2. 'Imperial Law and Vulgar Law'and the Consequences

(a) Ludwig Mitteis

Of central importance for the process of historicization of Roman law was also the contribution of Ludwig Mitteis (1859-1921, professor in Prague, Vienna, and, from 1899, Leipzig).¹" It consisted, on the one hand, of his book in Senr/vr Aperlns: Sechshundert Jahre Ruprecht-Karls-Universität Heidelberg 1386-1986, vol.

¹⁰¹ Friedberg (1837-1910) prepared (he edition of the Corpus Iuris Canonici that is still authoritative today; cf., e.g., Hans-Jürgen Becker, in HRG, vol. i (1 S»61), col. 1274; Adalbert Erler, in (1961) 5 NDB, 443 Christoph Link, 'Emil Friedberg (1837-1910): Kirchenrechtler der historischen Rechtsschule, "Slaatskanonisl" und Mitstreiter im Kulturkampf', in Heinrichs, Franzki, Schmalz, and Stolleis (n. 19) 283 ff. ¹⁰² 'Autobiographie', 1909 D/Z col. 1014.

¹⁽⁰ On whom, see L. Gschwend, in Stolleis (n. 15) 344; l’io Caroni, (1994) 16 ZNR 246 ff. Koschaker (n. 18) 270.

^|l,s (1909) 30 ZSS(RA) pp. v ff. The editors, at that lime, were E. 1. Bekker and L. Mitteis.

*'* This index suffered from the drawback that 'already on the day of its publi­cation it was outdated': Koschaker (n. 18) 271. Cf. also Max Kaser, 'Ein Jahrhun­dert Interpolationenforschung an den romischen Rechtsquellen', in idem. Romische Rechlsquellen und angeicnndle Juristenmethode (1986), 145.

¹⁰⁷ On his work and person, see the obituary by Josef Parisch, (1922) 43 ZSS (RA) pp. v ff.; Egon Weiss, Erinnerung mi Ludwig Mitteis (1922); Leopold Wenger, Ludwig Mitteis und sein Werk (1923); Gerhard Oberkofler, Die Vertreter des romischen Rechts mil deutscher Unterrichtssprache an der Karls-Universität Prag (1991), 37 ff.

Reichsrecht und Volksrecht in den ostlichen Provinzen des romi­schen Kaiserreichs (Imperial Law and Vulgar Law in the East­ern Provinces of the Roman Empire, 1891): written in 'a style enrapturing its reader' and full of the 'temperament and enthusiasm of an inspired teacher',¹⁰⁸ it was even at the time of its publication considered 'by the best in the field as a feat of singular significance'.¹⁰⁹ By focusing on, and analysing, the reality of legal life in the Eastern part of the Roman Empire, it opened up entirely new horizons of historico-comparative research.

Partsch, (1922) 43 ZSS (RÄ) p. xv.

^,w Ibid., p. xvi. From a modem perspective, cf. Bund (n. 90> 736 f. ('epoch- making').

^1,0 In Wieacker's words, Mitteis struck questions which have, until this day, 'remained dominant chords of our discipline: Roman Imperial law and the Hellenistic-oriental vulgar laws; the intellectual contribution of Hellenism, in the garb of East Roman legal scholarship, to the transformation of classical law; and, in the background, the ultimate problem of the relationship between the charac­teristic features of Rome and the Greek intellect which was so much richer and more agile, and also so much more exposed to danger': (1968) 85 ZSS (RA) 604.

¹¹¹ Partsch, (1922) 43 ZSS (RA) p. xv.

^1,2 Cf., e.g., Max Kaser, Das mmrsc/r Privntfwht, first part (2nd edn., 1971), 9; Franz Wieacker, Romische Reclitsgeschiclih’, first part (1988), 46 f.

Chrestomathy of the Papyrus Document, jointly with the papyrologist Ulrich Wilcken) appeared in 1912.

On the other hand, however, Mitteis's immense effect must also have been attributable to his unusual ability to inspire others for his subject and to encourage and support them in their work, to his vigour and enthusiasm, his exam­ple as a scholar, and his strong and humane personality.¹¹³ In his famous Leipzig seminar Mitteis gathered around himself a circle of pupils unequalled as far as both their sheer number and the originality and diversity of their research interests are concerned.

(b) 'In Ludwig Mitteis’ School’

Scions of the school of Ludwig Mitteis were, among others: the brilliant¹¹⁴ Josef Partsch (1882-1925, professor in Geneva, Gottingen, Freiburg/Br., Bonn, and Berlin and during his nine years in Freiburg one of the few colleagues to be very close to Otto Lenel, in spite of their differences in age and temperament^[56]), who wrote the first great monograph concerning an institution of ancient Greek law (Griechisches Bürgschaftsrecht [Greek Law of Suretyship!, 1909), and who later on, as representative of and adviser to the German government in the mixed arbitration tribunals established under the Treaty of Versailles, became 'the man who was to demonstrate, on the international battlefield, what a sword of legal education sharpened by Roman law was worth';^[57] Leopold Wenger (1874-1953, professor in Graz, Vienna, Heidelberg, Munich, and, again, Vienna),^[58] architect and protagonist of the idea of a universal history of antiquity incorporating the history of Roman law^[59]—an idea based on the assumption that the legal systems of antiquity had achieved a synthesis in late Roman law—and author of a monumental work on Die Quellen des romischen Rechts (The Sources of Roman Law, 1953); Ernst Rubel (1874-1955, professor in Leipzig, Basle, Kiel, Gottingen, Munich, and Berlin, founder and first director of the Kaiser-Wilhelm (today: Max-Planck-] Institute for Foreign and International Private Law, 1939 emigrated to the United States),^[60] a Romanist of the first rank but even more influential as the pioneer of modern comparative law in Germany (he himself attributed his functional method to the influence of Mitteis),^[61] author of the first 'modern monograph of a historical and comparative character'¹²¹ (Das Recht des Warenkaufs |The I.aw of the Sale of Goods], 2 vols., 1936 and 1958) as well as of a standard work of modern scholarship in private international law (The Conflict of Laws: A Compar­ative Study, 4 vols., 1945-58) and one of the early exponents of the idea of a uniform private law; Paul Koschaker (1879-1951, professor in Innsbruck, Prague, Frankfurt am Main, Leipzig, Berlin, and Tübingen)¹²² who tackled the task of a systematic exploration of the cuneiform laws and in 1911 presented the first perti­nent monograph (Babylonisch-assyrisches Biirgschaftsrecht (Babylonian-Assyrian Law of Suretyship], 1911), but who also produced Europa und das romische Recht (Europe and Roman Law, 1947), 'a work unique in design and execu­tion'¹’³ which established Roman law as an exponent of European culture; Hans Peters (1886-1915)¹²⁴ who turned his attention to East Roman school jurisprudence of late antiquity and to its contribution to the formation of the Corpus Iuris Civilis;¹²⁵ Fritz Pringsheim (1882-1967, professor in Gottingen and Freiburg/Br., from 1939 to 1946 in exile in Oxford),¹²⁶ whose studies in Greek law culminated in his monograph on The Greek Law of Sale (1950), and who was modem comparative law even before Ernst Rabel and comes to the following conclusion: 'The historical significance of Partsch for the entrenchment of modern comparative scholarship in Germany is great but it is surpassed by the achieve­ments of his successor Ernst Rabel': (1999) 7 ZEuP 72. On the cooperation between Partsch and Rabel in the run up to the foundation of the Kaiser-Wilhelm-Institute see Meyer-Fritzl, (1999) 7 ZEuP 63 f.

^!?l Kleinheyer and Schroder (n. 15) 504.

¹²² On the life and work of Paul Koschaker, see Leopold Wenger, in Festschrift Patil Koschaker, vol. iii (1939), 1 if.; the obituary by Karl-Heinz Below and Adam Falkenstein, (1951) 68 ZSS (R/l) pp. ix ff.; Wesener (n. 13) 112 if.; Gerhard Ries, in (1980) 12 NDR 608 f.; Kleinheyer and Schroder (n. 15) 491.

¹²' Max Kaser in his preface to the 4th edition (1966), p. vii.

¹²⁴ He became professor in Frankfurt am Main at the age of 28 but was killed one year later in the First World War; cf. the obituary by Ludwig Mitteis, (1915) 36 ZSS (RA) pp. vii ff.

^,2S Die ost romischen Digestenfamiinentitre mid die Entstehung der Digesten (1913).

¹²⁶ On the life and work of Fritz Pringsheim, see the obituary by Franz Wieacker, (1968) 85 ZSS (RA) 602 if.; Elmar Bund, ‘Fritz Pringsheim (1882-1967): Ein Großer der Romanistik', in Heinrichs, Franzki, Schmalz, and Stolleis (n. 19) 733 ff. also particularly interested in investigating the influence of the Hellenistic spirit on Roman law in late antiquity; Eber­hard F. Bruck (1877-1960, professor in Geneva, Breslau, Frankfurt am Main, and Bonn, 1939 emigration to the United States),^{[62] [63] [64]} who saw Roman law as part of general cultural history and who set out to gain a better under­standing of legal life by taking account of all the available background information in theology, and cultural and social history; Hans Lewaid¹²* and Leo Raape™ who both predominantly devoted themselves to private international law;^[65] Hans Kreller (1887-1958, professor in Münster, Tubingen, and Vienna), who was particularly attracted by Roman legal doctrine;^[66] August Sitnonius (1885-1957, professor in Basle), legal historian, comparative lawyer, and also interested in modern private law;^[67] Andreas Bertalan Schwarz (1886-1953, professor in Zurich, Freiburg/Br., and, in exile, in Istanbul), papyrologist and, at the same time, 'one of the few impartial pioneers of a ins commune europaeum'ß³³ the papyrologist Rafael Taubenschlag (1881- 1958, professor in Cracow, in 1939 emigration first to France, later to the United States, after the war professor in Warsaw);¹⁵⁴ Egon Weiß (1880-1953, professor in Prague, 1938 removed from his office),¹⁵'' scholar in ancient Greek law; and Demetrios Pappoulias (1878-1932),^{[68] [69] [70] [71]} who empha­sized the continuity of Greek legal development from antiq­uity to the present day and who attempted to explain Greek private law under the auspices of its historical evolution.

(c) The Generation of the Academic Grandsons

It is remarkable, moreover, how many famous scholars of Roman law of around the middle of this century and how many contemporary professors of Roman law can trace their academic ancestry back to Mitteis. Among them are Hans Julius Wolff (through Partsch and Rabel), Mariano San Nicold and Artur Steinwenter (through Wenger), Julius G. Lautner (through Koschaker),^[74] Ata Kaser (through Stein- wenter and Wenger), Wilhelm Felgentraeger (through Prings- heim), Franz Wieacker (through Pringsheim and Partsch), Theo Mayer-Maly (through Kreller), and (through Rabel) most modern representatives of the disciplines of compara­tive law and private international law.^[75] Wolff provided the decisive impulses for modern scholarship in ancient Greek law;^[76] Wieacker reconstructed, as far as that is possible, the history of the Roman law library from the classical period down to the days of the Justinianic compilers (Textstufen klassischer Juristen (Stages in the Textual History of the Writ­ings of Classical Roman Lawyers], I960), he wrote the stan­dard work on the sources, legal development, legal theory, and legal literature of Roman antiquity (Romische Rechts­geschichte (Roman Legal History], first part, 1988; the work has remained incomplete), and he provided in his Privat­rechtsgeschichte der Neuzeit (History of Private Law in Europe, 1st edn., 1952; 2nd edn., 1967), the first and, so far, unsurpassed treatise analysing and, at the same time, help­ing to establish what was then essentially still a new subject;^[77] and Max Kaser managed to provide a restatement of the entire Roman private law and legal procedure in its development from the archaic down to the post-classical period that is unmatched in both its sweep and precision and that must be regarded as authoritative for our lime.^[78]

3.