2.4 On Koschaker’s methodological issues

According to Koschaker, comparative legal history could not work without a parallel use of a proper dogmatic approach. Comparative methodology alone could not help to find the general principles of law that were needed to depict a coherent legal order.

To summarise, a few final considerations can thus be offered on Koschaker’s methodological issues. First, there was a clear-cut distinction between the study of Ancient Oriental laws and cuneiform law on the one hand, and vergleichende Rechtsgeschichte on the other. As such, comparison was and should remain only a scientific method and a useful tool, a Hilfsmittel or an Instrument, to study the history of law.^[200] The study of Ancient Oriental laws, however, was a proper science (Wissenschaft) and within this science it was necessary to recognise the autonomy of the cuneiform law.^[201] This was a bone of contention between Koschaker and his colleague and friend Riccobono when the latter defined Koschaker a follower of the trend of antike Rechtsgeschichte and Universalrechtsgeschichte)^[202] Koschaker refuted the definition because his studies did not aim simply to compare ancient laws (Roman law included); on the contrary, his goal was the historical and dogmatic depiction (historisch­dogmatische Darstellung) of a legal order that aimed to investigate the development of legal institutes (Entwicklung der Rechtsinstitute) in each ancient law he dealt with, whether it was the Assyrian-Babylonian law, or Roman law, or any other ancient law.^[203]

The titles of his 1911 and 1917 monographs, Babylonisch-Assyrisches Bürgschaftsrecht and Rechtsvergleichende Studien zur Gesetzgebung Hamurapis respectively, already suggest the approach used by Koschaker in analysing the corresponding subjects. In the first he dealt with a specific legal institution, the Bürgschaftsrecht (the guaranty), while in the second he tried to retrace Hammurabi’s legislation (Gesetzgebung) as if it was a codification.

The study of a single legal system should allow for the emergence of the principles on which the institutions are founded and comparison of two or more systems can lead to the recognition of the emergence of common principles; through this process the foundations of private law systems can be discovered. According to Koschaker, however, and despite his deep interest in cuneiform law, only the study of Roman law could fulfil a predominant role - and this was one of the main sources of disagreement with Wenger^[204] - because it represented the cornerstone of European legal tradition and culture. While Wenger therefore desired to focus on a historical study of legal experiences of the past in itself, Koschaker sought to adopt this kind of research as a means to obtain a better understanding of the development of historical Private law systems and of the Roman (and consequently, as will be seen in the next chapter, the European one), in particular. In any case, the method of comparative legal history was to allow jurists to refine their own perspective and research questions: it illustrated that many elements of single legal orders, which were the expression of a national sentiment of a given and specific people (Volk), should not therefore be considered a peculiar aspect of a single national law.^[205]

The main purposes of historical-comparative legal studies appeared only in part in Koschaker’s early works, but it is still evident how strongly these aims are bound to his dogmatic approach. According to Koschaker, the dogmatic approach and the legal comparative method were not two separate elements; in fact, they were the two faces of the same coin, in which each single component was essential to create the whole complex methodology he applied in the study of the history of law.^[206] To Koschaker, this kind of research on Legal history had to be developed taking into consideration the connections with modern law and the needs of modern legislations.^[207]

Koschaker’s approach will become even clearer when his position towards the crisis of Roman law in Germany is discussed.^[208]