5.9 Koschaker and Point 19 of the NSDAP program

It now seems appropriate to provide a brief overview of Koschaker’s approach towards Point 19 of the NSDAP program, before dealing with Europa und das römische Recht.^[769] Roman law had clearly hit a crisis in Germany in the 1930s and 1940s; certain scholars, however, have considered the general mood of Romanists, and of Koschaker himself, at that time as too pessimistic;^[770] after all, Roman law teaching had not been abolished despite regime’s persecution of scholars of Jewish origins and their notorious disdain for the subject itself.

and Roman law teaching in particular, were usually depicted as critical, if not tragic, including during the decades following the end of the World War II.^[771] While it may be true that the situation was often made out to be worse than it actually was - and this happened both at the time of the regime and in later reconstructions of the events - on the contrary, there were also isolated attempts to understate the extent of the crisis. A well- known example of this was given by Schönbauer, who actually “confined” the ambit of the crisis to the Jewish origins of many Roman law scholars, on the one hand,^[772] sustaining, conversely, that the reform of legal studies at German universities had fortunately allowed the course Roman legal history (“Römische Rechtsgeschichte”) to remain in its original place.^[773]

Schönbauer’s point of view seems to be simplistic compared to the troubles faced by Roman law at the time. Overestimating his affirmations would mean losing sight of the context.^[774] As to Schönbauer’s statement that the “Römische Rechtsgeschichte” course had not been abolished by the 1935 reform, it should nonetheless be remembered that it was no longer mandatory and the course could be chosen as an alternative to the “Antike Rechtsgeschichte”; in reality, however, students repeatedly preferred the latter, as emerge from Koschaker’s numerous documents.

The various reasons that led to the critical situation of Roman law teaching in Germany at the time have already been taken into considerations in the previous chapters.^[779] Point 19 was clearly not the only cause of this crisis, but it still represented the popular sentiment among the majority of German legal scholars and politicians. Landau has scrupulously demonstrated that it had been written on the example of Point 2 of the Deutschsozialistischen Partei (DSP, German socialist party) of 31^st May 1919, meaning that the abhorrence for Roman law was not limited merely to the Nazi party and its supporters.^[780]

Yet in my opinion, it cannot be denied that Point 19 exacerbated the crisis of Roman law after 193 3,^[781] since it gave clear political significance to pre-existing negative scientific and cultural approaches towards Roman law in Germany.

It is worth analysing Koschaker’s perspective on Point 19 in this context. In Die Krise des römischen Rechts he did not devote a single word to the question, whereas in his proposal for the reform of Roman law teaching of 1941 he clearly affirmed that Point 19 could not be considered responsible for the crisis of Roman law, also for the reason that a political programme usually deals with practical, and more important matters.^[783] Apart from the above-stated reasons that could have led to his making such a statement, where, of course, he was in part influenced by the addressee of his document, it stands to reason that Koschaker truly considered Point 19 not particularly significant.^[784] Further evidence of Koschaker’s beliefs are found both in an unpublished letter he penned in 1943 and in his work Europa und das römische Recht.

He wrote the letter on 20^th November 1943 to Fritz Brüggemann, who was in Berlin at the time.^[785] The latter had invited Koschaker, in a previous letter sent on 17^th November of the same year, to write an article on European legal science, a topic that, according to Koschaker, would have allowed him to deal with the development of legal science, as such based on Roman law, in Europe from the 11^th century onwards.^[786] Koschaker concurred with Brüggemann’s point of view on Roman law, as expressed in his letter, which was quite similar to Koschaker’s stances, as explained in Die Krise des römischen Rechts. Koschaker, however, bemoaned the different point of view taken by leading academic circles of the time:

Indessen sind diese Gedankengänge in Ansehung des römischen Rechts leider nicht diejenigen unserer leitenden Kreise.

The importance of this letter is twofold: first, Koschaker wrote that the cause of the common leading opinion on Roman law in Germany at the time was Point 19 of the Nazi party programme. But he actually defined it as, “der unglückliche Punkt 19 des Parteiprogramms, der etwas ganz anderes meint als er sagt”, thus implying that there was a difference between the unfortunate literal formulation and its true sense. The deleterious effects resulting from the interpretation of the text depended on the difference between what it really meant and what he actually said. Hence, its poor formulation was to be blamed for the loathing for Roman law it provoked and not the content of Point 19 itself.

One may thus assume that Point 19 could not be held responsible, or at most only indirectly, for the crisis of Roman law, in Koschaker’s opinion. This confirms yet again his inner conviction about the role of Point 19, expressed in a letter sent to a colleague (who was a member of the Nazi party, however).

The second significant issue concerns Koschaker’s words on the reform of the juristische Studienordnung: in contrast to the terms of his reform proposal of 1941, in this letter he clearly affirmed that the text of the reform, the juristische Studienordnung, had the serious intention (“der ernstliche Wille”) of eliminating (literally to kill: “totschlagen”) Roman law.^{[787] [788]}

Koschaker’s stance is clear and illustrates all the differences between his real point of view on the reform of the legal study and the very cautious, perhaps opportunistic, approach that he adopted in writing his Denkschrift in 1941.

A second indication of Koschaker’s ideas on point 19 emerges from the pages of his masterpiece, Europa und das römische Rechte⁰ This work was published after the end of World War II and capitulation of the regime, hence there was no longer any need to refrain from criticising Nazism or adopt prudent language. Nonetheless, Koschaker did not change his judgment on Point 19, confirming yet again that what he wrote or affirmed at the time of the Nazi regime represented his real viewpoint and was therefore not for opportunistic reasons. In Europa und das römische Recht, he alleged that the formulation of the text of Point 19 was ambiguous;^[789] then he added cuttingly that this point was in line with the previous points from 10 to 18 of the programme, as such influenced by a socialist perspective and a socialist spirit (Geist). Point 19 itself had to be read as a means of supporting a private law system influenced by a socialist spirit: in this context, it was comprehensible that the meaning of the demands made in Point 19 were entirely coherent with the programme of a national socialist party. It was reasonable to think, as Koschaker indeed wrote, that the aim of Point 19 was to challenge the BGB and the materialistic order that it represented, although this concept had never been explicitly declared. For these reasons, Point 19 was destined to remain an enigma, in Koschaker’s eyes.^[790]

Koschaker’s explanation was criticised by De Martino some years later: the latter argued that the meaning of Point 19 was not obscure, as Koschaker himself had maintained with the above-mentioned interpretation in the pages of Europa und das römische Recht.^[791] According to De Martino, the regime had used Point 19 - as well as the idea to fight Roman law and the materialistic order - as a pretext to undermine the very principles handed down by Roman law, in particular, those protecting individual freedoms.

Koschaker was also convinced that many supporters of the regime followed the dictum of Point 19 only by dint of their obedience to the Nazi party, and not according to inner convictions,^[794] which is nonetheless very difficult to prove. In any case, the Nazis did not oppress Roman law professors as such, yet this was not due to the liberal feelings of the members of the regime.^[795] As Koschaker further added, they did not need to direct any violence towards Roman law scholars, as Roman law teaching was already facing a crisis in Germany and it would have been unreasonable “grobe Mittel zu verschwenden, wo kleine denselben Dienst taten”, namely, to use major instruments where the same goal could be achieved using lesser measures.^[796] The reform of legal studies and the limitation of the numbers of hours and courses at the disposal of Roman law scholars, in addition to the abolition of the final examinations at the end of the course, had a devastating effect on Roman law in Germany, in Koschaker’s opinion;^[797] he also expressed this opinion to Bruggemann in the above-mentioned letter from 1943.

To conclude, two further considerations emerge from the analysis of Koschaker’s opinion on Point 19. The first relates to the significance he attributed to its role, which seems somewhat underestimated, as some other scholars similarly thought at the time.^{[798] [799]} It is not completely convincing that its detrimental effects should merely be ascribed to the interpretations that followed from its poor formulation. It is on the contrary possible to acknowledge the political significance of Point 19, which most probably exacerbated what was already a critical situation for Roman law in Germany.

The second remark regards the consistency of Koschaker’s opinions on the role of Point 19: they did not change, regardless of the occasion on which he expressed them. In this respect, he did not try to adapt his ideas to the changing circumstances, on the contrary, he staunchly defended them over the years and even after the end of the totalitarianism.