5.4 Koschaker’s proposal

It is now possible to return to Koschaker’s proposal to restore dignity and prominence to Roman law in order to analyse the scholarly reaction to his work. His suggestion was essentially based on the idea of the Aktualisierung of the teaching of Roman law, as well as revising and updating the methods of the Historical School of Savigny.

It has been said that Koschaker thus created a sort of “second pandectist” trend,^[630] combining his “slogan” about back to Savigny and the Leitmotiv of a shared European legal culture, despite the fact that according to Giaro, Koschaker had depicted the idea of Roman law as laying the foundation stones of a common European tradition as a sort of “fairy tale”. Giaro’s statement on the common European tradition does, however, appear more as a provocation.^[631] Although Koschaker’s approach was in some ways positivistic and, in this respect, he did seem to propose a sort of “second pandectist”, this criticism failed to acknowledge the complexity of the phenomenon. It would be easy, again, to say that in 1961 Guarino was right in writing in the Redazionale of Labeo that Koschaker’s idea was only a “slogan” and a naive proposal (“ingenua proposta”).^[632] The author’s criticism was harsh, albeit containing some truth, but he did not point out that ideas similar to those suggested by Koschaker were widespread among the Romanists and that the “ingenua proposta” had in any case influenced some of the future generations of Roman law scholars.

Yet there is a further aspect that merits attention. Die Krise des römischen Rechts did not in fact clearly describe Roman law as the bearer of intrinsic values or principles. Koschaker undoubtedly emphasised some of its main characteristics, for example, the importance of being Roman law a law created by the Roman jurists during the so-called classical period (Juristenrecht), or again the methodology used by Roman jurisprudence to elaborate the regula iuris that represented a useful model with which to build a new contemporary legal system and legal science to determine new rules. Nonetheless, Koschaker’s reasoning on the importance of Roman law was often squandered on a general discourse based on a very generic idea of a common legal and cultural heritage. In this respect, Koschaker’s description was at times lacking in clarity.

His ideas on the so-called Juristenrecht are a case in point. Koschaker stated that one of the main characteristics of Roman law as Juristenrecht lay in the fact that the work of jurisprudence was conceived as independent from political power.^[633] From this point of view, the procedure adopted by Roman jurists becomes both the instrument and the grounds legitimating its autonomy. According to Koschaker’s description, however, Juristenrecht before, and Professorenrecht later, albeit apparently apolitical, needed to remain close to the centres of political power if they were to be implemented. Koschaker’s conception, therefore, runs the risk of being self-contradictory, and consequently depicting Juristenrecht as deprived of autonomy, which was allegedly its primary characteristic. This could be implied form Koschaker’s conception of Roman law, as it was written in Die Krise des römischen Rechts, which was not ultimately a value-based system. Roman law and the historical development that followed legitimise each other, and this argument would often “re-used” in the course of time, not because of the values and principles they represented, but on account of their usefulness for the present day^[634] or because they are associated with other external factors. With regard to the latter point, it is sufficient to comment that Koschaker considered Roman law to be one of the foundation stones of Imperial law, the Kaiserrecht and, therefore, indispensable at the time of the Holy Roman Empire, whereas later it experienced a renaissance as the subject of the studies of Savigny and his School.

What was essential for Koschaker, however, was that the reception of Roman law could take place in Europe because it was, first and foremost, a body of law and legal principles mainly created by jurisprudence and for those very reasons could represent the foundation of a new European legal science from the eleventh century onwards.^[636] Yet what should be emphasised in this context, and which Koschaker failed to point out, is that the methodology and argumentation adopted by Roman jurists in creating their regulae iuris was so operational and refined that it was able to outlive the development of the single rules. Accordingly, the regulae iuris contributed to the formulation of a complete and complex “set of rules and principles”, which came to represent the archetype for legal reasoning in the following centuries.^[637]

The historical perspective narrated by Koschaker in Die Krise des römischen Rechts is ultimately apolitical and almost completely detached from any value-based premises; it describes a history of Europe that leads us in a continuum from the Holy Roman Empire to the present without any real break.^[638] If the history of the reception of Roman law is not that of the reception of legal rules justified by the principles and values that distinguished it, and if Koschaker tends to attribute its fortunate destiny to external causes, the question remains as to how Roman law was able to maintain such an important and prominent role at different periods and in different cultural and political contexts, and for which there can be no clear and definitive answer. Moreover, a few additional remarks can be made about the historical narrative as it emerges in the pages of Die Krise des römischen Rechts. First, since the history of Europe tends to coincide with the history of Germany, the events and destiny of Germany and the other States influenced by it are understood to be those of the whole of Europe.^[639] In this respect, Koschaker proposes a German-centric idea of Europe and of the ius commune europaeum, without considering the different experiences across the continent and ignoring the fact that the countries of Eastern Europe are neglected, or are only considered as the “product” of the Western European tradition.^[640] Indeed, it seems fair to point out that Koschaker’s German-centric idea of Europe comes as no surprise, since it was a common and shared idea among German Roman law scholarship and legal historians in the first half of the twentieth century.^[641]

Secondly, a further remark about Koschaker’s historical reconstruction can be gleaned from Calasso.^[642] According to Calasso, Koschaker’s description of law in the Middle Ages is ambivalent, as his approach to this era and its legal developments is at times superficial.

Die Krise des römischen Rechts was praised in Italy and Germany, despite the fact that many scholars found Koschaker’s approach to Roman history and Legal history, in general, somewhat questionable including from a methodological perspective. The following paragraphs will examine the reactions to Koschaker’s work, in particular those of Italian scholars.