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Ius europaeum or ius oecumenicum? Koschaker, Schmitt and D'Ors on Roman Law and the Renewal of Legal Scholarship in the Postwar Context

In his famous book "Europa und das römische Recht" published in 1947, one of the seminal works on Roman law written in the last century, Paul Koschaker analysed Roman Law as European ius commune: the most important source of law in virtually the whole of Europe in medieval and early modern times. According to Koschaker, the tradition of Roman law as European ius commune, with all its principles, institutes and legal solutions, ought to be the basis of renewal of common European legal culture after the horrors of the Second World War. The ideas and concepts analogous to Koschaker’s mentioned ones are to be found also in the works of Carl Schmitt - not only one of the greatest public law scholars of the last century, but also the man known as the Kronjurist des Dritten Reiches - especially in his contribution "Die Lage der europäischen Rechtswissenschaft", published in its definitive version in Germany in 1950. The utmost importance of the notion of Europe and the heritage of Roman law in the context of the renewal of Euro-pean legal scholarship and European legal world in the postwar era were the same crucial topoi for both Koschaker and Schmitt, despite the fact that the former was the torchbearer of ius privatum Europaeum and the latter – of ius publicum Europaeum. Despite the fact that Koschakerʼs (and Schmitt's) views on Roman Law as ius commune Europaeum and the historical-comparative approach based on Roman law as a possible renovator of the European legal scholarship and legal life have seen a multitude of constant followers in the last seven decades, they have faced strong opposition in Roman law scholarship ever since their beginnings. Some of the most important and original contributions in that sense were written by the renowned Spanish romanist Álvaro d’Ors during 1950's. According to d’Ors, the utmost goal of Roman Law scholars is to create "sistemas de orden universal" based on absolute natural law which is aequum et bonum always and everywhere, and not just new European law: “… a la pregunta ius Europaeum? me atrevo a responder: No! Sino ius oecumenicum”. In other words, d’Ors rejected the very notion of Europe in that context as "un obstáculo para el universalismo". Rome is and will be not just the centre of Europe, but Urbs which is Orbis, "el centro de la Cristiandad y del Orbe todo". Thus, the future ideal of a universal legal system based on Roman law should not be reduced to the mere "derecho europeo", but needs to represent "un ecuménico Derecho Civil". The centrality of the notion of Europe is for Koschaker and Schmitt something so self-evident that there is no need to further question that axiom. Contrary to that, d’Ors qualified this position as a "europeismo" which is at the same time a "detestable separatismo". In his view on the world, Rome as Urbs is still the undisputable centre of the whole Orbis. The highest mission of legal scholarship is therefore to create a universal ius oecumenicum and not just a particular ius Europaeum. What is the relevance of these two different views on the role and significance of Roman law for the world of law and legal scholarship today? In recent times, at the very end of the 20th century, the accelerating process of European integration and of making a uniform European legal system spotlighted ius commune anew as a common denominator of the European legal culture and a possible predecessor of the emerging European private law. Numerous books and articles by Reinhard Zimmermann, which were highly influ- ential not only in the field of Roman law scholarship but in the whole world of private law, are the best proof of it. According to Zimmermann, “Roman Law …can serve as a more solid foundation for a new ius commune Europaeum than an arbitrary piece of legislation emanating from Brussels”. In our context, it is especially worth mentioning that Zimmermann has consciously chosen Koschakerʼs “Europa und das römische Recht” programme as the “guiding star” of his legal scholarship to the last details, not excluding his crucial concept of “European natural law” transformed now into the “common core of European law”. On the other hand, the idea of ius oecumenicum has been transformed into the concept of the New Global Law (ius universale) by Rafael Domingo, a renowned pupil of Álváro d’Ors. An important foundation of this New Global Law – which seeks the globalization of justice and jurisdictional resolution of conflicts between peoples and persons – are iuris universalis regulae of the Roman legal tradition: “… aphorisms and maxims which should help promote global law in the world”.

Roman Law, Europe, Paul Koschaker, Carl Schmitt, Alvaro D'Ors

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