A new publication – an interview with professor Tony Honoré – by the FoundLaw project’s researchers, Jacob Giltaij and Ville Erkkilä, can be read on Forum Historiae Iuris‘ website.
Three of the project’s researchers gave presentations at the SIHDA 2014 (Société Internationale Fernand de Visscher pour l’Histoire des Droits de l’Antiquité). Jacob Giltaij spoke of “Legal method and legal ethics in Schulz, Principles of Roman Law“, while Tommaso Beggio gave a paper on “Il Diritto romano quale ‘Juristenrecht’ nel pensiero di Paul Koschaker”, and Kaius Tuori on “Judge Julia Domna? The Rule and the Exception on Imperial Adjudication”.
Jacob Giltaij: Legal method and legal ethics in Schulz, Principles of Roman Law
In this presentation, I shall focus on the works of Fritz Schulz (1879-1957), a professor of Roman law who was ousted from office at the advent of the Nazi regime. After his forced retirement in 1934, Schulz was to publish the work he is more generally known for, Principles of Roman law. Principles of Roman law actually is a series of lectures held by Schulz in 1933 at the University of Berlin, effectively losing him the office there. Several of the principles as formulated by Schulz regard the method of Roman legal science. For example, the principle of ‘abstraction’ (Abstraktion) entails the Roman disinclination for the abstract formulation of legal rules, rather favouring a casuistic method, particularly during its classical period. Concerning the methods of the Roman jurists, in this he has been followed by many scholars, such as Kaser (1962), Carcaterra (1966), Stein (1966) and Schmidlin (1970), all quoting Schulz explicitly. However, according to Ernst (2004) and Schermaier (2010), Principles is also an overtly political work, presenting the Roman lawyers during the classical period working independently from the Roman ‘state’ as an ideal, evidenced for instance by the minimal role they may have accorded to general leges as a mode of law-making. In this, arguably there seems to be an echo of Schulz’s own times, and the way he would have viewed the role of jurists as a professional class vis-à-vis the Nazi-regime. Therefore, the questions I shall pose in this presentation are: in what measure are legal ethics and legal method in Schulz’s Principles of Roman law related? Does Schulz accord a political role to the method of the Roman jurists during the classical period, relevant for his own times and circumstances? And what have been the consequences of this in works of later authors following Schulz’s conclusions?
Tommaso Beggio: Il Diritto romano quale ‘Juristenrecht’ nel pensiero di Paul Koschaker
Nel 1947 Paul Koschaker diede alle stampe Europa und das Römische Recht, contribuendo così a ravvivare il dibattito relativo allo stato del Diritto romano e del suo insegnamento, nonché a difendere la dignità ed il ruolo fondamentale da quest’ultimo rivestito nel corso della storia e del processo di formazione di una cultura giuridica europea comune. L’opera di Koschaker rappresentava lo sviluppo compiuto di quanto già esposto dallo stesso durante la sua nota conferenza sulla crisi del Diritto romano tenutasi nel 1937, a Berlino, a seguito della quale venne poi pubblicato, l’anno successivo, Die Krise des Römischen Rechts und die romanistische Rechtswissenschaft. Tale scritto si distinse per la strenua difesa del Diritto romano e del suo insegnamento, a fronte della condizione di grave crisi in cui esso versava, all’epoca, in Germania. In entrambi i lavori, il Koschaker sottolineava quella che, a suo avviso, fu la caratteristica fondamentale di tale diritto, l’essere, cioè, un Juristenrecht, che si fondava sul lavorio della giurisprudenza e sulla peculiare metodologia da quest’ultima adottata nell’elaborare le regulae iuris. In questo consistette il tratto saliente del Diritto romano, a tal punto da renderlo assolutamente autonomo dal potere politico, agli occhi dello studioso, e da permettere che esso giocasse un ruolo determinante in Europa, sino agli inizi del XX secolo. Sebbene leggendo Europa und das Römische Recht si possano cogliere alcuni passaggi contraddittorî, in quanto il Koschaker non esita a definire il Diritto romano un Kaiserrecht, all’epoca del Sacro Romano Impero, l’aspetto più debole della ricostruzione proposta dall’autore tedesco consta del fatto che, nonostante l’esaltazione del metodo casistico adottato dalla giurisprudenza romana, egli sembra infine insistere solo sugli aspetti formali della produzione del diritto, trascurando qualsiasi valutazione di tipo valoriale. La persistenza del Diritto romano nel corso della storia pare essere, dunque, legata soprattutto a fattori esterni e contingenti, e tale impostazione si riflette sulla sua stessa proposta per il recupero del Diritto romano e del suo insegnamento, sintetizzata nel motto “Zurück zu Savigny” e nel concetto della Aktualisierung. Nonostante lo sforzo meritorio dell’autore, quest’ultima rischia tuttavia di risolversi in una petitio principii e in un mero richiamo formale alla metodologia dei giuristi romani.
The project has hired Dr. Tommaso Beggio for the second position of a post-doctoral researcher. Dr. Tommaso Beggio holds a PhD from the University of Pavia. His research interests include Roman Law, Latin Epigraphy and History of Roman Law, with a particular attention to the topics of the Roman Public and Criminal Law. His dissertation deals with the so-called Aes Italicense or Senatusconsultum de sumptibus ludorum gladiatorum minuendis, an epigraphical source, and it was composed partially during two research visits, one to the Leopold-Wenger Institut of the Ludwig-Maximilian Universität at Munich, the other to the Institut für geschichtliche Rechtswissenschaft of the Ruprechts-Karls-Universität at Heidelberg.
The project has hired Mr. Ville Erkkilä for a position of a doctoral student. Mr. Erkkilä holds an M.A. from the University of Helsinki and is currently working on his dissertation on the use of historiography in defining the idea of a common European law. His research interests include gender history, history of emotions and trauma and memory studies.
The project has hired Dr. Jacob Giltaij for the position of a post-doctoral researcher. Dr. Giltaij holds an LL.M. and a Ph.D. from the Erasmus University Rotterdam. He has worked as an assistant professor at the University of Amsterdam and has a background in both legal theory and legal history.
It is often claimed in the rights and culture debate that certain rights are a reflection of a European culture and tradition and thus not universal. The rights and culture debate is based on the assumption that culture is inherent and stable. Europe has certain legal traditions such as the rule of law, which are culturally based and thus exporting them as universal values is imperialistic and culturally insensitive.
The focus of this newly-launched project, led by Dr. Kaius Tuori and funded by the European Research Council Starting Grant, is a group of innovators, a handful of law professors, who are forced to reinvent themselves and their science abroad after being ousted from office and exiled by Nazi Germany. This reinvention meant that they had to first reconceptualize and rethink all that they had previously done and then to address a new audience in a new language. In the process, they tried to make sense of the disaster that had befallen them personally and their country. They had to face the fact that not only the hallowed Rechtstaat had collapsed on them, but also their colleagues and neighbors had turned against them. In response, these exiles created a theory a common European legal culture, founded on ideals such as the rule of law, law as science and law independent from political power. A reaction to the totalitarian regimes and their nationalistic ideologies, this reinterpretation of the past sought to show that there existed a great European legal tradition based on liberty and justice. They wrote about the Europe of law as a hope and aspiration, arguing for the language of rights and reason against the argument of culture embraced by nationalistic and totalitarian regimes such as Nazi Germany.
Combining archival research, bibliometrical studies and anthropological analysis, the project will study the intellectual history of five key figures, coming both from the ranks of the exiles and those who had collaborated with the Nazis or passively stood by. Studying correspondence, lecture notes, and published materials, the project seeks to follow how the idea of a common European legal past of rights was formulated, discussed and disseminated. The starting point of the study, 1934, is the first academic reaction to the Nazi takeover and the expelling of civil servants of Jewish ancestry, while the end point, 1964, includes the response to the erection of the Berlin Wall and the consolidation of the hostilities between free and communistic Europe.
What emerged from the works of the outcasts was a powerful new theory on the shared European legal past that laid the foundation to the idea of a common European legal culture. From this common foundation, ideals such as the rule of law, law as science and law independent from political power would have spread to form the liberal European legal culture. What current research has forgotten is the fact that the founders of this theory were a small group of legal scholars and historians, many of whom had been exiled or oppressed by Nazi Germany and many who had at some point collaborated with the regime. The uniting factor was that these were German-speaking legal scholars with some background in Roman law and legal history. Two distinct groups emerge, the exiles and outcasts, those who were driven from their posts, and the collaborators and bystanders, who either thrived in the new circumstances under the Nazis or managed to remain outside controversies. Of the first group, I have selected three most significant scholars, of which Fritz Schulz (1879-1957) and Fritz Pringsheim (1882-1967) were exiled in Britain, while Paul Koschaker (1878-1951) was ousted from office. The second group consists of two younger scholars, Franz Wieacker (1908-1994), a pupil of Pringsheim, and Helmut Coing (1912-2000).
The purpose of this project is, through the histories of these scholars, to trace the genealogy of the idea of a common European legal past based on rights and to radically re-evaluate the creation, influence and implications of the theory as an ideological project formulated between 1934 and 1964. Influenced by the failure of utopian theories of society, the formulators of the theory proceeded to first transform the past to create an air of inevitability to the developments and interpretations they proposed. This new, non-nationalized version of the past emerged at an opportune moment and gained political momentum in the bankruptcy of the nationalist movements at the end of the Second World War and the new division between East and West.