Paul Koschaker (1879-1951). Rediscovering the Roman Foundations of European Legal Tradition (2. Auflage) (original) (raw)
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Koschaker and the path to “ Europa und das römische Recht ” ( 1936-1947 )
2017
The aim of the present paper consists in analysing Paul Koschaker's stances on Roman law and the crisis it faced in Germany during the thirties, as well as his academic experience, from 1936 till 1947. Actually 1936 represents the year when Koschaker obtained the prestigious chair for Roman law at the University of Berlin, whereas in 1947 his masterpiece, Europa und das römische Recht, was published. Nevertheless the article deals mainly with the content and the meaning of the work published by Koschaker in 1938, Die Krise des römischen Rechts und die romanistische Rechtswisenschaft. Since this text has been considerd by the scholars either a political pamphlet against the Nazi regime, or an indirect academic support to the Nazi ideology, a detailed investigation of Koschaker's work will be carried out, to understand if it's actually possible to offer such a clear-cut judgments on this writing. The main stances suggested by Koschaker in order to restore dignity to Roman law will be discussed, paying attention as well to the reaction they caused among the scholars, the Italian ones in particular. Furthermore, some archival documents, in part still unpublished, will be analyzed to get a better understanding not only of Koschaker's scientific and academic ideas, but also of his approach towards the regime. Eventually it will appear how it is necessary to adopt some prudence, when evaluating the behaviour and the ideas of a scholar who lived in such a dark age, like the one of the Nazi regime was.
Roman law as pamphlet: Fritz Schulz and the Prinzipien des römischen Rechts between Cesar and Hitler
História do Direito , 2022
e os Prinzipien des römischen Rechts entre César e Hitler Renato Sedano Onofri 2 1 This investigation was developed in the context of the postdoctoral research project intitled Civil Code, legal sites of memory and identity-building in the legal-science field, carried out at Humboldt-Universität zu Berlin with financial support from the Fritz-Thyssen-Stiftung. I am deeply thankful to both institutions, as well as to Professor Dr. Dr. Stefan Grundmann for their constant assistance. I would also like to thank Professor Dr. Andreas M. Fleckner, whose lectures on Roman law during the summer term of 2021 provided encouragement and the perfect environment to reflect on Fritz Schulz and his Prinzipien. This work is dedicated to the memory of Mário José Bertotti (1955-2021), whose genuine intellectual curiosity will always remain an inspiring force. 2 Guest postdoctoral researcher at Humboldt University in Berlin with financial support from the Fritz Thyssen Foundation.
LOOKING AT THE EDICT OF ROTHARI BETWEEN GERMAN ANCESTRAL CUSTOMS AND ROMAN LEGAL TRADITIONS
Roma Tre Law Review, 2019
The essay takes up the debate on the nature of the most ancient Lombard legislation (whether it is really 'Germanic' or influenced by the Roman legal tradition). After more than two hundred years of discussion, a satisfactory solution is still waiting to be found. The research of the last decades on the early medieval Europe has deeply changed the perspective from which to look at the ancient norms. Legal historiography can no longer ignore the contribution of the studies of ethnogenesis and not even how much we know about the complex phenomenon of vulgar Roman law. Through some examples especially related to criminal law and the trial, these pages intend to show how useful it is to address the subject according to a different approach. Particurarly strong seems to be the imprint of the late Roman military law on the Longobard legislature. CONTENT. 1. Framing Lombard law-2. Restarting the debate-3. The mystery of the gairethinx-4. New (and old) risks-5. Ancient customs and complex ethnogenesis-6. Institutions and criminal law-7. Excursus: Roman military justice and 'German' judges-8. 'Germanic' procedures: a new approach-9. Lombard legal procedure-10. Traditional proofs and evidence of witnesses in the Edict of Rothari
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History of European Ideas, 2020
This article offers a new reading of Carl Schmitt and his Nazi engagement by chronologically examining the changing uses of Roman law in his Weimar and Nazi thought. I argue that Schmitt’s different ways of narrating the modern reception of Roman law disclose, first, the Nazification of his thought in the spring of 1933, and second, the partial and apologetic de- Nazification of his thinking in the 1940s. While Schmitt’s Weimar-era works are defined by a positive use of Roman imagery, ranging from Schmitt’s support to the Catholic Church to his endorsement of Benito Mussolini’s ‘total state’ in Italy, Schmitt’s Nazi writings from 1933 to 1936 describe the reception of Roman law as an anti-German virus that must be overcome by the Nazi movement. This shift mirrors Schmitt’s transformation from an authoritarian thinker sympathetic to Italian Fascism into a devoted Nazi. However, once Schmitt begins to see that Germany will lose World War II, he recalibrates his position. While Schmitt’s earlier Nazi writings offered a negative estimation of the historical school of Friedrich Carl von Savigny, in his 1943/44 book on European legal science, Schmitt portrays Savigny as the paradigmatic European, whose work opens the path for a renewed legal science.
Glossae: European Journal of Legal History, 2021
The legal genre differentiae iuris canonici et civilis underwent significant changes at the threshold of the 17th century, compared to its form in the late Middle Ages. One of the markers of this change was a growth in the methodological insights of the authors of differentiae. The benchmark in this respect is Konrad Rittershausen’s Differentiarum libri septem. In the vast introduction to this work, he discusses various theoretical aspects of the relations between canon law and civil law. The most subtle methodological premise of his work are regulae generales, which explain when each of the two bodies of law may and should be applied on the opposite forum. These rules may be seen as a doctrinal tool applicable for resolving the conflict of norms typical for legal pluralism. His rules are excerpted from earlier legal writings and founded on the broad basis of references to the then recent jurisprudence, with particular attention paid to the consilia and responsa of the authors important for German scholarship (Mynsinger, Wesenbeck, Pistoris). Rittershausen’s work influenced the later developments in differentiae as there were no examples of more elaborated general rules for the application of canon law on the civil forum than the ones he proposed. The emergence of methodological notions in differentiae may be seen as an example of distinctive feature of modern jurisprudence, namely the search for a legal method.
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Czasopismo Prawno-Historyczne
Separating Roman law from the theory of applicable private law inspires - from the beginning of 20th century – the questions pertaining to the meaning, aims, and methods of researching Roman law. This article analyses these issues in the context of the changes of the evaluation of research resulted from the Polish higher education and science act enacted in 2018. The core of this analysis is the comparison of the traditional understanding of the internationalization of the study of Roman law by Polish researchers and the understanding of world-class research according to the new Polish law. The tension between traditional approach of Romanists and bibliometric criteria of evaluation has significant implication for whether and how the Roman law should be studied and taught on the Polish faculties of law. The paper stresses the role of the impact of Polish researches of Roman law on the European debate about basic problems of private law and legal method today. The future of Roman law...