6.2 European narrative and methodology

Dealing with Paul Koschaker also means analysing the Roman law scholarship of his epoch. As has been shown in the previous chapters, he was a protagonist both during the time when the Romanists tried to react to the so-called splendid isolation of Roman law and during the period of its crisis.

Koschaker’s research has always been distinguished on account of his systematic and dogmatic approach. At the beginning of his career, his studies on cuneiform law focused on private law. He outlined legal institutions and then compared them with those of Roman law and other European legal experiences or systems of the past, above all German laws. He sought to discover whether rules and principles elaborated through certain ancient laws had influenced Roman law and European laws, the ultimate aim of which was to gain a better understanding of the European private law system and its rules and legal concepts. Koschaker’s focus changed in part at the beginning of the thirties, as he clearly began to assert that the influences of laws of antiquity on Roman law and German laws were not so significant after all.^[886] His distinctive methodological approach was well described by Kunkel, who affirmed that Koschaker was the only legal scholar of his time to study papyrus and the laws of antiquity from a dogmatic perspective, thereby trying to reconstruct a Dogmengeschichte (history of legal dogmata) about the laws of antiquity.

The comparative approach Koschaker adopted, influenced by Rabel’s method, in this respect, allowed him to combine the different fields of studies he dealt with.^[888] Yet his approach, as it developed above all from the thirties onwards, ran the risk of being in part ahistorical and too dogmatic, as the criticism of some scholars suggested in relation to Die Krise des römischen Rechts.

The way to overcome this potential conceptual and methodological opposition appeared in another programmatic passage contained in Europa und das römische Recht, namely, through Koschaker’s reference to relative natural law.^[889]

Koschaker’s proposal was particularly interesting, for a number of reasons. At the time of the publication of Europa und das römische Recht, there was, on the one hand, a significant revival of natural law thinking in Europe, considered as a bulwark and reaction against the tragedy of totalitarianism and violence of the State.^[890] As has already been mentioned, Coing, among many others, played a major role in reproposing natural law principles in his legal narrative.^[891] Catholic universalism, with its references to natural law and the links between the latter and Roman law, was another important contributing factor, as it is possible to argue from D’Ors’ essay appeared in the first volume of Studi in memoria di Paolo Koschaker ^[892]

Koschaker’s European narrative was based both on Roman law and Christianity: in this sense, ancient Rome and the later Holy Roman Empire were conflated in his concept of Europe, which had been influenced by a Catholic universalistic idea.

In Koschaker’s opinion, legal principles and rules of the new European order ought to be derived from the legal and historical comparison between different private law systems - whose foundations were mainly based on the reception of Roman law - and eventually elaborated by a new European legal science detached from any political power, similar to Roman jurists in the classical era. Political power and the legislature should remain separate, since the latter should be again the result of the work of the jurists, a Juristenrecht.

This methodological slant proposed a combination of historical and comparative perspectives based on the systematic-dogmatic approach.^[893] Even if the concept, which was used by Koschaker for the first time in 1947 might have appeared to be a completely new method, on the contrary, it was the result of the development of his scientific thoughts that had been honed and refined into the idea of a relative natural law; in other words, an apparently natural law-inspired approach, based in reality on the comparative legal history method.

In this respect, Koschaker was one of the pioneers and masters of comparative legal history. His approach and proposal were considered a programme by Romanists and legal historians that could be used to rebuild a systematic private law in a European perspective - based on the common shared principles of European legal tradition; the main tool used in the investigation and identification of these principles was the historical-comparative method. Koschaker’s methodology inspired Roman law scholars like Kaser, who was one of the three greatest German Romanists of the post-war period, along with Wieacker and Kunkel, and maintained the dogmatic trend of Roman law research in Germany.^[894] Koschaker also influenced his pupil Julius Georg Lautner, who again proposed Koschaker’s formula with regard both to Roman law research and teaching in very similar terms to those used by Koschaker, in a famous work which appeared in 1976, four years after Lautner’s death.^[895]

Kaser, in particular, stressed the need for historically-based legal comparison to carry out studies on Civil law;^[896] Kaser, like Koschaker, considered this approach of great value in recreating the link between legal history and modern current (private) laws and to avoid the isolation of dogmatic research from Legal history research.

Koschaker’s methodology and European narrative have been a source of inspiration for more recent generations of legal historians and comparative law scholars in Germany and beyond, who have used his method and his proposals for a new systematic depiction of European private law to revive research aimed at discovering the common historical foundations of this European law. Koschaker’s aim was also to build both a common

frame of rules and principles as the basis for a new ius commune europaeum and a new European legal science.^[899] Although it would not be reasonable to assume that every work dealing with the subject of European legal history has been influenced by Koschaker’s stances, it would at the same time be difficult to completely overlook them. For any scholar who wishes to discuss such themes, Koschaker has been one of the first legal historians to depict them in depth. References to or from the impact of Koschaker’s stances, as expressed in Europa und das römisch Recht in particular, still emerge more or less openly in the more recent studies focusing on the construction of a new European common law. Even if Koschaker had no direct influence on any of these studies, it is reasonable to argue that many of them have been inspired by Koschaker’s ideas, which have been then interpreted in various ways.^[900]

In fact, Koschaker’s works and ideas were also the point of reference for scholars seeking to advance an alternative depiction of European legal history. Alternatively, they were a source of contention for those intent on revising his main assumptions either on historical and legal continuity, or on his imperative of adopting a dogmatic approach to the study of Roman law and Legal history.^[901] Overall, Koschaker’s message and narrative exerted a strong influence at the time they were first presented.

Yet Koschaker’s influence was not only circumscribed to Roman law research. His scientific legacy included Roman law teaching methods as well. One of his most important battles to recover dignity to Roman law teaching was based on the idea of stressing the links between Roman law and modern current laws, as expressed by the concept of Aktualisierung. This stance, when it referred only to teaching, found a broad consensus among Romanists of the thirties and forties in the 20^th century, but it also influenced the approach to Roman law teaching in Germany for the coming decades.^[902]

Koschaker’s influence was highly relevant not only in Germany, Austria, Italy or the Netherlands, as is apparent from an initial analysis of his scientific legacy: the role he played in Turkey has already been mentioned,^[903] and, in this sense, two further examples of his legacy outside these four countries is offered by Viktor Korosec and Marijan Horvat.^[904]

Korosec was a pupil of Koschaker’s and, later, a prominent Slovenian Roman law scholar and legal historian.^[905] In the first edition of the first volume of his Roman law textbook, which appeared in 1936, Korosec applied the same method that Koschaker would have named Aktualisierung to the teaching of Roman law two years later in his Die Krise des römischen Rechts. In fact, Korosec repeatedly and systematically introduced references to the BGB, the ABGB and the Code Civil in his textbook on Roman law.^[906] The volume, dedicated to Koschaker, is therefore a clear example of his influence on his pupil; moreover, it likely proves that Koschaker had adopted his methodological approach to Roman law teaching well before the publication of Die Krise des römischen Rechts.

Marijan Horvat, on the other hand, was an important Croatian Roman law scholar and legal historian, but not a pupil of Koschaker.^[908] Nevertheless, he firmly believed that Koschaker, considered to be a follower of Riccobono’s scientific method, was right in offering a systematic-dogmatic depiction of Roman law as an introduction to modern private law and in criticising its Historisierung. In a 1951 article, in particular, Horvat appeared to be a strong supporter of the Aktualisierung of Roman law teaching, as expounded by Koschaker, and like Koschaker he too opposed the merely historical approach to its study.^[909] This essay was written when the communist regime was already well established in the former Yugoslavia, and is distinguished for the arguments used by Horvat. In fact, the author appeared not to follow Koschaker’s stances in his attempt to legitimise the study and teaching of Roman law in his country; he argued that Roman law was the best legal system based on private property and could be used, therefore, to understand and study foreign capitalist private law systems. The outcome of Horvat’s arguments was, however, quite similar to Koschaker’s: basically, it was necessary to study Roman law to comprehend contemporary laws and legal systems (applied to capitalist systems in the case of Horvat).

Horvat’s assistant Martin Vedris wrote an obituary in memory of Koschaker in 1951, underlining Koschaker’s utmost importance in the fields of Roman law, papyrology and cuneiform law, and seeing Koschaker as too independent a spirit to accept any sort of compromise with the Nazi regime.^[910] The most impressive thing is that no other comparable obituary had been written about a German or Austrian scholar in Yugoslavia for decades, making the tribute to Koschaker’s all the more exceptional.

These circumstances show that Koschaker’s prestige was very high at the end of his career and after his death, and for decades he has been considered an authority and example to be followed both in the fields of Roman law and ancient laws and from a human perspective, and not only in Germany and Austria.

Moreover, Koschaker’s influence cannot be reduced to the field of Roman law and his role in cuneiform law studies forgotten. Koschaker was able to introduce the methods used by jurists and legal historians to a branch that had previously been the domain of pure historians and philologists until the first decades of the 20^th century. He succeeded in bridging the different disciplines, ancient history, legal history and philology, using his remarkable philological talent to analyse the sources. In the field of cuneiform law, an area of research which he himself forged, Koschaker adopted the dogmatic approach both to the study of cuneiform law and its ancient laws institutes, offering a noteworthy contribution to improving the quality of this kind of research from a juridical point of view as well as providing the first systematic depiction of the field. The numerous pupils who studied these subjects with him and the high respect they showed for him were also clear indicators of the importance of his role in the study of the laws of antiquity.^[911]

Koschaker’s scientific legacy therefore appears to be important in many respects. First, his methodological stances had both a direct and an indirect influence on different fields of research - Roman law, comparative legal history and the laws of antiquity - with the result that, at time, he was able to propose new methods which have mapped out the future research developed by scholars in decades to come. His pupils represent further proof of his eminent role as a professor and his teaching ability and passion. Lastly, Koschaker symbolised an important trend in German Romanist and Roman law studies in the first half of the 20^th century. Despite the criticism that has befallen his methodological approach at times, Koschaker has always been revered in the Romanist debate and, today, his works still contribute significantly to the modern methodological debate on legal history, Roman law and their role in modern research and teaching.