1. The Reconstruction of the Classical Law Texts

As far as scholarship in Roman law was concerned, the new era commenced with Otto Lenel (1849-1935, professor in

^w In 1979 a Zeitechrift filr neiiere Rechtsgeschichle (Journal of More Recent I listory of Law) has started to appear.

Cf. also Mayer-Maly, (1983) 100 ZSS (R/D 3 who emphasizes that the Journal of the Sai'igity-Foutuiiilhvi for Legal History had never, not even before 1900, been a mouthpiece of pandectist scholarship and that, as a result, 'private law subjects play a relatively modest role in most of its volumes before 1900'.

Kiel, Marburg, Strasbourg, and Freiburg/Br.).⁹⁰ In his Edic­tuni Perpetuum (1883) he reconstructed the praetorian edict, i.e. the document that had been of central importance for the administration and development of private law in Roman antiquity. He accomplished this, essentially, on the basis of fragments from commentaries by classical jurists on the edict, as contained in the Digest.⁹¹ The Palingenesia Juris Civilis (1889) was the sustained attempt of restoring the classical law library, as far as this is possible on the basis of the fragments that have come down to us. As Lend himself observed, both research projects had been implicit in Savigny's programme; and he expressed his astonish­ment that they had been so much neglected by the Histor­ical School.⁹² These two works made Lend the man 'who was regarded, in the whole world, as the preeminent contemporary scholar in his subject'.⁹³ But even if 'young academics from all European countries' flocked to his chair in Freiburg,⁹⁴ he did not found a 'school'.

^M| On the life and work of Otto lx*nel, see Leopold Wenger, (1935) 55 ZSS (RA) 55; Sinzheimer (n. 15) 121 ff.; Pringsheim (n. 70) 118 if.; Okko Behrends, 'Otto Lend, Positivismus im nationalen Rechtsstaat als Haltung und Methode', intro­duction to Otto Lend, Gesammelte Schriften, vol. i (1990). pp. xiii ff.; idem, 'Das Werk Otto Lends und die Kontinuität der romanistischen Fragestellungen: Zu­gleich ein Beitrag zur grundsätzlichen Überwindung der interpolationistischen Methode', (1991) 19 Index 169 ff.; Elmar Bund, in (1985) 14 NDB 204 f.

^1,1 This work originated in a submission to the Bavarian Academy of Letters and Sciences which had promised a prize for the best work on the topic of 'The Formulae of the Edictuni Perpetuum (Hadriani): Their Wording and their Context’; the prize was awarded to Lend in 1882: see Brunner, (1901) 22 ZSS (RA) p. vii.

⁹² Otto Lend, in Hans Planitz (ed.). Die Rechtswissenschaft der GegciniYirf in Selbst- d/irstelllillgen, vol. i (1924), 140 (on the reconstruction of the edict, 'the most important achievement in the way of codification since the XII Tables') and 146 ('the idea to extend the work that I had done with regard to the commentaries on the edict to the entire tradition of classical law').

⁹³ Pringsheim (n. 70) 119. ⁹⁴ Ibid.

⁹⁵ As a student in Leipzig he had been particularly impressed by Karl Georg von Wächter, who 'won his heart for the law' and in whose lectures on criminal law and the Roman pledge he had 'first become conscious of the relationship between our scholarship and real life': l.enel (n. 90) 134. Significantly, Kleinheyer Civilis and Edictum Perpetuum have remained to this day essential research tools: Lenel's authority was so striking that further palingenetic research appeared to be hardly worth the trouble.⁹⁶

In the course of his studies Lenel was, of course, constantly confronted with problems of textual criticism and he was thus able 'conclusively to establish numerous interpolations that had hitherto been overlooked'.⁹⁷ But while Lend, in the process of re-establishing the original sequence of the classical texts, was bound, more or less inci­dentally, to hit upon interpolations,⁹⁸ others started system­atically, both from a stylistic and substantive perspective, to hunt for such changes of the classical texts on the part of the compilers. The pioneers in this respect were Fridolin Eisele (Lenel's colleague in Freiburg for four years, until he made way for Josef Partsch)⁹⁹ and Otto Gradenwitz whose book Interpolationen in den Pandekten (Interpolations in the Digest, 1887), in his own view, established the methodical founda­tions of interpolationist research.¹⁰⁰

and Schroder (n.

**’ See David Johnston, 'Lenel's Palingenesia Iuris Civilis: Four Questions and an Answer', (1997) 65 TR 57 ff. ('Until very recently the flame of palingenetic research on the Digest was in danger of extinction'). But see the contributions by Alan Rodger, quoted by Johnston in n. 3 of his article; Hans Ankum, 'Towards Additions to Lenel's '"Palingenesia luris Civil»" (1994) 41 RIDA 125 ff.

⁹⁷ Lenel (n. 90) 142.

⁹* 'Like islands from the sea the remanants of classical law emerged from Justinian's Digest': ibid.

⁹⁹ On Eisele (1837-1920; at first county judge in Hechingen, later professor in Basle and Freiburg) see the obituary by Otto Lenel, (1920)41 ZSS(RA)pp. v ff. and Pringsheim (n. 70) 120 f.

Otto Gradenwitz, in Hans Planitz (ed.). Die Rechtswissenschaft der Gegenwart in Selhsfdarstellnngen, vol. iii (1929), 87 (mentioned, in a summan’ of the academic achievements of his life, in the first place). Gradenwitz (1860-1935) was professor in Konigsberg, Strasbourg, and (from 1909) Heidelberg. In Heidelberg he is remembered as a particularly characteristic embodiment of the whimsical features of the German professoriate (Landau (n. 19) 162). Ci. also the obituary by Paul Koschaker, (1936) 56 ZSS (RA) pp. ix ff.; Johannes Herrmann, 'Otto Gradenwitz',

Emil Friedberg, the great Canon lawyer,¹"¹ mentioned in an autobiographical sketch¹"² that his academic teacher Friedrich Ludwig Keller¹⁰³ in Berlin had encouraged him to write a thesis on all interpolations in the Digest and their significance. Koschaker relates this anecdote in order to illustrate the total neglect of textual criticism by the Histor­ical School.¹⁰⁴ By 1909 the inlerpolationist research had reached such dimensions that the editors of the Romanist division of the Journal of the Savigin/Foundation called for the preparation of a list of interpolations that had been established:¹⁰⁵ a plan that was carried out, after many years of preparation, by Ernst Levy and Ernst Rabel in their Index Interpolationuni Quae in lustiniani Digestis Esse Dicuntur (3 vols., 1929-35).¹⁰⁶