5.5 The reactions to Die Krise des römischen Rechts und die romanistische Rechtswissenschaft

In the years immediately after the publication of Die Krise, some reviews of the work and articles dealing with it appeared,^[645] and although Koschaker’s effort to restore dignity to Roman law was greatly appreciated, certain critics were provoked by his work.

One of the first reviews, by Giuseppe Grosso, appeared just a year after the publication of Koschaker’s work,^[646] and stated very precisely that Koschaker had run the risk of contradicting himself. Grosso wrote that failing to consider or indeed showing indifference towards the history of Roman law was not the right way to understand its legacy.^[647] He further pointed out that it was impossible to acknowledge the reception of Roman law and the development of jurisprudence based upon it as a “supporting structure” for the European framework - as Koschaker had done so - and then reject the wonderful “picture” represented by the process of the historical development of Roman law itself. This process had in fact given Roman law its historical mission.^[648] The idea of the Aktualisierung proposed by Koschaker took the considerable risk of only valorising Roman law insofar as it was useful for the present — ultimately a positivist perspective. Nevertheless, Grosso did not disregard the importance of a dogmatic-systematic approach to the study and teaching of Roman law and, for these reasons, he indeed praised Koschaker’s efforts, a s well as his commendable attempt to defend Roman law on a more general level.

A more thorough analysis of Koschaker’s assertions was attempted in an article written by Giovanni Pugliese in 1941, which amounts to more than a mere review of Die Krise des römischen Rechts und die romanistische Rechtswissenschaft^[649].

in his work, it is unclear as to precisely what he was referring by this concept. If it had been conceived as a return to the methodology of the pandectist school, this concept would not have been acceptable.^[651] The second obvious limitation of Koschaker’s reconstruction is that he only considered the German aspect of the crisis of Roman law (“l’aspetto germanico della crisi”) and transferred the entire responsibility for it onto the Historisierung and the interpolationism. Pugliese claimed, correctly I think, that if we want to find meaning in the Aktualisierung, a historical approach inevitably needs to be adopted, otherwise the study of Roman law would run the risk of losing its significance. As such, Roman law would remain subordinate to pragmatic necessities, which change on a whim as the wind changes direction, allowing its role and use to be modified on the basis of changing social needs or of established power. Equally important, and for it to be really effective, Koschaker’s reconstruction would need to rely on the assumption that European private law in all the countries of the so-called Western tradition of civil law has remained more or less static over the centuries; yet, of course, this is not the case. According to Koschaker’s view, the study of Roman law should not only be circumscribed to private law sphere, but more precisely to single subjects where its influence is more evident in modern law.^[652] Furthermore, if it can truly be argued that Roman law should only be studied to the extent that it is of practical value and for the purpose of interpreting contemporary legislation, this would presuppose a common identity or at least a great affinity between them.

Some further comments should be dedicated to the remarks that Pugliese made on Koschaker’s proposal and, more generally, the suggestions he made about the study of Roman law.^[656] First, Pugliese considered it very important that the study of Roman law should not be restricted simply to Roman private law, arguing on the contrary that it needed to embrace the whole spectrum of law, including public and criminal law and, more generally, its history as well.^[657] Otherwise, according to Pugliese, it would be impossible to understand the complexity of legal phenomena, the peculiarities of the Roman legal order and its development throughout the centuries. In fact, we cannot consider it to be monolithic legal corpus not having undergone any changes from one historical period to another.

At the same time, Pugliese insisted that this kind of historical research required legal knowledge and constructive capabilities. One of the objectives of this type of study was to find general and universal legal principles; however, this statement should not be interpreted to mean that principles and rules were unchanging, and were also present in every piece of modern legislation. Legal history thus can and should maintain its theoretical role, but not independently of legal practice. Rather, a better understanding of the legal practice in its perpetual state of change can only be achieved thanks to a historical approach. For all these reasons, it appears that Roman law represents one of the cornerstones of European legal culture on account of the influence that it exercised over the centuries, as well as the exempla it can still offer, the formulation of legal reasoning as developed by Roman jurists and the legal techniques they used, as well as the substantial legal heritage that it has passed down. According to Pugliese, however, if it is claimed that only its utility should be considered in interpreting or employing it with regard to modern legislations, we diminish the cultural and legal application of Roman law, condemning it to a bleak future.^[661] As Pugliese correctly stressed, there are many contingent reasons that justify the study of Roman law, but since they are temporary, they could only legitimise such study in certain periods and not others; hence it is imperative to research the profound and non-contingent causes that justify the study of Roman law, and Legal history more generally.^[662] For the same reasons, Pugliese considered it necessary to stress the importance of history - legal history in particular - because it describes the legal experience throughout its continuing transformation.^[663] His remarks in this long excerpt therefore led him to conclude that the proposal of the Aktualisierung suggested by Koschaker could not be deemed the proper means by which to restore dignity to Roman law and its study.

Even though Pugliese and Grosso represented, at least in part, two critical voices, as Italian Romanists nonetheless acknowledged the value of Koschaker’s work and, therefore, did not attempt to diminish its relevance to the ongoing debate on Roman law and its crisis at that time.

A negative opinion on Die Krise des römischen Rechts, on the contrary, was made by another Italian scholar, Odoardo Carrelli.^[665] The latter took a stance against Koschaker’s Aktualisierung in the text of the introductive lecture (prolusione) to Roman law course which he never had to opportunity to present at the University of Messina in 1943, as he died during the war during service in the army, in the vicinity of Nola.^[666] Carrelli was firmly convinced that Roman law was a historical discipline that could only be considered, studied and taught from a historical perspective. The fact that it was a historical subject justified why Roman law should be still studied and could represent one of the fundamental parts of the legal education of jurists.^[667] One of the main problems faced by Roman law in the last twenty years, wrote Carrelli, was the widespread anti-historicism that had led to a crisis of the Roman legal history studies; this circumstance, however, was contingent, and the author eventually affirmed that it was not possible to actually talk of a crisis of Roman law.^[668] Briefly stated, according to Carrelli, it was reasonable to affirm that there was no genuine crisis of Roman law in Europe, insofar as Roman legal history (note that Carrelli talks of “Storia del diritto romano” and not of “Diritto romano”) would have been studied only as a historical topic.

Carrelli’s stance on Koschaker’s methodological proposal was completely shared by Guarino a few years later, in his article L'Europa e ilDiritto romano, appeared after the publication of Koschaker’s Europa und das römische Recht.^[669] According to Guarino, Koschaker’s remedies for the crisis of Roman law were merely palliative.^[670] Guarino, who defined the Aktualisierung as an naive proposal (“ingenua proposta”) or a “slogan” in 1961,^[671] mitigated in part his criticism of Koschaker’s methodological approach only fifty years after the publication of Die Krise des römischen Rechts.^[672] Even though he continued to support Carrelli’s point of view and was adverse to Pugliese’s, he also concurred that it was necessary for the Romanists to find a language that made their works more comprehensible to modern legal scholars.^[673]

Two more critical voices came from German scholars immediately following the publication of Koschaker’s text: one of them, Ernst Levy, a Jewish scholar, was already a refugee in the US at the time when he wrote his review. The other Romanist was Ernst Schonbauer, a supporter of the Nazi regime.^[674]

Levy harshly dismissed of Koschaker’s proposal, which was essentially, but not entirely, based on a significant scientific disagreement. He actually considered it was not fair to burden the scientific trends grouped under the name of Historisierung with the entire responsibility for the crisis of Roman law, as Koschaker had done. Moreover, he found the criticism of the latter “pathetic”:

“It is pathetic to hear such a charge coming from a man who has devoted his life to those very two fields. It is all the more pathetic because in my opinion, that charge does not hold good. If it did, how should we account for the fact that, as the author admits, nowhere else in the world do courses in Roman law show so steep a decline as in Germany?”^[675]

Levy pointed out that “Research work is one thing, class work another”, to underline how incomprehensible Koschaker’s point of view was in his opinion; the latter should have distinguished between research and teaching and admitted that the Historisierung of Roman law was a phenomenon involving only the study of the subject and not its classes.^[676] Beyond the methodological disapproval, Levy seemed to reproach the fact that, between the lines, Koschaker did not clearly affirm that the crisis of Roman law was due to the Nazi regime, as he instead claimed in his review.

Levy’s point of view is understandable for two reasons: first, because he was one of the victims of the Nazi violence; with regard only to Roman law, the regime had exacerbated a situation of crisis that already existed in Germany, but peaked from the second half of the thirties onwards. Through the persecution of the Jews and dissidents, the regime forced a huge number of people to flee including scholars, and among them, some of the best German Roman law scholars and legal historians.^[677] Second, even though Levy’s reasons were briefly expounded, he correctly pointed out how Koschaker’s criticism of the Historisierung appeared to be excessive; in this respect, Levy’s point of view was similar to the opinion already discussed and shared by most Italian scholars.

Schönbauer’s work, on the contrary, represented a sort of change of perspective rather than a critical review of Koschaker’s Die Krise des römischen Rechts. He published his article in the second volume of the Festschrift Paul Koschaker, which appeared in 1939. Schönbauer, whose opinion on the crisis of Roman law differed to Koschaker’s, thought it necessary to avoid any alarmism and to depict the crisis of the time as “one” of the various crises that Roman law had encountered in its history, in contrast to “the” crisis of Roman law, as Koschaker had named it.^[678] Although he was not so negative towards Wenger and the Historisierung of Roman law, nor for that matter against a historical approach to the study of Roman law as Koschaker, Schönbauer showed a degree of scepticism towards the idea of the Aktualisierung, as the methodological tool with which come back to Savigny (Zurück zu Savigny).^[679] Savigny and the contribution of the pandectists eventually led to the enactment of the BGB, an abstract and so unpopular (unvolkstümlich) code, according to Schönbauer, for which the pandectists fully deserved to be stigmatised.

The main problem though, according to him, did not consist in a choice between the historical and the dogmatic approach, between Wenger and the pandectists; he simply identified the temporary troubles faced by Roman law as due to the fact that the majority of the scholars in Germany had Jewish origins. They bore the brunt of the hatred of the regime for the subject (and so they had become the reason for this temporary crisis).^[680] For a supporter of the Nazi regime like Schönbauer, the causes of the problems - as their solutions - were quite easy to find, since it was mainly a question of Aryan or not Aryan origins of Roman law scholars.

There is a final point of view on Koschaker’s Die Krise that deserves further analysis: that is Betti’s opinion. It has been previously explained that Betti spent many months in Germany, teaching Roman law in various universities - among others, Frankfurt am Main, Bonn and Cologne - as a visiting professor, invited by German colleagues, in 1937 and 1938.^[681] Betti’s aim consisted in teaching students the course on “antike Rechtsgeschichte”, without neglecting the pandectist approach to the study of Roman law. Betti was particularly intolerant of the hatred for Roman law incited by the Nazi regime and the Nazi Legal scholars and considered necessary to recover the pedagogical role of Roman law in Germany.^[682] As he had the opportunity to explain in a letter to Benito Mussolini on 4^th November 1936, he, as all the Fascist intellectuals, desired to be the learned weapon of the regime (“l’arma dotta del regime”) abroad.^[683] The intent was to pursue an intellectual effort abroad for cultural supremacy, and this effort was to pass through the teaching of Roman law, both for its educational role for jurists and as the foundation for modern civil law.

Nevertheless, Betti experienced in person the lack of interest among German students in attending Roman law courses and denounced the critical situation one year before Koschaker, in an article published in the Tijdschrift voor Rechtsgeschiedenis.^[684] In this text, as well as in the preface of the first volume of his Diritto romano published in 1935,^[685] Betti suggested an approach to the study of Roman law that was very similar to Koschaker’s proposal, which subsequently appeared in Die Krise des römischen Recht in 1938. Betti was convinced of the need for a dogmatic approach to the study of Roman law, as well as the need to rebuild a dialogue with Civil law scholars. Furthermore, the Romanists were supposed to enhance the educational role of Roman law for students and young jurists; lastly, Betti considered Roman law as an important legacy and an essential part of European culture.

There was, therefore, a basic agreement on the role of Roman law and its teaching between Betti and Koschaker, who had known each other well since the Congresso internazionale di Diritto romano, held in Bologna and Rome in 1933.^[686] The main pillars of Koschaker’s conception, as depicted in Die Krise des römischen Rechts, had already been similarly described, albeit more briefly, by Betti in his works. This explains why the latter’s review of Die Krise des römishen Rechts appeared more like the continuation of a dialogue at a distance between the two scholars. In fact, it was Koschaker who first applauded Betti’s stances in his Die Krise des römischen Rechts, affirming that the latter had rightly stated that the dialogue needed to be rebuilt between the Roman law scholars and the jurists who dealt with modern law, and any kind of antiquarian research should be dismissed.^[687] Moreover, Betti correctly stressed Roman law as being part of the European cultural complex (“europäischer Kulturkreis”) shared by European nations.^[688] The only ostensible disagreement regarded the following aspect: Koschaker pointed out that Betti’s manual on Roman law seemed to be simply an updated version of a Pandette’s book (a typical pandectist textbook), revised according to the results of textual criticism.^[689] Betti’s work and approach could be considered legitimised in Koschaker’s opinion only if Roman law was not considered as a mere phenomenon of the past, rather as an essential part of contemporary European legal culture.

Betti’s reply in his review of Die Krise des römischen Rechts is clear: the divergence regarding the methodology to be applied to the study of Roman law could easily be overcome.^[690] Betti himself was aware of the European nature of Roman law and he added a remark for Koschaker’s consideration: the crisis of Roman law was nothing more than an aspect of the more general crisis of classical culture in Europe.^[691] Betti, a fervid fascist, was worried about the crisis of the pedagogical role of the Christianity and classical culture in Europe at that time, and feared, somehow paradoxically, the emergence of a new barbarity.

What clearly transpires from reading the pages of Betti’s review is his broader cultural perspective compared to Koschaker’s, even though both scholars believed in the essential role of Christianity and Roman law as the basis of Europe. From a methodological perspective, even though Betti’s conception was more refined than Koschaker’s and rooted in a more elaborate philosophical background, both of them believed in a dogmatic-systematic approach to the study of Roman law, which was necessary for the study of the contemporary institutions of modern private law.^[692] Accordingly, it would have been possible to recover the useful function (“funzione utile”) of Roman law through teaching and through the education of both law students and scholars. Besides the dogmatic-systematic approach, there was still room for comparative legal history as a means to discover the development of legal ideas and concepts of the Roman world, as well as those of other ancient civilisations.^[693]

Betti seemed to focus on a broader contextualisation of common European classical culture and education, whereas Koschaker was more interested in European culture, to the extent that it was primarily connected with legal education. Nonetheless, the convergence of opinions between the two scholars still continues to be quite remarkable.