BMCR 2019.06.34

Gradenwitz, Riccobono und die Entwicklung der Interpolationenkritik: Methodentransfer unter europäischen Juristen im späten 19. Jahrhundert. Ius Romanum, 5

, , , , Gradenwitz, Riccobono und die Entwicklung der Interpolationenkritik: Methodentransfer unter europäischen Juristen im späten 19. Jahrhundert. Ius Romanum, 5. Tübingen: Mohr Siebeck, 2018. viii, 331. ISBN 9783161559020. €104,00 (pb).

This collection of essays written in German and Italian deals with interpolations in Roman law. The two main sources of Roman law, the Digest and the Codex, were compiled in the 6th century under Emperor Justinian I from textual materials from roughly the first until the third century that were in some respects out of date at the time of the compilation. To give just one example, the ancient material included mancipatio, an obsolete ritual for the transfer of ownership in land, slaves and cattle. The compilers, therefore, had to bring these texts in line with the law of their own time, a task for which Justinian had given them a clear mandate (Const. Deo autore § 7: Sed et hoc studiosum vobis esse volumus, ut, si quid in veteribus non bene positum libris inveniatis vel aliquod superfluum vel minus perfectum, supervacua longitudine semota et quod imperfectum est repleatis et omne opus moderatum et quam pulcherimum ostendatis). In the Renaissance, scholars of Roman law, especially in France, started to analyse these ‘interpolations’ with the purpose of recovering the pure ‘classical’ law. But it needed the rise of classical philology and the dwindling practical importance of Roman law, as well as the discovery of Gaius’ Institutiones, a work not touched by the hands of compilers, to reap the fruits of this method. This was accomplished at the end of the 19th century in Germany, especially by Otto Gradenwitz (1860-1935) in his “Interpolationen in den Pandekten” (1887). Salvatore Riccobono (1864-1958), then a promising young scholar from Palermo, came into contact with Gradenwitz in Berlin and helped to spread Interpolationismus, as this new method was called, in Italy.

After great enthusiasm at the beginning, doubts began to rise: ‘interpolationism’ allowed scholars of Roman law to create in an instant the sources they would like to have by declaring everything that bothered them as interpolated. Interpolationism became a method of producing irrefutable theories, insofar as it did not content itself with interpreting its sources, but rather adapted the sources tailor-made to the theories that had to be proved. Otto Lenel (1849-1935), who had propagated this method at an early stage, came by 1925 to denounce the “hunt for interpolations” ( Interpolationenjagd). Since the 1960s, thanks especially to Max Kaser, the tide has definitively turned and most scholars consider the compilers’ manipulations less frequent and less intrusive than had been thought before. Many alterations are now ascribed to gradual, almost unconscious alterations before Justinian’s compilation (Wieacker’s theory of Textstufen). However, the problem continues to be intriguing, not least because a considerable amount of literature on Roman law is contaminated by the interpolationistic method, that is to say by its exaggerations. For example, Fritz Schulz’ History of Roman Legal Science) (1946), probably the most important contribution to Roman law after Lenel’s Palingenesia Iuris Civilis) (1889) and Das Edictum perpetuum (1883), is heavily indebted to interpolationism.

The book at hand contains contributions by various authors. We will have a look at each of them before turning to the collection as a whole.

The introduction by the editors, Avenarius, Baldus, Lamberti, and Varvaro (pp. 1-6), involuntarily reveals the central flaw of this collection as a book: on p. 2 the authors state that Gradenwitz was one among others, the others being Fridolin Eisele, Alfred Pernice, and last but surely not least, Otto Lenel; at the same time they declare that Gradenwitz “must” be the centre of interest. A real explanation for this choice is never given. And why, instead of analysing the intellectual climate in Germany that led to the development of ‘interpolationism’, and that in Italy that allowed for its reception, do the editors pick a second centre of their enterprise in the person of Riccobono? If the personal relationship between these two men is that important, the introduction fails to explain it. It almost looks as if the rise and fall of interpolationism was some sort of coterie in the editors’ eyes. This could be an explanation for the authors’ tendancy to delve into the dust of archives instead of discussing the ideas, ideologies and scientific currents of their chosen period lying in the light of easily accessible publications.

Salvatore Marino and Pierangelo Buongiorno analyse under the somewhat opaque title of “Interzessionen vs. Interpolationen. La „Nostrifizierung“ di Otto Gradenwitz tra Heidelberg e Berlino” (pp. 13-54) the difficult process of Otto Gradenwitz’ Habilitation at the end of the 19th century, and especially the question of whether his book on interpolations was the cause for his troubles. The—negative—answer to this question could, in our judgement, have been given with less effort. The whole problem is one of Gradenwitz’ biography rather than one of ‘interpolationism’.

Mario Varvaro deals with Riccobono’s stance towards interpolationism (“Circolazione e sviluppo di un modello metodologico. La critica testuale delle fonti giuridiche romane fra Otto Gradenwitz e Salvatore Riccobono”, pp. 55-100. Although one of its early propagators in Italy, Riccobono turned away from interpolationism as he became aware that this method would in the event cut Roman law off from the pre-interpolationistic literature. After all, this literature was grounded in another textual basis, namely, the sources of Roman law without the many alterations brought about by this method. This in turn meant that Italy’s most glorious contribution to legal science, with the glossa and the mos italicus, was being converted into a historic reminiscence—a result that was incompatible with Italian national pride. Textual conservativism became a function of national politics; method revealed itself as a means to an end, the creation of a continuous Italian legal culture from antiquity through the middle ages to modernity. This image of uninterrupted greatness was, of course, central to fascist propaganda, as every visitor to Rome knows. Varvaro’s analysis and the vein in which it is written is masterly by all standards, especially his explanation of methodological choices made with the help of stalwart politics. Yet in politics many things are involved: Pietro de Francisci, a dyed in the wool fascista, who held office as Minister of Justice under Mussolini, was one of the most fervent interpolationists in Italy and of all times. After all, the Middle Ages were undeniably Christian, which fascism avowedly was not. Interpolationism therefore had its charms for fascists, too, since it allowed for a ‘cleansing’ of the Roman sources from their Christian ‘contamination’. The interdependence of political consideration and scholarly methods may work both ways: methodological choices made for scholarly reasons may profit from a political situation, but they may also justify political tendencies which originally had nothing to do with them. These reflections by the reviewer show how inspiring Varvaro’s contribution is. It is the book’s intellectual centre.

The ensuing essay by Stefano Barbato deals with the problem of interpolations regarding imperial constitutions. It seems not to be based on a clear idea, the title speaking for itself: “Nota minima sulle interpolazioni delle costituzioni imperiali nel pensiero di Gradenwitz” (pp. 101-120). The pertinent literature is partially lacking.

Tomaso Beggio’s study on Paul Koschaker is excellent, albeit its title is a bit awkward: “La Interpolationenforschung agli occhi di Paul Koschaker. La critica a Gradenwitz e alla cosiddetta neuhumanistische Richtung e lo sguardo rivolto all’esempio di Salvatore Riccobono” (pp. 121-157). Koschaker was a friend of Riccobono’s and his thinking developed quite in the same direction. Having been a nationalist before WW II, he became a ‘westerner’ ( Abendländer) afterwards. The destructive impact of interpolationism had to be overcome in the interest of ‘Roman law’ as a fundament of ‘European’ civilisation. All this is very interesting but the conncetion with ‘interpolationism’ is a bit far-fetched.

Stephan Meder and Christoph-Eric Mecke write on “Otto Gradenwitz’ Berliner Familienrechtsvorlesung von 1892. Nach einer Mitschrift von Salvatore Riccobono im Kontext von Spätpandektistik und Familienrechtspolitik am Vorabend des BGB” (pp. 157-214). The article is very well documented and written. It is nevertheless not clear why it is necessary to treat the subject at such breadth. Apart from being the occasion when the two men got to know each other, Gradenwitz’ class on family law does not seem to have had any deeper impact on the question of interpolations.

Francesca Lamberti’s paper on the historiography of the Roman family stands out because she contributes to the history of ideas and not merely to the uncovering of archival academic trivia (“La storiografia italiana sulla familia tra tardo Ottocento e inizi Novecento. Antropologia, evoluzionismo e primi influssi delle teorie interpolazionistiche”, pp. 215-238). ‘Interpolationism’ had some influence on the Pietro Bonfante’s seminal theory on the origins of the family. But the real weight of this new method was only felt in Italy in the wake of Gerhard von Beseler, an adamant hunter of interpolations.

Philipp Lothmar, romanist and creator of labour law as a legal discipline, was one of the early critics of Gradenwitz’ method and thereby became a voice crying in the wilderness. Iole Farngoli dedicates to him a study with the title: “Poche ombre sugli entusiasmi coevi. Letture critiche della teoria interpolazionistica di Otto Gradenwitz tra Germania e Italia” (pp. 239- 254).

Spain adopted ‘interpolationism’ only after the civil war. At the same time, it is one of the countries where this method still thrives, a fact due especially to the very influentual ‘school’ of Álvaro D’Ors. María Teresa González-Palenzuela Gallego has written an instructive essay on this phenomenon (“Die Rezeption von Gradenwitz’ und Riccobonos Interpolationentheorien in der spanischen Romanistik”) (pp. 255-266).

Britain stands in splendid isolation. In a tight-knit and profoundly-researched article on pp. 267-302 (“Reazioni all’interpolazionismo tra Cambridge e Oxford nella prima metà del Novecento”) Lorena Atzeri shows that interpolationism was not, as the dominant opinion has it, exported to the British Isles thanks to émigré scholars after the 1930s. William Warwick Buckland, above all, had already been under its influence before the Great War, but had soon turned away from it. She also points out that David Daube did not take a clear stand against interpolationism when he came to Cambridge. The chapter on Britain reveals that the true strength of Europe always consisted in this interplay of attraction and rejection, preventing methods and schools from reigning supreme.

The final essay by Avenarius (pp. 303-314), under the title of “Methodenwandel und Wissenschaftstransfer in der Interpolationenforschung. Neue Quellen und wissenschaftsgeschichtliche Forschungsperspektiven”, is basically a summary of the whole book.

Taken as a whole, the book has some drawbacks. Some of the essays needed more robust editing, and the German is sometimes weak. The editors reined in neither the baroque and treacherously abstract titles of the contributions, on the one hand, nor the contributors’ obsession with details, on the other. Yet these rather technical flaws do not obscure that the initiative behind this book is most welcome. It is impossible to understand modern discussions in the field of Roman law without knowing the quarrels of the past, the most important of which is ‘interpolationism’. It is also impossible to fully understand certain discussions without knowing the different ‘schools’, and their friendships and feuds. The editors and their contributors not only write about these scholarly quarrels of the past; they also perform some sort ‘re-enactment’ of these: Gradenwitz had been a professor in Heidelberg and Riccobono in Palermo, like two of the present editors (Baldus and Varvaro); Fargnoli is in Bern just like her subject Lothmar.

Despite the book’s qualities, many important aspects of interpolationism remain unexplored, but several chapters of this volume will be an important starting point for future investigation.