5.1 Introduction

Koschaker’s experience in Berlin has been described in detail in the third chapter of this book, focusing on the events that took place at the University and, in particular, those leading to his decision to leave the city and move to Tübingen.

Yet a very significant episode that happened during Koschaker’s period in Berlin was not analysed in that chapter, namely the lecture he held at the Akademie für Deutsches Recht in December 1937 and his subsequent publication of Die Krise des römischen Rechts und die romanistische Rechtswissenschaft in 1938. This particularly important passage in Koschaker’s academic development will be the subject of this chapter together with the other scientific “steps” that followed, up to the publication of Europa und das römische Recht in 1947. The decision to deal with Koschaker’s scholarly path from Die Krise des römischen Rechts to Europa und das römische Recht separately is based on some compelling reasons. First of all, the scientific and methodological continuity that forms background to both works: in this sense, Europa und das römische Recht could be considered as a development of the work published in 1938, in which the historical depiction and the crisis of Roman law were described in greater detail. Despite the differences between the two works, the main scientific issues display a clear continuity. Yet in the nine years between the publication of Die Krise des römischen Rechts and Europa und das römische Recht, Koschaker wrote numerous and diverse minor texts and also other documents, now preserved in several German archives, that offer a more comprehensive insight into his methodological approaches, and how he attempted to clarify or elaborate them from time to time, before finally achieving his scientific synthesis, as it appeared in Europa und das römische Recht.

In the following pages, the context in which Koschaker gave his lecture in Berlin will be analysed first, as well as the content of the publication that resulted from this lecture, and the reactions to his essay. This peculiar moment has often been considered by scholars to be the turning point in his personal and scientific experience.

Thanks to the lecture at the Akademie für Deutsches Recht and the publication of his work on the crisis of Roman law, certain scholars have tended to idealise Koschaker, seeing him as a fierce, almost heroic, anti-Nazi protagonist. On the contrary, the very same publication has been interpreted more recently in quite the opposite way by other scholars, alleging that Koschaker was ideologically close to the regime, if not an actual supporter of it. Both these perspectives will therefore be considered and analysed in an attempt to offer an alternative interpretation of the events, also drawing on the elements that have emerged in the previous chapters from the reading of the archival documents. Only by considering what happened in 1937 and 1938 within a correctly analysed and comprehensive vision, can the interpreter gain a better understanding of the facts, although this does not mean that it will always be possible to provide clear-cut judgments on them.

In addition, other publications and archival documents will be taken into consideration throughout this investigation to gain a clearer idea of Koschaker’s concept of Aktualisierung and his goal of recovering the study and teaching of Roman law in Germany, on the one hand. On the other, a clear picture of Koschaker’s viewpoint will emerge from the archival documentation as to the causes of the crisis of Roman law and to the role that could be attributed to the Nazi regime and to the famous Point 19 of the NSDAP program.

In the end, Koschaker’s masterpiece, Europa und das römische Recht, will be discussed. Both the content of the work and the reactions of the scholars to this publication will be examined; a further aim of this part of the chapter is to consider the cultural and legal legacy left by this book. Koschaker was able to offer a European narrative in which Roman law and Europe were tightly intertwined together, and this narrative has influenced generations of scholars, despite the scholarly criticism it has aroused at times. Moreover, a discussion of Koschaker’s cultural message will provide the opportunity to examine his methodological approach, as he himself summarised them in his concept of relative natural law (relatives Naturrecht). Interestingly, several of these scientific issues appeared in a couple of letters to his colleague and friend Salvatore Riccobono, which documents will be taken into account at the end of the chapter.