5.3 KoschakerвЂ™s criticism of the Historisierung of Roman law

According to Koschaker, the causes of the crisis of Roman law in Germany during the 1930s did not lie in the approach of the regime or that of the Germanists towards Roman law. Even though he was contrary to the idea of any nationalisation of German law stripped of the influence from Roman law, as in the scientific proposals advocated by the Germanists, Koschaker did not attack their stances, at least not directly.

His harshest criticisms were addressed to the Historisierung of Roman law itself (consisting of Interpolationenforschung and antike Rechtsgeschichte), as well as its tendency to make Roman law not simply a Professorenrecht (a fact that would not have represented a major problem in KoschakerвЂ™s eyes), but rather reduce it to a subject for a small elitist group of professors, somewhat similar to the вЂњinitiates of a sectвЂќ as opposed to jurists interested in studying concrete matters. KoschakerвЂ™s concern for the isolation of Roman law and Roman law scholars from the rest of the jurists clearly emerges from this criticism; at the same time, however, this criticism could be interpreted as being similar to the popular narrative of Germanists and representatives of the Nazi regime, which sought to attack the elitist position of Roman law and its scholars, deemed to be detached from the national sentiment of the German Volk. Yet it is also true that such deprecation from Germanists and the regime had already been made of the pandectists through the Professorenrecht. This kind of criticism levelled at the pandectists was not shared by Koschaker, however, since he still considered the Pandect-science a Professorenrecht, yet in a positive sense, insofar as it was to be construed as a manifestation of the autonomy of the jurists against political power; nonetheless, in KoschakerвЂ™s eyes the pandectists were too inclined to theoretical abstractions.

In any case, it seems remarkable that before dealing with the problems connected to the Historisierung of Roman law, in his writing Koschaker should criticise (to some extent) the pandectists too. Indeed, he vacillated between positive and negative judgments about them, which now deserve greater attention.^[615]

One of his first criticisms towards the pandectists regarded their approach to Roman law sources, since they completely neglected any kind of textual criticism; this negative judgment could appear to be somewhat inconsistent, if one takes into consideration his disapprobation of the so-called interpolationism.^[616] A further criticism he made related to the pandectistsвЂ™ historical study of Roman law: in his eyes, their approach consisted in simply studying history and instrumentalising the results of the historical research to serve the needs of the present. Despite the name, вЂњHistorical SchoolвЂќ, scant attention was actually paid by them to true historical research, according to Koschaker.^[617] Moreover, as was previously stressed, the pandectists had exacerbated the relationship between Germanists and Romanists.

It is also worth mentioning that Koschaker defined Pandektenrecht (the law elaborated by the pandectists) as the result of the studies of pandectists and, therefore, little more than the вЂ?offspring upshotвЂ™ of the capitalistic order of that time, which ultimately constituted a deplorable legal system as such.^[618] Even taking into consideration the context in which KoschakerвЂ™s ideas were expressed, it is nonetheless striking to see him adopting a position similar to that of the Nazi regime and the majority of the Germanists on the question of the liberal and capitalistic influences that would have affected the legal system developed by the pandectists. It is even more remarkable if we consider the scientific debt owed by the вЂњRomanistвЂќ Koschaker to the Pandect-science, whose juridical ideas and concepts have always borne particular influence on his studies in the field of Roman law.^[619] Nevertheless, he did defend at least one aspect of the вЂњlaw of the pandectistsвЂќ, namely, that it was a German phenomenon.

As he wrote:

Man kann das deutsche Pandektenrecht und seine Denkformen bekämpfen, weil sie der Ausdruck der kapitalistischen Wirtschaftsauffassung ihrer Zeit sind, an deren Überwindung man arbeitet, nicht aber weil sie undeutsch sind.^[620]

Koschaker therefore criticised and praised the pandectists at one and the same time. He stressed the German nature of the Pandect-science, despite the criticism of the regime and the Germanists, since it sprang from the вЂњblood of German bloodвЂќ and its doctrinaire Begriffsjurisprudenz was the main result of its German features (and German nature). Given the high esteem and reputation countenanced by pandectists throughout Europe, and since they firmly rooted their research in Roman law, they were representative of both German and European jurisprudence: they were European, to the extent that Roman law was a European phenomenon and represented the foundation of European legal culture and private law systems; and German in that their spirit was the national, German spirit embodied with the German national spirit of the people (Volksgeist). It was thus clear for Koschaker that European legal history represented a Roman-German phenomenon:

Erstens, daß diese Pandektenwissenschaft uns nicht eine fremde, aufgezwungene Geistesrichtung war, sondern Fleisch von unserem Fleisch, Blut von unserem Blut, und vielleicht gerade in ihrem Hange zur doktrinären Begriffsjurisprudenz am deutschesten; zweitens, daß sie, weil auf der Grundlage des rГ¶mischen Rechts erwachsen, auch europäisch war, der Repräsentant des juristischen Europa, der die Einheit der europäischen Rechtswissenschaft vertreten, verteidigt und erobernd weiter ausgedehnt hat. [...] Niemals, weder vorher noch später, hat deutscher Geist auf die gesamte Juristenwelt einen solchen Einfluß ausgeübt wie damals [...].^[621] This was not the only merit that Koschaker attributed to the pandectists, however.

De facto, they succeeded in enhancing the German national spirit and give a European resonance to German scholarship. Moreover, the pandectists underlined the connections between Roman law and modern private law legislation. The importance of this approach was twofold: on the one hand, it stressed the role of Roman law as a necessary foundation of modern private law systems and showed the modernity of its principles and rules. On the other hand, this approach avoided reducing Roman law to a subject of antiquarian interest with no relevance to the present day. Following KoschakerвЂ™s depiction, therefore, it seemed possible to вЂњre-useвЂќ some of the methodological stances of the pandectists, although it was necessary to adapt them to the needs of the time: this was the meaning of his idea of Aktualisierung.

It stands to reason, therefore, that the approach of the Historisierung to Roman law met with KoschakerвЂ™s criticism, since it appeared in complete contrast to his goal of the Aktualisierung. The emergence of this different historical trend of studies, however, did not represent a comprehensive explanation of the decline of pandectist science, according to Koschaker, but rather it was one of the results of this decline. Indeed, since the radicalisation of the dogmatic trends of the pandectists during the second half of the nineteenth century and, later, the enactment of the BGB, the pandectists seemed to have forsaken their understanding of their role within Roman law scholarship. Savigny and his followers took a clear stance against codification in Germany, but eventually they achieved exactly the opposite result, having themselves laid down the foundations of the German Civil Code.^[622] Once German private law had found its identity through the BGB, the utility of the pandectist approach suddenly seemed to perish. By the second half of the nineteenth century, however, a historical trend began to develop within pandectist studies, namely the study of interpolations (Interpolationenforschung) - from which the term neuhumanistische Richtung was derived - since followers of this school wanted to discover the interpolations in the JustinianвЂ™s compilation, just like the humanists of the sixteenth century.

Moreover, from the beginning of the twentieth century another new research trend emerged alongside interpolationism, namely antike Rechtsgeschichte. After the influence of the pandectist movement had ceased, certain scholars thought it appropriate to retrieve Roman law from its вЂњsplendid isolationвЂќ. Thus, for example, in the opening lecture of his 1904 course at Vienna, Wenger explained his project as the study of Roman law and ancient laws.^[623] ^{^[624] Both these research trends (Interpolationenforschung and antike Rechtsgeschichte) were based on the premise that Roman law should be studied in depth from a historical perspective, in order to retrace the original texts (Interpolationenforschung) and to understand its role within ancient laws from a purely historical perspective (antike Rechtsgeschichte). In both cases, it seemed clear to the representatives of these trends that Roman law could no longer play any role as a foundation for private law legislation in the present time following the enactment of the BGB, and it was therefore necessary to transform Roman law studies into a purely historical research subject. Accordingly, Koschaker decided to rename the trend neuhumanistische Richuing.³
The risk of such new research trends was that the study of Roman law would be reduced to antiquarianism, stripping it of any connections with modern legislation and European private law systems. Yet Koschaker also saw two benefits to be gained from the Historisierung process: on the one hand, the interpolationism would reintroduce textual criticism to the study of Roman law sources, whereas it had been totally neglected by the pandectists. On the other hand, the scholars propounding the antike Rechtsgeschichte, thanks to the discovery of new sources - papyri in particular - emphasising legal contexts extraneous to the ancient Roman world, were able to enlarge the spectrum of studies on ancient laws. Nonetheless, interpolationists carried out research with the solo purpose of discovering textual modifications, in KoschakerвЂ™s eyes, and in the absence of any wider or more systematic aim, they progressively undermined the authority of the Justinian texts, which ran the risk of being considered the product of the legal вЂ?manipulationвЂ™ of a post-classical вЂ?legislatorвЂ™.
On the other hand, the representatives of antike Rechtsgeschichte challenged the centrality of Roman law among several other ancient laws: despite being considered a prominent legal experience, it was no longer the most important nor the only one that warranted academic scrutiny. In both cases, the scholars of these research fields tended unintentionally to belittle the prestige of Roman law. At the same time, Koschaker did not acknowledge their status as вЂ?schoolsвЂ™, because in his opinion they were merely the result of the research of a few scholars interested in a certain methodological approach to the study of Roman law. Surprisingly, in the case of interpolationism, he named only four scholars: Gradenwitz, Eisele, Lenel and Pernice.^[625] It is somewhat strange, however, that he failed to consider the influence that the interpolationism had exerted both within and outside of Germany - in Italy, in particular - between the end of the nineteenth century and the first half of the twentieth century.^[626] Moreover, Koschaker pointed out that the four scholars would have probably been neglected by Roman law scholarship, had the pandectists not faced a crisis in the late nineteenth and early twentieth century. This is clearly too harsh a judgment on a very influential trend in the studies of Roman law. The shockwaves of KoschakerвЂ™s severe opinion can be found in his obituary of Gradenwitz, which appeared in the Zeitschrift der Savigny-Stiftung in 1936.^[627] In this short text, Koschaker defined Gradenwitz as a talented specialist in the research of interpolations, though his failure to systematically organise and describe the results of his studies meant that some other scholars would not define him a true legal historian.^[628] Nor did Koschaker spare Ludwig Mitteis, and the group of scholars who worked with him in Leipzig from his criticism, seeing him as a pioneer in studies that eventually led to antike Rechtsgeschichte.
In short, the Historisierung was therefore responsible for eroding one of the main legacies of the pandectists, namely the ability to show and create connections between Roman law and modern legislation. The upshot of this purely historical approach was twofold. On the one hand, jurists, private law scholars and legal experts began to neglect Roman law, considering it no longer useful and detached from the concrete legal needs of modern society. On the other hand, due to the reform of the Studienordnung, Roman law courses at the universities were no longer mandatory and end of course examinations in Roman law were abolished. Consequently, students developed scant or no interest in this field.^[629]
It was necessary, therefore, to modernise Roman law courses at the universities to rebuild the bridges between Roman law and the modern private law system. Koschaker suggested adopting a systematic approach to the study of Roman law that would both display the legal concepts and the ideas enshrined by the European legal tradition. To achieve this goal, it was imperative to adapt the Savigny SchoolвЂ™s methodology to the needs of the present: this was KoschakerвЂ™s idea of the Aktualisierung of the study and teaching of Roman law. At the same time, Koschaker considered indispensable to stress the importance of Roman law in the development of the European cultural civilisation (Kulturgemeinschaft).}

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Source: Beggio T.. Paul Koschaker (1879-1951): Rediscovering the Roman Foundations of European Legal Tradition. Heidelberg: Universitätsverlag Winter,2018. вЂ” 334 p.. 2018

5.3 KoschakerвЂ™s criticism of the Historisierung of Roman law

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