Prof. Dr. Martin Schermaier

Institute for Roman Law and Comparative Legal History, University of Bonn

Curriculum Vitae

Martin Josef Schermaier studied law, political science and journalism at the Paris-Lodron University of Salzburg (1981-1988), completed his legal studies in 1985 (magister iuris), and received his doctorate degree in 1991. After a stay in Bonn (1993/94), funded by a Humboldt stipend, he received his post-doctoral teaching qualification in 1995 for the subjects Roman Law, German Private Law and History of Legal Dogmas. From 1995-1997, he was lecturer in Salzburg and Regensburg, before becoming interim professor in Münster in 1997. In 1998, he was named professor for Roman and Private Law at the University of Münster; in 2005, professor for Private and Roman Law at the University of Bonn.
Schermaier is Director of the Institute for Roman Law and Comparative Legal History at the University of Bonn, member of the North Rhine Westphalian Academy of Science and the Arts, and, since 2009, co-editor of the Savigny journal for legal history (Savigny-Zeitschrift für Rechtsgeschichte). His work is primarily concerned with questions of the cultural roots of private law figures and concepts.
From October 2011 to March 2012, Martin Schermaier was Fellow at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”.

Research project

Fault and neglect in the private law of the Middle Ages and early Modernity.

In the late Middle Ages, the ancient Roman sources, as passed on through Justinian’s codification (Corpus iuris civilis), are rediscovered: They are understood as both law and textbook, and placed at the center of legal education from the late 11^th Century onwards. The institutes described therein are carried forth, and from the casuistics of the sources, a system of private and procedural law is formed. Nevertheless, this does not imply that law from the Antiquity was simply carried on. The Roman texts are subjected to the contemporary understanding, and are naturally appraised according to the modern theory of ethics, the common conception of right and wrong, just and unjust. In several important nodes, as well as in details, this results in an interpretation of the sources that is new (i.e. not pursuant to the understanding during Antiquity): Roman law is reconstructed as Christian-Roman law. This is particularly well illustrated by the concepts and institutes that also take on a key role in theology: culpa, voluntas, consensus or dominium.

Based on the concept of culpa(Rom.: attribution, neglect, Christ.: guilt),it shall be examined, in which areas the new understanding resulted in new legal assessments and rules. As a precondition for this endeavor, the ethical, theological meaning of culpa needs to be identified, in order to reconstruct late medieval and early modern lawyers’ manner of thinking and arguing. The effects of the Christian contractual obligation can be best demonstrated with the help of particular examples of what is now called strict liability, guaranteed liability, and vicarious liability. Once the relevant sources (from the 12^th-15^th Century) have been surveyed, the effects of these relevant figures, lasting to present times, and thereby also the preconceptions under which these Roman sources have heretofore been interpreted, can be effectively demonstrated. This may result in the achievement of a two-fold goal: by describing the “Christianizing” of the Roman concept of culpa, it is possible to, on the one hand, question our current view of the pre-Christian concept of culpa and, on the other hand, criticize the modern concept of fault.

Publikations (selected)

Debet homo facere quod in se est? Vertragstreue und nachträgliche Leistungserschwerung zwischen Recht und Moral, in: Byoung Jo Choe (Ed.), Law, Peace and Justice: A Historical Survey, Seoul 2007, 191-237.
Res communes omnium: Philosophical Topos and Legal Term up to Grotius, in: Grotiana 30 (2009), 20-48.
Anachronistische Begriffe, oder: „Nichtrömisches“ im römischen Irrtumsrecht, in: P. Pichonnaz (ed.), Autour du droit des contrats. Contributions de droit romain en l’honneur de Felix Wubbe, Zürich/Basel 2009, 49-94.
Bonus pater familias, in: L. Winkel u.a. (Eds.), Ius Romanum, ius commune, ius hodi-ernum. Liber Amicorum Eltjo Schrage, Amsterdam 2010, 347-362.