4.5 Koschaker’s pupils in Tübingen: Below, Wesenberg and Pescatore

During his professorship in Tübingen Koschaker had three main pupils. The first was Karl-Heinz Below, one of Koschaker’s original students from Berlin, and who began his doctoral studies there with him.^[471] As was previously explained, the documents dealing with Koschaker’s arrival to Tübingen often referred to his request to have Below as his personal assistant, and Koschaker’s efforts to this effect were noteworthy.

In a letter sent by Moeller to Koschaker on 10^th September 1942, Koschaker was perturbed about an unknown person from the Law faculty at Strasbourg contacting Below, probably with the intent of offering him a position there, without discussing the question in advance with any member of the Law department at Tübingen or with Koschaker himself.^[473] The situation seemed to be somewhat strange, since Moeller was convinced that Below was satisfied with his position at the University at Tübingen and he had also offered to do everything that could be done to make it more comfortable for Below.

The text reads:

Ich bedauere sehr, dass Sie in der Angelegenheit Ihres Assistenten so viel Ärger gehabt haben [...]. Herr Below ist doch sicherlich auch mit seiner Stellung hier zufrieden.

Der Strassburger Herr - leider weiss ich nicht sicher, um wen persönlich es sich gerade handelt - hat zweifellos Wildwestmethoden angewendet. Es wäre richtig gewesen, wenn er sich spätestens gleichzeitig an Sie gewandt haben würde. Als Dekan kann ich wohl nichts unternehmen, weil keine formelle Handhabe dazu besteht. [...] Vielleicht hat Herr Below Gelegenheit, in Strassburg anzudeuten, dass sowohl Sie wie auch der Tübinger Dekan doch einigermassen befremdet gewesen sind, dass man mit Herrn Below in schriftliche Beziehungen der fraglichen Art getreten sei, ohne zunächst Ihnen den Gedanken unterbreitet zu haben.

Moeller and Koschaker, unaware of what had happened, felt bewildered.

Yet, it is possible to get a clearer idea of this affair from another document, a letter sent by Moeller to Professor Georg Dahm from Strasbourg on 29^th September 1942.^[474] Moeller explained what happened to Koschaker and his assistant Below and that Koschaker had asked him to pursue the matter. From this text we understand that Moeller was able to recollect, after a recent meeting with Dahm, what Koschaker told him on 9^th September - and then before Moeller’s letter from 10^th September discussed above - namely that Below had received a proposal from the dean of the Law Faculty in Strasbourg to take up the post of assistant there, “mit dem speziellen Auftrage, die dortige Seminarbibliothek auf dem Gebiete der modernen Rechtsvergleichung zu ordnen und zu organisieren” (with the specific task of sorting out and organising the Seminar library’s section on modern comparative law).

For these reasons Moeller decided to ask Dahm to inform the dean in Strasbourg about these events and in case Strasbourg wished to get in touch with Koschaker, whose interests Moeller aimed to defend.^[475] After a few days, Moeller received a letter from the dean of the Law faculty in Strasburg that explained that Below himself had got in touch with the Faculty and with the local assistant, Dr.

The question, apparently clarified, was instead destined to go through further developments. A letter from Koschaker to Below, sent on 16^th October 1942, explains what happened between his pupil and the Law faculty in Strasbourg.^[478] The document clarifies that during a visit to Strasbourg, Below himself had expressed his concerns about remaining in Tübingen due to his health problems to the local assistant of the Law faculty, Dr. Bosch. Bosch talked with the dean of the faculty, Schaffstein, and during a later visit by Below to Strasbourg, he was offered a place as assistant there.^[479] However, there was some misunderstanding between Koschaker and Below, since Below had apparently insinuated that he had received a formal request from the dean of the Law faculty in Strasbourg. This is why he had been criticised by Koschaker; on the contrary, Professor Dahm in Strasbourg maintained that all negotiations were still at a preliminary stage.^[480] At the end of the first page, Koschaker tried to take a position on the entire affair:

Ich bedauere die Entwicklung der Sache in Ihrem Interesse. Daß es mir leid tun würde, Sie zu verlieren, umsomehr als ich für Sie keinen Ersatz bekomme, kann ich nur wiederholen. Andererseits sollten Ihnen unsere bisherigen Beziehungen zur Genüge gezeigt haben, daß ich im Verhältnisse zu meinem Assistenten nicht oder auch nur überwiegend meine persönlichen Interessen in den Vordergrund stelle. Es wäre besser gewesen, wenn Sie mich von Anfang an von dem Stande Ihrer Verhandlungen genau in Kenntnis gesetzt hätten unter Hinweis auf Ihre gesundheitlichen Bedenken gegen Tübingen. [...] Die Katalogisierungsarbeiten, die Sie noch in Tübingen zu machen haben, können kein Grund sein, Sie dort festzuhalten, und was den Index Interpolationum anlangt, so ist es zwar wünschenswert, aber nicht unbedingt erforderlich, daß Sie an demselben Orte arbeiten wie ich.

Koschaker indirectly criticised Below for the fact that he had not been informed from the very beginning, but ultimately, Koschaker felt sorry for his pupil given that Below’s health was the prime concern in his decision to move to Strasbourg or not. Of course, Koschaker would be rueful about Below departing from Tübingen, for in addition to losing him, there would most probably be no replacement.^[481]

The final lines of Koschaker’s letter to Below deal with Below’s decision to write his monograph for the Habilitation in Freiburg. Koschaker did not seem to be convinced that this was a good choice, as he would not have been able to supervise Below’s work and take care of the preparation of his Habilitation. If Below went to Strasbourg, he would find a good Romanist in Dulckeit, wrote Koschaker, who could help him with his work.^[482] This would not be the case in Freiburg, however. Therefore, if Below wanted to study and prepare in Tübingen before going to Freiburg for the Habilitation, he should feel free to do so, but he ought not expect any help from Koschaker:

In Straßburg wären Sie zu einem vortrefflichen Romanisten, wie es Dulckeit ist, gekommen, der Ihre Habilitation hätte betreuen können. Ich bin dazu nicht mehr in der Lage. Ich könnte dies tun, wenn mir ein junger Romanist zur weiteren Ausbildung von einer anderen Fakultät geschickt wird. Hiervon abgesehen, muß ich es ablehnen, mich um eine Habilitation zu kümmern, die von einer anderen Fakultät geprüft wird [...]. Sie können sich natürlich in Tübingen auf die Habilitation in Freiburg vorbereiten, aber Sie dürfen nicht erwarten, daß ich das Geringste tue, was als Übernahme einer wissenschaftlichen Mitverantwortung gedeutet werden könnte.

Koschaker also sent a copy of this letter to the dean, Moeller, as we can infer from the text that Moeller sent to Dahm on 20^th October 1942.^[483] In this letter Moeller explained to his colleague that there had been a misunderstanding and, therefore, he withdrew all his misgivings about the behaviour of the dean of Strasbourg, as stated in his previous letter to Dahm from 29^th September 1942.^[484]

Another document from the same year, dated 11^th November 1942, sent from Koschaker to Moeller, attests that Below’s health had got worse; he had tuberculosis and needed to ask for sick leave until Christmas 1942.^[485] Koschaker expressed his deep sorrow for his pupil in this letter, who was still in Tübingen at the time and had not finished his doctoral thesis yet.

A few other items of information about Below emerge from a couple of later letters. In a letter sent by Feine to Koschaker on 22^nd November 1945,^[486] Feine expressed his disapproval at Below’s decision^[487] to spend the winter semester in Freiburg. As Feine explained, it was not the first time that Below had said that he would be absent from Tübingen at the last moment. For this reason, his position as assistant had been cancelled for that winter and there was no certainty that he would be reinstated at the beginning of the following year.

Koschaker then had to find a person who could act as his assistant, as was stated in a letter sent to him by Feine on 16^th January 1946.^[488] At the same time, Feine hoped that Koschaker would return to Tübingen from Walchensee to hold his classes during the summer semester. At that time, Koschaker had almost retired in Walchensee and he was not always able to fulfil all his teaching commitments owing to his own health problems.

The last document to be taken into consideration with regard to Below is a letter by Koschaker to Feine; even though the letter had been sent on 27^th February 1946,^[489] it may well have been a reply to the one Feine sent to Koschaker on 6^th February 1946.^[490] At the end of the letter, Koschaker confirmed his willingness to hold a five-hour per week course on Roman law during the summer semester, as Feine had requested on 6^th February. Once again, the text shows that Koschaker’s pupil had decided not to teach Roman law classes in Tübingen during the summer. In response, Koschaker, apparently irked by Below’s decision, wrote to the Rektor of Tübingen to inform him that post reserved for his assistant could be given to some other Chair that would need it.

[...] Kurz, er hat dem Dekan in Freiburg mitgeteilt, daß er den ihm erteilten Auftrag, im Sommer eine romanistische Vorlesung neben seiner Tätigkeit in Tübingen zu halten, nicht aufnehmen könne. Damit hat sich mein letzter Brief an Sie erledigt und ich schicke Ihnen anliegend meinen Antrag an den Rektor, Below die mir vorbehaltene Assistentenstelle zu verleihen. In meiner Antwort gab ich Below zu verstehen, daß ich somit die Angelegenheit als erledigt ansehe und meine Wünsche sinerseits zur Folge [beten] würden, daß ich mich für seine Sache überhaupt nicht mehr interessiere.

The whole Below affair proved quite delicate, but the cause of the problems had been principally Below himself. Koschaker, who had initially shown concern for Below’s position and health, eventually lost his patience with his assistant. At the end of the above - mentioned text we can also infer from Koschaker’s harsh words that he was no longer interested in Below’s affairs (his Habilitation in particular).

Developments concerning Wesenberg were much simpler.^[491] A collection of documents conserved at the archive of the University of Tübingen show Koschaker’s keenness for Wesenberg to conclude his work and complete his Habilitation with him in Tübingen. A letter by Koschaker, dated 2^nd July 1943, whose addressee is unfortunately not indicated in the document, shows that Koschaker attempted to set a date for Wesenberg’s Habilitation. In the meantime, Wesenberg divided his time between work in public administration and his teaching of Roman and Civil Law in Rostock, where the Chair had remained vacant.^[492] Koschaker feared that the Law Faculty in Rostock would ask Wesenberg to stay for the winter semester meaning that he would run the risk of not completing his Habilitation in Tübingen, where he had been working on his monograph with Koschaker since the winter of 1941/1942. For these reasons Koschaker asked for the date of Wesenberg’s qualifying examination to be fixed for around mid-October.

The question had already been taken into consideration by the dean of the Faculty, Moeller, and the documents regarding Wesenberg had been forwarded to Merk.^[493] From an exchange of letters between Koschaker and Merk that took place in October 1942, it is possible to infer that Wesenberg wished to have a period of research in Tübingen before commencing a new job in Belgrade, and that Merk had prepared and sent the documents to the dean.^[494] The positive outcome of Wesenberg’s (and Koschaker’s) request was that he would spend some time in Tübingen, from the end of November 1942 to March 1943, where he worked on his Habilitationsschrift.^[495]

Eventually, Wesenberg was able to complete his habilitation work on contracts in favour of third parties in Tübingen at the end of 1943.^[496] Yet, the most interesting aspect of events regarding Wesenberg’s examination was the content of his Habilitationsschrift. Koschaker’s influence on this work seems clear, at least from a methodological perspective. His chosen topic focused on the development of contracts in favour of third parties not only in Ancient Rome, but also during the Middle Ages, through the elaboration of the Glossators and then of the Commentators, of the usus modernus pandectarum and up to the 19^th century.^[497]

The story of Pierre Pescatore, the third of Koschaker’s most eminent pupils during his years in Tübingen, is in part different.^[498] Pescatore was still a student when Koschaker noticed him during his Roman law course in October 1943 while looking for a replacement for Below. This emerges from a letter written by Koschaker to Moeller, in which he praised the merits of the young Pescatore, adding that some other colleagues had a good opinion of him too. Eventually, he asked the dean if it would be possible to appoint him as his assistant, since Koschaker could not cope with the huge workload alone.^[499] Feine, whom the dean had contacted about Koschaker’s request, replied warmly on 20^th October 1943,^[500] explaining that Pescatore could be appointed as assistant upon completion of his Referendarexamen, namely from the 1^st January 1944.^[501]

The case of Pescatore is different from those of Below and Wesenberg as the latter neither became a Romanist nor a legal historian as was the case with Koschaker’s other two pupils. Nonetheless, it is possible to affirm that thanks to his participation at the Treaty of Rome as a member of the government of Luxembourg and his brilliant career at the European Court of Justice, he indirectly represented another kind of link between the name of Koschaker and Europe.