5.7 An up-to-date mos italicus

One of Koschaker’s central ideas from the thirties onwards with regard to the study and teaching of Roman law was based on the criticism of the so-called Historisierung of Roman law.

In Koschaker’s eyes, the antike Rechtsgeschichte was responsible for having transformed Roman law into a subject for antiquarians, removed from the needs of modern legislations and jurists. When considering the content of this partially distinct judgment on the antike Rechtsgeschichte compared to his opinion of the interpolationism, it should be remembered that, from the first decade of the 20^th century onwards, Koschaker himself applied the new methodology developed by the interpolationists to many of his works.^[711] What is more, he even adopted the tools of the interpolationism not only in his Roman law research, but also in his studies on laws of antiquity. Just to give an example, in more than one chapter of his publication Rechtsvergleichende Studien zur Gesetzgebung Hammurapis, Koschaker devoted several pages to the research of interpolations in the text. In the field of Roman law, he offered a first sample of work focusing on the research of interpolations in 1917, but in other articles or reviews followed over the years, Koschaker demonstrated an inclination for the textual criticism thanks to his remarkable philological skills.^[712]

As was previously pointed out, his approach towards the two trends of the Historisierung of Roman law began to change meaningfully from the thirties onwards.

The Interpolationism only had reason to exist if the “deconstructive moment” of the research - i.e. the actual research into textual modification and the analysis of the text - was then followed by a “reconstructive moment”, identifying the reasons for the interpolation and the dogmatic depiction of the institute or the legal rule. Koschaker considered this as the only really commendable method of proceeding.^[714] As he wrote in a letter to Riccobono on 22^nd January 1930, he considered the latter an example of positive textual criticism (the so-called “critica testuale”) thanks to his works and his approach to the sources.^[715] In his letter, Koschaker praised the Italian scholar who had identified the correct methodological basis for Interpolationism and given it the role that it deserved, namely that of an aid (Hilfsmittel) in the investigation of legal problems.^[716]

Under these circumstances, it may appear strange that Koschaker generally reserved a positive judgment to the works of some non-German interpolationists,^[717] and in particular Emilio Albertario.^[718] In fact, Koschaker praised his Italian colleague and friend above all for his approach that was not merely “deconstructive”, and his capability to offer a dogmatic-systematic depiction of legal institutes.

On the contrary, with regard to Koschaker’s criticism of the antike Rechtsgeschichte, he had illustrated his scepticism towards this research trend well before the publication of Die Krise des römischen Rechts, albeit not publicly, but in two letters sent to Riccobono and de Zulueta, respectively, in January and February 1930.^[721]

In his letter to Riccobono, Koschaker emphasised how Wenger’s position on the antike Rechtsgeschichte had developed over the years to the point that it had definitively changed by the time of the publication of his essay for the Studi Bonfante, which was acceptable in principle.^[722] Over time, Wenger distanced himself from Kohler’s stances and the idea of a universal legal history (Universalrechtsgeschichte:) and eventually acknowledged the unique and leading role of Roman law among the laws of antiquity.

In his second letter dated 23^rd February to de Zulueta, Koschaker agreed with the criticism of the former with regard to Wenger’s stances, yet at the same time, he intended to secure a role for the comparative legal history as a useful means to forging a better understanding of the legal experiences of the past and compare them to those of Ancient Rome.^[723] Koschaker also specified that he had never been a proponent of the antike Rechtsgeschichte, although he had delved into Ancient Near Eastern laws.^[724] Further still, according to Koschaker,^[725] De Zulueta was right in stressing that there had only been one jurisprudence in the history of law, namely Roman jurisprudence, and that Roman law had become the law of the imperium Romanum, as well as the basis of a European cultural civilisation (europäische Kulturgemeinschaft)^[726] For all these reasons, Roman legal history would always be reserved a special place.

Even if Koschaker had been studying the laws of antiquity, and cuneiform law in particular, his approach was different in two respects: first of all, he continuously offered a dogmatic depiction of the private law systems, in order to ascertain common principles and rules;^[727] secondly, he never cast any doubt on the predominant role of Roman law and its importance in European legal history. Hence, Mitteis’ and Wenger’s stances were not comparable and de facto the former insisted on teaching and studying Roman law according to pandectist criteria in Koschaker’s opinion. On the other hand, in his critical essay on Wenger’s antike Rechtsgeschichte Mitteis himself succinctly expressed the idea of the superiority of Roman law over other laws of antiquity.^[728]

If the study of the laws of antiquity could assist legal history scholars in gaining a better understanding of Roman law itself, this result would be more than welcome, according to Koschaker; it was not acceptable, however, to entertain the idea that Roman law could be merely considered as one of the many laws of antiquity, as Wenger seemed to surmise in 1904. Furthermore, to introduce the study of a wide range of sources, including papyri or others from the Ancient Near East, it was sufficient to adopt a broad­based research program for Roman legal history studies.^[729]

Ultimately, it can be asserted that Koschaker did not demonstrate an open hostility towards the antike Rechtsgeschichte until 1938, because until then he had not perceived it so pernicious. At the same time, despite being one of the founders of the branch of Ancient Near Eastern Legal history, and despite his admiration and friendship with Wenger, he had never been a proponent of the antike Rechtsgeschichte.

Things changed, however, after 1935, with the reform of studies at Law faculties in Germany.^[730] The reform introduced the antike Rechtsgeschichte as a new course and alternative to Roman legal history course; given the context of widespread hatred towards Roman law in Germany, the new classes were soon preferred to those on Roman legal history, becoming one of the causes of the marginalisation of Roman law teaching in general.

To sum up, Koschaker considered the Historisierung of Roman law studies a problem for two main reasons: first of all, from a scientific perspective, because both the trends of the Historisierung tended to marginalise the essential role of Roman law in the development of European legal history and as a foundation stone of modern private law systems. Secondly, from a more practical perspective and in relation to academic policy, he considered it largely responsible for the decadence of Roman law studies and teaching in Germany.^[731]

The two trends represented a new humanism, or a sort of new mos gallicus, according to Koschaker who also named them as neuhumanistische Richtung; as the humanists wanted to study Roman law from a historical perspective, the representatives of the neuhumanistische Richtung attempted to do likewise. Yet whereas the humanists were part of a more general European cultural movement, the scholars of the neuhumanistische Richtung were not privy to any European cultural circles and, on the contrary, they lost the connection that had always existed between the Roman law scholars and the European legal science, thereby isolating themselves from the remainder of jurists.^[732] Furthermore, their studies partly dismantled the authority of the Digest, which after many centuries had now begun to be considered as one of the many existing ancient legal sources.

As Koschaker wrote in Die Krise des römischen Rechts, the fallacy of most of the arguments used by the exponents of the ancient mos gallicus, and, a fortiori, its renewed version that appeared in Germany in the latter decades of the 19^th century, had been already demonstrated by Riccobono.^[733] It was thus imperative to contrast the new detrimental mos gallicus through the Aktualisierung of the methods of the historical school, as Koschaker asserted in Die Krise des römischen Rechts.

Again inspired by Riccobono, Koschaker explicitly talked of an up-to-date mos Italicus (zeitgemäßer mos Italicus) in his review of a book by Bussi, Laformazione dei dogmi di diritto privato nel diritto commune, which appeared in the Savigny Zeitschrift in 1938^[734]. Koschaker’s text offers further proof that his reviews often contained very significant scientific arguments, in which he proffered his own methodological stances and did not limit himself to commenting the works of other scholars. As such, the first three pages of Koschaker’s review could be considered as a sort of scientific manifesto.^[735] In the text, he sought to deal with the essential role played by the Commentators in the development of European legal history, once again influenced by Riccobono, as he affirmed.^{[736] [737] In this case, the Commentators were the representatives of the mos Italicus - of which Riccobono was a devout supporter - and in many cases they succeeded in enhancing the legal concepts (juristische Denkformen) already developed by the Roman jurists. More importantly, however, the Commentators were particularly gifted at systematically depicting the legal system and they were also able to create a systematic legal jurisprudence (eine systematische Rechtswissenschaft) based on the Rechtsdogmatik)50 Accordingly, the Commentators created the basis for the dogmatic elaboration of legal concepts of the pandectists that took place in the 19th century.}

The Commentators were jurists and not historians, added Koschaker (indirectly criticising the historical approach to the study of Roman law),^[738] and as such, they attempted to elaborate and improve the law of their own time on the basis of the Corpus iuris. According to Koschaker, the Commentators should therefore represent the model for Roman law scholars of his time: as jurists, the latter should be as able as the Commentators in extrapolating what is needed in modern legal science from Roman law sources and then teaching this methodological approach in the Roman law courses at the university.^[739] This was the major aim Romanists should pursue and it could be achieved by combining it with the methods of the Historical School.

In this short text, Koschaker succeeded in refining his methodological proposal so that it could become clearer than the idea of an Aktualisierung of the scientific approach of the Historical School. Rather than a modern Pandect-science, he seemed to refer to a renewed mos Italicus. Nonetheless, it was not always easy to define the boundary between Aktualisierung and a contemporary mos Italicus, nor was it easy to fully understand its content. As was mentioned earlier, also due to the lack of clarity in his proposal for a return to the methodology of the Historical School, he met with some criticism among the Roman law scholars; the fact that Koschaker clarified his methodological issues in a review published in the same year as Die Krise des römischen Rechts evidently was not enough to prevent his proposal from receiving some negative remarks (perhaps also given the wider resonance obtained by Die Krise compared to the publication of the review).^[740]

Koschaker’s point of view was once more explained and defended in a letter to Riccobono on 31^st December 1939.^[741] This missive confronted the problem that affected Roman law in Germany at the time in the same way as his work Die Krise des römischen Rechts. Koschaker hoped for a change (Wendung) in the situation in Germany in 1940. Nonetheless, the extent of the crisis experienced by Roman law in German universities was still serious and this was due to the Historisierung of its studies. Koschaker considered it necessary to undertake a reform involving the final examinations for Roman law courses that were no longer mandatory following the recent reform of legal studies of 1935; yet, in reality carrying out such a new reform was unthinkable, since the war was still ongoing.^[742] Once again, Koschaker focused on the problems faced by Roman law in Germany in his letter and they continued to be the same as those he had already expounded in his previous publications. Above all, he adamantly rejected the idea that such a subject matter had been reduced to the domain of University professors and was no longer useful for Praktiker, in other words, jurists and lawyers.

What he actually wrote is remarkable. Koschaker asserted that the criticism that Die Krise des römischen Rechts received had come about due to a misunderstanding and he was able to demonstrate the correctness of the research method that he had suggested in his forthcoming work entitled L'alienazione della cosa legata¹⁶ It is quite clear therefore that Koschaker was convinced of the validity of his ideas, even though the reaction of some Roman law scholars was not completely favourable, as can be seen below:

Das ist vielleicht die krisenhafteste Erscheinung: das römische Recht bedeutet der deutschen Rechtspraxis nichts mehr, es ist zu einer bloßen Professorenwissenschaft geworden, nicht mehr Gemeingut aller Juristen.

Ich kann mir nicht helfen, ich komme immer wieder auf die romanistische Wissenschaft als die letzte Ursache dieser krisenhaften] Entwicklung. Durch ihre einseitige Historisierung seitdem BGB hat sie sich der Masse der Juristen entfremdet. Man hat meiner Krisenschrift in Deutschland vorgeworfen, ich strebe die Wiederbelebung des Pandektenrechts an. Kein grösseres Mißverständnis ist denkbar. Das Pandektenrecht ist tot und kann | nicht wieder aufstehen. Was ich forderte, war ein zeitgemäßer mos Italicus, der unter Verwertung der Ergebnisse der modernen Rechtshistorie die Synthese mit dem geltendem Recht herstellt. Eine solche Orientierung, die durchaus keine Verdrängung der rechtsgeschichtlichen Forschung bedeutet, ist möglich und in ihrem Erfolge daran unabhängig, ob das römische Recht noch formelle Geltung hat.

Koschaker’s explanation of his views is particularly interesting, but at the same time somewhat contradictory compared with what he wrote in Die Krise des römischen Rechts. Although in this piece he affirmed the imperative of a return to Savigny using the method of his school through the so-called Aktualisierung, in the letter to Riccobono, in contrast, he wrote that his proposal was different and the study and teaching of Roman law should therefore be based on a contemporary interpretation of the mos Italicus, since Pandektenrecht ^[743] had died a definitive death.^[744] Only a misunderstanding could have led other scholars to interpret his words in a different way. In fact, the methodology to be adopted was somehow comparative, based on a comparison between the study of legal history and the legal issues of the current laws in force. A sort of comparative legal history methodology, and therefore quite similar to the one that had inspired his early works on cuneiform and ancient laws. The aim of the approach suggested by Koschaker was to use the results of legal history studies oriented towards creating a synthesis (a Synthese) with modern law. This is what he calls a modern, contemporary mos Italicus.

He wrote further that he would offer a concrete example of his methodological approach through the publication of the long article L'alienazione della cosa legata that actually appeared in 1940, based on a conference held in Pavia in the previous year. It was then clear that Koschaker staunchly defended his ideas, despite the criticism that they had received from various circles.^[745]

L'alienazione della cosa legata was a very refined essay with regard to Roman law and the exegesis of sources, and Koschaker dealt with the texts masterfully, including in his analysis of them from the perspective of the textual criticism. As has again been stressed by Pugliese, however, Koschaker decided to dedicate a large number of pages to discuss the topic in modern laws, to the extent that the work now almost seemed not to focus on Roman law. The references to Roman law only appear as a sort of long historical introduction, and therefore the text risked becoming a study of comparative modern law preceded by a section on Roman law.^[746] The first piece, the Romanist part, with its learned study of Roman law sources, is therefore partly obfuscated by the remainder of the text. The problem, from a methodological perspective, consists in the risk of actually marginalising the role of Roman law, even if the intent of the author was exactly the opposite.