1.2 A question of method

If our intention is to meet eye to eye with Koschaker on a deeper level and come to understand his motives for his behaviour, stances and opinions, then they can only be properly analysed and understood if they are studied within a broader ambit of his personal and scientific experience and the historical circumstances in which they occurred.

This research is not only a story of contexts, as was previously mentioned, rather it is also a study of contexts and sources themselves. The analysis and the use of the archival sources is the backbone for the reconstruction, which will attempt to be as impartial as possible, of events and opinions.

Collecting sources was the preliminary and most important pre-requisite for this study, the archival research for which took place in Germany, Austria and Italy.^[13] I had also the opportunity to be given access to Riccobono’s legacy, which is held in Palermo.^[14]

The archival sources offered considerable new information about Paul Koschaker, as a significant part of the documents retrieved had not been previously studied or published. Many of them are handwritten, and had to be painstakingly transcribed,^[15] before finally interpreting them.

Given that the aim of this book is to offer a comprehensive overview on Paul Koschaker and his work, it seemed appropriate to allow the sources narrate his personal and scientific experience, as far as possible. The dialogical form is one of the distinctive characters of the archival sources, which mostly represent the author’s private opinions, such as in the case of the letters; others, however, are considered to be of public significance,^[16] such as letters or memoranda sent by Koschaker to the Ministry of Science, Education and Popular Education (Reichsminister für Wissenschaft, Erziehung und Volksbildung)^[17]

Generally speaking, the importance attributed to archival documents depends on whether they were intended for the public domain or private sphere.^[18] Yet such sources often convey ideas and opinions about their author more truthfully than those contained in works for publication, precisely because the process of “selection of thoughts” is at times lacking, given that they were neither intended for publication nor for public scrutiny.

A careful examination of the sources therefore enables us to draw the line between his scientific approach and personal opinions. A scant or partly accomplished analysis of the archival sources would on the contrary undermine the process of evaluation and lead to conjecture based on the author’s personal convictions rather than a proper historiographical reconstruction of events.^[19]

This approach to archival sources gives rise to further considerations. First, it is necessary to collect as many documentary sources as possible, which can prove quite difficult, above all if such a person did not leave any Nachlass (estate), as was the case with Koschaker. It was therefore necessary to reconstruct his life and career in order to discover, as far as possible, the connections that he had with other scholars and important people at the time. For these reasons, there may be areas of weakness in the collection of sources given the difficulties in discovering the links between Koschaker and certain scholars, or due to the limited accessibility to some sources, or again, the actual time limits available for carrying out the research.

Consummate caution should be taken before making final judgments about Koschaker in relation to certain circumstances, and this caveat has been followed throughout this research. In other words, this study has refrained from creating any narrative about Koschaker’s life and thoughts unless it can be substantiated by hard facts.^[20]

Specific criteria were adopted during the analysis of archival sources in order to be able to evaluate their reliability; in this respect, the documents written by third persons were distinguished from those written by Koschaker himself. Other important elements in evaluating the authenticity and weight given to the sources are the addressees themselves, the time they were written - whether they were from the period of the regime or not - as well as the context in which they were written.

Nonetheless, the documents written by Koschaker to ministries or members of the regime, are particularly important in their own right, albeit difficult to interpret at times, given the unenviable task of discerning that Koschaker really meant what he wrote, having considered the role of the addressee in the regime.

Moreover, the diverse styles, tones and registers adopted by Koschaker in his texts need to be analysed as further indicators discerning the true intent guarded by the archival sources. It is also very important to consider the time a document itself was written: in this respect, the degree of reliability changes with documents written after the end of the Second World War as opposed to those dating back to the time of the totalitarian regime; in fact, the texts written after the end of the War usually offered a retrospective reconstruction influenced by the conditions existing at that time or by the intent to describe past situations in a particular or personal manner. However, the handful of letters sent by Koschaker to his pupil Kisch, at the end of the Second World War and in the following years, do offer a true reflection on the feelings of their author.^[21] In this case too, the addressee of these documents needed to be reviewed carefully. Kisch was one of Koschaker’s pupils, who - as a Jew - had fled with part of his family to the USA to escape the Nazi regime. These circumstances may have influenced the way Koschaker addressed his interlocutor as well as the content.

Not many documents were addressed to Koschaker by officials of the regime, yet those at our disposal are highly significant, since they offer the opportunity to discover or infer the opinions the regime had of him.

The archival documents are thus the main and most important sources in reconstructing and depicting the complex picture of Koschaker’s behaviour and ideas within his lifetime. Of course, and with hindsight, they have to be construed in the light of cultural, political and historical facts and events of that time, as well as the sources studied by exegesis.^[22] For this reason, every document presented and discussed in this work is supplied with an explanation and a comment, with the intent of leaving it up to the reader to develop further analysis and different opinions on it. Unless the documents at our disposal produce certain conclusions, it has been considered preferable to avoid any kind of unequivocal statements about facts or events. However, this approach should not be mistaken for an excessive reliance on ars ignorandi: interpretation and analysis of the sources are offered to the reader, every attempt has been made not to indulge in posthumous evaluations that are easily swayed by personal ideas to the detriment of the documents at our disposal. Such evaluations are typically made about scholars who are relatively close to us in time but who lived under very different circumstances, enduring great hardship, in particular, as is the case with recent European history. Often, what appeared most plausible seemed to be the best criterion to adopt in arriving at an opinion about certain events.

A limit that emerges from most studies on Koschaker relates to the fact that they focus only on some aspects of his life and his legal writing: ultimately, this does not allow for a clear understanding of the facts under evaluation. In particular, they tend to focus on his major publications at the time of the Nazi regime, neglecting the links with his previous works and the connections between his scientific stances and the pre-existing legal history tradition in Germany.

In this sense, the meticulous study of archival documents has at times corroborated the opinions of the majority of scholars, and often allowed for a deeper understanding of the facts.

A meaningful example of this is offered by Koschaker’s scientific stances, in relation to which a few well-established opinions have been developed through the historiographic studies on him. In Koschaker’s works, it is apparent that his dogmatic approach, his interpolationist approach and his historical-juridical comparative method often overlap to such an extent that his methodological issues and definitions at times appear to be rather vague or not entirely consistent, especially with reference to Roman law.

Similar considerations can be made about his scientific opinions on the historical approach to the study of Roman law, when compared to his ideas about research in the field of laws of antiquity and, in particular, cuneiform law. It is plausible to affirm, therefore, that during his scholarly life Koshaker indeed had two different souls: the soul of the Roman law scholar, interested in ancient Roman law, and its reception in Europe, and the soul of the scholar who focused on laws of Ancient Near East.^[23] Yet this clear­cut distinction fails to acknowledge the complexity of Koschaker’s eclectic personality which deserves to be analysed in-depth. Understandably, his methodological stances developed over decades of time, and therefore his scientific approach cannot be properly understood without a comprehensive analysis of his academic and methodological experiences.

An exhaustive analysis of Koschaker’s works is useful in shedding light on his concrete ideas and their development over the years; what is more, if this analysis is placed in the historical and cultural context in which he lived, it enables us to understand if, and to what extent, the external circumstances influenced his scientific production.

While archival documents are the most important sources for this research, they are not the only ones; Koschaker’s works and publications about him represent two further sources.

There is one particularly relevant source pertaining to the first group: Koschaker’s autobiography, published in 1951.^[24] It provides important information regarding many events of his life and, for example, Ludwig Mitteis’ scientific influence on Koschaker during his stay in Leipzig.^[25] When evaluating its content, however, it should be remembered that Koschaker’s autobiography was written after the end of the Second World War, in particular with regard to descriptions of the facts that took place during the Nazi regime; fortunately, some of the affirmations made in Koschaker’s autobiography can be verified against the content of archival documents.

Research into his scientific works, on the contrary, took all his publications into consideration, and included those regarding the laws of antiquity and Roman law. This invites readers to consider a second important methodological question regarding this research: namely, the context in which Koschaker lived and worked.^[26] Any statement, publication or event can assume a different sense or can be used to support a certain interpretation of the facts, when extrapolated from its original context. Koschaker’s scientific works should therefore be analysed from two different perspectives: his personal background and scientific milieu, on the one hand, and the circumstances of the different periods of his life and, in particular, at the time of the Nazi regime, on the other.

The first perspective offers us the opportunity to understand Koschaker’s education and ideas and how deeply the cultural and scholarly environment influenced him; the second allows us to understand if, and to what extent, the presence of the regime influenced his opinions and behaviour.

Just to take an example, Koschaker’s methodological approach to the study of Roman law in Die Krise des römischen Rechts, published in 1938, was criticised for focusing predominantly on the links between Roman law and current law; this idea was interpreted by some scholars as offering legal basis for the expansionist aims of the Nazi regime. Yet, a comprehensive investigation on Koschaker’s scientific experience and publications clearly displays the coherence of his dogmatic approach over the decades, whether before, during or after the end of the Second World War and would therefore negate that he offered his flank to the regime.

It is only by investigating how Koschaker’s approach to Roman law study developed over time that we can understand if it was somehow influenced by the Nazi ideology, political or opportunistic considerations or not. On the contrary, by restricting the focus of our attention to single events and periods of time, we simply run the risk of not making unbiased judgments on Koschaker, whether as a scholar or person.