 32 if.; Wieacker (n. 1 ) 50 f.

private compilation before Justinian are generally rejected;¹⁶⁰ Greek philosophy has, according to modern research, influenced Roman law since the days of the Republic already, i.e. al the heyday of Hellenism;¹⁶¹ Leopold Wenger's conception of a universal history of law in the ancient world has never gained much support;¹⁶² and Wlassak's theories about the legis actiones and the formu­lary procedure as being, essentially, determined by the liti­gants themselves (theories which he 'defended throughout his career tenaciously and not without exaggerations'¹⁶³) had to give way to a view which places more emphasis on the authority of the judicial magistrate, the praetor. The flood of new papyri, too, has in the meantime dried up. Much remains disputed or unclear;¹⁶¹ none the less, the advance in our knowledge is so significant that it is quite justified to refer to a 'second age of discovery of legal history in antiq­uity'. ¹⁶³ And even as far as the history of the ius commune is concerned we have now, though with considerable delay, advanced beyond the history of the legal literature and the learned lawyers.¹⁶⁶ The history of private law in modern times (Privatrechtsgeschichte der Neuzeit), created as a new discipline in the 1930s, has firmly established itself.¹⁶' Franz

^{1,as the century advanced and the courts handed down an ever increasing number of decisions, they integrated the case law into the new editions of their works. Thus, the letters of the Ccxie were gradually filled with life; but, at least in theory, it was a new and youthful life.}

Considerable discussion was devoted to the question to what extent the travaux prfyarntoires of the various commis­sions and individuals involved in the drafting of the Ccxle could be, or would have to be, consulted in order to establish

¹⁶⁹ See Mohnhaupt (n. 188) n. 2.

^{,in permanently smouldering methodological debates.215 Characteristically, one of the main events of the 22nd German Legal History Conference (Deutscher Rechts­historikertag) was a panel discussion on 'The Tasks of Legal History',216 the panel discussion on the 23rd German Legal History Conference was devoted to 'The Place of Legal}

^2,n Dieter Simon, 'Rechtsgeschichte', in Axel Gorlitz (ed.), Handlexikon zur Rechtswissenschaft (1974), 314 if.; cf. also, e.g., Dieter Grimm, ‘Rechtswissenschaft und Geschichte', in idem (ed.), Rechtswissenschaft und Sozialwissenschaflen, vol. ii (1976), 9 if. Cf. also already Windscheid: 'But legal history, if it proceeds from this point of view, is a branch of history rather than law': 'Die Aufgaben der Rechtswissenschaft', in Bernhard Windscheid, Gesammelte Reden und Abhandlun­gen, ed. Paul Oertmann (19144), 101 f. 'This point of view' is 'to trace the develop­ment of the law of a people merely for its own sake, without any extraneous thought'.

²¹¹ Dieter Simon, 'Vom Segen historischer Betrachtung für die Rechtsanwen­dung', (1985) 4 Rechtshistorisches Journal 272 ff.; idem, 'Normdurch setzung', (1988) 15 Jus Commune 202. For a recent and radical restatement of this view, culminating in the exhortation to 'renounce the inheritance (of Roman law)', see Regina Ogorek, 'Die Erbschaft ausschlagen?', in Pio Caroni and Gerhard Ditcher (eds.). Norm und Tradition? (1998), 183 if. Cf, also the critical comments by Lautner (n. 18) 146. For a modern attempt to re establish a connection between (a fully historicized) legal history and modern legal doctrine, see, in particular, Dietmar Klippel's concept of a juristische Zeitgeschichte (contemporary legal history), supra n. 29.

²¹² Arising also from the fact that for some time 'the flood of new information had swallowed any contemplation on the purpose of the work’: H. Mittels (n. 55) 50.

^2,3 See Lautner (n. 18) 137 ff.; Klippel (n. 29) I if. with references.

^2U See, again, Klippel (n. 29) 16 ff. with many references.

^2.5 Klippel (n. 29) 13 ff. and the discussion by Ogorek (n. 210) 23 if., 34 ff. Cf. also already Wieacker (n. 1) 336 ff.

^2.6 See the report by Thomas Honsell, (1979) 96 ZSS (RA) 493 ff., 500 f-

History in the Modern Law Curriculum',^[112] and the 24th German Legal History Conference saw a lively debate on the role of the historical argument in the theory and practice of modern law.^[113] Equally characteristic is the response given by a leading comparative lawyer^[114] when he was faced with the anxious question 'What Does Comparative Law Expect of Legal History?': he referred to a dictum by Radbruch according to which 'disciplines which have reason to exam­ine their own methodology are ailing disciplines'.^[115]