Scientific Tradition of Roman Law in Dorpat: usus modernus or Historical School of Law?

Author:Hesi Siimets-Gross

1. Usus modernus pandectarum and the historical school of law - 2. The problem of specification in Roman law - 3. Structure and problems of Meykow's work - 3.1. Occupation, accession or a special class of acquisitions - 3.2. The will of the producer of the new thing - 4. Conclusions


Hesi Siimets-Gross

Scientific Tradition of Roman Law in Dorpat: usus modernus or Historical School of Law?

Private law, in the contemporary sense, has its origins in the 19 th century, when conceptual changes in law took place all over Europe. However, not everywhere was private law modernised according to the same pattern. It was done by codifying private law into a common code in both France (1804 - Code civil) and Austria (1811 - Allgemeines Bürgerliches Gesetzbuch), while in Germany, it was mostly achieved through administration of justice and jurisprudence. The 19 th century saw the heyday of the historical school of law 1 established by Friedrich Carl von Savigny, and its methods and system were also exported elsewhere. The elite in the Baltic provinces of the Russian Empire belonged to the sphere of influence of German language and culture and hence the local jurisprudence was also mainly influenced by developments in Germany. The Baltic provinces also lacked a modern civil code, and it was necessary to ensure legal certainty in them by other means (e.g., through science, like in Germany).

The founder of Baltic provincial jurisprudence is considered to be Friedrich Georg von Bunge, who worked as a professor of provincial law at the University of Tartu from 1831 to 1842 and compiled the Baltic Private Law2. It is also claimed that it was Bunge who introduced the method of the historical school into the Baltic Sea provinces3. M. Luts has indicated in her doctoral thesis 'Juhuslik ja isamaaline: F. G. von Bunge provintsiaalõigusteadus' (Contingent and patriotic: the provincial jurisprudence of F. G. von Bunge) that Bunge rather proceeded from an earlier method of usus modernus pandectarum which was used in the 18 th century4. Yet it is not possible, based solely on this, to declare that private law was not modernised through scientific approaches in the Baltic provinces. Savigny's method was obviously known here, at least theoretically5. Nevertheless, it is not clear whether the method of the historical school was also applied when writing research papers.

Within the historical school, a distinction is made between the so-called Romanists (who studied Roman law and developed a modern private law system on that basis) and Germanists (who studied the law with the so-called German origin, or new branches of law such as commercial law, etc.)6. Bunge, as a researcher of provincial law, belonged to the Germanists, while Roman law was also studied and taught at the University of Tartu.

The objective of this article is to examine whether the scientific method of the historical school might have been also used by the Romanists of the University of Tartu. The first professor of Roman law at the University of Tartu 7 , who did not come from elsewhere but had been cultivated at the University of Tartu itself, was Ottomar Meykow (7.01.1823-5.02.1894). Therefore, I will analyse the scientific method taught at the University of Tartu on the basis of one of his works, namely Die Lehre des römischen Rechts von dem Eigenthumserwerb durch Specifikation submitted to apply for a degree of a Candidate in the Faculty of Law of University of Dorpat (today Tartu) in 18468. Together with three other research papers of the same kind it was published in 18499. His work was not yet a work of a famous scientist, yet this paper by Meykow was widely known: J. Passek writes that Meykow's work has gotten the attention of German scientists10. By the time the paper was written, Meykow had not yet studied elsewhere, being consequently 'unspoilt' and most likely not very independent - his research method was such as he had been taught at the university. Thus, when studying his work methods, we can determine according to which method students were instructed to do research at the University of Tartu at the time of Meykow's studies from 1842 to 1847. Was it rather usus modernus pandectarum, used by Bunge in his provincial law, or did Meykow apply the methods of the historical school of law?

The theme of Meykow's work - the question of ownership after specification 11 , that is, when somebody, who is not the owner, has made something out of material belonging to someone else - has been one of the most discussed topics since Roman times. The fate of the reprocessed outcome already elicited different comments from Roman jurists, which shows that it was both disputable and intriguing. At the same time, the problem was also important in practice: when answering the question of who is the owner of the new thing, it also becomes clear whether it is the owner or the deliverer/reprocessor who enjoys more support. Such a choice always includes social, economic and political values and considerations. This article has been founded on the paper written by Meykow, purely out of scientific interest in the method used by him and the Romanists of the University of Tartu, while trying to identify whether the future professor of Roman law at the University of Tartu was inclined to observe the earlier or the later scientific tradition.

This article will first give some key points of the methods of usus modernus pandectarum and the historical school. As Meykow deals with specification on the basis of Roman law sources, the context of classical Roman law will then be given, to be followed by an analysis of the statements and structure of the paper on the basis of two problems chosen from the work of Meykow, in order to perceive them in the context of Roman jurisprudence.

1. Usus modernus pandectarum and the historical school of law

Usus modernus pandectarum (the modern application of pandects) was in fact characterised by very different approaches. They all shared the importance of the practical usage value of provisions. Until that time, the reception of Roman law had mostly consisted of a scientific discussion of and comments on the sources, and it had been legitimised by the so-called universal nature of Roman law provisions. Usus modernus came to link the scientific and the practical approaches. The earlier usus modernus had attempted to link Roman private law and its principles with local (particular) law and the use of their sources, while actually implementing them in practice, resulting in the Roman-German ius commune12. A typical example is the title of a work by D. I. A. Hellfeld 'Iurisprudentia forensis secundum Pandectarum ordinem in usum auditorii proposita' 13 , that is, law for (judicial) practice structured according to pandects. Thus, the title of the work comprises both Roman law principles and practice systematised by the Digests; the text makes use of other authors, while still referring to Corpus iuris civilis (CIC). Neither Hellfeld nor any other jurists of usus modernus paid attention to the time when the sources of Roman law had been created or to the development of institutes of law over time. The sources of Roman law were considered equally valid and relevant also in the 18 th century. Thus, unlike in the German historical school, it was not important to return to the original sources, and Roman law was discussed in the already developed form of ius commune.

The later period of usus modernus was characterised by the attempt to systematise law according to the structure of 'Institutions' by Justinian, as it was much easier to link German law institutes with those of Roman law this way14.

The founder of the historical school F. C. von Savigny 15 has established that rules with a general content must be created in law, which are not affected by randomness 16 , but must express a certain inevitability (an idea of law or internal principle of life)17. Thus, law is simultaneously both historical (historisch, in der Zeit) and philosophical (überzeitlich), not only one or another18. All sources of law serve merely as the external form of a superior and self-generating true law 19 , in or behind which lays the internal idea of law, a certain metaphysical inevitability20.

The discipline dealing with law had to be both historical and systematic at the same time. Historically, it was necessary to reach the roots of a legal phenomenon - for example, the original approach to the problem of specification, the CIC comprising the works of the jurists of the classical period. Since the systematic approach had to be combined with the historical one, by the historical roots of the institute of law, we have to inquire about the systematic position, the nature of the institute. The historical part was necessary for identifying the principle of life for law but the outcome had to be a valid and organised legal system. The internal idea of a legal phenomenon did not have to be clearly inferable from the original sources; rather, it remained hidden behind the letter and the jurist had to trace it there. Unlike in contemporary Science of Roman law, it was not important to, so to say, reconstruct history, but the sources of Roman law had to be studied for their practical contemporary use21. Savigny had described his work method as follows: firstly, one must study the sources of law (particularly those of Roman law), and thereafter everything that has been written about them 22 and on that basis identify the true law that would be applicable also today23.

2. The problem of specification in Roman law

To give an idea about the problem of specification, the descriptions from Roman law sources will be referred to. In Justinian's Institutes, the problem is described as follows:

Inst. 2, 1, 25: Cum ex aliena materia species aliqua facta sit ab aliquo, quaeri solet, quis eorum naturali ratione dominus sit, utram is qui fecerit, an ille potius qui...

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