Acta Universitatis Lodziensis. Folia Iuridica, 99, 2022
https://doi.org/10.18778/0208-6069.99.11

Grzegorz Nancka^*

https://orcid.org/0000-0002-9911-7473

Towards a new Methodological Approach. Roman Law Community in Lviv Since Mid-19^th Century until Early 20^th Century

Ku nowemu ujęciu metodologicznemu. Lwowska romanistyka prawnicza od połowy XIX wieku do początków wieku XX

1. INTRODUCTION

In the mid-19^th century, German positivism took on criticism of the historic school although its links with the school were very strong (Sójka-Zielińska 2009, 284), for it was due to Friedrich Carl von Savigny and Georg Friedrich Puchta that the research trend known as usus modernus Pandectarum transformed into Pandectism, whose objective was to present the Roman law norms that were still in place (Skrzywanek-Jaworska 2019, 19; Wojciechowski 2004, 33–37). Pandectism, which is referred to as “Europe’s most constructive legal doctrine” (Kuryłowicz 2013, 104), developed a dogmatically coherent and uniform system of private law that was fit for use in the economic conditions of that time, but not in the socio-economic conditions (Kuryłowicz 2013, 23; Skrzywanek-Jaworska 2019, 19–20). Some of the most prominent Pandectists were Bernhard Windscheid, Ludwig Arndts von Arnesberg, Alois Ritter von Brinz, or Karl Philipp Adolph von Vangerow (Zięba 2007, 91–92). In the second half of the 19^th century, the Pandectist thought permeated to other countries, including Austria. This was largely due to Joseph Unger who, in liaison with other scholars who formed his inner circle – Adolf Exner, Antonin Randa, Franciszek Hofmann, and Leopold Pfaff – strived to romanise Austrian civil law and “force ABGB [Austrian Civil Code] into the Pandectist corset” (Kupiszewski 2013, 145). This had an impact on the Austrian science of law, which was developing, among others, at the University of Lviv, which was perceived as a strong Pandectist centre (Zięba 2007, 91). As time went by, however, it turned out that Pandectism had exhausted its possibilities, not just in the German countries, but also elsewhere. It was then that the search for new research methods began, accompanied by a gradual departure from the Pandectist thought. A question can consequently be asked as to how the study of Roman law in Lviv was doing, until which moment in time did it present the Pandectist point of view and when did it start its search for new scholarly opportunities.

2. PANDECTIST COMMUNITY IN LVIV

The founding father of the Pandectist community in Lviv was Józafat Zielonacki, who also happened to be the first Pole to lecture in Roman law at the University of Lviv. In 1857 he replaced Franciszek Kotter who had been working there until that time (Kodrębski 1990, 231; Zięba 2004, 129–147; Zięba 2006, 15). In fact, the doctoral dissertation of J. Zielonacki, written and published in Berlin, was indicative of his scholarly potential, but turned out to be insufficiently original to trigger a scholarly discussion (Piętak 1884, 161; Zięba 2006, 64–65). Even before his arrival in Lviv, J. Zielonacki had concentrated his research on the issue of possession, and had contributed to the discussion on the character of possession. He subscribed to the opinion of F.C. von Savigny, who viewed possession as a state of affairs. He devoted several of his scholarly works to this issues, including a monograph published in German and – in an extended version – in Polish (see Zielonacki 1852a, 1852b, 1854, 1862a; Kodrębski 1990, 234). The scholarly output of J. Zielonacki proves that he was predominantly interested in property law (see Zielonacki 1863b, 1864, 1877). His most important work was Pandekta, the first Polish-language textbook that utilised the German model of teaching of Roman law (Zielonacki 1862b, 1863a; Kodrębski 1990, 237). The textbook was a-historic in its character, and its content was a purely dogmatic presentation of the law of Justinian (Kodrębski 1990, 238). Looking at scholarly accomplishments of J. Zielonacki leaves no doubts that the methodology of his research was greatly influenced by his education. As an alumnus of the Berlin University, where he had attended lectures of F.C. von Savigny, he was moulded by the German science of law of that era, in which the Pandectist doctrine played a major role (Zięba 2007, 94; 2006, 32). Although Zielonacki did not explicitly talk in any of his works on the method he was using, it appears that J. Kodrębski was right in his opinion that J. Zielonacki was the type of German Pandectist who treated Roman law not as historical discipline, but rather as a prototype for contemporary law (Kodrębski 1990, 238; Zięba 2007, 94). This is further evidenced by the subject matter of his works, which can be considered as typical for that era and in line with research trends of his times.

A model of scholarly work similar to that of Józafat Zielonacki’s was also adopted by Ferdynand Źródłowski, Zielonacki’s successor in Lviv. Unlike J. Zielonacki, Źródłowski also taught civil law (Kodrębski 1990, 238). As regards Roman law, he authored textbooks, including a two-volume Das römische Privatrecht, published in the years 1887–1880, and less than a decade later – the first volume of Pandekta prawa rzymskiego [Pandect of Roman law], a Polish-language publication that was an alteration of an older book (cf. Źródłowski 1877, 1880, 1889). Said textbook was suspiciously similar to J. Zielonacki’s Pandekta and, what is more, was already outdated when it first came out (Kodrębski 1990, 239). That said, Pandekta include a unique methodological manifesto of F. Źródłowski’s, who far more explicitly than J. Zielonacki argued in favour of the up-to-dateness of the Pandectist law (Źródłowski 1889, 4; Kodrębski 1990, 239). F. Źródłowski associated the Pandectist law, i.e. contemporary Roman law (heutiges römisches Recht), with common German law (Kodrębski 1990, 239–240). He actually went on to say that “this part of the common German law which relies on Roman law is called pandects” (Źródłowski 1889, 4). F. Źródłowski was also strongly influenced by F.C. Savigny. He maintained that it was “Savigny [who] best combined the historical and practical aspect in his works. His works are and will continue to be a model to follow for those who will embark on scholarly work” (Źródłowski 1889, 25; Jędrejek 2000, 274). Other scholars who greatly impacted him were G.F. Puchta and B. Windscheid (Źródłowski 1889, 25). He therefore should be regarded as a consistent promoter of the German Pandectist thought in Lviv. His methodological credo proves that the impact of the German science of law permeated as far as Galicia-based universities (Kodrębski 1990, 241).

3. LVIV’S FIRST POST-PANDECTIST

F. Źródłowski’s tenure at the University of Lviv partly coincided with that of Leonard Piętak’s, who – in addition to Roman law – also lectured in commercial law (Kodrębski 1990, 241; cf. Szczygielski 2009, 59–72). However, Piętak worked at the University of Lviv far longer than F. Źródłowski did, for he did not stop lecturing until the year 1900, when he left the department of Roman law to become minister for Galicia (Kodrębski 1990, 242). Piętak authored several works on Roman law, including a Roman inheritance law textbook – the only such publication in Polish literature on Roman law (Piętak 1882, 1888). This two-volume work, which actually never got finished, was a significant point in the history of Roman law study in Lviv, for it broke from the tradition of publishing Pandectist law textbooks (Kodrębski 1990, 242). This was pointed out by Piętak himself, who in the introduction to the work argued that the subject matter of systematic lectures on Roman law “should be solely the pure Roman law, that (…) these lectures should provide an exact and image of Roman law and its structure and, should not be limited merely to the main principles and tenets, but instead should go deep down into details and combine dogmatics with theory” (Piętak 1882, IX). With this in mind, L. Piętak devoted his work to “a systematic lecture on one part of Roman law, which was in itself a separate whole (…), [presenting – G.N.] pure Roman inheritance law, delivered from a dogmatic and historical perspective” (Piętak 1882, IX; Kodrębski 1990, 243). The textbook is very detailed, but – as J. Kodrębski stressed – the focus was more on dogmatics than on history (Kodrębski 1990, 243). While L. Piętak did reject in his work the Pandectist concepts, his lack of proper methodological training was more than evident, which is why he had not studied the genesis or determinants behind the particular norms (Kodrębski 1990, 243). Notwithstanding these flaws, L. Piętak was Lviv’s first post-Pandectist Roman law scholar, albeit one with a modest output (Giaro 1994, 94). An attempt to finish L. Piętak’s breakthrough work was made by S. Szachowski, although he did not have any major scholarly in the area of Roman law, and little is known on his methodology (cf. Szachowski 1902).

4. GREATLY INFLUENCED BY IHERNIG

The most recognized Lviv-based Roman law scholar today is Leon Piniński (cf. Czech-Jezierska 2011; Jońca 2012; Wiaderna-Kuśnierz 2008). Compared to other experts in Roman law, what made him stand out was that he was also an art enthusiast and a politician. As a junior researcher, Piniński had spent time abroad as a visiting researcher at a number of different universities, where he had trained under the supervision of e.g. R. von Ihering, B. Windscheid, or H. Dernburg, which without a doubt had a major impact on his subsequent intellectual formation (Wiaderna-Kuśnierz 2015, 194). Piniński’s most voluminous work is a two-volume dissertation Der Thatbestand des Sachbesitzerwerbs nach gemeinem Recht published in the 1880s (Piniński 1885, 1888). The work received accolades from none other than R. von Ihering, who argued the second volume was one of the greatest scholarly accomplishments of the 19^th century science (Ihering 1889, XIV–XV; Pikulska-Radomska, Skrzywanek-Jaworska 2020, 676). Piniński’s views formulated therein, e.g. treating possession as an economic link between a man and an object, attracted considerable interest among his contemporaries, however the reception thereof varied among different representatives of the doctrine (Piniński 1885, 25; Pikulska-Radomska, Skrzywanek-Jaworska 2020, 675). The scholar engaged in polemics with some of the most renowned scholars of that era, including F.C. von Savigny or the already-mentioned R. von Ihering. Piniński did not conceal his views on the historical school. While analysing the output of R. von Inhering, he came to the realisation that while the German scholar as a young researcher had been influenced by representatives of the historical school, “slowly and gradually his mind would break from the vicious circle of rigid views of Savigny’s and Puchta” (Piniński 1892, 520). L. Piniński did not question the importance of this school, but thought that one major error in the direction followed by F.C. von Savigny and G. F. Puchta was to “overestimate Roman law, not just in terms of the form, but also in terms of the substantive content of the respective Roman law institutions” (Piniński 1892, 520–521; Nancka 2020, 607). An inadvertence on their part was not adapting Roman law to the changing socio-economic realities. R. von Ihering – in the opinion of L. Piniński – significantly contributed to “liberation” from these errors. As Piniński put it, “in almost every single major work authored by Ihering one can clearly see breaking from the former ossified routine and unknown to his predecessors evaluation of the practical side of legal relationships (Piniński 1892, 521–522; Nancka 2020, 607). Meanwhile, in his analysis of the output of B. Windscheid, Piniński did not hesitate to accuse him of representing in his views “a certain conservative current, a tendency to not move away from principles that had already been in place” (Piniński 1892, 534; Nancka 2019b, 403). Furthermore, he believed that Windscheid could have achieved more in his research work if he had had the courage to break free from dated views (Piniński 1892, 534). These observations could be indicative of Piniński’s awareness of methodological malfunctions, combined with a need for change. Thus, on the one hand, Leon Piniński was embedded in the Pandectist reality, but on the other one, he tried to dissociate himself from it. His work on possession should be considered as not just a typical for German literature, but also as more a civil law publication than a Roman law one (Kodrębski 1990, 245). There is furthermore no doubt that the Lviv-based scholar was greatly influenced by R. Ihering, as illustrated by his views expressed in his work Pojęcie i granice prawa własności według prawa rzymskiego [The concept and limits of ownership according to Roman law] (Piniński 1900). The dissertation, in which Piniński formulated the definition of ownership as “ensured by provisions of the law ability to exclusively use some physical object” (Piniński 1900, 9), alongside his work on possession, is a typical product of the late 19^th century science.

5. BREAK THE WIDESPREAD STEREOTYPES?

L. Piniński’s and L. Piętak’s decision to concentrate on political career meant that at the beginning of the 20^th M. Chlamtacz and I. Koschembahr-Łyskowski started to play leading roles at the University of Lviv. The former focused in his academic career predominantly on Roman law, although he did publish works on local government as well (Nancka 2019a). What needs to be stressed is that M. Chlamtacz, like L. Piniński, had spent time abroad as a scholarship holder. During these research visits, which shaped his methodological toolkit, he had met e.g. Adolf Exner and Franciszek Hofmann, both of whom he later posthumously portrayed in the obituaries that he wrote. Marceli Chlamtacz not only derived his scholarly interests from Exner and Hofmann, but he also adopted some of his research premises from them (Nancka 2017, 47–59). His research interests originally concentrated on property law, as reflected in his habilitation dissertation Die rechtliche Natur der Uebereignungsart durch Tradition im römischen Recht (Chlamtacz 1897), in which he sought to demonstrate lack of grounds for the adoption of “the real agreement for the transfer of ownership through tradition” in Roman law (Chlamtacz 1897, III). The dissertation, as M. Chlamtacz recalled, had been written during his research visit in Berlin and under the supervision of Alfred Pernice, to whom the author expressed gratitude for his help in its creation in the introduction (Chlamtacz 1897, IV). Undoubtedly, assistance and tutorship of this German scholar had an impact on the overall shape of the dissertation, whose style was representative of the 19^th century. However, Chlamtacz believed that a change was needed as regards research methodology. In his study entitled O nabyciu owoców przez posiadacza w dobrej wierze w klasycznem prawie rzymskiem z uwzględnieniem prawa cywilnego austryackiego i niemieckiego [On the acquisition of the fruit by the holder in good faith in classical Roman law in the light of Austrian and German civil law] he stressed that “existing literature – obviously, with some exceptions – was largely about ‘systematic reconciliation of contradictions’,” and the various institutions had been presented “in a rounded form” (Chlamtacz 1903, 2). He was of the opinion that along the changes that resulted from the introduction of BGB [German Civil Code], one should resort to historical research focusing on “classical Roman law, an endless repository of legal thought, and Justinian’s ‘Corpus iuris,’ as a one of a kind container of source material, should be treated not as a goal for itself, but as a means through which one can recreate Roman law as it was in its classical era” (Chlamtacz 1903, 2). Several years later, he went on to add that

today’s investigation of Roman law, instead of reconciling at all cost Roman lawyers and their divergent views, has a different role to play! It should, in fact, bring to the surface differences in opinions that have thus far often been covered by so-called systematic interpretation, examine the reasons behind and provide motives and arguments for these opinions. In this way one can significantly multiply the resources of Roman law thought, and can often back up decisions of modern legislatures, not in line with the Pandectist law and theory, by establishing their coherence with the views of key representatives of Roman law thought. De lege ferenda, to the benefit of the legislature, one can in this way retrieve from the monuments of Roman law many new thoughts. The existing interpretation, serving the needs of common law and used to seeing Corpus Iuris as a closed code, in its strive for a practically useful explanation, often hides this interesting and informative discrepancy in the views of Roman lawyers. (Chlamtacz 1910, 255)

These views of M. Chlamtacz’s indicate that he saw the need for changes in research on Roman law. What is more, in his works he actually attempted – with more or less success – to break from the widespread stereotypes that prevailed in the second half of the 19^th century. In a way he therefore attempted to follow the direction previously shown by L. Piętak.

6. METHODOLOGICAL CHANGES

The year 1900 marked the arrival of Ignacy Koschembahr-Łyskowski in Lviv, where he came from Freiburg, Switzerland (cf. Grebieniow 2015; Wołodkiewicz 2009; Koredczuk 2004). As he was taking over the department of Roman law, he delivered an opening lecture entitled Prolegomena do historyi prawa rzymskiego [Introduction to the history of Roman law], in which he firmly expressed his opinion on the science and teaching of Roman law (Koschembahr-Łyskowski 1900; Vesper 2019, 69–70). He opposed the German historical school, claiming e.g. that “the historical school is following a false […] path, maintaining that all we are to do is establish what the final form of legal norms and institutions was as they developed over time, and that we should disregard any and all demands of practical life” (Koschembahr-Łyskowski 1900, 854). At the same time, he believed that criticism of the school was over the top, thus leading to condemnation of the entire Roman law (Koschembahr-Łyskowski 1900, 855). In his lecture, he also formulated research postulates for the local science of Roman law, including one concerning e.g. “the creation of Polish monographic literature” (Koschembahr-Łyskowski 1900, 861; Vesper 2019, 74). The scholar furthermore believed that there are two groups of researchers – one, which slavishly sticks to Roman law institutions, and the other one which does not recognise these institutions at all (Koschembahr-Łyskowski 1900, 856). He approved of this faction of the historical school that he referred to as the transitional path. Among its representatives, in addition to himself, he saw Ernst Emanuel Bekker, Moriz Wlassak, Paul Frédéric Girard, and Alfred Pernice (Koschembahr-Łyskowski 1900, 856). The transitional path, according to I. Koschembahr-Łyskowski, involved two tasks. The first one was the need to get to know classical Roman law, understood as the Roman law of its heyday. He emphasised that during the Justinian era numerous interpolations were introduced into the texts, which distorted the classical, perfect wording of his regulations. As a result, only the analysis of classical Roman law could lead to actual and proper experience of the law of Justinian (Koschembahr-Łyskowski 1900, 856–857). The other task was critique of Roman law (Koschembahr-Łyskowski 1900, 858). Roman lawyers created law by factoring in the existing conditions, as result of which the regulations provided for thus-shaped law will in some cases be insufficient. This is, however, a consequence of the relationships existing at the time of creation of Roman law, and not its fault. It is in such situations that one should break from the wording of Roman and adopt a critical stance (Koschembahr-Łyskowski 1900, 858). Several year later, I. Koschembahr-Łyskowski added that reconstruction of Roman law should be based on the entire scholarly material available (Łyskowski 1908, 443). A fragmentary analysis was an error on the part of glossers and other subsequent authors, who selected from source materials only those elements that could be used to support their hypotheses (Łyskowski 1908, 443). The scholar claimed that classical Roman law should be examined and described using historical and philological methods. He observed that some authors, wrongly in his view, wanted to do this merely on the basis of analysis of Roman economic relations, and overlooked other important factors (Łyskowski 1908, 444–445). I. Koschembahr-Łyskowski argued that the stance adopted by R. Ihering, who considered law “merely as an expression of economic relations and who explicitly defines subjective right as an economic interest subject to legal protection (rechtliche geschütztes Interesse),” is far-fetched and one-sided (Łyskowski 1908, 445–446).

Ignacy Koschembahr-Łyskowski in one of his subsequent works, entitled O stanowisku prawa rzymskiego w powszechnej ustawie cywilnej dla cesarstwa austriackiego [On the position of Roman law in the General Civil Code for the Austrian Empire] moreover considered how classical Roman law should be used in the study of civil law (Koschembahr-Łyskowski 1911, 692; Vesper 2019, 71). He argued that “classical Roman law is a comparative measure used for interpretation of ABGB [Austrian Civil Code] in those cases where ABGB has adopted keynotes from Roman law” (Koschembahr-Łyskowski 1911; Giaro 1994, 94). He also explained why the reference point for comparison should be the classical Roman law and not the law of Justinian (Koschembahr-Łyskowski 1911, 694; Vesper 2019, 71). In his view, the Code of Justinian “rather encompasses classical law stained by interpolations than the law that was actually in place during the Justinian era” (Koschembahr-Łyskowski 1911, 697).

Ignacy Koschembahr-Łyskowski made it clear that he was neither a fan of the hypotheses of F.C. Savigny’s concerning modern Roman law, nor of the slogan “through Roman law above Roman law” promoted by R. Ihering. Instead, he believed that a more suitable way to put it would be “alongside Roman law and with an ongoing comparison of modern law, including ABGB [Austrian Civil Code], with Roman law” (Koschembahr-Łyskowski 1911, 708; Vesper 2019, 71). In his opinion, “this way modern law will gain the independence it deserved, and Roman law will be our compass and road sign in the process of explanation and development of modern law” (Koschembahr-Łyskowski 1911, 708; Vesper 2019, 71).

7. CONCLUSIONS

It can therefore be said that while Józafat Zielonacki and Ferdynand Źródłowski were typical representatives of Pandectism, the first Lviv-based Roman law scholar to break from this methodology in Lviv was Leonard Piętak. However, as his scholarly output was rather modest, his pioneer take on research methodology is insufficiently acknowledged. The need for methodological changes was also acknowledged by L. Piniński and M. Chlamtacz. While the former openly criticised the views of F.C. von Savigny and G. F. Puchta, it was M. Chlamtacz who strongly distinguished between classical law and the law of Justinian. Nevertheless, their position on the issue was not as unambiguous as the manifesto of I. Koschembahr-Łyskowski. This scholar, who arrived in Lviv in 1900, argued in favour of the value of classical Roman law and the need for a critical and comprehensive analysis of source material, and saw Roman law as an interpretive measure in the study of civil law (Giaro 1994, 94). His hypotheses were important not just from the point of view of the realities in Lviv, but also from the perspective of subsequent research on Roman law carried out in the 20^th century. What is important, I. Koschembahr-Łyskowski developed his methodology also after he had left Lviv and started work in Warsaw (Vesper 2019, 72; cf. Koschembahr-Łyskowski 1925, 1938). It needs to be stressed that the approach adopted by I. Koschembahr-Łyskowski was in line with the European tendencies. Given the introduction of BGB [German Civil Code], it was indeed necessary to break from the old methodology. The waning of Pandectism at that time naturally forced modifications in the conducting of research. Nevertheless, it is beyond any doubt that major methodological changes in the Lviv Roman Law community were effected by I. Koschembahr-Łyskowski – changes which also left their stamp on the subsequent study of Roman law in Poland.

^* Grzegorz Nancka, University of Silesia in Katowice, Faculty of Law and Administration, grzegorz.nancka@us.edu.pl