Conclusions

Paul Koschaker was an extraordinarily eminent figure in the field of Roman law and legal history. This work has analysed the biographical aspects of his life together with his academic experience and his scientific work, in order to provide a truly comprehensive overview of this outstanding scholar.

The archival sources have proved to be decisive in retracing significant and previously inedited passages of Koschaker’s personal and scientific biography. They have shed light, above all, on many important and complex events that took place in the years he spent in Berlin and in Tübingen, demonstrating that it is perhaps best, in most cases, to avoid making partial or clear-cut judgments about them.

The letters preserved in many German archives and in Palermo have at times displayed Koschaker’s true convictions and beliefs, in particular with regard to the situation of Roman law and its teaching in Germany. Yet this comprehensive study on Koschaker has demonstrated that it is possible to offer a more unbiased evaluation of him and his scientific stances. If one considers the entire experience of this scholar - beginning with his university life in Graz and, from a scientific point of view, considering the influence the Pandectist approach to Roman law had on him - and then proceeds with the events of the following years, instead of focusing on single facts and moments of his life and making hasty judgments about them, then an almost previously unknown and uncontemplated Koschaker will appear before you.

This research has tried to clarify the grey areas of Koschaker’s life, in an attempt to understand if, and to what extent, his personal experiences and the surrounding environment influenced his choices and his scientific stances over the years.

This inquiry has also focused on the impact of the Nazi regime on an illustrious scholar and his works, a scholar who lived as neither a member or supporter of the regime, on the one hand, and yet was not forced to leave his position at the university or, worse, his country, as many refugee scholars had done, on the other.

In the case of Koschaker, it is plausible to talk of adaptation strategies, when referring to some events that took place at the time of the Nazi regime, but the resolute and single­minded scientific beliefs he developed over the decades must equally be acknowledged and remembered. The important and fascinating role played by Koschaker is further attested to by the continuos debate that his life and, above all, his publications have caused over time. His main work, Europa und das römische Recht, is still today a cause of intense scientific discussion.^[922]

Yet, before concluding this work, a few final words on Paul Koschaker deserve our attention. The cue for these final remarks has been taken from the documents and materials analysed in the previous chapters, on the one hand, and by the recent critical stances of some scholars towards Koschaker, on the other hand.

The very positive tones used to describe Koschaker and his work by scholars after WWII have been already examined. As was explained earlier, some analyses have exaggerated in their portrayal of him as a symbol of fierce opposition to the regime. The prestige Koschaker acquired over the years, above all after the publication of Europa und das römische Recht, led many scholars to interpret any event of his life - including his behaviour under the Nazi regime - as a confirmation that he was a committed anti-Nazi or even see his conduct as heroic at that time.

Criticism of Koschaker has mainly focused on four aspects: Koschaker’s behaviour under the Nazi regime and the consideration that he was more or less an involuntary Nazi supporter; his scientific stances at the time of the regime - an aspect strictly connected to the previous point; his methodological approach to Roman law in more general terms; and his idea of Europe and the Roman law tradition.^[924] In the light of the research presented in the previous chapters of this book, each of these fours aspects will now be briefly summarised.

The first discussion point concerns Koschaker’s personal and scientific behaviour at the time of the Nazi regime. It should be immediately stated that neither the idea of “heroic behaviour”, nor that of the “supporter” of the regime, even “despite himself’, could do justice to the personality of Koschaker.^[925] Both these judgments attempt to offer a naive depiction of a context that was on the contrary unenviably and almost unfathomably complex.

The archival documents analysed and regarding, above all, Koschaker’s years in Berlin and, later, in Tübingen, demonstrate that he was neither ousted from his chair in Berlin nor forced to leave the city; at the same time, he did not suffer any consequence for his choice to defend Roman law and its teaching and for his stances that could apparently irritate the regime. Neither open hostility of the latter towards him, nor proximity of Koschaker to the regime emerge from the documents. Some of his requests were undoubtedly not favourably considered by the members or supporters of the regime, but in most cases Koschaker faced problems mainly due to administrative and organisational reasons.

Koschaker, then, was no hero, just as is the case with many other human beings, and from the depiction of his life and career, as they emerge from the documents at our disposal, it seems possible to talk of difficult choices, compromises, ambiguities, doubts and ordeals. Certain conduct may have appeared opportunistic at times, or as fostering his desire to conserve an important position in academia and not to jeopardise his career, if not his life. Some of his behaviour was contradictory too; he did not refuse, for example, to be a member of the Akademie für Deutsches Recht, most probably because he wanted to achieve an eminent role in German academia, but this choice did not make Koschaker’s position different from that of many other scholars of that time. Nonetheless, he had many friends of Jewish origins at the university and he remained in touch with them, also after they had been forced to flee Germany. Again, Koschaker never openly opposed the regime, and the regime had little interest in persecuting a venerated professor, who in fact was appreciated by scholars regardless of whether they were supporters or opponents of the regime.

In general, Koschaker accepted or adapted to the situation existing in Germany from the thirties onwards, with the exception of his staunch defence of Roman law.

All the above analysed elements should lead to the following considerations, in my opinion: first, it is generally not possible to make definitive judgments about Koschaker’s behaviour, considering the difficult times in which he lived, or, at any rate, such evaluations should be made with due prudence. In any case, they should limit their remit to what actually emerged from the documented sources and can be reasonably considered reliable.^[926]

Secondly, it is ultimately a question of sensitivity; anyone is free to examine the events of Koschaker’s life and evaluate whether or not his behaviour was opportunistic and, if so, to what extent. It appears possible to affirm that in some circumstances Koschaker himself followed an adaptation strategy, was the case with other scholars at the time in German, Austrian and Italian academia,^{[927] [928] [929] [930] [931] [932] expressing his ideas and defending his interests without irritating the regime and without compromising himself. There were also times, however, when he resolutely defended his opinions, regardless of the interlocutors he had before him or the circumstances he had to face. Lastly, even though his behaviour can be considered at times ambiguous or opportunistic, this does not mean that Koschaker was a Nazi supporter.}

There is a sentence in one of Koschaker’s letters to Guido Kisch, dated 17^th July 1948, which in part expresses the complexity of the situation at the time of the regime. It concerns Koschaker’s behaviour towards his colleagues of Jewish origins who were forced to leave Germany.

Es ist wirklich nicht leicht, ein Deutscher zu bleiben. Aber eine schone und erhebende Erfahrung hatte ich doch: das Verhalten der deutschen Emigration, unter ihr insbesondere meine jüdischen Kollegen, ein Verhalten, das zu erwarten, ich nicht berechtigt war, weil zwar nichts gegen sie, aber auch kaum etwas für sie getan habe.^[933]

This brief excerpt from the letter offers in a few words further proof of the difficult circumstances at the time of the Nazi regime, when Koschaker could do little as his Jewish colleagues were forced to abandon their posts and flee their country and, even if he had no adverse feelings towards them, nonetheless he could do nothing to help them. This brief text aptly represents the dichotomy of his human condition at the time. Once again, it appears reasonable to affirm that Koschaker too was haunted by many contradictions and doubts, as were many other people in such dark times.

The second aspect concerns Koschaker’s scientific stances at the time of the regime. His proposals for the study and teaching of Roman law would be instrumental in providing a scientific basis for the expansionistic aims of the regime and, according to some scholars, his depiction of Roman law could be conceived as having found approval among the Nazi regime.^[934]

If our analysis is restricted to the publication of Die Krise des römischen Rechts and a few other works which appeared in the thirties and forties, this opinion may seem vindicated in some respects. However, in this case too, the situation was more complicated than appeared at first sight. A study of Koschaker’s works from the beginning until the end of his career shows him often being coherent in his scientific beliefs. In particular, Koschaker’s method has always distinguished itself for its dogmatic-systematic approach and for the attempt to find connections between ancient laws, above all Roman law and contemporary law.

It is true, however, that Koschaker’s Aktualisierung formula - developed in the thirties - connected Roman law with contemporary law to such an extent that a historical perspective on Roman law was partly neglected. Its study and teaching thus appeared to focus mainly on the needs of modern private law. In this sense, the aim of historical research on Roman law, consisting in the attempt to understand what Roman law was, ran the risk of being fraught. However, for Koschaker it was possible to identify an idealised depiction of Roman law that could be adapted to the needs of the time, a depiction that could be used time and again in different circumstances.^[935] Koschaker’s arguments and proposals, however, were deeply affected by the crisis that Roman law was experiencing, not to mention his personal experiences as a university professor. The very stern criticism he addressed towards the Historisierung of Roman law was borne mainly of what he saw as the scientific incompatibility between this trend and his proposal to recover Roman law studies and teaching. Koschaker’s point of view on these questions was in fact shared by many other scholars at the time - an approach that had been influenced by the 19^th century German tradition. Precisely for these reasons, it cannot be asserted that Koschaker suggested a methodological proposal conceived with the precise aim of supporting the goals of the regime. On the contrary, such a proposal was the result of his scientific beliefs. Nonetheless, some of the arguments on which Koschaker’s proposal was founded could be adapted to the needs of the regime, or at least coexist with its narrative.

This is what emerges, for example, from the document containing Koschaker’s suggestions for a reform of Roman law teaching in Germany.^[936] Yet, the fact that his methodological proposal hardly varied throughout the thirties, the forties and even after the capitulation of totalitarianism, should lead us to consider it as the cornerstone of Koschaker’s scientific stances, regardless of the political circumstances at the time. Furthermore, in some cases, his narrative appears to have been in part adapted to the addressees and it seems reasonable question whether it is appropriate to talk of an adaptation strategy.^[937] Finally, the fact that some aspects of Koschaker’s proposal did not irk the regime or could even be interpreted favourably by it, does not equate to the fact that Koschaker intentionally developed his proposal for the regime rather than according to his scientific convictions and the need to recover Roman law and its role in legal studies.

These final two criticisms levelled at Koschaker that emerged over the decades concern his approach to the study of Roman law in general, and his idea of Europe and the European legal tradition. Both these topics have been discussed in the previous chapters, and only need to be briefly touched upon here.^[938]

Koschaker’s approach to the study of Roman law has been considered too dogmatic, a sort of second Pandect-science that runs the risk of neglecting historical research and comprehension of the subject, and of reducing its importance to its connections with modern current laws, narrowing the field of study to those private law topics which have concretely influenced modern private law systems.^[939] Koschaker’s strong criticism of the Historisierung of Roman law was not considered completely convincing either.^[940]

Although Windscheid’s optimistic prediction about the future of Roman law teaching and its historical study failed to materialise,^[941] it appears nonetheless still necessary, nowadays, to cultivate the historical approach to romanist research with the aim of understanding what Roman law was (historical approach carried out by Romanists and legal historians, as such, jurists).^[942] This kind of study forms the basis of any other scientific investigation regarding the reception of Roman law or its influence on contemporary law, or for that matter, how these phenomena should be correctly understood and interpreted. Apparently, Koschaker’s approach to the sudy of Roman law as expressed in Die Krise des römischen Rechts only allowed room for an ancillary role to the historical study of Roman law. Yet, in this respect as well, it seems proper to take into consideration Koschaker’s proposal concerning relative natural law as the keystone to interpreting his scientific stances. His methodological approach, as was summarised in his 1947 formulation, opened the way to a historical study of Roman law as Koschaker himself saw necessary, and indeed explained in two letters he sent to Riccobono in 1949 and 1951. The concept of relative natural law was programmatic in nature and could, therefore, be interpreted according to the personal inclination of any particular scholar, and in any case, could combine the dogmatic and the historical approach. Koschaker, following his methodological beliefs, predictably preferred to adopt a dogmatic perspective, but the broad formulation of the concept of relative natural law has not prevented scholars from adopting more historically-oriented approaches.

Yet beyond the natural inclinantion of any scholar towards a more historical or more dogmatic study of Roman law, it is the approach scholars adopted towards the sources themselves that made an enormous qualitative difference among the various Roman law works and studies. In this regard, a few contributions^[943] suggest that Koschaker’s tendency towards the Aktualisierung of legal institutions seemed to prevail over the content of the sources themselves, but otherwise he always displayed a remarkable and refined exegetical treatment of Roman law sources, including from a historical perspective. Moreover, it should not be forgotten that Koschaker had spent many hours poring over laws of antiquity and his historical approach to the study of these subjects is undeniable.

Throughout his academic career, Koschaker’s dogmatic approach remained one of his main distinctive traits. Here, he was deeply influenced by the previous German Romanist tradition and was emblematic of one of the two most important trends of German Roman law scholarship at that time.

The final considerations concern Koschaker’s idea of Europe and European legal tradition. Most often, scholars on these topics have stressed the “Germanocentric” approach taken by Koschaker. This critical perspective was influenced by the idea of legal and cultural continuity, and the fact that Koschaker’s historical reconstruction failed to take account of the legal history of Eastern Europe. Such criticisms are not a recent phenomenon, as scholars pointed to the limits of Koschaker’s conception immediately after the publication of Europa und das römische Recht¹ Undoubtedly, Koschaker’s representation of Europe focused principally on the history of the Holy Roman Empire and Germany and, as a consequence, it ignored the development and influence of Roman law tradition in Central and Eastern Europe.^{[944] [945] Yet we need to consider Koschaker’s stances within their context: his Germanic idea of Europe belonged to the German cultural canons of his time. As far as his ideal of legal and cultural continuity is concerned, it has already been stressed that Koschaker’s conception was deeply influenced by his systematic aims in the light of the reconstruction of European private law system and jurisprudence. This dogmatic legal continuity appeared to be a necessary scientific premise for his reconstruction. Koschaker’s excesses in representing the historical continuity of European legal history had been already questioned by Calasso, who found, on the contrary, it more appropriate to make an in-depth study of the complex evolution of legal systems in Europe, above all in the Middle Ages.[946]}

At the same time, research on Roman law reception among the various European legal systems, postulates, institutes and rules developed over the centuries from the 11^th century up to the 20^th century would certainly warrant casting doubts over Koschaker’s enormous faith in the linearity of Roman law reception.^[947]

Although Koschaker clearly idealised the reception of Roman law in Europe, it is impossible to concur with the idea that Koschaker merely created a myth, making up a “fairy tale” of the European legal tradition to suit his needs.^[948] Indeed, the Romanist tradition is not simply a monolithic dogmatic construction, rather it is based on legal methods, legal science and jurisprudence, namely cultural elements and dogmatic concepts which have influenced numerous countries in many different ways, including beyond the modern-day border of continental Europe.^[949]

Behind the veil of his dogmatic approach and the myth of continuity, Koschaker himself never forgot to underline the cultural role of the Roman law tradition, even though he overemphasised its “civilising” effect in Western Europe. To conclude, it can be said that Koschaker’s stances on Europe and the European legal tradition appear to have been influenced by the cultural climate of his time; for these reasons alone, they are worth discussing and reconsidering without being overinfluenced by ideological standpoints.^[950] It is appropriate to consider once more, however, the programmatic value of Koschaker’s stances on Europe as described in his masterpiece, Europa und das römische Recht, as such, they are not considered definitive statements on European legal tradition, rather they can be interpreted as catalysts for reflection and promote further considerations on this subject.

As Kaser wrote, the “programme” contained in Koschaker’s work assigned the duties that Romanists and legal historians should carry out;^[951] it was a cry of alarm and not an epitaph to Roman law and its legal tradition. Accordingly, it called on scholars to keep discussing the matters dealt with by Koschaker and it thus offered an opportunity to go beyond his scientific stances. This is one of the aspects that makes Koschaker’s Europa und das römische Recht a true masterpiece of legal history.

To conclude, by basing a large part of the analysis on Koschaker on archival documents and consider the context in which this scholar lived and worked, my aim was to avoid the pitfalls of making an ideological reconstruction, so that my personal views and judgements emerged as far as possible from an impartial evaluation of facts and conduct. Moreover, this investigation has sought to demonstrate that the application of this method to historiographic research can produce a better understanding of both the scientific work and personal events of a given scholar, particularly as the scholar in question lived under a regime where the risk of mixing scientific judgments with ideological preconceptions is particularly high.

Finally, this inquiry has tried to offer a new biographical and scientific reconstruction on Paul Koschaker, one of the finest Romanists and legal historians of the first half of the 20^th century. Having undertaken a comprehensive investigation of Koschaker does not mean, however, that I have found all the answers to every question that has arisen in the course of this research. The complexity of the human events surounding Koschaker, in addition to the complexity of the situation that existed in Germany under the Nazi regime, has left many doubts and interesting points for further inquiry. For these reasons, this study has sought to raise questions rather than pursue unrelinquishing quest to find all the answers, in the belief and hope that such queries can and will stimulate further debate on the influence of such an undisputed master.