1 Introduction
According to the call for the international workshop âLaw and Economic Performance in the Roman Worldâ (Brussels, 13â15 December 2018): â[l]egal systems, most of all Roman law, provided the most comprehensive and powerful formal regulatory frameworks for economic transactions in the Roman Empireâ. The importance of Roman law, however, went far beyond: it provided the basis both of legal education and of the ius commune system in continental Europe long after the Fall of the Western Roman Empire, throughout the Middle Ages and until the triumph of modern codifications.1 Despite the centrality of trade in ancient Rome,2 commercial law only started tentatively to attract the interest of legal scholars in the 16th century, when the ground-breaking Tractatus de mercatura, seu mercatore by Benvenuto Stracca was first published (1553).3 It took even longer for commercial law history to acquire the dignity of a specific field of study; that happened at the end of the 19th century,4 mainly thanks to the influence of Levin Goldschmidt (Danzig, 1829âBad Wilhelmshöhe, 1897) and his Universalgeschichte des Handelsrechts (1891), which was read and appreciated far beyond the boundaries of Germany.5
After Goldschmidt, the history of commercial law has never again attracted so much attention. Presumably because the practice-oriented, often informal, equity based mercantile transactions and procedures tend (and tended) to beat back scholars engaged in more established fields of study such as civil law, canon law or even criminal law history. It is only recently, that something is slowly changing, as the inherent transdisciplinary nature of commercial law historyâalways at the edge of economic history and open to all kinds of issues related to social history in the widest sense (religion, language, travel, etc.)â, seems to fit contemporary legal historiography perfectly.6
By analysing the work and legacy of Goldschmidt, this essay aims to establish when and why commercial law history became an autonomous field of study and to show the role played by Roman law in this process.
2 Life: How the âRomanist in Body and Soulâ Became the âPrince of Commercial Law Scholarsâ
As the founder of the Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht (ZHR),7 the first chair of commercial law in Germany,8 and the author of that endless repository of information and ideas entitled Universalgeschichte des Handelsrechts, Goldschmidt was already defined the year he died (1897) as âil principe dei commercialisti moderni di ogni paeseâ by Ercole Vidari.9 He might have been identified as the prince of modern commercial law scholars but, like all law students in 19th century Germany, Goldschmidt was educated in the principles of Roman law; an imprint that remained throughout his life and profoundly influenced his work.
2.1 Looking for a Place to Stay
Although Goldschmidt is commonly recognized as the greatest authority in commercial law in 19th century Germany and maybe in the world,10 his career did not begin smoothly. Being a young scholar of Jewish origin in Prussia, he was obliged to make choices in order to overcome the obstacles that the state placed in his way.11 He first enrolled in the Medical Faculty12 until Prussia passed a law allowing Jewish people to access legal professions in public administration.13 Once that law was enacted, Goldschmidt decided to enrol at the Law Faculty in Berlin but then left Berlin for a period, to continue his education in Bonn and Heidelberg. When he came back, however, he was unable to complete his legal education there because the University of Berlin only granted the dual title of Doctor juris utriusque (i.e., in civil and canon law). This dual title entailed the right to access the ruling body of the Evangelical Church in Berlin (âKonsistoriumâ) and could for that reason not be granted to a Jew, even though Goldschmidt affirmed he would happily renounce the title of Doctor juris canonici, having no interest at all in joining the assembly. Fortunately, some German universities also granted the singular title of Doctor juris civilis, such as the University of Halle, where Goldschmidt finally received his degree summa cum laude with a dissertation on limited partnership.14 A topic he would deepen over the following 40 years.
As he wrote in his 1851 dissertation, Goldschmidt was much influenced by two great scholars with whom he had the chance to study: Carl Joseph Anton Mittermaier for criminal law and Friedrich Ludwig Keller for civil (Roman) law.15 He considered Keller particularly as his master in the field of Roman Law. Although, being Swiss, Keller had not grown up in a country run by the tenets of Roman law, he nevertheless regarded it as the unequalled basis for both a scientific and practical legal education.16
Immediately after receiving his degree, Goldschmidt started his training period as a lawyer in Danzig.17 When it became clear, however, that both a career as a judge and as a lawyer would have been very difficult, if not impossible, for a Jew,18 he instead concentrated on an academic career. This career too, however, proved to be hopeless in Prussia. So, in 1855, after submitting a work on sea loans in Roman Law,19 he received his postdoctoral qualification (âHabilitationâ) from the University of Heidelberg (in the Grand-Duchy of Baden), where he became extraordinary professor (1860) and then full professor (1866). In Heidelberg he began to work on his two most famous projects:20 in 1858 he founded the aforementioned journal Zeitschrift für Handelsrecht and in 1864 the first part of the first book of his Handbuch des Handelsrechts was published.21 Clearly, commercial law was at the centre of Goldschmidtâs interests. The journal was a place for discussions on issues relating to legislation, jurisprudence and case studies.22 On the other hand, the âHandbookâ aimed to be a systematic description of commercial law taking the new German Commercial Code at its centre and the universal history of commercial law as a background. Perhaps too difficult a goal to reach: the work remained uncompleted.
From the very beginning of his Heidelberg years, Goldschmidt invested a lot in teaching too. He gave lectures on Roman law, commercial law, Prussian law, âencyclopaediaâ (a kind of introduction to law studies)23 and methodology. This period was a very happy one in Goldschmidtâs memories and it was probably not easy for him to leave Heidelberg. But he received an offer he could not refuse.
2.2 Back to Berlin
In 1869 the âBundesoberhandelsgerichtâ (a high court of justice for commercial law) was established in the North German Confederation (âNorddeutscher Bundâ).24 Goldschmidt had pleaded for the creation of such a tribunal for many years and, therefore, could not refuse the appointment as a judge on it. He, consequently, spent the following five years (1870â1875) in Leipzig,25 providing a major contribution to the development of commercial case law (âRechtsprechungâ) in Germany, as the president of the tribunal, Heinrich Eduard von Pape, affirmed when Goldschmidt left the office.26
In 1875 the University of Berlin appointed Goldschmidt to the first chair of commercial law in Germany, a position that he held for the following 22 years, until his death in 1897. Coming back to Prussia as full professor had a special significance for him, as he considered Berlin his second homeland.27 In Berlin he taught public law, encyclopaedia, methodology and Roman law but the focus of his teaching activity was the course on commercial law (âGesamte Handelsrechtâ) to which he added, in 1881â1882, a seminar devoted to practical and historical exercises (âHistorischen und praktischen Ãbungen aus dem Gebiet des Handelsrechtsâ). In these seminars he had the opportunity to deepen issues in which he was interested, asking the students not to be passive, devoting much of his time and effort to correct their works. In a certain sense, the two courses seem to mirror his main publications: the course on âGesamte Handelsrechtâ corresponded to the Handbuch, which tended to be more dogmatic and systematic; the seminar corresponded to the âZeitschriftâ, the ideal place for new research and debates.
As his pupil Max Pappenheim clearly stated, the scholar and the teacher could not be separated: âAuch Goldschmidt den Lehrer können wir nicht denken ohne Goldschmidt den Gelehrtenâ.28 What is more interesting to us, though, is that Pappenheim also underlined that not only the starting point of Goldschmidtâs legal knowledge was Roman law (and it couldnât be otherwise in that period) but that he remained a Romanist in âbody and soulâ for the rest of his life:
Goldschmidt hatte, wie das nach dem bisherigen Studiengang nicht anders sein konnte, seinen Ausgang von dem römischen Rechte genommen, und er ist sein Leben lang mit Leib und Seele Romanist geblieben.29
According to Goldschmidt, Roman law was necessary for the education of all juristis and lawyers, even though research on contemporary law, and in particular on commercial law, could bring new developments and goals. He akcnowledged that new commercial law institutes, parting from the Roman law tradition, developed in the lively environment of the late medieval Mediterranean trade, particularly in the Italian city-states, and he recognized the importance of âGerman legal reasoningâ (âgermanisches Rechtsgedenkenâ) in the development of modern commercial law.30 Yet, nevertheless, Goldschmidt always strongly contested the opinion according to which Romans had no significant commercial activities and therefore no significant commercial law.31
3 Work: The Autonomy of Commercial Law
Goldschmidt devoted his entire life and work to promoting and improving commercial law as an autonomous field of study and legislation, separate from civil law. He played a leading role in the development of Germanyâs own commercial law with the Allgemeine Deutsche Wechselordnung first and the Allgemeines Deutsches Handelsgesetzbuch (ADHGB) afterwards. According to scholars such as Guido Astuti,32 Goldschmidt prevented the unification of civil law and commercial law in Germany by demonstrating the autonomy of commercial law institutes across the centuries.
His masterpiece, the Handbuch des Handelsrechts, remained uncompleted. Nevertheless, it provided new ideas and a significant number of sources, useful for future studies. Instead of completing the five volumes initially foreseen, Goldschmidt worked in fact very hard on the second and third editions of the first volume, changing both its structure and content. As a result, the three editions can almost be considered three different books. In 1891, Goldschmidt published the third and last edition of the Handbuch, consisting only of a completely revised version of volume 1, section 1, i.e., a thoroughly new version of the historical introduction to commercial law. In this Universalgeschichte des Handelsrechts, the idea of commercial law as a transnational set of rules was fully developed. According to Goldschmidt, the specific aim of the Handbuch was to provide a historical and scientific basis for the knowledge and development of a commercial law codification. To this aim, all sources were considered useful: from Roman Law to medieval statutes and customs, from legal science to modern codifications. Yet he never underestimated the importance of context(s). According to Goldschmidt, the history of commercial law has an inherent unity but it also demonstrates that laws change and adapt to local and practical needs:
[Rechtswissenshaft ist] eben doch nichts anderes als civilis sapientia, die praktische Philosophie der bürgerlichen Gesellschaft. Sie geht sicherlich nicht auf in der Interpretation der Texte, nicht auch nur in der Bildung der Rechtsbegriffe aus dem gegebenen Recht; ihre höchste Aufgabe ist, die richtige d.h. jeder Zeit und jeder Kulturlage entsprechende rechtliche Gestaltung des menschlichen Gemeinlebens zu finden und möglich sicher festzustellen.33
He underlined the need to break free from doctrinal schemata to let any legal rule live in the context of real life, according to the Roman jurist Paulusâ âgolden ruleâ: non ex regula ius sumatur, sed ex iure quod est regula fiat.34 Therefore, even though the Handbuch had a more dogmatic approach than most of his works, Goldschmidt always considered history and comparison. The latter was, in his opinion, a necessary and unavoidable consequence of historical research (especially in the field of commercial law).35 This is how he himself described the importance of history for codification in the preface to the 1864 edition of the Handbuch:
Vielmehr ist hier der Wissenschaft die nächste und wichtigste Aufgabe gestellt, die unvermeidlichen Nachteile dieser, wie jeder Codifikation, die formelle LosreiÃung des durch sie begründeten Rechtszustandes von der Vergangenheit, durch den Nachweis des geschichtlichen Zusammenhanges möglichst auszugleichen, und überall an die Vergangenheit anknüpfend, die Ergebnisse der bisherigen Wissenschaft für die Erkenntnià und Fortbildung des geltenden Rechts zu verwerthen.36
Clearly, we are in an academic environment dominated by the German Historical School of Jurisprudence and by the omnipresent shadow of Friedrich Carl von Savigny. The importance of history for the understanding of contemporary law was at that time a kind of dogma in Germany and in many other countries in Europe. But the history of commercial law was still an unexplored field where Goldschmidt played the role of pioneer.37
4 Legacy: The âBrilliant Creative Forceâ of Roman Commercial Law
Scholars have been debating the problem of the existence of Roman commercial law for over a century.38 Those who deny it date the first development of commercial law to the Middle Ages, i.e., to the period of the intensification of Mediterranean trade and of the so-called âcommercial revolutionâ.39 Goldschmidt is often considered the forefather of this historiographical approach.40 The problem, however, is to what extent this interpretation of Goldschmidtâs thought is correct.
Recent research has underlined the complexity of the identification of the idea of commercial law in the Roman world, due to the fact that Roman law adopted an objective perspective (focus on the act) rather than a subjective one (focus on the merchant), making it extremely difficult to identify the âacts of commerceâ as they later came to be isolated in the Middle Ages and in the modern period. On the other hand, it seems undisputed today that the very development of Rome and its empire was linked to the development of trade in the Mediterranean. Thanks to the pax romana, the centralized political administration, the monetary system, the roads and, especially, free trade, Roman law as a whole received a strong boost from the activities associated with commerce, while the law relating to commercial enterprises developed on the basis of customs and praetorâs edicta. Between the 3rd century BCE and the 3rd century CE, Roman âcommercial lawâ concentrated on the following issues: exchange and circulation of goods; shipping and land transport of goods and persons; artisan and industrial activities; speculative activity on urban real estates; different kinds of services provided by stabularii, caupones, fullones, sarcinatores, libitinarii. Roman jurists foresaw no limits to the number and kind of negotiationes, which was facilitated by the separation between a businessmanâs personal assets and peculia entrusted to his slaves.
We do need to rememeber, however, that the two opposite points of view (Romans had no interest in commerce and commercial law vs. Romans developed commerce and therefore commercial law) were already being hotly debated at the end of the 19th century. In 1891, when Goldschmidtâs Universalgeschichte was published, Gabriello Carnazza, professor of Roman Law at the Universities of Palermo and Catania, published his Il diritto commerciale dei Romani. In the preface he wrote:
Si sostiene da alcuni che il popolo romano fu esclusivamente un popolo conquistatore e che nessuna cura ebbe alle arti civili; si aggiunge che esso pel commercio, più che noncuranza ebbe disprezzo.
Si sostiene per converso da altri che il commercio di Roma può, senza tema di errare, essere paragonato a quello dei tempi moderni, tenuto conto, ben inteso, della schiavitù non più esistente e dei progressi recentissimi fatti dallâindustria.41
Carnazzaâs aim was to demonstrate that Romans did take commercial law into account. And who better to quote in favour of such an opinion than Goldschmidtâs Lex Rhodia und Agermanament (1889);42 which he himself translated in 1890? Furthermore, he again referred to Goldschmidt when he wanted to emphasize that Rome had, also in commercial law, âuna geniale forza creatriceâ.43 Other scholars appeared to think similarly. According to Pappenheim, Goldschmidt always contested the (already) widespread opinion, that for Romans trade was not important: âDer weit verbreiteten Meinung, dass die Römer keinen erheblichen Handel besessen hätten, trat er schon früh und dann immer wieder mit Entschiedenheit entgegenâ.44
Goldschmidt was a Romanist and in no way is it possible to minimize his knowledge and understanding of Roman law. Therefore, we can agree with Antonio Guarino that denying the existence of Roman commercial law is a statement based on âpreconcetti formalistici coniugati con una certa disinformazione storiografica romanisticaâ.45 And certainly Goldschmidt was not biased nor uninformed.
An emerging historiographical trend seems not only to place more and more stress upon the importance of commercial law in the Roman world but also to assume that the Roman Empire âwas very actively and self-consciously involvedâ in trade,46 in the sense that Rome developed a specific economic policy.47 However, even the latest historiography, has to admit that Rome had no specific body of commercial law.48 It seems that it was only when commercial law started to be linked to the subject that merchants acquired self-consciousness and political strength. Perhaps a better understanding of Goldschmidtâs views would be to say that whilst he did not deny nor underestimate the importance of commercial law institutes in the Roman world, he preferred to locate a significant turning point for commercial law in the lively commercial environment of the medieval Italian city-states. If this is so, Goldschmidtâs point of view suddenly ceases to seem outdated.
4.1 The Universality of Commercial Law
Goldschmidtâs aim was not to deny the existence of trade and trading rules in ancient Rome but rather to separate civil and commercial law, focusing on the moment in which this separation became evident, i.e., in the Middle Ages. According to his Universalgeschichte, in fact, commercial law is at the same time special (as it had been in practice separated from civil law for centuries, if not millennia), and universal (as most rules couldâand canâbe applied all over the world, like a modern ius gentium). The two perspectives seem to contradict each other but they donât. In fact, they both serve the same purpose: to affirm the autonomy of commercial law.
This approach led to two practical consequences: the creation of commercial law codifications, separate from the civil law ones, in many European countries (which was Goldschmidtâs explicit aim) and the manipulation of the concept of lex mercatoria (which is a contemporary phenomenon that Goldschmidt could not foresee). Even though Goldschmidt did not usually use the expression lex mercatoria (but rather, very rarely, ius mercatorum or mercatorium), his âuniversal historyâ of commercial law became the basis for the following studies on what is usually called the âmodern lex mercatoriaâ, beginning with Berthold Goldman and the French School in the 1960s.49 As a result, lex mercatoria is now often used as a dogmatic category, providing historical legitimacy to the supporters of corporate self-regulation. To demonstrate that merchants have âalwaysâ acted according to non-state rules, on the basis of customary laws, is in fact useful to make the existence of a system of rules not subjected to an external control more acceptable. Even though most legal historians today tend to deny the existence of a medieval (and modern) lex mercatoria,50 the âmythâ of the existence of a body of customary laws uniformly and universally applied continues its journey across different fields of study.51
4.2 The Importance of Economics for Lawyers
Less studied, but no less important, is the weight that Goldschmidt bestowed upon economics, approached, as usual, in a historical and comparative perspective. This peculiar aspect has been quite recently deepened by Wolfgang Schön, in an article entitled âRecht und Ãkonomie bei Levin Goldschmidtâ.52 Goldschmidt was not the only one interested in economic history and comparison, writes Schön, as in the very same years Goldschmidt was developing his theories, Karl Marx developed the theory of historical materialism and the Historical School of Economics took its first steps. Schön recognizes, however, Goldschmidtâs very personal approach to the relationship between economics, history, and law.53 Already in the first issue of the ZHR, Goldschmidt affirmed that it was necessary to ask economic questions and in the following forty years many important works on economics were reviewed in the ZHR. A crucial chapter in his Universalgeschichte was devoted to the economy, entitled âWirtschaftliche und rechtliche Grundproblemeâ. The chapter on basic concepts (âGrundbegriffeâ) in his Handbuch was also concerned with economic matters. His references were clearly Adam Smith on the economy and Friedrich Carl von Savigny for law.54
Since the first decades of the 19th century, Savignyâs historical method began to influence other fields of study. The first one to explicitly apply Savignyâs approach in the field of economics was Wilhelm Roscher, who, in his Grundrià zu Vorlesungen über die Staatswirtschaft nach geschichtlicher Methode (1843), outlined the main features of the Historical School of Political Economy, later deepened in his System der Volkswirtschaft (1857) and further developed by Bruno Hildebrand, Karl Knies and Gustav Schmoller. We know that the works of the aforementioned scholars were considered of utmost importance by Goldschmidt, not only because he mentioned them in the footnotes of his âHandbookâ, but also because many of the works were reviewed in the ZHR.
The German School was so concentrated on the importance of nation and cultural context that a harsh academic debate with the Austrian School,55 accused of taking a too âabstractâ approach, ensued. According to Carl Menger, in fact, the German Historical School of Economics misunderstood Savignyâs message: history is important but the existence of general rules, valid at all times, could not be denied.56 Schön affirms that this was Goldschmidtâs opinion too and that this is particularly evident in the Universalgeschichte. Goldschmidt wanted to demonstrate that commercial law expresses a kind of peopleâs cooperation in world history (âweltgeschichtliche Zusammenarbeitâ) rather than the characters of a single people or of a specific historical period.57 More specifically, Goldschmidt believed in an international, cosmopolitan commercial law that he defined as jus gentium.58 His belief in liberalism, though, was already outdated in 1891 as was his faith in a kind of international peaceful society of mankind. Goldschmidt believed that commercial unity was an essential step towards the political unification of Germany (which he strongly supported and welcomed), but his final goal was much broader and more ambitious.59 This transnational way of interpreting both economics and law, together with his liberal approach, can also be listed as one of Goldschmidtâs long-lasting legacies.
4.3 A Method and a School
As mentioned before, Goldschmidt was not only a great scholar but also an extraordinary âmasterâ, in the sense that he shaped a method as well as an entire generation of scholars on the basis of the assumption that law cannot be separated from history and philosophy.60 Illustrious names such as Max Pappenheim, Georg Schaps, Paul Rehme, Wilhelm Silberschmidt and Philipp Heck were just some of those who followed him and his teachings. Goldschmidt was also the âDoktorvaterâ of a PhD student destined for an extraordinary career, whose interests can perhaps better be understood in the framework of Goldschmidtâs interdisciplinary approach. His name was Max Weber.
Weber wrote his dissertation, on which his first book on the history of commercial partnership in the Middle Ages was based, under Goldschmidtâs supervision.61 This connection has been neglected for a long time, as Weberâs earliest works, belonging to the so called âlost decadeâ, have often been dismissed as immature productions. For our purposes, though, a brief reference to Weberâs relationship with his supervisor can help us shed light on the inspiration Goldschmidt provided for his scholars, inviting them to cross the traditional boundaries between different fields of study (law, history, economics) and expecting from them the same scientific rigor which characterized his own work. As Lutz Kaelber recently wrote:
The scope of Goldschmidtâs knowledge of the subject-matter was legendary, but he was also what one might call in his native German extremely pingelig, or obsessed with the accuracy of details to the point of pedantry.62
He certainly expected a lot. For example, this is how Weber described his work with Goldschmidt to his cousin Emmy Baumgarten in 1887:
(â¦) I collected materials for a paper in Professor Goldschmidtâs seminar. I had to go through hundreds of Italian and Spanish collections of documents. I first had to learn those two languages to be proficient enough to reasonably understand books written in them. For Spanish this turned out to be rather time-consuming. Moreover, the stuff is mostly written in such dreadful older dialects that one has to wonder how people were able to understand such gibberish.63
Despite the âpedantryâ, Weber chose Goldschmidt as adviser for his dissertation, probably appreciating his zeal as well as his historical and comparative approach to the study of law. Goldschmidtâs opus magnum was defined ânot only as a legal, but also a cultural and economic historyâ.64 On the other hand, Weberâs dissertation included not only legal but also ethical and religious issues that were destined to become the core of his future research towards the development of sociology as an independent field of study.
5 Conclusion
By focusing on the history of commercial law and therefore on the world of merchants and the importance of trade, Goldschmidt in some ways anticipated the revolutionary approach of the French âÃcole des Annalesâ. The Annales School definitively abandoned the history of emperors and popes in favour of âune histoire plus large et plus humaine,â as Marc Bloch described it, when dedicating his Apologie pour lâhistoire to his friend and colleague Lucien Febvre.65 Goldschmidtâs interdisciplinary and comparative point of view can be seen as heralding one of the most important historiographical trends of the 20th century, of which the main feature was the openness of history to all social sciences (in the broadest definition possible): from geography to sociology, from psychology to economics.
With Bloch, Goldschmidt shared a Jewish origin. Both scholars, in different times and places, faced huge barriers to their life and work, notwithstanding their proven patriotism.66 This discrimination was also very clear to some of Goldschmidtâs contemporaries. Ercole Vidari, the chair of commercial law at the University of Pavia for 45 years, Senator of the Kingdom of Italy in 1904, member of the commission in charge of writing the new Italian Commercial Code of 1882, wrote:
Un uomo [Goldschmidt] che rese tali servigi agli studi (â¦) ha ben diritto a quellâammirazione, a quella riverenza che tutto il mondo studioso volentieri gli tributa, e che solo, talvolta, fu turbata dalle intolleranze rabbiose dellâantisemitismo Tedesco. Come se la scienza non avesse per patria tutta lâumanità , senza distinzioni di razze!67
Like Vidari, more and more scholars recognized Goldschmidtâs influence in his own lifetime and in the years that followed. Goldschmidtâs direct influence on German legislation ended with the entering into force of the Handelsgesetzbuch (HGB) in 1900. His indirect legacies, however, are long-lasting:68 the importance of comparative law,69 comparative legal history70 and economics for lawyers; the idea that commercial law is somehow âuniversalâ and that it is separate from civil law; the fundamental role of legal education; the belief in commercial law unity as the most powerful means of achieving political unity71 (a path followed in recent years in Europe where the European Economic Community acted as a prelude to the European Union). Finally, Goldschmidtâs influence cannot be denied when it comes to the success of his most illustrious pupils: Max Weber and Philipp Heck.72
Although he was an innovator he never underestimated the importance of what he considered the basis of all law, namely Roman law; on the contrary. Before him, as Gerard Dilcher has pointed out, commercial law history in Germany was a topic studied by âGermanistsâ, like Georg Beseler and Otto Gierke, within the framework of private law scholarship, because most of the sources considered were medieval sources. Goldschmidt âfreedâ commercial law from this context,73 by stating that it had its roots in Roman law, even though it was in the Middle Ages that it began its march towards modernity.74
We have to thank the âpingeligâ (or âfussyâ) Goldschmidt that commercial law became a field of study (and in many countries, of legislation) autonomous from civil law; we have to thank him once more because the historical dimension of the new field is now taken seriously. âDieses Dunkel muss endlich gelichtet werden!â wrote Goldschmidt in 1891, referring to the fact that a better understanding of commercial law history provides us with a clearer understanding of the aims and structure of commercial law in the present and in the future. Luckily for us (legal historians), some shadows remain and still need some light shone upon them as we head into the future.
On the Roman-Canon ius commune as a âsystemâ of norms see: F. Calasso, Storia e sistema delle fonti del diritto comune, vol. 1 Le origini (Milano 1938), afterwards included in: F. Calasso, Medio evo del diritto, vol. 1 Le fonti (Milano 1954), e.g. 387â¯ff., 469â¯ff.
The role played by commerce and commercial law in ancient Rome is still debated: see par. 4 on the different historiographical points of view.
B. Stracca, Tractatus de mercatura, seu mercatore (Venetiis 1553).
It has to be underlined, though, that the autonomy of the field is still at the centre of academic debates: I. Birocchi (ed.), âNon più satelliteâ. Itinerari giuscommercialistici tra Otto e Novecento (Pisa 2019). In particular, see the essay by Pio Caroni: âQuale continuità nella storia del diritto commerciale?â, 27â¯ff.
L. Goldschmidt, Universalgeschichte des Handelsrechts (Stuttgart 1891). The text was translated into Italian by Vittorio Pouchain and Antonio Scialoja: Storia universale del diritto commerciale (Torino 1913). In general, therefore, it was read in German.
See for example the project âThe making of commercial law. Common practices and national legal rules from the early modern to the modern periodâ financed by the Academy of Finland and by the Finnish Cultural Foundation and directed by prof. Heikki Pihlajamäki (University of Helsinki), which led to a series of events and publications, such as the volume on the effects of merchantsâ travels on the development of commercial law: S. Gialdroni, A. Cordes, H. Pihlajamäki, S. Dauchy, D. De ruysscher (eds.), Migrating Words, Migrating Merchants, Migrating Law: Trading Routes and the Development of Commercial Law (Leiden 2019). One of the latest outputs of this interdisciplinary trend is: D. De ruysscher, H. Pihlajamäki, S. Dauchy, S. Gialdroni, A. Cordes (eds.), Commerce, Citizenship, and Identity in Legal History (Leiden 2021).
Founded in 1858 under the name of Zeitschrift für Handelsrecht.
University of Berlin, 1875.
E. Vidari, âLewin Goldschmidtâ, in Scritti vari di Ercole Vidari. Pubblicati per il 45° anno del suo insegnamento nella Università di Pavia (Milano 1908), 239â242, 239.
Goldschmidt was proclaimed Doctor honoris causa by the Universities of Edinburgh (1884) and Bologna (1888). He received several decorations in different countries: Germany (1891), Italy (1882), Russia (1883) and Norway (1889): M. Pappenheim, Levin Goldschmidt (Stuttgart 1897), 48. See also: W. Silberschmidt, âLe droit commercial avant et après L. Goldschmidtâ, Revue historique du droit français et étranger (1934), 643â699. W. Schön, âRecht und Ãkonomie bei Levin Goldschmidtâ, in G. Bitter et al. (eds.), Festschrift für Karsten Schmidt zum 70. Geburtstag (Cologne 2009), 1427â1446, 1428. The most extensive study on the life and work of Goldschmidt is currently: L. Weyhe, Levin Goldschmidt. Ein Gelehrtenleben in Deutschland: Grundfragen des Handelsrechts und der Zivilrechtswissenschaft in der zweiten Hälfte des 19. Jahrhunderts (Berlin 1996). For an in-depth analysis of the long-lasting influence of Goldschmidt even in the USA, see: J. Whitman, âCommercial Law and the American Volk: A Note on Llewellynâs German Sources for the Uniform Commercial Codeâ, Yale Law Journal 97.1 (1987), 156â175.
See: E. Hamburger, Juden im öffentlichen Leben Deutschlands. Regierungsmitglieder, Beamte und Parlamentarier in der monarchischen Zeit, 1848â1918 (Tübingen 1968), on Goldschmidt: 265â266.
On July 23 1847, the law âGesetz über die Verhältisse der Judenâ had forbidden Jews access to the public administration. For this reason, Goldschmidt chose at first another faculty. For an in-depth analysis of Goldschmidtâs education, see: Weyhe 1996, op. cit. (n. 10), 27â¯ff.
As a consequence of the 1848 Revolution, in fact, the âVerordnung über eigene Grundlagen der künftigen preuÃischen Verfassungâ was enacted (6 April 1848). It stated, in par. 5, that citizensâ rights were in no way connected to religious views.
The title of the dissertation was: De societate en commandite specimen I (Halle 1851). At that time, the discussion was still held in Latin: Pappenheim 1897, op. cit. (n. 10), 4, n. 11. Goldschmidt obtained the dual title only 25 years later, when he became full professor at the University of Berlin.
Goldschmidt 1851 (n. 14), 78: âInsignes gratias mihi agendas esse putavi Kellero, Mittermaiero, qui exercitationibus tam exegeticis quam practicis in jure civili atque criminali institutis haud spernendo modo mihi profueruntâ.
Weyhe 1996, op. cit. (n. 10), 34.
At the âDanziger Stadt-und Kreisgerichtâ and also at the âHandelsgerichtâ: Weyhe 1996, op. cit. (n. 10), 50â¯ff.
Weyhe 1996, op. cit. (n. 10), 53â55, 58.
L. Goldschmidt, Untersuchungen zur l. 122 §â¯1 D. de V.O. (45.1) (Heidelberg 1855). See: Weyhe 1996, op. cit. (n. 10), 421â¯ff.
See: K.-P. Schroeder, âLevin Goldschmidt (1829â1897). Vom Heidelberger Rechtsprofessor zum Richter am Bundesoberhandelsgerichtâ, in D. Fischer and M. Obert (eds.), Festschrift für Dietrich Pannier (Cologne 2010), 171â180.
For a reconstruction of the very long and complicated publication process of this unfinished work, see: S. Gialdroni, âThe âHandbuch des Handelsrechtsâ by Levin Goldschmidtâ, in S. Dauchy, G. Martyn, A. Musson, H. Pihlajamäkj, A. Wijffels (eds.), The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing (Cham 2016), 379â382.
See for example the prefaces to the issues n. 1, 4 and 35 of the ZHR.
Weyhe 1996, op. cit. (n. 10), 200.
Replaced in 1879 by the âReichsoberhandelsgerichtâ.
He was linked to the city also from a political point of view: in 1875, as a national liberal, Goldschmidt substituted the ill mayor of Leipzig Stephani in the âReichstagâ.
Pappenheim 1897, op. cit. (n. 10), 12: âMit dem gröÃten Bedauern sehe ich Sie aus der bisherigen Stellung scheiden. Sie haben in dieser Stellung durch musterhafte Wirksamkeit Sich ausgezeichnet und Sich in jeder Hinsicht die gröÃten Verdienste um den Gerichtshof erworben, welcher sein Ansehen in nicht geringem MaÃe Ihrer aufopfernden Thätigkeit und Ihren hervorragenden Leistungen verdanktâ.
Pappenheim 1897, op. cit. (n. 10), 14: âIrgend ein Stück seiner zeitweiligen Heimat trägt ja der Mensch an der Sohle mit sich, und so mag auch ich, aus dem Norden Deutschlands nach dem Süden und dann rückwärts wieder nach Osten gewandert, das Zusammenwirken der juristischen Kräfte aus allen Theilen Deutschalands (sc. in dieser Zeitschrift), die Verschmelzung der ja ehemals sehr verschiedenartigen Anschauungen gefördert habenâ.
Pappenheim 1897, op. cit. (n. 10), 16.
Pappenheim 1897, op. cit. (n. 10), 17.
Pappenheim 1897, op. cit. (n. 10), 19. For an in-depth analysis of Goldschmidtâs works devoted to German legal history see: Weyhe 1996, op. cit. (n. 10), 428â¯ff.
See for example: ZHR, vol. 1, 5; Goldschmidt 1891, op. cit. (n. 5), 62â¯ff.
G. Astuti âReview of: W. Silberschmidt, Le droit commercial avant et après L. Goldschmidtâ, Rivista di storia del diritto italiano, 8.3 (1935), 1â8, 7.
ZHR, vol. 35, 11.
Dig. 50.17.1, see also: Pappenheim 1897, op. cit. (n. 10), 21.
His interest in the field of comparative law (as well as comparative legal history) is witnessed also by his commitment in international organizations such as the âInstitut de droit internationalâ (co-founder, 1873), the âSociété de législation comparéeâ (member, 1876) and the âAssociation for the Reform and Codification of Law of Nationsâ (vice-president for Norddeutschland, 1878).
L. Goldschmidt, Handbuch des Handelsrechts (Erlangen 1864), VIâVII.
Pappenheim 1897, op. cit. (n. 10), 33â34.
Valeria Carro has recently summed up the debate. This reconstruction is based on her thoughts on the topic: V. Carro, âAspetti problematici del diritto commerciale romanoâ, Revista europea de historia de las idea polÃticas y de las instituciones públicas, 8 (2014). Available at:
R.S. Lopez, The Commercial Revolution of the Middle Ages: 950â1350 (Cambridge 1971).
Carro 2014, op. cit. (n. 38), see footnotes 11 and 12.
G. Carnazza, Il diritto commerciale dei romani (Catania 1891), 13â14.
L. Goldschmidt, Lex Rhodia und Agermanament: der Schiffsrath. Studie zur Geschichte und Dogmatik des Europäischen Seerechts (Stuttgart 1889).
Carnazza 1891, op. cit. (n. 41), 156. Caranazza is quoting Goldschmidt again (his 1890 translation, p. 6). It has to be stressed that his works, and in particular his translation of Goldschmidtâs Lex Rhodia, were harshly criticized: A. Agnello, âCarnazza, Gabrielloâ, in Dizionario biongrafico degli italiani, vol. 20 (1977), available at:
Pappenheim 1897, op. cit. (n. 10), 17.
A. Guarino, âRelazione di sintesi-Convegno di Ericeâ, in M. Marrone (ed.), Imprenditorialità e diritto nellâesperienza storica: Erice, 22â25 novembre 1988 (Palermo 1992), 307â316, 313.
A. Wilson and A. Bowman (eds.), Trade, Commerce, and the State in the Roman World (Oxford 2017), 2.
T. Terpstra, âReview of: A Wilson and W. Bowman (eds.), Trade, Commerce, and the State in the Roman World (Oxford 2018)â, The Economic History Review 72.2 (2019), 777â778.
B. Sirks, âLaw, commerce, and finance in the Roman Empireâ, in A. Wilson and A. Bowman 2017, op. cit. (n. 46), 53â¯ff. In reality, the autonomy of commercial law is contested even today, because of the unavoidable connections with civil law: âIl diritto commerciale non è il diritto del commercio: non regola, né mai ha regolato, tutto il commercio; non è mai stato un sistema normative autosufficiente, ordinante un intero settore della vita economica; ed a regolare il commercio ha sempre concorso, con le norme sulle obbligazioni e sui contratti, anche il diritto civileâ: F. Galgano, Lex mercatoria (Bologna 2001, 4th ed.), 10.
R. Galiano Court, âHonore et utile: The approaches and practice of sixteenth-century Genoese merchant customsâ, in H. Pihlajamäki, A. Cordes, S. Dauchy, D. De ruysscher (eds.), Understanding the Sources of Early Modern and Modern Commercial Law: Courts, Statutes, Contracts, and Legal Scholarship (Leiden 2018), 55â86, 59, footnote 7.
E.g. A. Cordes, âAuf der Suche nach der Rechtswirklichkeit der mittelalterlichen Lex Mercatoriaâ, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (ZSS) Germ. Abt., 118 (2001), 168â184; E. Kadens, âThe myth of the customary Law Merchantâ, Texas Law Review 90 (2012), 1153â¯ff.
R. Michaels, âLegal medievalism in Lex Mercatoria scholarshipâ, Texas Law Review 90 (2012), 259â¯ff.
Schön 2009, op. cit. (n. 10), 1427â1446.
Schön 2009, op. cit. (n. 10), 1429.
Schön 2009, op. cit. (n. 10), 1432.
Schön 2009, op. cit. (n. 10), 1436.
C. Menger, Untersuchungen über die Methode der Socialwissenschaften und der politischen Ãkonomie insbesondere (Leipzig 1883), 15â¯ff.
Schön 2009, op. cit. (n. 10), 1436. According to Goldschmidt, positive law is the outward display of inherent natural laws valid at all times: âAlles positive Recht ist äuÃere Entfaltung und Anerkennung der den jederzeiten Lebensverhältnissen (Thatbeständen) immanenten natürlichen Rechtsnormenâ: Goldschmidt 1891, op. cit. (n. 5), 33.
âEin kosmopolitisches Handelsrechtâein wahres jus gentium im Sinne der Römischen Theorieâ: Goldschmidt 1891, op. cit. (n. 5), 11.
Schön 2009, op. cit. (n. 10), 1436.
Pappenheim 1897, op. cit. (n. 10), 41. Furthermore, he considered the problem of the education of lawyers of utmost importance and often contributed to the debate on the topic (ibid. 36â38).
Weber obtained his PhD from the University of Berlin in 1889 with a dissertation entitled Entwicklung des Solidarhaftungprinzips und des Sondervermögens der offenen Handelsgesellschaft aus den Haushalts-und Gewerbegemeinschaften in den italienischen Städten. An extended version of the dissertation was published the same year under the title Zur Geschichte der Handelsgesellschaften im Mittelalter. L. Kaelber, âMax Weberâs dissertationâ, History of the Human Sciences, 16.2 (2003), 27â56; G. Dilcher, âDalla storia del diritto alla sociologia. Il confronto di Max Weber con la Scuola storica tedescaâ, Scienza & Politica 37 (2007), 95â115; L.R. Ford, âMax Weber on property: an effort in interpretative understandingâ, Socio-Legal Review 6 (2010), 25â100.
Kaelber 2003, op. cit (n. 61), 31.
As quoted in: Kaelber 2003, op. cit (n. 61), 32.
B. Grossfeld and I.M. Pappagiannis, âLevin Goldschmidtâ, Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht, 159 (1995), 529â549, 548.
M. Bloch, Apologie pour lâhistoire ou Métier dâhistorien (Paris 2007) (1st (ed.), 1949), 35.
As it is evident in a speech given by Goldschmidt in 1891 on the occasion of a meeting of Jewish scholars: âDem groÃen deutschen Nationalstaate gehören wir deutschen Juden auf freiem Willen und von ganzer Seele anâ: Pappenheim 1897, op. cit. (n. 10), 40.
Vidari 1908, op. cit. (n. 9), 242.
On Goldschmidtâs legacy see also: K. Schmidt, âLevin Goldschmidt (1829â1897): Levin Goldschmidt in BerlinâEine Skizze über die Berliner Universitätsjahre 1875â1897, in S. Grundmann et al. (eds.), Festschrift 200 Jahre juristische Fakultät der Humboldt-Universität zu Berlin: Geschichte, Gegenwart und Zukunft, 327â342, 340.
Goldschmidt was among the founders of the âInstitut de droit internationalâ (1873), member of the âSociété de législation comparéeâ (since 1876) and vice-president for Norddeutschland of the âAssociation for the Reform and Codification of Law of Nationsâ (since 1878): Pappenheim 1897, op. cit. (n. 10), 26.
Schön 2009, op. cit. (n. 10), 1428.
ZHR, vol. 35, 9â¯ff. and also vol. 1, 1.
Weyhe 1996, op. cit. (n. 10), 526â¯ff.
Even though it has to be underlined that before him Heinrich Thöl already worked in this direction: J.H. Thöl, Das Handelsrecht, vol. I (Göttingen 1841).
Dilcher 2007, op. cit. (n. 61), 99â100.