THE CRISIS OF THE ROMAN LAW
4 With the enactment of the German Civil Code in 1900 the reason fora Pandect law largely disappeared. It had served its purpose, preparing the way for a system of law to satisfy modern needs.
Already some decades earlier, research into the ancient Roman law had led many of the scholars and teachers away from the purely dogmatic approach of the Pandectists. During the first three decades of the 20th century, more and more professors in Germany, in Italy, in France turned their efforts to analyzing the development of legal institutions within the several distinct periods of the ancient Roman state itself. Yet Tnstitutionen, Droit romain, Diritto romano’ was a combination of the sweep of seven or more centuries of legal institutions of Rome, encumbered with systematic ideas evolved in early modern times and the general principles emphasized in Pandect law ; this was the basic course in Roman law in continental universities.In 1938 Koschaker published his epochal ‘Crisis of the Roman Law.’[9] There had been earlier portents. In 1926 Appleton had noted that the enemies of the teaching of Roman law pointed to the excess of sterile erudition and lack of practical sense, together with disregard of the connection between law, at Rome, and moral standards of the society, truly a grievous fault? Georgescu had likewise called attention3 to a crisis in the study of Roman law? It was the extended critique of Koschaker, however, that caused particular concern. In scholarly fashion he traced the role of Roman law through the centuries, stressing its relevance to the cultural evolution of Europe, particularly in its contribution to continental jurisprudence. In the preceding century legal history had been the helpmate of dogmatic study in developing Pandect law, culminating in the German Civil Code. But in the subsequent decades legal history had served to lessen the authority of the Corpus Iuris of Justinian, that primary collection of the Roman law which had served as the point of departure for the evolution of the European law.
Koschaker emphasized excesses in the search for interpolations in the Digest - of which more anon - and the unwarranted attention to ancient legal history in general, rather than on Roman law in particular. He painted a rather glowing picture of the status of Roman law teaching in England and the Unit«! States, where this emphasis on the historical side had not been so evident. He concluded that Roman law could be saved for the curriculum only by the ‘actualization’ of the Roman law, providing a systematic-dogmatic exposition of the Roman private law, showing the close ties between principles of the Roman law and those of the modern law. ‘In short,’ Koschaker said, ‘what I visualize is a systematic-dogmatic presentation of the main concepts of private law on the basis of the Roman law, which at the same time will give an introduction to European legal ideas’?The response to Koschaker’s monograph was both pro and con, but in the course of the years it has been generally conceded that the crisis in the Roman law was really, as Carrelli first remarked,* only a decline of interest by the promoters of modern law studies in the subject itself - a crisis in modern law if you will - but not any diminution in the scientific value of the Roman law. The Romanists may have lost sight of the direction of their study when its practical significance ceased, but the scholarly portrayal of legal experience of the past will ever remain an essential element of the science of law? To merely write introductory chapters as historical background to monographs on modern legal institutions would indeed be a ‘pedestrian and stereotyped activity, lacking the possibility of lasting very long’.· The Roman law has a brighter future than that. At any rate, the tremendous surge of interest in Roman law in the decades since the last war has dispelled the notion of ‘crisis’ completely. There may be a good deal of truth in the observation that the crisis of Roman law in Nazi Germany - with which Koschaker was concerned - was really due to the fact that the party program called for ‘the replacement of the Roman law, which served the materialistic world order, by a legal system for all Germany’.*
D.
More on the topic THE CRISIS OF THE ROMAN LAW:
- 5.2 The crisis of Roman law
- Roman law at the time of the crisis: from Die Krise to Europa und das römische Recht
- The law of obligations is one of the most significant contributions of Roman law to legal culture, illuminating the civil law tradition more than any other branch of Roman law.
- The Crisis of the Third Century
- It is difficult to provide a comprehensive and finite list of the sources of Roman law, since the Roman jurists never defined the term 'source of law' and different sources were emphasized at certain periods in the history of the Roman legal system to reflect their prominence as instruments of legal reform.
- chapter eight Crisis and Restoration, 91-70
- INTERNATIONAL CRISIS AND TRANSNATIONAL EVERYDAY: GENDER RELATIONS AS CHANGES OF STATE
- 10.4 SPEAKING IN, AND FOR, THE LEAGUE IN A MOMENT OF CRISIS
- Chapter III. The Climate Crisis and Agriculture
- Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
- VII. FROM CONTEMPORARY ROMAN LAW TO ROMAN LAW
- Williamson C.. The laws of the Roman people: public law in the expansion and decline of the Roman Republic. University of Michigan,2005. — 535 p., 2005
- This chapter begins by describing how the climate crisis threatens to disrupt agricultural production at immense cost to society.
- Beyond Roman Law by Means of Roman Law
- Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p., 2004
- Roman Law Codes and the Roman Legal Tradition
- Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p., 2015
- For the benefit of those who wish to delve deeper into the study of Roman law, and as a prelude to all textual criticism and research on Roman legal institutions, attention should be called to the scores of technical aids which facilitate study in the field.
- ROMAN LAW AND GERMANIC LAW IN THE WEST
- Roman Law, Canon Law, and the Trust