5.6 Final remarks on Die Krise des rÃ¶mischen Rechts und die romanistische Rechtswissenschaft

As was explained above, the lecture at the Akademie für Deutsches Recht in 1937 and the following publication of Die Krise des rÃ¶mischen Rechts und die romanistische Rechtswissenschaft have often been considered by many scholars as the main turning point in Koschakerâ€™s life and career, particularly with regard to his approach to the Nazi regime.

Two main ideas developed about this period of Koschakerâ€™s life following his death in 1951. The first, which characterises the majority of the scholars, considered Koschaker a fierce opponent of the regime, fighting against it at least since 1937,^[694] and underlined the importance of Koschakerâ€™s works in defence of the European legal culture. More recently a divergent opinion has developed, which tends to see Koschaker as a more or less involuntary supporter of the Nazi regime.^[695] Both these views are well-established, even if they are essentially based on a few standard conceptions. Hence, it is now apt to consider sine ira et studio Koschakerâ€™s behaviour in front of the members and sympathisers of the Nazi regime at the Akademie für Deutsches Recht, and whether the text of Die Krise des rÃ¶mischen Rechts und die romanistische Rechtswissenschaft can be considered a sort of political manifesto or not.^[696]

Koschaker himself used the following words to comment his lecture in his Selbstdarstellung:

Ich sprach über das rÃ¶mische Recht und die Krise der romanistischen Rechtswissenschaft vor einem exklusiv nazistischen Auditorium [...]. Man wird mir nicht zumuten, daß ich das Parteiprogramm frontal angriff. Das wäre Selbstmord nahe gekommen. Ich umging es vielmehr und rollte seine Front von hinten auf. [.] Seither genoß ich bei den Nazis sogar einen gewissen Respekt. Ich mÃ¶chte mich aber energisch verwahren, wenn man mein Verhalten als mutig bezeichnen sollte.

Ich war nie mutig und hatte, als ich den Vortrag hielt, keinen Augenblick das Gefühl mutig zu sein oder irgend etwas zu riskieren. Denn für ein Kulturphänomen von der GrÃ¶ße und Bedeutung des rÃ¶mischen Rechts einzutreten und Unwissende aufzuklären, ist nicht Mut, sondern für einen Romanisten selbstverständlich.^[697]

Apart from rhetorical and falsely modest tone of some of his claims, Koschakerâ€™s own words give a clearer idea of his actions than the interpretations offered by many scholars, even if they were written after the end of WWII. The two most important aspects of this passage seem to be the reference to the impossibility of criticising the Point 19 of the Parteiprogramm openly, because he was speaking before a Nazi audience; secondly, he admitted that defending Roman law was not a question of courage for a Romanist, rather it was natural (selbstverständlich). It is nevertheless implicit that agreeing to speak before a Nazi auditorium at that time meant adhering to the rules and beliefs of the participants and those of the Academyâ€™s Nazi director, the Reichskommissar Frank.^[698] Therefore, it is possible to claim that Die Krise des rÃ¶mischen Rechts cannot be considered a political manifesto. In 1938, just one year after the lecture at the Akademie für Deutsches Recht, Koschaker did the same thing in Austria when, as a representative of German scholarship, he accepted an invitation to talk at a joint meeting of the Fascist and Nazi regime in which public officials and members of the two governments were present. In this case as well, the outcome of his speech was a short publication that appeared in the Schriften des NS. - Rechtswahrersbundes in Ã–sterreich.^[699] This work was mainly an excerpt of the lecture he held at the Akademie für Deutsches Recht, as Koschaker himself declared.^[700] Yet this text represented a clearer attempt to connect Roman law and European legal history to Western Europe and Germany, in particular.^[701]

These facts do not mean, of course, that he was a Nazi himself, but they do seem to demonstrate that Koschakerâ€™s main aim was the defence of Roman law and the necessity of acting to contrast its crisis, a crisis which had begun in the past and not under the regime, in his opinion.

Moreover, it appears that he did not suffer any consequences as a result of this defence. Being worried about the situation of Roman law, in particular in Germany, and wanting to find a way to restore its dignity, Koschaker accepted the invitation to talk in front of what he called a â€œnazistisches Auditoriumâ€ and this opportunity to explain his ideas. Of course, having a publication based on a lecture given at the Akademie, and approved by the regime, undoubtedly meant that his work would have a wider appeal. Since Koschaker was not interested in resisting the Nazis themselves, we do not find any attack on the party programme in the text of Die Krise des rÃ¶mischen Rechts, but rather a cry of alarm at what was happening to Roman law and its teaching, with particular regard to the German situation. In this respect, Koschaker was resisting a more general cultural movement, without openly standing in opposition to it, which had begun well before the Nazi regime took the power;^[702] ^{^[703] the regime only exacerbated these conditions. In general, then, Die Krise des rÃ¶mischen Rechts is a less value-based and political work than Europa und das rÃ¶mische Recht f⁶ and it is essentially a more technical essay on Roman law, its role in European legal history, its teaching and the crisis that affected it. At the same time, it should be remembered that it was part of that trend of works - Krisenschriften - dealing with the crisis of Roman law and it did not represent, therefore, a single example of the genre (equally, it is not possible to consider all these works as political manifestos, stricto sensu).
It is thus tempting to think that a different standpoint should be taken, even if it seems obvious that the broad cultural values often involved in such works could in some way intersect with a set of problems that are at times political. For his part, Koschaker was completely aware that he could not engage in a political debate through his work if he wanted to maintain a position within the university and the academic world, as he certainly did.
Had Koschaker genuinely wanted to discuss Point 19 of the party programme critically, he could have probably made the same choice as De Martino, and openly challenged it, but only by taking serious risks in doing so given that he lived in Germany and not Italy.^[704] Without wilfully intending to criticise him and, yet at the same time attempting to understand the difficult situation that he had to face in order to carry out his personal â€?missionâ€™ in defence of Roman law, it is nonetheless reasonable to interpret Koschakerâ€™s behaviour as the decision of a man who had acquiesced to inevitable need to pursue a political path and trend in the academy and German universities. There is no evidence to substantiate the claim that he was a staunch supporter of the Nazi regime, but he had no desire to leave his country and the university, and by remaining, he was no doubt convinced that he could do something useful for Roman law and its teaching in German universities.
On the other hand, by considering his conduct at the Akademie fur Deutsches Recht and, more generally, during the years he spent in Berlin, he cannot be portrayed as a hero who fought against the regime. As to Koschakerâ€™s behaviour at the Akademie für Deutsches Recht, it might be appropriate to frame it with the words adaptation stratgies (Strategien der Anpassung):^[705] like many others, Koschaker tried to adapt his life and career to the actual academic situation existing in Germany. One can certainly raise objections to his opportunism and perhaps the fact that he did not try to take a clearer stance against the regime in that case, but that certainly does not mean that he was a supporter of it.
In attempting to analyse the problem once more from a scientific perspective, it is apposite to add a few further remarks. Koschakerâ€™s stances on Roman law, as they have been described in Die Krise des rÃ¶mischen Rechts, do not seem to be an attempt to adapt the study of the subject to the hegemonic aims of the regime, from a methodological point of view.^[706] It has been previously stressed that Koschaker had always considered a systematic-dogmatic approach that emphasises the links between Roman law and contemporary law imperative for the study of Legal history.
Indeed, since his early works on cuneiform law, he had been deeply influenced by the pandectist approach of the scholars he studied with.^[707] However, a further aspect of the above-mentioned adaptation strategy emerges in yet another respect: the effort to demonstrate that Roman law could represent the foundation of a modern private law system, as the one planned by the regime at that time. In this kind of narrative, an essential but albeit less clear role is attributed to the references to Europe and European culture: on the one hand, they could represent a bastion against the fury of the totalitarian regime; on the other hand, at time they appeared to be connected to the idea of a new Europe that needed rebuilding, in which Germany was supposed to take a dominant position.^[708] In the background, there is the hint of a struggle for the cultural predominance in Europe too, the same flavour that characterised Riccobonoâ€™s speech at the institute Studia Humanitatis in Berlin in 1942. Classical culture, and Roman law within it, was perceived as a means to carry out this cultural battle.^[709] Another area of ambivalence emerges in Koschakerâ€™s text with regard to the pandectists. As was previously stressed, he alternated positive and negative judgments towards them in his publication; the criticism appears to be sometimes quite similar to the one adopted by the Germanists against Savignyâ€™s Historical School and its followers. In the end, however, Koschaker succeeded in adopting his motto â€œcome back to Savignyâ€ and updating the methodological issues of the Historical School itself, a claim that appears surprising for two reasons: first of all, because Koschaker himself made no attempt to avoid criticising certain aspects of the approach to the study of Roman law of this school. Secondly, because the regime had already manifested its aversion to Savigny, the historical school and the pandectists.}

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Source: Beggio T.. Paul Koschaker (1879-1951): Rediscovering the Roman Foundations of European Legal Tradition. Heidelberg: Universitätsverlag Winter,2018. â€” 334 p.. 2018

5.6 Final remarks on Die Krise des rÃ¶mischen Rechts und die romanistische Rechtswissenschaft

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