5.8 A reform proposal

The main topics dealt with in Die Krise des römischen Rechts - Roman law and its crisis in Germany, its role as a foundation of Europe and for a new European legal science - were also discussed by Koschaker in another very important and as yet unpublished document.^[747] The way in which he adapted the idea of Roman law and Europe to the newly changed - political and cultural - circumstances in this text is at times surprising.

The title of the document in question is Die Reform des romanistischen Rechtsstudiums in Deutschland. Eine Denkschrift (The reform of Roman law study in Germany. A memorial) which was probably written in 1941.^[748] I have found two copies of the document myself at the University of Tübingen and at Humboldt-Universität zu Berlin archives, respectively.^[749] The document had been sent by Koschaker to the Ministry for Sciences and National Education (Reichsminister für Wissenschaft, Erziehung und Volksbildung) of the Nazi regime, Bernhard Rust.^[750]

In addition to the manuscript, a letter written by Rust’s deputy is also conserved at the archive, who then forwarded Koschaker’s document to the dean of the Rechts - und Staatswissenschaftliche Fakultät of the University of Berlin on behalf of the Minister. The dean of the University of Berlin was responsible for introducing the document and discussing it with the deans of the other German Law faculties, during the forthcoming conference of the Law faculty deans in July 1942.

Based on the copy of the letter conserved at the archive at the University of Tübingen, it can also be inferred that the document had been discussed and positively evaluated at the deans’ conference in Weimar on 11^th July 1942, and to such an extent that it was considered as a basis for the future new plane for legal studies (“Neugestaltung des juristischen Studiums”), which did not come to fruition, however.

Koschaker’s idea of sending the minister a proposal for the reform of Roman law study was founded on his intent to secure the role and the teaching of Roman law in German universities. If one compares the content of Die Krise des römischen Rechts with this document by Koschaker, however, it is quite evident that the analysis in Die Krise des römischen Rechts was presented on a more historical and scientific level, whereas in the reform proposal, the author introduced several arguments with a more political orientation.

Just as was the case with his Die Krise des römischen Rechts, in this text the author insisted on associating the critical situation with the decadence of Pandect-science after the enactment of the BGB, on the one hand, and the emergence of the above-mentioned trend of the so-called Historisierung of Roman law, on the other.^[751] From a scientific point of view, Koschaker considered the approach to Roman law of the Historisierung accountable for the demolition of the �?bridges’ linking Roman law to the contemporary law in force in Germany. Second, and as a direct consequence of the first problem, this purely historical approach tended to distance both legal experts, who did not work at the universities, and students, who lost their interest in studying a topic that lacked any connection with contemporary legislation.

The problem of the critical approach by Koschaker to the Historisierung is therefore the same that has already been observed in Die Krise des römischen Rechts, in his review of Bussi’s book and in his letter to Riccobono from 1939.

His reason for this was underpinned by the fact that all the systems of private law of continental Europe had been deeply influenced by Roman law, and this made it apt to speak of a European legal - and historical - tradition. At the same time, Roman law represented - and still represents - a unique patrimony from a juridical point of view. It also developed through many different political and social circumstances and, even if it was perceived at the time in Germany as a “foreign” law, it was the most significant “foreign” law of European legal history.^[752]

With regard to the situation in Germany, according to Koschaker it was incorrect to affirm that Roman law, inasmuch as it was considered an individualistic and materialistic law, was incompatible with a true national German law; the individualistic law which was later incorporated into the BGB was not Roman law as such, but rather the Pandect­science’s interpretation of Roman law.^[753] Thus, if anyone had to answer for establishing an individualistic and materialistic order, then it was Pandect-science, in particular on account of its radical tendencies in more recent years.

In any case, since Germany was a leading country in Europe, it could not abandon Roman law and its teachings altogether, because otherwise it would not have had the opportunity to exercise its power in the construction of a new common European law. Moreover, in other countries where Roman law was still studied and highly regarded, that is to say Italy, it was supposed to play the main role in this essential legal process. And so it was, that Koschaker was able to bind Roman law not only to tradition and the history of Europe, which was less important aspect in the eyes of the regime, but also to the future of the new Europe. This is probably the most thorny and political argument in the whole narrative of Roman law and Europe depicted by Koschaker, not only in this document, but in all of his works. Indeed, he clearly stated this on the sixth page of his document:

Denn das römische Recht hat, wie schon ausgeführt, auch in der Zukunft Aufgaben zu erfüllen, heute, da es sich um die Neuordnung Europas handelt, vielleicht mehr als früher. Dann es handelt sich um nichts Geringeres, als um die Wiederbelebung einer europäischen Privatrechtswissenschaft, für die das durch die Geschichte gegebene Ferment das römische Recht ist.

In order to secure a place for Roman law in German universities, Koschaker seemed almost prepared to interpret Roman law and its teachings in accordance with the political programme of the Neuordnung Europas, conceived by Nazi Germany. It would therefore appear surprising that Roman law, the bearer of legal values and the representative of the common European legal and cultural tradition, could be at the same time the lynchpin of a new common jurisprudence and legal order in their new Europe; it should be remembered that, at the time Koschaker was writing this text, Europe seemed doomed to be thwarted by a totalitarian regime.

It is of course clear that the depiction of Roman law and Europe offered by Koschaker in this document was influenced by the choice of the addressee of the text and he most probably considered this way of proceeding as the only possible way of attempting to promote Roman law and legal education in Germany.

It is therefore understandable that the decadence of Roman law studies in Germany represented an alarming problem in Koschaker’s eyes, after all German Romanists had been the most prominent in Europe for about a century.^[756] He did not consider however - or at least such a kind of consideration does not emerge either from his publications or from his letters - that in Germany the problem had been exacerbated by the fact that many of the most eminent Roman law scholars had to flee due to their Jewish origins.^[757]

In the light of Koschaker’s stances on Roman law as they appeared in this document, a question should be raised, namely as to whether Koschaker’s way of dealing with Roman law could be considered the only possible way of defending certain cultural values in such dramatic circumstances.

In some passages of the document, it actually seems that Koschaker wanted to defend Roman law as a way to affirm the necessity of a unified Western Europe, in which Germany would impose its unquestionable supremacy.

One could still ask if such behaviour should be considered courageous, since he sent a document dealing with Roman law to the minister of the regime in 1941, possibly risking reprisals for his conduct. The events of the years that he spent in Berlin have shown, however, that Koschaker was well aware of the limits within which he could express his opinions and defend Roman law, even before the regime. Even if he was not one of the most beloved scholars of the Nazis, he was nonetheless highly esteemed among German academics and well respected by the officials of the regime, as he himself explained in a letter to Kisch dated 27^th November 1947.^[758] Hence, he was probably able to use his prestige to express his opinions before the regime on the topic of Roman law teaching without paying the price for his ideas. It should also be added that the regime undoubtedly had more pressing matters to face between 1941 and 1942 than a reform regarding the teaching of Roman law in German universities; moreover, the main goal of the Nazis, which was to introduce a new civil code, actually failed in those years, due to the adverse circumstances Germany had to face, particularly after embarking upon the Battle of Stalingrad. Yet Koschaker’s attempt certainly did not vex the regime.

Koschaker’s desire to reinstate Roman law in Germany was remarkable, but in order to do so he agreed neither to criticise point 19 of the Nazi programme nor the reform of the Law faculties studies inspired by Eckhardt (which would not have been tolerable in such a document);^[759] he also agreed to link Roman law to the necessities of the legal system of that time and, hence, those of the Nazi regime. This is a patent limitation of Koschaker’s stance on Roman law, which subsequently appeared having been adapted to fit �?situation’ and under any conditions, including the foundation of the Neuordnung Europas as planned by the Nazi regime. Thus, his highly idealised conception of Roman law was ambivalent and by doing so Koschaker also ran the risk of reducing Roman law to that of a hollow vessel. Moreover, it seems credible that his considerations on the pernicious role of the Historisierung of Roman law found their origin in his scientific and methodological beliefs, but they also reveal a partly opportunistic approach to the matter on deeper analysis of the words used in his document. The attempt to shoulder the whole responsibility on the two trends of the Roman law scholarship clearly aimed to relieve the regime from any kind of responsibility.

Ultimately, it seems that the text attempted a sort of adaptation of Roman law, or perhaps better still, a “re-use” of it: it actually came to represent the new basis for a new legal system and jurisprudence in a Nazi Europe, after having been the cornerstone of European legal culture over the centuries.^[760] Koschaker’s stance is nonetheless comprehensible, as he was forced to deal with members of the Nazi regime, but the question indeed remains as to whether Roman law would have been recovered and salvaged, had it been subjugated to a totalitarian regime. However, it is not possible, from the documents in our possession today, to determine whether Koschaker’s approach aimed to moderate the violence of the regime through his references to European law and tradition and European jurisprudence or not. And the point still remains that this kind of use and re-use of the concepts of Roman law and Europe ran the risk of devoiding them of their content and the principles and precepts they were based on, whether for legitimate, or opportunistic, unintentional reasons or otherwise.

Of course, today one can only conjecture upon this question and any attempt to do so would go far beyond the ambit of Legal history research. Yet doubts still remain, including with regard to the concept of Europe that repeatedly churned through the mill of Koschaker’s narrative. In the case of his document as well, it is difficult to understand which idea of Europe he was referring to, as those of the Commentators or pandectists were not the same Europe as the Nazi regime had in mind.

As to the content of the reform proposal regarding the teaching of Roman law, Koschaker argued that it would no longer be possible to deal with all the essential topics of a course in Roman law, after the reform of the Studienordnung of 1935.^[761] In Koschaker’s opinion, it made no sense to give Roman law professors the possibility of teaching the outline of Roman private and procedural law (“Grundzüge des römischen Privat- und Prozeßrechts”) in the course Roman legal history (“Römische Rechtsgeschichte”), because it would have led to a very superficial explanation of the subject content. Roman private law was undoubtedly the most important topic, since it represented the basis for the study of contemporary European private legal systems; Koschaker therefore suggested introducing a new formula, namely: “eine 5-6 stündige Vorlesung „Grundzüge des römischen Privatrechts als Einführung in das europäische Rechtsdenken“ im 3. Semester (obligatorisch);” the new course proposed by Koschaker was quite similar to the systematic teaching of Roman private law, which already existed as an introduction to the study of the BGB prior to the reform of 1935. The clear difference, however, lay in the focus of the new course, which would be on European legal science and legal reasoning. Roman private law would still remain at its core and would provide a useful background to introducing students to further legal studies at European level. The lectures would again follow a more systematic-dogmatic approach, as had already been the case before 1935. This is actually one of the most incisive explanations of his ideas on Roman law teaching and probably one of his best illustrations of his concept of Aktualisierung of Roman law classes.

Yet there would also be space for other courses too, such as the Roman legal history (“Römische Rechtsgeschichte”) or, alternatively, “Antike Rechtsgeschichte”; other smaller “Übungen” (literally “exercises”) and some short courses, such as the “Pandektenexegese”, would also be included in his reform proposal.

Koschaker’s suggestions on how to reform the teaching of Roman law at German universities are not so surprising, as they indeed confirm his strong belief in an approach to Roman law teaching inspired by the Pandectist’s school and therefore the need to emphasise the importance of Roman law to contemporary legal systems. It was the same approach that he himself had learnt and appreciated previously during his studies at the

taught at the university lectures. See above, chapter 4, §§ 3 and 4. The problem of a choice between important and “unimportant” Roman law subjects also emerges clearly from a review that he wrote in 1943, see Koschaker: Rez. Guido Astuti, Studi intorno alla promessa di pagamento. Il costituto di debito I (aus Annali della facoltà di giurisprudenza dell 'università di Camerino XI), Napoli, Dott. Eugenio Jovene 1937, 170 S.; II (aus Pubblicazioni della facoltà di giurisprudenza della R. università di Catania VII), Milano, Dott. Ant. Giuffrè 1941, XII u. 367S., in: ZSS (RA) 63 (1943), pp. 469-477. On the first page of his review, Koschaker wrote: “Zu den Materien, die ich in der romanistischen Vorlesung nicht mehr zu erwähnen pflege, gehört das constitutum debiti. Ich halte mich dazu für berechtigt, weil mir die Materie nicht besonders wichtig erscheint.” As he further explained, though, the problem consisted in the necessity to neglect many other matters that were a lot more important than the constitutum debiti, because there was no sufficient room during the courses to deal with them, given the limited amount of hours at the disposal of the Roman law professors. university, before, and immediately after those years at the beginning of his academic career, thanks to Professors like Hanausek, Mitteis and Strohal.^[762]

Some archival documents, conserved at the archive of the Humboldt-Universität zu Berlin, reveal that Koschaker’s reform proposal received positive responses among his colleagues at the time. Moreover, it is interesting to note that the favourable reactions came not only from Roman law scholars, but also from professors for Civil law or German law and German legal history.

Hans Niedermeyer, a professor of German Civil law (Bürgerliches Recht) in Göttingen in that period,^[763] expressed his agreement with Koschaker’s proposal in a statement (Stellungnahme) dated 6^th July 1942. The declaration is a five-page typewritten description of the reform suggested by Koschaker, to which Niedermeyer had made some additional remarks, which were in general favourable to Koschaker’s arguments.^[764] Further still, positive reactions were received from three professors at the University of Hamburg, namely Karl Haff (Chair for German law and German Legal history - Deutsches Recht und Deutsche Rechtsgeschichte), Leo Raape (professor for German Civil Law, International law and Roman law - Bürgerliches Recht, Internationales Privatrecht und Römisches Recht) and Erich Genzmer (professor for German Civil law and Roman law - Bürgerliches und Römisches Recht). The three scholars wrote their common statement on 8^th September 1942.^[765]

The last document found and preserved at the archive in Berlin is a handwritten comment on Koschaker’s proposal by Ulrich von Lübtow, Professor of Römisches Recht, Bürgerliches Recht und Zivilprozessrecht in Rostock at the time.^[766] In his text, Lübtow essentially agreed with Koschaker on his general guidelines for the reform and the need to retrace the links between Roman law and contemporary private law systems; it was necessary, therefore, to adopt both a dogmatic approach and a comparative legal methodology. Lubtow’s stance can be partly distinguished from Koschaker’s proposal with regard to the following aspects: first of all, he considered it not possible to deal with all the Roman law topics merely in a one-semester course; the course needed to be divided into two parts. More importantly, Lubtow considered Roman legal history a priority. In his opinion, it was necessary to gain a better understanding of Roman private law and also describe Roman cultural and economic history. Such a course would be extremely relevant from a political perspective, dealing with the development of public institutions in ancient Rome. Of course, it would be necessary not to deal with this subject as a question for mere antiquarians. This final comment reveals the extent of Lubtow’s concurrence with Koschaker’s point of view.^[767]

The comments on Koschaker’s proposal were positive, in general, as were the reactions at the deans’ conference held in Weimar in July 1942.^[768] It can therefore be asserted that Koschaker’s ideas were widely acknowledged among German academia at the time, and probably not only within the restricted confines of Roman law scholars. The favourable responses to his proposal may also be indicative of a partially changed approach to Roman law teaching at German universities at the time, or an indication of Koschaker’s prestige as a scholar, having dexterously expressed ideas and stances that were shared by many of his colleagues.