by Gábor Hamza
The
oeuvre of Elemér Balogh, who played an essential role in
founding the Académie Internationale de Droit
Comparé (International
Academy of Comparative Law), is almost unknown by generations of
lawyers nowadays. In spite of the fact that regarding his scientific
motivation and the greater part of his publications Professor Balogh
(who had to emigrate from his homeland, Hungary) was a scholar of
Roman law, the parts of his scientific career dealing with Roman law
and other ancient legal systems are also unknown for many legal
scholars. In the following, we will present the most important stages
of his life and then his scientific oeuvre dealing with Roman law and
comparative law. The mere fact that he was invited to attend the
fourteenth centenary celebration of the promulgation of Justinian’s
Digest – where he delivered a lecture titled La
procédure civile sous Justinien
– is an evidence of his high reputation as a Romanist.
Elemér
Balogh was born on 24th July, 1881 in Bajmok (part of
former county Bács-Bodrog, in Greater Hungary). He obtained
his doctoral degree in law as a student of the Faculty of Law of the
Royal University at Budapest on 23rd November, 1903.
Already as an undergraduate he won many awards for his high-standard
essays. He was admitted to the Budapest Bar Association on 8th
June, 1906. He made many study trips abroad as a young scholar. He
attended courses of the civilist Grünhut and the Romanist
Wlassak in Vienna, of Sir John MacDonnel in London, the courses of
Girard, Esmein and Weiss in Paris, furthermore of Vittorio Scialoja
and Pietro Bonfante in Rome. He also attended courses of Dernburg,
Gierke, Hellwig, Kipp, Kohler and Seckel in Berlin. He regarded
himself as a disciple of the renowned German Pandectist, Heinrich
Dernburg (1829-1907); he acknowledges this in the dedication of his
monograph published in Berlin (1908) dealing with the regulation in
the German and Hungarian law related to disappearance
(Verschollenheit) and
declaration of death (Todeserklärung).
His research
principles as reflected in his works
It
is not surprising that – as a novice Romanist – Professor
Balogh followed the research method pursued by French Romanists at
the beginning of the 20th century, because – as we
pointed out earlier – in Paris he was a student and for a time
a colleague of Professor Paul Frédéric Girard
(1852-1926), the world-famous Romanist, who was a follower of Theodor
Mommsen. Balogh’s aim was the absolute pursuance of clarté,
which was characteristic of the distinguished representatives of the
French professors dealing with Roman law. The clear, exact and
unequivocal terminology is typical even of his early works. It should
be also emphasised that Professor Balogh recognized and kept in view
the important role played by economy in forming the development of
law. In our view this recognition led him to become a highly
respected and renowned mediator of comparative jurisprudence,
especially in the field of the ancient legal systems. He summarizes
his views related to the connection between law and economy in a
treatise published in 1936: he comes to the conclusion that law
adopts itself step by step to the economic conditions, and this
process is also verifiable in antiquity.
His interest
in the legal systems of Antiquity
Elemér
Balogh deals also with the legal systems in the Antiquity. This
interest has its basis in close connection with the era of the end of
the 19th and the first part of the 20th
century: in these decades comparative jurisprudence became
conspicuous again, after having been overlooked or even attacked for
a period by the members of the Historical School of Law (Historische
Rechtsschule). Professor Balogh
pursues the attitude of the members of the 16-17th
century Humanist School in his comparative-law-related studies. In
those years it was already obvious that – after several decades
of the disclosure of the so-called Syro-Roman law book (1862) –
researching the relationship and the possible interaction between
Roman law and other ancient legal systems is necessary. However, this
positive alteration of view involves in se
the evolution of “unscholarly” hypotheses based on
speculative assumptions.
Analysis of
the importance of Roman law
In
the last decades of the 19th century, precisely the French
scholars of legal history and Oriental studies took prominent part in
elaborating the above-mentioned “unscientific” theories.
Revillout and Lapouge, who are reckoned as excellent Orientalists in
the last quarter of the 19th century, led in developing
these hypotheses. Both of them consider the history of Roman law as a
process of consecutive “borrowings”. Elemér Balogh
– in contrast with the fact that he became acquainted with the
comparison of ancient legal systems (which can often be considered as
an ideology) during his study trips in France – abstained from
these theories even in his first publications. His aim with the
comparison of the ancient legal systems (or their certain
institutions) is the exploration and the demonstration of the common
features determined by parallel economic backgrounds (not the
verification of the hypotheses above). Of course, he does not
formulate expressis verbis
his target. Neither does Professor Balogh deal with theoretical
questions of the comparison of the antique legal systems in
abstracto. Yet, this attitude
characterizes every piece of his works related to his researches in
certain institutes of land in other ancient legal systems (among the
latter topics the Greek “koiné”
has the highest importance for him). He does not dethrone
Roman law, contrary to his French precursors, and differs from Ludwig
Mitteis by emphasising the distinguished role of Roman law among
other ancient laws.
Antiquity and
modern laws
However,
Balogh should not be considered either as a Hungarian-birth
representative of Wenger’s “antike
Rechtsgeschichte”
conception, because he does not compose general formulae related to
the theory of antique comparative jurisprudence, and – on the
other hand – he never neglects to deal with the relationship
between certain institutions of ancient and modern laws getting
across through a series of linked transmissions. His attitude rather
suggest the thesis elaborated by Francis de Zulueta (professor at
Oxford University) – according to which even the ancient
comparative jurisprudence must refer to the modern laws –
because Professor Balogh always pays attention to the Roman legal
origins of the modern laws. There is no doubt that converting into
reality the principles of an ancient legal system is not always
possible and it is only achievable by making the necessary
corrections. Nevertheless, the statement (primarily made on the basis
of the works of Hitzig and Weiss), in pursuant of which the notion of
the Attic Law - “nomoi emporikoi”
- has meaning in the regard of the modern commercial law, is not
anachronistic. Neither is the thesis which says that Theophrastus, a
disciple of Aristotle in the 4th
century B.C., was the author of the first work dealing with private
law, entitled Peri ton symbolaion.
The ancient
legal systems; the importance of economic background
Elemér
Balogh recognises the inadequate characteristics framed by Roman
(mostly non-legal) sources about the Greek law. Through his
researches about Cicero (De oratore
1.44.197) he comes to the conclusion that the rhetor’s biting
remarks in polarized form related to ancient Greek law were put into
words for the sake of eloquentia,
and they were not based on the research of real legal material.
Elemér Balogh points out that Cicero cites repeatedly the law
of Solon in his other works from a completely different point of
view. Elemér Balogh thinks it is not likely that the Attic
Laws affected The Law of the Twelve Tables (Lex duodecim
tabularum). However, Professor
Balogh – even in his factual researches related to the
relationship between ancient legal systems – keeps away from
raising derivative questions involving unsolvable problems. In his
works he ignores to deal with the question of sources, instead he
uses only the terms “influence” or “mutual effects”
as hypotheses. In this aspect, for him it is much more important to
discover those economic impulses that led to the development of some
institutes which can be found simultaneously in different ancient
legal systems. Also, the role played by economic circumstances is in
the forefront of his works dealing with certain institutes of Roman
law.
Professor
Balogh pays distinguished attention to the development of some
institutes emerged in the codification of Justinian. Also, he deals
with the much-debated question of the periodization of the Byzantine
law. It deserves mentioning that he writes an essay about the
documents of Coptic law connected with marriage (whose sources are
available only for a narrow circle). On several occasions he writes
expressis verbis about
law adapting and assimilating to the economic conditions. Elemér
Balogh connects straight the acknowledgement of direct representation
(mainly by actio exercitoria
and actio institoria)
with the development of the economic situation and the large-scale
evolution of commercial relations. Examining the reasons of this
improvement, he emphasises the unswerving demand of the economy and
the maritime trade; so the Professor assigns minor significance to
the formal criteria, the family relationships that give the reason to
the praetor for forming these actions. Elemér Balogh publishes
studies (mainly during World War I) relating to modern law, in which
he deals with the parts of private law being affected mostly by
current politics. His work exploring Grotius’ view connected
with international law is also highly significant. Elemér
Balogh published a treatise about default interest, which is also
exemplary from the point of view of applying the comparative method.
Emigration
The
scholarly work of Elemér Balogh cannot be separated strictly
from the formation of his varied personal path of life. In his book
treating the life of political refugees in ancient Greece, this
comparison – being so characteristic of his whole oeuvre –
dramatically breaks through. The scholar, who supports the civil
platform in revolutionary Hungary, has thus to emigrate soon after
the First World War. The eminent Professor sees himself, and let
himself be seen, as sharing the miserable destiny of the ancient
Hellenic fugitives. The author of this monograph shares the fate of
Kylon being the first
person to be proscribed (i.e. who became the victim of “atimia”),
at least according to the available sources. The scholar who praised
Timoleon’s Sicilian amnesty, however, could never return to his
motherland. Indeed, Balogh planned to author a book about universal
peace and the problem of refugees, but he never managed to complete
it.
Professorship
in Lithuania
In
1922, Elemér Balogh was invited to give courses of Roman law
and comparative law at the University of Kaunas in the same year as
it was founded. He started his lectures on 15th September,
1922. He was allowed to lecture in German for two years; however,
from 1924 he had to teach in Lithuanian. He lectured on Roman law,
comparative private law, and the regional law of Klaipeda between
1922 and 1927. His contract with the University of Kaunas expired on
1st September, 1928.
During
his stay in Lithuania he published treatises in the journal of the
Faculty of law in Kaunas, in the Zeitschrift für
Osteuropäisches Recht
and in Logos. These
studies cover the fields of Roman law, law of commerce and
international law. It is worth emphasising that he released the
Lithuanian legislation results between 1928 and 1930 with his reviews
and comments in an Italian journal called Rassegna di
legislazione Lituana.
Elemér
Balogh at universities of three continents
Professor
Balogh went in 1928 to Berlin, where he taught comparative law at the
University of Berlin. He then spent a long time in the United States
during 1932 and 1933. He presented lectures at Cornell University,
the George Washington University in Washington, Harvard University,
the New York University and the Northwestern University in Chicago.
In Canada he gave courses at Mc Gill University and the University of
Toronto. In Germany, he was no longer allowed to educate after April,
1933. The “Machtergreifung"
forced him to leave Berlin and Germany in May, 1933. He went to
France, where he followed his researches at the Institute of
Comparative Law at Sorbonne University with the support of a
Rockefeller scholarship. Between 1936 and 1947 he lived in the Union
of South Africa, where he taught at the University of the
Witwatersrand in Johannesburg as the successor of a Dutch Professor,
L. C. Hoffman (who was a follower of Eduard Maurits Meijers
[1880-1954]). During the first part of his ten-year South African
stay he pursued teaching, then research work. He lectured in Roman
law and philosophy of international law. In 1937 he cancelled his
professorate in Johannesburg and went to Sweden, where he gave
courses at the University of Uppsala and the University of Lund.
After his retirement he lived firstly in England, then in Paris (from
1947 until his death on 2nd
September, 1955), where he was an active colleague of the Centre
National de la Recherche Scientifique.
This institute entrusted him to author a work which presented
comparative law on historical bases. He interrupted firstly his stay
in Paris in 1951 to accept the invitation of the University of
Calcutta.
Professor
Balogh stayed in The Hague twice, in 1936 and 1949, due to the
invitation of The Hague Academy of International Law. These
invitations and the fact that he was elected as member by many
international scientific societies (exempli gratia
the Athenian Greek Royal Academy; the Real Academia de
Ciencias morales y políticas
in Madrid; the American Aviation Law Academy; the Athenian Greek
International and Foreign Law Institute; the Institut
international pour l’unification du droit privé
[UNIDROIT] in Rome, as well the Instituto Americano de
derecho y legislación comparada
of La Habana) show his high international reputation.
Conclusion: Memory of the great legal scholar
One of the
remarkable parts of Elemér Balogh’s oeuvre is the
international coordination and support of comparative law researches:
Julliot de la Morandière draws a fine picture of this
widespread activity of the Professor:
He
was enthusiastic about comparative law; in fact, it’s not an
exaggeration to consider him as the comparative law itself. He
established connection with lawyers in the entire World, and spent
time corresponding with them, getting to know each other, making them
famous and organizing them in collective tasks. He abandoned even his
own scholarly work to motivate them to scientific activity. He took
in hand a great task alone without secretariat by initiating and
assembling congresses; leaving the detailed organisation to
providence. The International Association of Comparative Law was born
among these conditions – which may seem disordered for external
viewers. But the faith, which heartened him, manifested in his
oeuvre. The comparative lawyers owe a debt of gratitude to him.
Professor Gabór Hamza (Budapest, 1949) is currently Chair of the Department of Civil law at the Eötvös Loránd University School of Law, President of the Civil Law and Comparative Law Section of the Academy of European Law, adviser and member of the Commission on European Integration Affairs of the Hungarian Parliament. A long-time member of the Budapest Bar, he has been the leading Romanist in his country for many years and is the author of 11 books and more than 700 other writings on Roman law, legal history, comparative law, EU law, legal philosophy and constitutional law. He has taught at several European, Asian and American universities, including La Sapienza University in Rome, the European University Institute in Florence, the University of Memphis, Syracuse University College of Law, the University of Paris, the University of Helsinki and the University of Rotterdam. He was Michelle Pitard Wynne Professor at the Loyola University School of Law in New Orleans and Fullbright Visiting Professor at the Benjamin N. Cardozo School of Law in New York.
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