6.1 The European message and its narrative

In his autobiography, Koschaker, reflecting upon his youth at the beginning of the 20^th century, wrote that he did not see himself as an exceptional student.^[853] In fact, he considered himself incapable of successfully completing any kind of Roman law topics, unlike his younger colleague and friend, Partsch.

Yet, despite himself, as the previous chapters of this book have shown, Koschaker’s eclectic talent, both in the field of Roman law and the laws of Antiquity, as well as his scholarly contribution to these studies, were indeed exceptional. His cultural and scientific legacy will, therefore, be the subject of this chapter, paying specific attention to the contribution he made to the field of Roman law research.

One of the most important aspects of Koschaker’s legacy is his narrative on European Legal history. Its importance is apparent from the two volumes published in a tribute to Koschaker in 1954.^[855] This collection of essays was mainly inspired by Schwarz, a friend of Koschaker’s who died in 1953, a year before their publication.^[856] As Schwarz was therefore unable to write the preface to this work, this task was given to Kunkel.^[857] As Kunkel wrote, both Koschaker and Schwarz had left an indelible mark on Roman law as the foundation of European legal culture.^[858] These two volumes honouring Koschaker’s works display the great admiration his colleagues had for him. In some cases, this respect for Koschaker bordered on veneration, acknowledging him as a genuine champion of European legal history and culture.^[859]

As such, Koschaker’s Europa und das römische Recht represented a new narrative on Roman law - a narrative that was deeply affected by the war and the crisis in Europe - above all in Germany.

Koschaker’s depiction rediscovered the European tradition - from the emergence of the Studium in Bologna in the 11^th century up to the twilight of the Pandect-science - a legal tradition which was later abandoned with the rise of totalitarian ideologies. Koschaker’s narrative underscored the imperative of re-inventing the links between the German Romanist tradition and its European character and, more generally, between the study of Roman law and its European mission. Koschaker saw the reception of Roman law as the cornerstone of his scientific discourse. Accordingly, the very study of the reception of Roman law represented bridge stepping stone between the “historical” Roman law of the Romans and Roman law perceived as the foundation of the modern European legal system. This European perspective gave historical weight to Koschaker’s dogmatic approach.

Of course, Koschaker’s conception of Roman law had its limitations, as Wieacker pointed out. The kind of study required to understand the “true” Roman law of the Romans was trifling, compared to the role of the reception of Roman law inherited from the Compilation of Justinian, according to Koschaker’s description.^[861] Nevertheless, Koschaker’s European narrative sent out a resonant message, becoming a sort of manifesto for legal historians and Roman law scholars that transcended the scientific merits and shortcomings of Koschaker’s idea of Roman law and European legal history.^[862] Moreover, the message contained in Europa und das römische Recht was a call to Romanists not to neglect the European role of Roman law and avoid its isolation from European legal history studies and the idea of European legal science in general.

In his preface to the second edition of Europa und das römische Recht, Kaser pointed out that Koschaker’s work enumerated tasks and suggestions (Aufgaben und Anregungen) to legal historians around the world, regardless of their individual scientific approaches to the study of Roman law and legal history.^[863] In Europa und das römische Recht, Koschaker’s stance was firstly a Warnungsruf, a warning cry,^[864] and at the same time a programme with which to recover the idea of a ius commune europaeum; it was necessary, therefore, to lay down the foundations of a new European legal culture and system. This message was shared not only by legal historians at the time, but also scholars from other fields, such as Carl Schmitt, who defined the role of a renewed European legal science in the sixth paragraph of his short essay Die Lage der europäischen Rechtswissenschaft, as the “letztes Asyl des Rechtsbewusstseins”.^[865]

In fact, one of Koschaker’s aims was to prevent legal history from becoming detached from legal science - and also modern legal science - and reduced to a merely historical subject.

Koschaker’s reaction was typical of jurists of his time,^[866] - not only that of Romanists - against the recent years of totalitarian brutality, founded on the preservation of the European ideal and resistance against the usurpation of legal positivism. In the aftermath of the tragedy of the Second World War, Koschaker steered Europe towards a new future through the rediscovery of its legal and cultural roots and redefinition of its identity. Roman (private) law and its reception constituted the building stones for this enterprise.^[867] It is no coincidence that the heading of the final part of the last chapter of Europa und das römische Recht reads “Die Zukunft Europas'” (the future of Europe).^[868] Koschaker’s work and ideas were part of a broader political European feeling that emerged after 1946.^[869] His stances were a source of inspiration for new research on the ius commune europaeum, and in Germany and Italy his ideas were particularly appreciated in the post-war period.

A highly important interpreter of this mindset in Italy was Francesco Calasso, who wrote his well-known Introduzione al diritto comune in 1951.^[870] Calasso made a significant contribution to the dissemination of Koschaker’s works and ideas in Italy, also writing the introduction to the Italian translation of Europa und das römische Recht. However, he did criticise Koschaker’s crystallised idea of legal development in Europe during the Middle Ages and attempted to oppose what he considered to be a misinterpretation - due to an excessively dogmatic approach - to the study of law of that epoch. Nevertheless Calasso, like Koschaker, underlined the role and value of the tradition of ius commune as the foundation of European legal culture. In this respect, it is significant that a posthumous collection of essays written by Calasso in the previous decades was published in 1985 under the title L’unita giuridica dell’Europa^[871] One of the eight essays comprising this work is the well-known introduction to the Italian translation of Europa und das römische Recht^[872] Despite some divergent scientific stances, it is clear that both Koschaker and Calasso were animated by a deep European spirit, feelings and beliefs as the basis for a scientific programme in order to send a cultural message that would inspire a European legal unity, whilst remaining coherent with the political projects for the establishment of a European Union.

Another legal historian whose stances were influenced by Koschaker’s was Helmut Coing,^[873] and whose ideas found concrete application in the creation of the Max-Planck- Institutfür europäische Rechtsgeschichte in Frankfurt am Main in 1964.^[874] Coing was the director of the Institute until 1980 and his scientific programme, under the influence of Curtius’s work on European literature and the Latin Middle Ages, foresaw the study of European private law history, as the title of his first programmatic essay suggests.^[875] Unlike Koschaker, Coing’s perspective had been influenced by the natural law tradition, and his research proposal mainly focused on the role of the ius commune, rather than the role of Roman law and its reception, or further still, the role of a common European jurisprudence.^[876] One of the aims of Coing’s monumental programme was to collect all the sources of the ius commune, and this led to the publication of the Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte.^[877] To Coing, the collection of sources should be studied from a historical and comparative perspective in order to create a new ius commune europaeum, and both Coing and Koschaker believed in the legal continuity of European history, seeing Europe as an almost uniform cultural and legal phenomenon, mainly based on its Rechtstradition.^[878] Both too believed in the dogmatic unity of European legal history, yet repeatedly with reference only to private law, and their aim was to rebuild a common private law system for the new Europe of the post-war era.^[879]

Calasso and Coing represent just two examples of scholars who were influenced by Koschaker or, at any rate, couched European legal history in a similar frame, even if their scientific stance at times diverged from Koschaker’s.

Guarino’s opinion leads to a further consideration. Koschaker’s European narrative is so focused on the role of Roman law reception in European history that it is not really possible to understand what he precisely meant by Roman law. Overall, his reconstruction is highly idealised and this has two main consequences: on the one hand, European legal history is described according to the ideal of continuity. On the other hand, Roman law runs the risk of becoming a vacuous concept devoid of content. Koschaker’s stances were of course influenced by the circumstances at the time, which perhaps enhanced his tendency for idealisation. To Koschaker, the inner values, principles and legacy of Roman law meant that Roman jurisprudence founded a legal science based on a legal reasoning that had its own hermeneutic criteria. Roman law became to him a sort of undefined ideal which could be used as the cornerstone for the European ius commune. Moreover, Roman law, or better the ideal represented by Roman law, operated in Europe as a civilising and galvanising force, an idealised notion that could be repeatedly used and re-used in different contexts and situations.

Koschaker also stressed the role of European jurisprudence from a dogmatic perspective, though he did not seem to consider the importance of the methods adopted by the jurists in different epochs of European history.^[882] In fact, from Koschaker’s perspective, it was no coincidence that the rebirth of Roman law during the Middle Ages was connected both to the role of the Glossators and, more importantly, to the fact that it had been the law of the Empire. Thus, some of Koschaker’s stances risked depriving Roman law of its intrinsic value.

Of course, Koschaker’s ideas on Roman law and European legal history were based on a programmatic perspective, and Koschaker’s depiction has been influenced by this perspective in the end. However, my study of Koschaker’s works demonstrates on the contrary that he was clearly aware of the necessity of studying Roman law also from a historical perspective, despite his strong criticism of its Historisierung. What is sometimes difficult to realise, based on Koschaker’s approach, is the harmonious flow between his dogmatic aims and a historical approach to Roman law.

Koschaker’s strong idealisation of the Roman law tradition and, consequently, European legal history, led to scholarly criticism that, as times seemed rather harsh. Although a less idealised perspective on European legal history would have been preferable, nonetheless the approach of those scholars who attempt to denigrate this legal tradition is not acceptable.^[883] Koschaker’s greatest acclaim was his recovery, or perhaps rediscovery, of this legal tradition, inspiring Romanists and legal historians alike to consider it again. Beyond the scientific limits of Koschaker’s stance, he created a European narrative that is still today the subject of scholarly attention, stimulating widespread scientific debate and the desire to delve deeper into the European legal tradition.^[884] Moreover, the very limitations of his stance could provide the spark for new research on this subject matter, with the aim of superseding Koschaker’s efforts. When all is said and done, Koschaker’s message is still alive today.