2.3 Dogmatic approach and comparative method: Koschaker’s two souls?

It is now appropriate to briefly focus on Koschaker’s comparative legal history method during the first three decades of his academic career and, in particular, during the years he spent in Leipzig.

At the same time, Koschaker was not indifferent to the new trend of interpolationism, in particular during the twenties. What emerged in relation to his method during this period can therefore be seen as a sort of syncretism, sometimes apparently inconsistent with other methods. A radical interpolationistic approach, for example, could not easily be combined with a dogmatic and systematic one. Nevertheless, it can be argued that his kind of syncretism was actually aimed at finding a more precise and refined metholodogical approach. In the course of refining this methodological stance, despite some fluctuations, Koschaker’s approach reveals an inner cohesion, since it is always focused on a systematic - and ultimately dogmatic - depiction of the different legal institutions and legal experiences that he had studied. In this sense, the aim of Koschaker’s research seemes unerringly to be the systematic reconstruction of juridical experiences of the past, whereas all the other possible methodological stances, and in particular the comparative legal history method, are merely methodological means to help scholars in their research (they are an aid, a Hilfsmittel).

First of all, it is worth underlining that the interdisciplinary approach of Koschaker’s method allowed him to create bridges spanning different fields of studies. Thanks to his talent, Koschaker was able to make linguistic analyses that were usually the realm of philologists, and in this way he opened up yet another new branch of studies, cuneiform law.^[154] First and foremost, his contribution to the discipline was essential from a juridical point of view. From the pandectist and dogmatic approach, typical of Hanausek, Strohal and, in part, of Mitteis, he learned how to use juridical concepts - Begriffe, Begriffsjurisprudenz and Begriffsgeschichte - in order to construct a legal order: his points of view, both regarding ancient laws and Roman law, had always been systematic. Every concept, every rule, every institution had to be organised and defined within a concept of legal order.

The related problem of definitions emerged at a very early stage, for example, with regard to the topic of cuneiform law. Koschaker underwent constant development from 1911 up to the end of the twenties concerning definitions of this branch of studies. At the beginning he referred to Babylonian-Assyrian law,^[155] but the comparative approach led him to think that this nomenclature was too restrictive for the research field; he began, therefore, to use the term cuneiform law, Keilschriftrecht, in the singular, and then later Keilschriftrechte in the plural.^[156] In this way, he was able to create an autonomous branch of studies, as he wrote in 1935: the laws in the field of cuneiform law sources, Rechte im Bereiche keilschriftlicher Rechtsquellen, were thus a legal-historical delimitable cultural complex presenting their own historical difficult issues and problems.^[157] One of his pupils, Below, in a passionate text, full of sincere praise, and written in memory of Koschaker, talks of the foresight and profundity of Koschaker’s universality (Universalität) in dealing with scientific problems.

The other great tool that Koschaker introduced to the study of cuneiform laws was the critical textual approach to sources, in accordance with the methodology and scientific results of the trend of interpolationism.^{[160] [161] [162] This may seem somewhat strange if we consider that Koschaker was known as an opponent of Interpolationenforschung, and this apparent contradiction will be discussed in greater depth when dealing with Koschaker’s stances on Roman law towards the end of the 1930s. It is sufficient, however, at this point to emphasise that he was fiercely opposed to the radicalisation of study of interpolations in Roman law when it developed as a hunt for interpolations (Jagd nach Interpolationen)}12 because he considered it a fatuous “philological-historical exercise” and an end in itself. It was Riccobono who influenced Koschaker’s stance on interpolationism, to such an extent that Koschaker could affirm, at the end of the thirties, as well as later on, that a wise textual criticism patterned on Riccobono’s example could actually be fruitful for the study of Roman law sources.}

The alleged evolution towards textual criticism that took place during the late period of his academic career could alternatively be considered as a return to his origins.

In the period of maximum expansion of textual critical studies, which developed rapidly and had already found eminent supporters in Italy as well, Koschaker did not therefore disdain the methods, tools, and teachings developed by Inierpolaiionenforschung'^' Not only did Koschaker introduce textual criticism - from a juridical and not purely a philological perspective - into a field of studies that had until then been the domain of historians and philologists, but he also adapted this scientific approach to the wider target of his comparative-systematic study. Textual criticism was thought of as a useful means - a Hilfsmittel - to acquire a better understanding of more complex juridical problems.

Koschaker’s conception of textual criticism, influenced as it was by Riccobono, emerges clearly from a letter that he wrote to Riccobono on 22^nd November 1930.^{[163] [164]}

[...] Ihre Zustimmung zu verschiedenen Punkten meiner letzten romanistischen Arbeiten ist mir ausserordentlich wertvoll.

As we can appreciate from the text, after having expressed his profound esteem for his colleague and friend, Koschaker wrote that he agreed with Riccobono’s point of view on interpolationism. According to Koschaker, Riccobono had found a �?healthy basis’ (eine gesunde Basis) for textual criticism and had distanced himself from its most radical tendencies; for his part, Riccobono had restored Interpolationenforschung to its proper role as a useful aid for research on the history of law.^[165]

The comparative, historical-juridical and systematic approach Koschaker sought to adopt in studying comparative legal history (vergleichende Rechtsgeschichte) had already been well described in the preface of his Babylonisch-assyrisches Bürgschaftsrecht, which can be considered a kind of methodological manifesto of his early studies.^[166] Many of his stances, as was explained in the pages of the preface to his monograph, would later be repeated and refined in other essays, such as Forschungen und Ergebnisse in den keilschriftlichen Rechtsquellen in 1929 and Was vermag die vergleichende Rechtswissenschaft zur Indogermanenfrage beizusteuern? in 1936.^[167]

It is worth mentioning a few main passages from Koschaker’s Babylonisch-assyrisches Bürgschaftsrecht to appreciate his ideas at this point in his scholarly career. First, Koschaker’s research focused on private law institutions and this is a constant feature of his later studies as well. According to Koschaker, there could be no misgivings as to the primacy of private law over public law - and here Koschaker’s opinion on this point was not limited to Roman law.

These modern approaches represented a new trend in Legal history studies and were welcomed with enthusiasm by jurists as well.^[172] Another element that legitimised this branch of studies was the discovery of the Codex of Hammurabi, which opened up new perspectives into this field of Legal history.^[173]

For the first time, as Koschaker wrote, the legal historian had at his disposal a huge number of new sources that could shed light not only on the law, but also on the history and culture of the Near East. In 1936 he wrote that since law is a function of its social enviroment (“das Recht ist eine Funktion seiner sozialen Umwelt”), the first duty of the comparative method should consist in retracing first the connections between a legal institution and its social milieu, and then the links between this milieu and the pertaining legal system (Rechtssystem).^[174] Koschaker therefore borrowed Rabel’s functionalist approach and tried to combine it with his strongly dogmatic stances.^[175] In fact, this new material allowed the legal historian to study the relationships and possible transferences between different juridical experiences of the past, such as those between Assyrian- Babylonian law and Roman law.^[176] However, these links should not be overemphasised, as comparative legal history (vergleichende Rechtsgeschichte) had not yet developed reliable criteria to demonstrate whether the correlation between two legal orders (“Übereinstimmung in zwei Rechten”) demonstrated any clear indication of juridical borrowing from one system to another.^[177]

Finally, Koschaker illustrated the main criteria of comparative legal history: its role consists of inquiring if, and to what extent, the same juridical principles held by different legal systems were characteristic of to the same or similar conditions and common cultural context and heritage. Koschaker’s explanation is clearer if his text is quoted verbatim:

[...] als Teil der vergleichenden Rechtsgeschichte, soll sie [the study of Assyrian- Babylonian Law] uns lehren, ob und inwieweit gleichen Rechtssätzen auch gleiche oder verwandte Verhältnisse der Gesamtkultur entsprechen.^[178]

At the same time, this methodology should teach that every historical-juridical event is not ordered according to a natural law, that such a process never repeats itself in an identical way at different times, since these kinds of events are tied not only to general cultural and economic contexts, but also to national factors (der nationale Faktor). The Historical School of Savigny and its proponents advocated the concurrence of the national “moment” in the creation of law, but they overestimated it to such an extent that it developed into a unilateral emphasis on nationalism, almost overlooking the cultural conditions which existed beyond juridical phenomena, according to Koschaker.^[179] Comparative legal history can thus play an essential role, bridging the gap between the reconstruction of the transmission and tradition of law, as well as offering the opportunity to analyse sources that had already been studied from a different perspective. Furthermore, since the sources regarding ancient laws were usually incomplete and fragmented, this methodological approach offered an opportunity to fill in - at least partially - the lacunae in the sources of a specific ancient law (because “die Quellen eines Rechts sind in der Regel lückenhaft”), through the comparison between different legal systems and their respective legal institutions.^[180]

In any case, this new approach would surely open the way for scholars to pursue new fruitful research questions. However, as Koschaker pointed out in his 1936 article, this method had to be used with due caution. Any scholar wanting to adopt the comparative legal history method is requested to be particularly careful. For Koschaker, the methodological approach was liable to be constantly influenced by the character of the scholar who is adopting it, and so it was preferable not to use comparative legal history at all rather than misuse it.^[181]

Finally, the definition adopted by Koschaker to comparative legal history was based on the one given by his colleague and friend Rabel, who talked of the “Geschichte der Volksrechte und Rechtsgemeinschaften selber, insoweit sie sich der comparative Methode bedient”.^[182] Two elements are therefore essential, according to Rabel and consequently to Koschaker: a history of the laws of different populations and legal “communities” and the use of a comparative method. Koschaker added that this kind of research must focus first of all on the sources, giving that the already existing tools and results of comparative law are only a subsidiary means for a better knowledge of the different juridical situations. In any case, there is no place in Koschaker’s representation of comparative legal history for a universal legal history, as was meant by Kohler.^[183]

What is interesting is the possibility of finding similarities and perhaps influences between different ancient laws, as Koschaker illustrated with regard to a series of notable analogies between the Roman stipulatio and the Babylonian Bürgschaftsrecht.^[184] It was also noteworthy that the results of comparative legal history research could be useful in studies of contemporary law, as the work of Strohal (defined by Koschaker as a “Schrift eines unserer führenden Dogmatiker”) had illustrated.^[185]

The final considerations in Koschaker’s preface relate to linguistic questions, displaying once again his critical ability with regard to the sources and philological issues. He wrote that he used all the sources in the original language and the convenience of such a choice was self-evident (“Die Vorteile dieser Art der Quellenbenutzung sind so einleuchtend, daß über sie kaum ein Wort zu verlieren ist”). He also added that the jurist

- and he insisted in drawing a clear difference between jurists, historians and philologists

- cannot carry out this kind of study without the necessary language skills. However, jurists need - whether they have learned the languages of the sources or not - to collaborate with philologists. Collaboration and an interdisciplinary approach are essential to accomplish the very demanding task that a jurist alone can not fulfil without running a real risk of failing. It is not surprising, therefore, that from the end of the second to last page of the preface of his book Koschaker thanked many colleagues, in particular experts in Akkadian language (the first on the list is Rhodokanakis).^[186]

The discussion of Koschaker’s preface above is appropriate because it is representative of many methodological questions that will reappear in other works and other periods of Koschaker’s career.^[187] Some of these questions will be developed in more depth or will be analysed from different points of view - for example from the Roman law perspective - but this preface sums up almost all of the main problems of Koschaker’s approach with regard to comparative legal history. Koschaker’s conception of the comparative studies of the history of law developed over time, based on his needs to link it with the study of Roman law.

It has been recently affirmed, however, that from the 1930s on Koschaker decided to abandon the comparative method, at least as regards the possible influences and transfers between different legal orders and towards Roman law.^[188] While it is true that Koschaker considered the studies on Ancient Near Eastern laws to be a separate branch - but this was the case throughout his entire career -, at a certain point, he ceased not to continuously search for potential connections between Ancient Near Eastern laws and Roman law.^[189] Nonetheless, it is worthwhile investigating if Koschaker actually abandoned the comparative method and whether the soul of the Romanist was separate from the soul of the Orientalist or again, whether the two souls coexisted in the same person. To find an answer to this question it is necessary to analyse Koschaker’s later works and methodological stances.^[190]That said, some preliminary remarks can already be proposed.

The first impression that emerges analysing Koschaker’s works during the period of time considered in this chapter is that, under Rabel’s influence, he decided to suggest a new role for the comparative method. This became Koschaker’s means to gaining greater knowledge of the juridical experiences of the past and thus Roman law. Koschaker’s later urgency to secure the primacy of Roman law could appear - at least at the surface - as a partial abdication of the comparative method and study of Ancient Near Eastern laws.

The above-mentioned comparative method was considered to be an instrument for the study of the Legal history and of Roman law. The choice of adopting a different perspective (if it is truly a different one) at a certain point, was actually based on the different weight Koschaker attributed to Roman law from the thirties onwards, a problem clearly connected to the deep crisis it faced in Germany.^[191] His methodological approach developed over time and adapted to different needs, but the basic ideas - and hence the role of the comparative method in the study of Legal history - remained the same.^[192]

It is equally important to remember that at the time of his early studies on Ancient Oriental laws, there was a true flowering of this kind of research, following the discovery of a huge number of new sources. When this trend started to decline, with many scholarly publications arguing that the influence of these laws on Roman law was not so important, Koschaker could not be deterred from studying the subject, but he decided to devote less attention to the problem of the juridical transfers between legal orders.^[193] Still in 1929, Koschaker wrote that the Oriental influences from the time of Constantine were undisputed and that many analogies existed between, for example, Roman law and Oriental and Greek law with regard to Private law institutes.^[194] Perhaps more significantly, in 1911, the year of the publication of Babylonisch-assyrisches Burgschaftsrecht, Koschaker acclaimed himself as a Romanist.^[195]

It seems possible to assert, therefore, that Koschaker did not confine the comparative method from the thirties onwards, nor did he allow his two souls - the Romanist and its Orientalist counterpart - to live separate lives; rather he tried to redefine his methodological approach in a new way, according to the emerging needs of the moment. A dogmatic approach often underlies Koschaker’s works where elements from the interpolationist approach and the comparative legal history method are combined together. Not surprisingly, his methodological stances developed over the decades, and at times, one might prevail over the other depending on the aim he was pursing at that moment. Only a comprehensive picture of Koschaker’s academic and methodological experiences and issues will allow the reader to gain a clear understanding of his assertions and approach. Nonetheless, it must be acknowledged that Koschaker’s methodological definitions could appear at times rather vague, in particular when they referred to Roman law.^[196]