N. 4 – 2005 – Tradizione Romana
St.Petersburg State
University
Russian
Institute of Roman law at Berlin University
The article is devoted to one of the
stages in the formation of Roman law studies in Russia, touching up a little-known
aspect of Russian-German cultural relations.
I
When in March 1881 the Russian tsar Alexander
II had been assassinated by a narodovolets’s bomb, his son ascended the swaying
throne and faced the task to suppress the revolutionary mental ferment.
Specifically it was necessary to curb the students becoming new fighters
against the regime. The government understood it was hardly possible to achieve
using just repressive means; a radical rebellion or a liberal opposition,
terror or concealed anti-monarchical propagation would be leading the youth
until young people acquire a strong immunity against such mood. In this respect
the key role was meant for the character of knowledge given at Russian
universities. Special attention was paid to higher law education. On the one
hand the most part of state employees was recruited from those who had got law
education. And on the other hand different legal courses introduced a close
acquaintance with constitutional doctrines promoting critical perception of the
autocracy.
In 1885 the state examination program was
confirmed which was obligatory to pass to get a diploma for all the leavers of
law schools. These rules considerably strengthened the part of Roman law. The
government counted that Roman law studies would have a healing influence on the
forming professional thinking, they would firmly establish the ideas of the
value of a stable legal order (and accordingly the value of the state
maintaining such an order); and the ideas of benefits of evolutional
development of legal constitutions and norms without sudden and sharp leaps and
etc. Besides these considerations there was understanding that with the
spreading of judicial reform in the western provinces of the Empire (Poland, Ostzey
region) judges having studied at Russian universities would face a vital
necessity to make decisions on the national material law basis to a great
degree resting on Roman norms. By the way, according to V.M. Nechaev’s correct
remark, «imperfection of Russian Civil Law, lack of practical importance of
accepted in Germany Roman law, the connection between necessary reforms in the
sphere of Russian Civil Law and general questions of Russian political and
public life rather directed lawyers’ attention <…> to the question of de lege ferenda than to the teaching of de lege lata. The mood appeared in Civil
law literature strengthened young lawyers’ interest in socio-political subjects
that was great itself due to the Russian standard of living. The surge of fresh
scientific vigor in learning Roman and Civil law was reduced because of the
negative influence of the situation. By the time the New University Code
extending the study-hours of Roman and Russian law’s dogma came into its own
there had been few scientists».
So, having added the study-hours for
Roman subjects the Code showed an acute lack of teachers. Maintaining the old
way of preparation (when just one or two talented final-year students were kept
at the faculty and then passed through a five-year preparation before they
could give lectures) it was real to upset the new educational plan demanding to
provide all the law schools with teachers of Roman law for a short time. And at
the same time the rate of their preparation taking into account the mission’s
significance on the subject couldn’t be fulfilled by lowering their
qualifications.
Searching for the way out the experience
of Nikolay I’s period was appealed to (the Nikolay’s epoch on the whole and in
its features was specially esteemed by the conservative ideologists and
politicians of 1880-s and by Alexander III himself). At that time half a
century ago several young lawyers were sent to Germany
to study under the guidance of the luminaries of German jurisprudence including
Savingny, the professor of Roman law at Berlin University.
Now the ministry of public education made up a plan to send some recent
university leavers (according to the common rule they wanted to send those who
had graduated from law schools and with some exception those who had studied at
Classical Historical and Philological faculties) who had distinctive research
capacities in Roman law studies in order to get a complete training at Berlin
university. However in comparison with the period of 1830-s it was expected,
first of all, to concentrate exclusively on Roman law and not to confine anybody
to the once-sent group but to make these trips regular. We should mention that
the ministry had a landmark for how to organize such a school for there was an
Institute training teachers of Classical Philology for Russia at Leipzig University.
Before addressing the tsar for this
allowance minister Delyanov consulted M.N. Katkov, the distinguished
conservative ideologist.
After the latter completely approved of the project deeply believing in the
protective significance of Roman law as a university subject, the minister
reported on the plan before Alexander III. Being a lawyer himself I.D. Delyanov
pointed out the two moments determining the significance of Roman law studies
for Russian universities. First of all, on its bases the law-governed nature of
historical evolution of law is studied. Second, Roman law didn’t lose its
practical usefulness and «served as a school for those who connected their
lives with the judicial field. Everything put together made Roman law the first
subject among different subjects of law faculties and caused that it appeared
to be the main trial for our future lawyers in its history as well as in its
system. And it should have an enormous part among subjects presented by law
faculties like in the rest world». And, at last, Delyanov hoped that such a
scrupulous study of Roman law in the conditions of close acquaintance with the
research ways and methods could resuscitate and advance the subject of Russian
law.
However «it’s a regret that the subject
doesn’t get a proper attention, and due to the situation our universities have
a lack of teaching staff on Roman law with only one professor giving lectures
on such an important subject» and «there is little hope that our universities
will be able to put everything in good order themselves training enough number
of teachers».
Having made such an introduction the
minister said the main point of the report: «I’ve got an idea to refer to one
of the foreign universities, to Berlin
University for example,
since it’s famous for teaching Roman law. The professors- Dernburg, Eck and
Pernice- agreed to take under their guidance those young people who had
finished law courses at law faculties and Historical and Philological faculty
and were chosen by the Ministry of education to be trained for the title of a
professor of Roman law».
The arguments being conducive the tsar gave his allowance for the plan.
According to the Edict (November 15,
1886) the temporary courses on Roman law were established (later they were
called The Institute of Roman law at Berlin
University). This school
had been existing over 10 years and brought up the great number of Romanists
and Civilians who made a great contribute to Russian science.
The two men became the heads at the
Institute on the Russian side. A comrade of a minister of public education, a
director of the Ministry’s Department, N.M. Anichkov, was responsible for the
administrative and financial affairs. The educational part of the studies
(curriculum, students’ complement, correspondence with Berlin professors) was managed by the head
of the Ministry’s Academic Board, A.I. Georgievsky. That man belonging to the
Katkov’s circle was known as a zealous supporter of the classical model of
education. In 1830-s it was Georgievsky who turned out to be one of the
“engines” of the School Reform of an adequate character. The professors were
paid rather high salary. For example, E. Eck got 6000 marks a year (it included
his administrative work as a head of the Institute). Students were paid 150
marks. The sum proved to be not sufficient. As it was reported by the minister
of public education before the tsar «because of lack of money some
grant-holders have to give lessons on Russian diverting attention from their
studies», that’s why «it was desirable to increase the grants to 225 marks a
month». Knowing that Alexander dislikes expenditures at the state treasury’s
expense Delyanov offered to use the savings of Russian Philological Institute
in Leipzig
which was supposed to be closed in 1890.
The grants were increased. Besides that thanks to the ministry some students
were allowed to have the grants received at their own universities in Russia.
The suitable candidates were recommended
by the most authoritative Russian Romanists and Civilians. So, professors N.A.
Kremlev and G.F. Dormidontov from Kazansky
University recommended
S.P. Nikonov and N. Kolotinsky.
A trustee of Kazan
educational region wrote to Saint-Petersburg quoting them: «Nikolay Kolotinsky
rewarded with the gold medal for his thesis “About Guarantee” deserves to be
sent abroad in order to improve his knowledge. Since he doesn’t have his own
means of subsistence it would be comfortable to send him at the treasury’s
expense for studies at the school organized by the Ministry in Berlin».
Prof. O. Meikov from Derpt University
recommended V. Zeeler, P. Sokolovsky, B. Freze. Prof. N.L. Diuvernua from Petersburg University recommended D.D. Grimm. L.B.
Dorn from the Imperial school of law (Saint
Petersburg) recommended V.A. Yushkevich. At the same
time Dorn paid his attention to the conditions necessary for successful studies
of Roman law. In this respect, as Dorn tried to convince, the general higher
school’s course should be supplemented with thorough learning of ancient
languages as well as with modern languages – French, German – and with good
knowledge of Ancient History. Saying about special legal courses there should
be particular calling and love for the subject based on understanding of the
greatness of immortal creations by Roman lawyers. V.A. Yushkevich’ s professor
testified that he satisfied such requirements and that could be also confirmed,
as Dorn added, by senator S.V. Pahman, a distinguished Russian Civilist, who
knew Yushkevich as a student.
Two years later Prof. Dorn was asked to
look for another worthy candidate. But Dorn wasn’t able to name anybody «since
one of the four people who had passed an exam on Roman law to get a Master’s
degree of Civil law was meant by Petersburg
University to go on
business trip abroad to study Byzantine law. The rest students who wanted to
devote themselves to Civil law should have finished Master’s exam on Civil law
and Legal procedure first». However L.B. Dorn says: «I hope I’ll be able to
recommend a candidate for special studies of Roman law next year for this year
the law-faculty declared a competition for the best work on Roman law (obligatio naturalis). It will show who
has got abilities necessary to study Roman law, for example our present
professors Azarevich and Efimov were left at the university thanks to their
gold medals they had got for the papers on the problems of Roman law given by
the law-faculty».
Prof. Enghelman willingly shared his
ideas on the requirements on training for the title of professor of Roman law.
And, at last, prof. I. Tabashnikov from Novorossiysk
University (Odessa) recommended M.Y. Pergament.
II
At the same time some representatives of
academic circles were negative about the Ministry’s measure. What’s more the
most ill-will was displayed by the largest university centers of the Empire. The
journal of Civil and Criminal law, the publication of Law society at Saint Petersburg
university, wrote about the Institute’s activity just once. The article was
reprinted from the Moskovskie vedomosty and had some lines above it:
«The readers of our magazine will read the following lines with natural
dismay». The reprinting had an editorial annotation: «On our side we can’t
imagine the justification of the government’s expense and how it can be useful
for Russian science and judicial practice».
As to Kiev University,
such an approach was evidently revealed by L.I. Petrazhitsky’s business trip.
In the account of the final examination results at Kiev University
in 1890 there was said: «At the exam there was also Mr. Petrazhitsky. His
answer was especially remarkable for its dignity <…>. Being a student he
managed to make a valuable contribute to translated legal literature, published
a well-known text-book of Roman law “Roman legal system” written by Baron which
he had translated from German. I consider it an honor to apply for Mr.
Petrazhitsky and his trip to study at the state’s expense»
I.D. Delyanov appended the decision: «To allow if the university’s means can
afford it». In the end L.I. Petrazhitsky was granted the Ministerial payment in
the amount of 1500 rubles a year for two years. However in August 1890 a trustee of Kiev educational region
reported to the Ministry: «The ministry informed us about Petrazhitsky’s trip
with scientific aims after the examination in law studies by the letter (June
2, 1890). But there were not any instructions for his scientific studies.
That’s why the dean of law faculty according to Prof. L.N. Kazantsev and P.P.
Tsitovich’s words asks me to present my opinion of such instructions to the
Ministry. At first, the reason for the trip is the studies of Roman and Civil
law under the guidance of professors Bekker, Schreder and Regelsberger for the
first year and three terms. For the second year and the last term we should
send Petrazhitsky to Parisian or another French law-faculty. Second, the plan
for the studies in Heidelberg
or Göttingen can be made up best by the above-mentioned professors. Third, it
is necessary to have the ministerial instructions where and when Mr. Petrazhitsky
must sign the undertaking to serve for the trip’s grant».
The final variant of the instruction
which was given to Petrazhitsky appeared only in October. Its compiler, Prof.
L.N. Kazantsev, found that since the business trip was fulfilled «for training for
a Master’s exam on Roman and Civil law» the stipendiat «should devote the main
attention to a serious well-founded and precise learning of Roman law and get
acquainted with teaching methods and practical studies on Prussian and French
Civil law, Common German and French remedial legislation and Trade law». The
following lines easily convince that the professor from Kiev
didn’t approve of the idea to study only at Berlin University.
«During the winter term Mr. Petrazhitsky can take lessons from Prof. Bekker and
Karloff in Heidelberg.
In the summer term he should study Roman law under the guidance of Dernburg and
Pernice in Berlin,
and take lessons on Prussian Civil Law from Dernburg and Trade law from
Goldschmidt. Next winter term Mr. Petrazhitsky must go to Göttingen to get
acquainted with Prof. Pernice’s teaching methods and practical studies. Next
summer term Mr. Petrazhitsky should go to France to get acquainted with
teaching methods of Roman law at their schools and to study French Civil law at
L’ Ecole de droit in Paris».
The instruction had passed through the Academic Board which explained its
agreement by saying: «The stipendiat can get acquainted with the science
without which it’s impossible to speak about law education, and besides that he
can get thorough knowledge in related sciences». However the last word belonged
to the Minister and he didn’t like such disrespect for the Russian Institute’s
priority. That’s why he ordered Petrazhitsky to start his trip in Berlin and stay there
for at least two terms under a favorable guidance of the Institute’s directors
– Dernburg, Eck and Pernice
. By the way, Petrazhitsky without waiting for the instructions left for
Germany and took lessons
from Prof. Bekker in Heidelberg
for the first term. Having received the instructions he went to Berlin but it turned out
to be that the Institute’s management didn’t have any instructions from
Saint-Petersburg concerning him. That’s why, as Petrazhitsky writes, «The
management can’t allow me to study at the Institute due to the absence of
special allowance. Prof. Eck addressed the Ministry and got a favorable for me
reply. But at that time I couldn’t take lessons from the Institute’s
professors. So, the considerable part of the term was lost for me in this
respect».
Prof. N.P. Bogolepov (Moscow University)
displayed the brightest dissatisfaction with the Ministry’s policy in the
question. First, N.P. Bogolepov used to get rid of the inquiries coming from
Saint-Petersburg to recommend the leavers he wanted to keep at the Chair of
Roman law and those who he didn’t regard as his students because, as he
thought, they didn’t have special talents to study Roman law and so didn’t plan
to leave them at the university. In his report about E.V. Passek (one of the
first students who studied at Berlin)
Bogolepov wrote that Passek didn’t study Roman law learning Civil and Trade law
at the University. That’s why he didn’t acquire skills in the analysis of
sources.
By the way the Ministry continued to
demand to find new candidates. As it became clear that the whole matter didn’t
concern a few people but it made up the system threatening to supersede the
system of postgraduate training in Roman law cherished by Bogolepov, he wrote
I.D. Delyanov a letter. The message is penetrated with anxiety which was common
for some Russian professors regarding the studies with Berlin professors rather as evil than
benefit. Bogolepov proved that Moscow
University had a good
system of training Romanists of high qualifications. What’s more he thought that
it surpassed the Berlin
system in its thorough and varied knowledge. «A candidate who’s left at the
University for the training in Roman law should be prepared for a Master’s
degree in Civil law. To get it he has to study not only History and Dogma of Roman
law reading the sources but also to acquire thorough knowledge in Russian Civil
law and one of the modern Civil laws (German or French) and their history in
Civil legal procedure and Trade law». The range of subjects which doesn’t
consist of Roman studies alone, as Bogolepov explains, is conditioned by formal
rules in getting degrees as well as by the matter’s necessity. «To make a
person focus on Roman law alone means to condemn a future professor to such a
narrow outlook which will disable him to have precise knowledge of Roman law».
So, the Russian system is longer than the German one. Bogolepov doesn’t conceal
that the students staying at Moscow
University «spend
three-four years studying before they pass the Master’s exam; then they write
the thesis for two or more years» and «after five–six-year training they can be
allowed to teach Civil law». The Institute’s students didn’t have such courses.
From Bogolepov’s point of view a person passing through Delyanov’s program will
have thorough but elementary knowledge of Roman law: «He’ll be trained as a
German student studying hard for six terms in Berlin for usually two years. The student
uses its time to write his thesis. But if to compare him with our student
studying for a Master’s degree he has to study much more to be able to teach
Civil law at higher schools». “Of course”, Bogolepov adds, «I can’t judge of
other universities’ needs in teachers of Roman law. May be they didn’t manage
to prepare their Masters. In this case a young person with elementary
preparation won’t be useless. But Moscow
University doesn’t need
the German supports. It provides its vacancies with Romanists and Civilians and
sends young scholars to other higher educational institutions». As an example
Bogolepov says about the University’s pupils, V.M. Nechaev and V.F.
Deryuzhinsky, who became assistant professors of Novorossiysk
University (Odessa)
and Military and Law
Academy
(Saint-Petersburg). As to Roman law Bogolepov is satisfied with the present
system when there is a professor in ordinary and two assistant professors at
the chair whose training is not a difficult task for the university. He said of
«Gusakov and Dorobets who brilliantly passed the Master’s exam and prepared
test lectures with great success».
«The Institute can seriously damage the Russian School
of Roman law with the center at Moscow
university», Bogolepov thought. «We», as he writes proudly, «since 1870 have
had a special program for a Master’s degree which is tested thanks to young
people studying to pass a Master’s exam». Speaking of the objectives and
methods a Master faces when he studies Roman law there is the tradition without
which the independent school
of Russian Romanists
can’t originate and develop. Only the future years will show if our training
methods and our students are good or not. But, anyway, our faculty has made
necessary steps to increase the number of Romanists: «having found out teaching
methods and the objectives during some years it has attracted a number of young
people to study Roman law and some of them have passed the Master’s exam while
others are preparing for it». That’s why Bogolepov was worried by the promise
to appoint the Institute’s pupils on all the vacancies at the chairs of Roman
law.
«The contest between those who studied at
home and those who came back from Germany
being unfair will destroy the Russian school of Roman law
which has just started to give the first fruits. If teaching Roman law is in
Berlin students’ hands our own “nursery” will inevitably die for there can’t be
students wishing to work for five-six years if other young people who studied
in Berlin for two years take the very vacancies they wanted to occupy studying
at their Universities in Russia. In such conditions we’ll have to train
professors of Roman law only abroad». In the letter which became the program
against training of Russian Romanists abroad, Bogolepov made the conclusion
which didn’t have any hint on compromise: «Your Grace, I ask you to be
indulgent if you regard my opinion inappropriate on the question I wasn’t asked
of. But I stand for my work’s interests I serve».
The letter from Moscow discouraged the minister. He didn’t
often meet the Ministry’s clerks (professors were included in the Ministry)
with such frank expressions for they knew the official system of seniority.
I.D. Delyanov asked to make inquiries of Bogolepov and got the following
description: «Harsh, blunt but just»,
On the other hand Bogolepov’s letter was sent to A.I. Georgievsky. The latter feeling
stung by the professor’s attacks made the minister a note where he refuted
Bogolepov’s considerations.
This fiery reproof’s echoes appealed to those who didn’t understand the great
significance of Roman law on the whole as well as to those who were against the
studies under the German Pandektists’ guidance also sounded in Delyanov’s
letter to Bogolepov. Having explained the wrong position Bogolepov took in the
question of the Institute Delyanov was curious and somehow maliciously asked
what Bogolepov’s lectures were if he regarded Moscow training at least equal to
Berlin one.
Bogolepov having sent the minister his course of lectures on Roman law
understood that he hadn’t persuaded the authorities and he would have to send
one of his students to Germany.
But even in this situation Bogolepov and
the university’s authorities supporting him didn’t want to give up. The story
happened with one of Bogolepov’s student, N. Dorobets,
showed it clearly. Due to Bogolepov’s request the region’s trustee, count P.
Kapnist, decided to convince the ministry to allow Dorobets to have free
study-hours in Berlin and not to confine
practical studies to Berlin.
The ministry agreed with the first request. But it’s clear that the Institute’s
professors got used to the common order and student discipline couldn’t approve
of a privileged position of one of the students. The story of Dorobets often
appeared in the correspondence between the Institute’s director, E. Eck and its
Russian supervisor, A.I. Georgievsky and in Georgievsky’s messages to the
Ministry.
On the contrary, Kapnist and Bogolepov (who became a rector of Moscow University)
protected Dorobets proving that the question was not about disregarding the
studies at the Institute since «Dorobets is not a student but a lecturer» who
could be free to form up his own system to improve his knowledge and skills
which he found necessary.
The ministry having collided with such a persistent resistance gave up the
second demand and allowed Dorobets to study at other universities including
Parisian one.
Another Bogolepov’s pupil, S. Sabinin,
even didn’t manage to go abroad. Although Sabinin was recommended and there was
the instruction for his studies on Roman law in Berlin his departure was postponed. In March
1883 the Moscow educational region’s trustee, count P. Kapnist, sent a letter
with the request to postpone Sabinin’s trip to the Russian Institute in Berlin
for it would destroy his preparation for a Master’s degree.
In the end Sabinin didn’t manage to take lessons from Eck and Dernburg. The
same situation was with another Bogolepov’s student, Volman.
In contrast to Moscow University
Kiev University’s
professors refrained from open manifestations against the Institute as well as
from boycott. Without any difficulties St. Vladimir University’s
students, A.M. Gulyaev, K.K. Dynovsky and I.A. Pokrovsky were sent to Berlin.
But as the future events will show the professors’ position can be explained
rather by their expectancy than conciliation. When the first group came back to
Russia from Berlin and started to
pass the Master’s exam, one of the students, M.Y. Grebennikov was a failure. In
his letter to A.I. Georgievsky he explained the failure by saying that the
professor of Roman law regarded him a future rival and many other people had
very little liking for the Berlin
students.
Then Grebennikov appealed to the Ministry with a letter of complaint because of
«hundreds of unworthy cavils» his unfair examiners made and because of «their
doubts in the questions considered to be correct abroad» asking permission to
sublet the exam at another university. Delyanov faced the dilemma: if to satisfy
Grebennikov’s requests or not. If the Ministry chooses to satisfy Grebennikov’s
request he opposes himself to such a large university like the University of St. Vladimir
(it could add the fuel to the flame of Moscow
opposition led by Bogolepov). But the Minister’s truly eastern cunning turned
out to be the talk of the town.
Taking into account that Grebennikov
hadn’t shown brilliant results in Berlin Delyanov sent the student’s thesis
presented to the examination commission (the manuscript of introductory lecture
Cultural and Historical significance of Roman law) to Bogolepov to carry
out an examination. The intention came up to his expectations. Moscow letter arrived fast and was full of
crushing criticism.
The ministerial resolution was put on it: «Can’t be admitted to the place of
assistant professor». And in the letter to the Kiev educational trustee about Grebennikov
Delyanov reproduced some extracts from Bogolepov’s letter.
Now nobody could reproach the Ministry with blind partiality of the pupils of
the foreign educational institution and with ignoring the opinion of some
distinguished figures of Russian science which devoted their lives to the
science of Russia.
The people sacrificed to please the
Institute’s enemies couldn’t be helped even by the efforts of such an
influential dignitary like count A.A. Bobrinsky. On Delyanov’s assignment his
deputy, prince Volkonsky, sent the protector a letter under the stamp “In
confidence”. It contained the reason explaining that it was impossible to
satisfy the request which took the ministry out of the blow.
It stated that Grebennikov’s failure had
the most negative effect on the Institute’s leavers. For instance V.A.
Yushkevich first having applied for the permission to pass a Master’s exam at
the University of
St. Vladimir asked the
minister to allow him to pass the exam at another university.
Although we know that in contrast to Saint
Petersburg University
Kiev University
was ready to examine and give Yushkevich a Master’s degree in spite of his
studies at the School of law where he couldn’t get the title of candidate of
science. Only university leavers could get the degree; particularly those who
finished the course of Historical and Philological faculty (like A.M. Gulyaev),
passed the exam and wrote an adequate paper to get a degree of candidate of
law.
III
In its activity Berlin Institute was far
away from the urgent problems characterizing the internal political situation
in the Russian Empire at the end of the XIX century. But despite that and even
contrary to its great distance from Russia the Institute’s history was
affected by at least the two difficult for the Empire questions- Ostzeyan and
Polish.
The number of the students from Ostzey
region who had finished Derpt
University was rather
considerable. And it’s understandable: the German linguistic environment was
native to them and they were better prepared than many others to study Roman
law at Derpt University. However when they had
finished the Institute the grotesque picture was painted showing that Russian
subjects sent abroad with the objective to make a better training at Russian
institutions were not able to fulfill their duties due to their poor knowledge
of the Russian language. The Ministry got some applications from Wilhelm von
Zeeler and Ferdinand Tille to free them from teaching job for one term. For
having finished the School and the university in the German language they still
didn’t know Russian quite well. The application was supported by Prof. Eck.
We can say that the news of the linguistic problems suddenly revealed by the
ready to teach lecturers of Russian universities caused the Institute’s
supervisor’s sad feelings. But Georgievsky had nothing to do but to ask the
Minister: «Unfortunately candidates von Zeeler, Sokolovsky and Tille having got
their education at universities in German didn’t have a chance to master
Russian in order to give lessons in it without difficulties. That’s why they
ask to give them some time. I suggest that they should be taken on the
Ministry’s staff and allowed to attend lectures at law-faculty of Petersburg university».
It turned out that only P. E. Sokolovsky had enough time to learn Russian, the
others Ostzeyans hat to study for another term (Georgievsky again appealed for
them).
The fear of such events casting a shadow
on the very idea of the Institute (especially against the background of
russofication in Ostzey region and the struggle against German cultural
domination) made A.I. Georgievsky be more careful. And when a venerable Derpt
professor I.E. Enghelman had recommended his ex-student, A.I. Fufaev, to go to
Berlin A.I. Georgievsky in spite of the recommendations and a positive review
of the candidate’s thesis written by professor V. von Goland sent the minister
a letter supposing that Fufaev didn’t know Russian well. There was the
instruction given to check the candidate’s knowledge.
The results came up to the bad expectations of the Academic Committee’s
chairman.
The trustee of Derpt educational region
reported: «Fufaev’s written work serves as incontestable evidence that the
Russian person has forgotten his native language in the German milieu. It also
serves as a general picture of the Derpt students’ attitude to the Russian
language. Fufaev can’t be sent to the Russian Institute».
There was the event connected with one of
the Institute’s students, Polish Foma (Tadeush) Semiradsky. In 1880 he had
finished the course at Leipzig Philological School
and he worked as a teacher of the ancient languages at a grammar school before
his trip to Berlin.
In spite of his studying Roman law at the mature age, Semiradsky was good at
the subject. We can say so according to the letter the author sent to I.D.
Delyanov with the request to publish his work The significance of ratihabitio
in the “Digest” in the journal of the Ministry of public education. At the
same time Semiradsky said that the work was welcomed by Prof. Pernice. The
minister asked Ludolf Borisovich Dorn to look at the work and say his opinion
of its scientific quality. But Dorn didn’t manage to do it for a
Comrade of Minister of Internal Affairs, N.I. Shebeko, sent a notice that «Foma
Semiradsky belonged to the criminal group of Polish young people in Berlin». I.D. Delyanov ordered to make inquiries
about Semiradsky’s political reliability from the consul-general’s point of
view. Some time later the Ministry of Internal Affairs sent a new note with the
stamp “Secret”: «Foma Semiradsky is under guard in the 10-th pavilion of Warsaw fortress». The
ministerial chief tried not to allow Semiradsky to compromise the Institute.
«He must be excluded from the number of the students in Berlin and we should inform Georgievsky. Who
recommended him? I don’t know him and have never seen him», N.M. Anichkov, a
director of the Department, said in the resolution. And still another letter was sent to
the Ministry of Internal Affairs under the stamp “Top secret”. I.D. Delyanov
asked to answer his question: «What is Foma Semiradsky accused of?». In the reply under the stamp “In
confidence” it was said of a secret group of Polish young people preparing
politicians of social-democratic views in 1889-1890 in Berlin. The group gathered at Semiradsky’s flat
(he was considered to be the head) where the members of the group read
literature of social-democratic character. They had good relations with the
central group with the help of Semiradsky who also collected donations for the
group’s needs. Due to this answer being politically unreliable Semiradsky was
excluded from the students with the prohibition to teach.
Later as soon as the question of sending
this or that Polish or a Catholic was raised the ministry didn’t want to tempt
fate and didn’t give the direct answer. For instance, when the trustee of Derpt
educational region recommended a certain Vidzhga his candidate was refused as a
catholic in the light of the doubts after Semiradsky’s story. Some time later K.V. Korvin-Piotrovsky
asked to send him to the Institute for studies at the same time emphasizing his
patriotic activity (he published the brochure of Alexander III’s coronation,
was a member of the group, Palestinian society, headed by the tsar’s brother,
Great Prince Sergey Aleksandrovich and etc.). But A.I. Georgievsky having learned the
Polish’s biography warned the minister against complying with the request of
the Polish and Catholic. I.D. Delyanov put the resolution on Georgievsky’s
letter: «Refuse without any hope in the future». After the second and the third
request applied by Korvin-Piotrovsky who wanted to go to Berlin at his own
expense (he didn’t understand that such a persistent thirst for knowledge for a
forty years old Polish who had finished a grammar school in Austria seemed to
be strange from Petersburg clerks’ point of view). I.D Delyanov resolved: «It is already
late. The Institute is to be closed».
Only the two Polish people, L.I.
Petrazhitsky and V.A. Yushkevich, managed to finish the Institute. «Professors
say I’m doing a tremendous progress and think it’s better for me to stay in Berlin for a year at
least to complete my law education. I quite agree with them. I started writing
a paper which would take a year and give me an opportunity to present my
Master’s thesis when I return home. To complete the thesis and master endurance
in a research work I need the help of all the professors of the Institute and
especially the kind help of Prof. Eck», Petrazhitsky wrote to Saint-Petersburg
with the request to allow him to stay in Berlin
for another year. But the term also appeared to be not
enough for the student and he persuaded the minister to add another year. «Last
year I published a book researching some special questions of Civil law about income.
The most important results of my research together with quite a complimentary
opinion of Prof. Dernburg had been published in a new edition of his Pandekts
before my book was printed. Many other critics praised my book in their
journals. The reason of my success is that I managed to find a general theory
of income which was more correct than the old one accepted in the science.
That’s why I studied a theory of income on the whole to develop and check my
point of view in practice. I wanted to publish my work in two volumes. The
first volume is ready for publishing and in the professors’ hands praising it a
lot. I collected and worked up the largest part of the material for the second
volume. Since in Berlin I have the most favorable conditions for my studies
under the guidance of the professors and will do harm to my studies if I
interrupt them on the half way of such an important and grandiose measure
professors Dernburg, Eck and Pernice insist on my addressing the request to you
to allow me to stay in Berlin. The professors also wrote their appeals in the
report of the Institute’s achievements». Petrazhitsky had been studying in Berlin for the three
years. Having arrived in Russia
he became an assistant-professor and then a professor at law-faculty of Saint-Petersburg University
where he lived till his departure to Warsaw
in 1917.
V.A. Yushkevich was different from the
rest students because he had finished a privileged school of law. Lawyers
graduated from the school with a great rank but without a scientific title for
they were prepared to work in practice but not as teachers. This circumstance
supported by a hostile attitude the university students felt to lawyers and by
his Polish origin let him down. In the first place V.A. Yushkevich was supposed
to work at Derpt University. However Prof. O. Meikov who
had been occupied the chair of Roman law for many years and several times had
been chosen as a rector wrote a letter to the minister. He asked to appoint
E.V. Passek instead of Yushkevich for D.D. Grimm was leaving for Petersburg to
work at the school of law (by the way, Grimm was Meikov’s nephew) mentioning
that Grimm and A.M. Gulyaev staying at the chair asked for the same. The idea to appoint Passek was
supported by the trustee of Derpt educational region, N.A. Lavrovsky. The
conservative-slavophil thought that Yuriev
University had to be the
stronghold of Russian education spreading Russian cultural influence in German
lands. That’s why an Orthodox and a Russian lecturer could be much more appropriate
than a Polish and a Catholic. He tried to persuade those who had the last word.
«I support Passek. Why to appeal for a lawyer and a Polish? You yourself said
that it wasn’t fair to allow him to lecture at Saint-Petersburg University
since he was not quite ready for this. Why to allow him to lecture in Derpt?»
Lavrovsky wrote to M.N. Kapustin, his predecessor as a trustee of Derpt
educational region. Although Kapustin was in charge of Petersburg
region his opinion of different questions concerning Yuriev University
was respected. The letter Lavrovsky sent to Delyanov’s
right hand, N.M. Anichkov, was of the same kind. «Why to appeal for a lawyer
and a Polish? They in Derpt don’t know how to get rid of one Polish not saying
of the two Polish people. We must draw a worthy Russian person but not an
unworthy Polish lawyer how he is represented by his own comrades». In the end
Passek had an appointment to Yuriev
University instead of
Yushkevich. The irony of fate which Lavrovsky
didn’t get to know as he died in 1899 was that he had paved the way for a
liberal who was removed from his post of rector for connivance at revolutionary
students in the future but at the same time he had taken actions against a firm
monarchist whose death was mourned for even on the pages of “Russian Banner”
(the organ of the radical right party –“Chyornaya Sotnya”).
IV
In 1880-90-s the Institute was left by
the first leavers. So, in 1890
A.I. Georgievsky informed I.D. Delyanov: «The Institute’s
management notified me that von Zeeler, Sokolovsky, Passek, Gulyaev, Katkov and
Tille had finished the course. They all are prepared, as the management guess,
for teaching Roman law according to their scientific knowledge and written
papers. The management say about von Zeeler, Sokolovsky, Passek and Gulyaev
with special praise. The works presented by von Zeeler and Sokolovsky are so
brilliant that they will make a valuable contribution to science being
published.<…> Gulyaev, Katkov and Passek can be appointed on the
vacancies of readers of Roman law. The former can get the appointment to Derpt University,
the latter ones - to Moscow
University». Since Passek’s Alma mater didn’t wish to accept its pupil due to Bogolepov’s
position for Passek went cap in hand to the Germans Passek was appointed to
work in Derpt, a more loyal to Berlin students university (it was renamed
Yuriev University later).
M.M. Katkov was appointed by the minister
to work at the Lyceum of Grand Prince Nikolay, an educational institution
organized by his uncle’s (M.N. Katkov) efforts and intended to be the model of
classical education. By the mid of 1890 the Institute had time to teach so many
Romanists that the leavers of the first years started to recommend new
candidates themselves. So, in the personal file of Benedict Freze there are two
recommendations given by A.I. Georgievsky and the recent university student,
A.M. Gulyaev. But such an intensive addition of staff
of educational institutions by new coming from Berlin Romanists caused serious
difficulties with their provision of employment. The difficulties were
redoubled by the fact that many universities objected to the appointment of Berlin students at their
chairs. That’s why the promise given by the authorities on the Institute’s
opening-day to appoint first of all those who had Berlin certificates wasn’t implemented.
We’ve got an appeal of Benedict Freze
full of complaints. The ex-student wrote: «according to the order of His
Imperial Majesty the Institute’s leavers are promised an immediate application
but I can’t get the application for two years» and «I even didn’t get a grant
as others». It’s interesting that Freze suffered a
reverse to take a job of an assistant professor at a vacant chair of Ostzey law
at Yuriev University. The reason is not a fobia to
Berlin Romanists (there wasn’t such prejudice, as we said) but the inner
struggle of the university clans. P. Pustoroslev, a dean of law-faculty and one
of the professors of Roman law and E.V. Passek belonged to the group which
refused the candidature of Freze. They weren’t careful of Freze’s poor
qualifications but they were afraid that he would go along with the opposite
party.
In October 1894 Alexander III died and
expectations to get any leniencies flourished. But the organization of the
Institute was regarded as a reactionary measure by many of those who hoped that
a young tsar would be open for liberal trends. In this situation, as it often
happens, the new authorities feeling an increased concern for popularity were
oppressed by the Institute. Having understood such mood A.I. Georgievsky asked
the minister to keep the Institute. But Delyanov’s keen intuition he
developed being a state clerk suggested different things. Understanding that
the closure of the Institute can be presented as a step both liberal and
patriotic and practically rational the minister decided to advance the tendency
and to be the first one to suggest that the Institute should be closed. So he
answered Georgievsky: «The Institute has fulfilled its objectives and that’s
why its further existence will be just a burden for the state treasury». Having realized that there’s not a step
back the Institute’s supervisor asked to give him some time till the spring of 1896 in order to inform the
luminaries of Roman law six months before the closure. The minister didn’t
object. In the end the question of the Institute’s library was raised.
It was decided to hand it over to the
library of law-faculty of Kazan University, the most eastern university of Russia
at that time.
V
The education at the Institute was
carried out by the three luminaries of Roman law – Pernice, Eck and Dernburg.
Prof. Alfred Pernice read the course of
History of Roman law at Halle
University. His first serious work (Zur Lehre von. d.
Sachbeschädigungen nach röm. Recht) was
published in 1867 and five years later the first volume “Marcus Antistius
Labeo” appeared. The development of History of Roman law (and, of course,
History of Roman Civil Law) at the end of the XIX century was tightly bounded
with the scholar. Pernice was considered to be the most distinguished scientist
of the generation of Pandektists who came to replace the luminaries of
Historical school, Savingy and Puchta concentrating his main efforts on a
critical analysis of the sources to reveal the elements of classical Roman law.
At the same time they were inspired with not cleaning of the legal institutions
from “alluviums” solely but also with a moderate aim to reconstruct the actual
genesis of law, contained in Corpus Juris Civilis and transferred due to
the reception in so called common law of Germany.
In his fundamental research “Marcus
Antistius Labeo” which proposed Pernice into the first numbers of German
Romanists, he made an attempt to reveal the role of some Roman lawyers in the
development of Roman law. Since the idea of the research was extremely broad
(it was supposed to research the Civil law of classical epoch), and the
realization was remarkably thorough Pernice didn’t manage to see it through.
But even the volumes the author had time to publish became the essential part
of the historical-legal treasury. For example the third volume (the last one)
got a general acknowledgment as a model research in its method of work with the
Roman sources.
In 1881 after a famous Romanist Bruns
died Pernice (together with E. Eck) was invited to hold the chair of Roman law
at Berlin University. Having moved to the capital
Alfred Pernice became one of the editors of the main organ of German Romanists,
a journal Zeitschrift d. Savigny Stiftung. From 1880 till 1890 on its
pages he published some articles devoted to the main objective of his life – to
the reconstruction of classical legal system. At the same time Pernice took an
active part in the work of Berlin
academy of science (he was chosen to be its member after Bruns’s death). In the
academy’s reports his articles were published focusing on the peculiarities of
the great Roman lawyer Ulpian’s literary style, sacral law and etc.
At the same time A. Pernice devoted
himself to lectures and seminars on Roman law history. A Russian Romanist, V.B.
Elyashevich (who attended Pernice’s classes) wrote: «They always were
attractive for all those researching History of Roman law; devotion and love of
the work together with his personal courtesy and amiability made the guidance
of such a first-class scientist extremely fruitful and pleasant: a number of
scientific works were made thanks to his personal influence and often to his
initiative. <…>. All those who worked with Pernice (and a lot of Russian
scholars) would always remember the teacher sympathetic and amiable, always
ready to sacrifice his time and work and share his enormous knowledge and
experience».
The Institute’s work coincided with the
difficult times for German Romanists. January 1 of 1900 was coming when the
striking of the New Year chime would declare Pandekt law resting on the Roman
base the dead law as German Pandektists spoke ironically and gloomily. In spite
of a serious influence Roman law had on German Code Civil it was different from
Pandekt legal technique and its conceptual vocabulary. The innovation of such a
character couldn’t help but led to a considerable reduction of Roman studies. A
lot of professors regarded the changes a step to the abyss waiting for the degradation
of a world-wide known German law education and the destruction of scientific
schools due to the changes in curriculums. Not saying that reduction of Roman
law studies seemed to be a sacrilegious attempt to depreciate all their lives
as well as their own teachers’ lives and their teachers’ teachers. For
instance, the destruction of Roman studies caused by the Code was a very
distressing event for Pernice. He complained: «Seminars on Roman law are said
to be unnecessary». Instead of scientific research of the sources he had to
confine himself to exegesis of the text. These studies being very important in
the science were the special care for Pernice. We can suppose that teaching at the
Russian Institute organized specially to cultivate Roman legal knowledge was
somehow a “vent” for the venerable Romanists for it could allay the sorrow for
the lost significance of Roman law at the native universities.
The Russian Institute’s head, professor
Ernest Eck, was considered to be the best teacher of Civil law n Germany. Having
started his work in the academic field at the mature age Eck devoted all his
energy to teaching young lawyers in Civil law and skills to use theoretical
knowledge in cases. His personal long practical experience combined with his
striking erudition and ability to expound the most complicated cases clearly
and fascinating attracted hundreds of students from Europe
into his lecture-hall. «At the public courses on the investigation of
complicated cases in Civil law you could always meet him in a crowded
lecture-hall among students just beginning to study law and grey-haired Berlin
lawyers, public prosecutors and judges» as it is said in the obituary devoted
to Eck.
A strong feature of Eck’s works (the list
of his works was headed by Die sogenannten doppelseitigen klagen des römischen und gemeinen
deutschen Rechts) was not only
the originality of his concepts and the courage to frame hypotheses but also
his enormous knowledge of Civil law combined with a clear and logical
exposition. Eck had an ability of critical perception and scrupulous
examination of this or that conception and obvious demonstration of its
vulnerable features and advantages which could help to find its place in the
general list of other achievements. That gift was embodied in Eck’s critical
works on Roman and Civil law literature.
Eck’s didactic abilities were also great
if we remember that in difficult times of transferring from the Prussian Land law to the German Code Civil it was
Eck who was appealed to by German lawyers asking him to help them understand
principles and typical features of the new Code. Trying to help Eck gave a
course of lectures. Later it was published under the title Vorträge über das
Recht des bürgerlichen Gezetzbuches (1898) being an example of a simple and
thorough exposition of basic sources of the German Code Civil.
Owing to the amount of study-hours of
Eck’s lessons (and due to his administrative work) students communicated with
Eck oftener than with other professors. S.P. Nikonov said: «For us, Russians,
Ernest Eck was very important for he was the teacher of the considerable part
of our own professors, Civilians and Romanists who had finished their education
at the Russian school at Berlin
University which had been
existing over ten years headed by Prof. Eck. Being extremely kind and tactful
in communication, respecting his students’ opinion and thoughts he could make
everybody who was under his guidance by his own example love and respect the
science, do one’s work thoroughly and painstakingly without pernicious for the
science superficiality and self-conceit. He was always sincerely happy to find
out his students’ new scientific ideas and help them carefully with his
instructions and criticism. He was serious and attentive listening to the
students presenting him their “discoveries” and he pointed out the weak
features of their statements and adoptions (often unintentionally taken from
the old theories on the question), delicately and with subtle humor sparing his
students‘ vanity and making them study their problems more thoroughly and
carefully. Kind and justice weren’t abstract words for him».
As the tutors of young Romanists E. Eck
and A. Pernice were the natural complements of one another. Pernice was
different from Eck in many things. If Eck’s fame was based on his unusual
teaching talents, Pernice was more a scholar than a teacher. Being an extremely
strong dogmatist Eck didn’t give historical courses and historical problems
were presented weaker in his dogmatic courses. Pernice, vice versa, was devoted
to the studies of History of Roman law.
But, anyway, the Institute’s most
prominent professor, without any doubts, was Heinrich Dernburg. He started to
teach Roman law at the beginning of 1850 having become a successor of Theodor
Mommsen at the chair of Zurich
University. Having
returned to Germany in
1862-1873 he occupied the chair at Halle
University and then headed the chair
of Civil law at Berlin
University till his death
in 1908.
The trend of German Pandektistik which
was connected with the name of Dernburg admitting Savingy and Puhta as the
predecessors and their scientific achievements was considered to be free from
the duty to fulfill everything presented by the luminaries of the Historical
School.
Its representatives included people of
different talents and personal character like Ihering, Dernburg, Bahr and
Bruns. They all thought that the Historical school expounding the reception of
Roman law in the “true” and «invariable by the later additions» form in reality
rather destroyed the historical succession than strengthened it. So, Dernburg
found the furious attacks of “the historians” at usus modernus of the XVIII
century, at the large number of the institutions of not a Roman origin (just
“dressed” in Roman clothes) but quite viable unjustified. When in his famous
“System” Joseph Unger formed up the Austrian Civil law according to the canon
which was propounded by Savingny and Puchta and directed to draw Pandekt law
closer to Roman law the reproaches with the forced Romanization, compulsory
interpretation of national legal institutions in the Roman way were heard not
only in the camp of firm Germanists but in the camp of Pandektists as well. In
the introduction of the first volume of the “Guarantee law” (Das Pfandrecht
nach den Grundsatzen des heutigen romischen Rechts, 1860) Dernburg wrote:
«If the old authors weren’t very scrupulous working with the sources, and if
they were different from us with their inability to understand historical
development of law, their practical understanding and tact were very important
for life and justice. The Historical School brought us to the sources again,
woke up the criticism and independence, the devices of any scientific success.
At the same time, however, the first scientific tasks were missed: often law
which must serve life and satisfy its needs appeared to be just collecting
antiquity. Our aim is to avoid the unilateral development of different
scientific trends. We should make up the system and develop the law proceeding
from the natural living organism of law, from the agreement between the sides,
from the concept of aequum et bonum but
not from the empty dogmatism». At the end of the century he published
his own course of Pandekt law and warned the students in the introduction
“Inducement and assistance” (Anregung und Unterstutzung): «Pandekts
mustn’t be dull dogmatism: the norms have their own two thousand year history.
We should remember that we’re standing on the historical ground and talking of
the work created by many generations. The supreme objective of university
studies is to learn this idea». So it would be a mistake to look for
corrections in Roman constructions inserted by the centuries (to adjust the
fruits of Roman legal thought to the changed situation) and reject them in a
fruitless and sometimes harmful attempt to endow modernity with Roman law
institutions in their original kind.
Stilled in the crucible of German
Pandektistik the Institute’s pupils appeared to be the supporters of
progressive perception in their Motherland (especially in the sphere of
contracted commitments). «The reception of Roman law was fulfilled thanks to
the influence of Greek Orthodox clergy in the fields of family and hereditary
law. But it didn’t touch up guarantee law, contract law and commitment law»[72]. P.E. Sokolovsky noticed hoping that it
would happen in the recent future.
In Russia the pupils of Dernburg, Eck
and Pernice stood for a great usefulness that Roman law brought being a subject
and the problem for scientific research. It can be proved by the opinion of the
Institute’s leavers who became the teachers of higher educational institutions.
Let’s give some examples.
P.E. Sokolovsky: «For my generation Roman
law will not mean an archeological interest. We’ll study it not to say a
technical word before the judge. Roman civil law should have an enormous
practical significance being caput at
fundamentum of our study-hours»[74].
I.A. Pokrovsky: «It’s true that the law’s
fate and its significance for modern peoples of Western
Europe are surprising only to an ignoramus. As a strange ghost it
suddenly appears at Boston university, wins the minds, disperses in Western
Europe and makes the peoples change their Civil mode of life according to its
dictate somehow depriving the peoples of their own will. Germany obeys
this law as a practical one. In other countries it dominates the public opinion
and this idea is penetrating the legislature. It’s the basis of legal
literature and teaching everywhere. This unconditional dominance had lasted for
many centuries before there were attempts to part from Roman law and to be
higher than it. People make a protest against it in the name of national law
forgotten in the ardour of reception but Roman law maintained its position. New
national Codes were created and introduced in France,
Austria and Italy. It seems
that with the process there was no any point to live for a out-of-date
sepulchral law (from ignoramus’s point of view) but it was still in a judge’s
considerations, in a scholar’s research and in a professor’s lectures».
M.Y. Pergament: «As a firm Romanist I
think and believe that without the help of Roman law there’s no a way out for a
Civilians and Civil law. The theory of Civil law can be built up on the basis
of Roman law; researching a great deal of institutions of Civil law we should
always remember of our friends Romans; it’s very useful to get acquainted with
the process of the development of Roman law and it’s very important to seek an
insight into the legal laboratory if I can say so, of Roman mind».
A.M. Gulyaev: «Thorough acquaintance with
the theory of Civil law formed on the bases of the sources of Roman law gives a
western lawyer great advantage in comparison with a Russian one. In Western
countries jurisprudence is as old subject as theology and philosophy <…>.
We have got the opinion of a complete originality of Russian law and the
absence of any influence of Roman law on our civil law. This opinion formulated
by such an authoritative statesman like Speransky seems to hold the development
of our science of Civil law».
V.A. Yushkevich: «Studying the current
Civil law Roman law has the significance of the leading theoretical basis and
the device of legal concept. Owing to a complete type of our Code and modern
state of our science the method of learning home legislature is possible only
due to the help of Roman law. The attempts to build up the system of modern
Russian law resting on Russian law itself are insincere and still-born. German
Civilians use the method of comparative processing of modern codification even
in the situation when they have to deal with a much more perfect home
legislative material than we do. And at last, the method of comparative
processing of Russian civil law with Roman law is rational from the didactic
point of view. Since our young lawyers get theoretical bases of civil law at
the lectures of Roman law there is the connection between separate civil law
subjects and we can achieve the unity of the studies».
E.V. Passek: «Getting acquainted with
Roman law we don’t learn the out-of-date and dead law as it may seem from the
first sight but the living and functioning law. Without knowledge of Roman law
it would be difficult to understand Russian law clearly and impossible to
understand the law of Western Europe».
M. Bobin: «The very parts of modern civil
law rooted in the Roman basis are the most perfect <…> without
overestimating its merits and exaggerating its defects we should study Roman
law respecting the results of centuries-old work did by exceptionally gifted people».
And at last, D.D. Grimm emphasized the
importance to study first of all the part of Roman law which took root in
Pandekt law since it was the law that presented a more elaborated system of
civil law. The most important general questions of civil law were worked out
mainly in its adapting to the law and on its bases. Owing to it a good
acquaintance with the law is undoubtedly necessary for any lawyer.
The two new scientific titles were
connected with the Institute’s activity - a Master’s degree and a Doctor’s
degree of Roman law (Russian Romanists got the titles in Civil law earlier).
A.I. Georgievsky had the idea to introduce the Degrees thanks to the appearance
of many teachers with a first-class training in Roman law who weren’t ready to
break with the studies of Roman law at the chairs of universities and special
higher juridical educational institutions. As the head of the Academic committee
of the Ministry of public education he appealed to be the minister. And soon the trustees of educational
regions got the circular giving the universities the right to award a degree in
Roman law. At such presentations, as a rule, at
least one of the opponents was from the “Berlin” students and in 1901 at the
presentation of the dissertation “Sequestration in Civil law” the author of the
thesis (S.P. Nikonov) and both of the opponents (D.D. Grimm, L.I. Petrazhitsky)
were the ex-students of the Institute.
As we said, the idea to train Romanists
and Civilians abroad for Russian universities wasn’t generally accepted in the
academic circles.
Besides that the fuel into the fire was
added by the above-mentioned article published in the “Moskovskie vedomosty”.
It described the Institute as the place where young Russian lawyers could be
cured from the malicious illnesses of their education introduced by their
university teachers’ demagogy and ignorance. As anyone could expect the
interpretation outraged those whose sins were to be cured by Berlin professors according to the
“Moskovskie vedomosty”.
To fade this discontent Dernburg, Pernice
and Eck had to send a letter to their Russian partners. It was published in the
journal “Hochschulnachrichten”. The professors said that «an unknown
correspondent of the Moscow
newspaper confidently and naively passing his own idea off as though the
Russian government’s intention is to strengthen family and marriage shaken by
the home education doesn’t know anything of the Institute’s aims and the reason
of its existence». Then Dernburg, Pernice and Eck «express their deep
indignation of such an absurd fiction» and inform that «they’ve never got such
instructions from the Russian ministry of public education. Due to the high
standard of teaching Roman law not only Russia
but even Italy sends their
young scholars to Berlin
and Russian students have such thorough knowledge that the studies with them
are a real pleasure for German professors». In the conclusion the Institute’s
leaders asked their Russian colleagues to be sure in their sincere respect
hoping that «a strange prank of the “Moskovskie vedomosti” won’t destroy good
relationships between the representatives of Russian and German science but on
the contrary will tighten them».
Although Russian legal press welcomed
«these noble impulses» there still were many lawyers who were prejudiced against
the Institute and transferred this opinion on scientific achievements of the
Institute’s leavers. Some Civilians thought that the “Berlins” absorbed a scholastic spirit of
German Pandektistik and confined themselves to dogmatic constructions and legal
technical details and avoided the research of the problems of law against a
broad historical, social and economic background. For example, from Prof. V.M.
Nechaev’s point of view, who was closed to the social jurisprudence headed by
S.A. Muromtsev, «it was a negative measure to send the groups of young people
from different universities» to Germany to study exclusively «dogmatism of
Roman law and read Roman sources: while other subjects were removed from the
program. And even Vindscheid’s suggestion to study German national law in order
to avoid unilateral studies wasn’t accepted». It’s understandable that Nechaev
couldn’t admire the scientific achievements of this young growth: «this law
school gave a number of works on Roman law written in the style of dogmatic
German literature». Other Romanists, vice versa, thought that the “Berlins” were taught a
simple interpretation of texts and didn’t have skills of dogmatic research -
reconstruction and analysis of law constructions. When the Master’s thesis of the
Institute’s leaver, M.Y. Pergament, devoted to the contractual forfeit and the
problem of interest in Roman law and modern civil law was published a historian
of Roman law, B.V. Nikolsky, wrote his opinion of Berlin school in his diary:
«Not bad, even very good; but of course, it’s not a “flight” but just the
fawning on the text. All the “Berlins”
and Petrazhitsky most of all are exegetes, not dogmatics. Art and history are
strange to them. Architecture doesn’t attract them. Their work is the clearing
of the sources. And that’s all. From one text to another text. Pokrovsky is a
more lively man but even his imagination serves only exegeses aims». But
through the blanket of bitter words Nikolsky slipped of the tongue: «At least
I’m glad to see a new good Russian book on Roman law. Our school of Roman law
is growing». Nechaev also slipped of the tongue: «Some people of the new school
managed to say originate fresh thoughts in the situation of growing old German
dogma and start to the general tasks in learning law in its connection with
cultural life».
So even the people who didn’t have much
liking for the Institute and its pupils had to admit a high standard of
scientific works by the “Berlins”.
VI
Only ten years later after the Institute’s
closure the Ministry of public education had an idea to back the Institute to
life. Probably the order of minister A.N. Shwarz to the universities and
special law schools to inform the Ministry about the teachers who had studied
at Berlin or Leipzig was connected with the idea.
According to the questioning the staff of
practically all the universities (Kharkov, Petersburg, Kiev, Kazan,
Novorossyisk, Tomsk universities) and Demidov
lyceum included “the Berlins”.
And the reply of Yuriev university was signed by its rector, E.V. Passek, the
Institute’s leaver. And only Moscow
university proudly informed that were not any teachers from Leipzig
or Berlin. A.N. Shwarz summoned P.E. Sokolovsky
from Berlin and appointed him to be a trustee
of Kharkov educational
region. Among the Institute’s leavers he and Wilhelm von Zeeler were the only
students who managed to become professors of Roman law at Berlin University.
P.E. Sokolovsky persuaded A.N. Shwarz to
back the Institute to life: «The state should always take care of training
young scientists especially now when the destroyed personnel can’t assist their
pupils’ scientific work. I think that the Ministry should send young scientists
abroad and check their studies at special schools abroad. I could be useful in
organizing such a school thanks to my numerous acquaintances in the scientific
world of German and France». Sokolovsky didn’t believe it was possible to get a
good training in Roman law in Russia:
«To leave our young people preparing for their scientific work under the
influence of ignorant and shameless charlatans at our universities is the best
means to keep the disorder in the future. Our modern professors are the
“Streltsy” of Peter the Great, not suitable army just rebelling and deprived of
any future due to its inertness. We should break it all with the help of a new
Preobrazhensky regiment».
In 1910 the post of minister of public
education was occupied by L.A. Kasso who got law education in Heidelberg
and a Doctor’s degree of Civil law in Berlin.
Kasso tried to back the practice of training future professors abroad to life.
Having known about it German professors offered their services and gave advice
how to back the Philological School at Leipzig
to life. There also was the idea to restore the
Institute for lawyers similar to Berlin
school. However these ideas were immediately attacked from the left and right
groups. On the one hand the Duma’s liberal opposition made an inquiry at the
minister with the questions how much was spent at the Institute’s needs, how
many teachers were prepared, how many of them occupied the chairs in reality. On the other hand the national circles
were also against the “foreign nurseries” imagined by cosmopolitans and
bureaucrats.
The First World War and 1917 buried the
intentions to carry on with the activities of the Institute
of Roman law at Berlin University.
Alexei S. Kartsov