1.3 State of the studies on Paul Koschaker

Publications regarding Paul Koschaker are quite numerous, but in general they are also quite fragmentary. With a few exceptions, encyclopaedic entries and similar small works offer a brief overview on his life and scientific experiences;^[27] one of the most complete reconstructions can be found in his autobiography.^[28]

Beyond these works, the publication of the correspondence between Koschaker and his pupil Kisch deserves special mention.^[29] Kisch was a legal historian of Jewish origins who escaped to the USA in 1935, where he found a post at the Jewish Institute of Religion in New York.

The letters contained in the epistolary represent a very important and, at the same time, characteristic source. They offer us a privileged insight into some aspects regarding Koschaker’s life and private thoughts. Facts regarding his academic experience or events that took place in Europe and in Germany at the time are discussed too, but in a context that allowed Koschaker greater freedom in expressing his opinions and ideas. Nevertheless, some of the letters were sent after the end of World War II, and run the risk of reconstructing past events in retrospect, which could lead to their reinterpretation, even involuntarily, in the light of the changed times and conditions.

In any case, this correspondence between a scholar and his pupil, who became close friends over the years, allows us to see Koschaker in a different light: the traits of his personality clearly emerge and it is thus possible to discover the person beyond the scholar, his feelings, his qualities and flaws. Rather than attempting to be biographical, this epistolary elucidates some very interesting aspects of Koschaker’s personal life and beliefs that are important to gaining a clearer understanding of his works and convictions.^[30]

When reading the publications on Koschaker, it becomes immediately apparent that most works dealing with him tend to concentrate on single aspects or periods of his life; on the contrary, Giaro also painted a broader picture of Koschaker without writing a biographical work strictly speaking, as his book focused principally on challenging some of Koschaker’s scientific and ideological stances.^[31]

Typically, the years Koschaker spent in Berlin attracted great attention among the scholars for obvious reasons.^[32] In Berlin he was appointed to the Chair for Roman Law and Comparative Legal History, which had previously been occupied by Rabel until 1935.

That period of Koschaker’s life was considered as a turning point in his career.^[35] Scholars who had first analysed the events that took place in Berlin tended to idealise Koschaker. His behaviour was described at times as heroic, as he had singlehandedly taken on the question of the crisis of Roman law in his lecture at the academy before an auditorium of members and supporters of the Nazi regime. Koschaker was repeatedly defined as a committed antifascist who decided to face the regime on the matter of Roman law before a Nazi institution. He was associated as a symbol of opposition to the Nazi regime; many of the events that happened in Berlin, for instance, the troubles that beset the Institute for Ancient Near Eastern Legal history (Seminar für Rechtsgeschichte des Alten Orients), or Koschaker’s decision to leave the city and move to the quieter Tübingen, were interpreted as a sign of the regime’s desire to remove one of its opponents.

This communis opinio was particularly popular and has remained such for decades, but it actually runs the risk of corroborating an idealised and apologetic narrative on Koschaker whilst failing to question his alleged heroic behaviour. As such, the true significance and value of his works was - and still is at times - confused with the value judgements attached to his conduct during the Nazi regime.

Counter reactions to this popular narrative on Koschaker are more recent.^[36] Again, Koschaker’s behaviour and works have been investigated, but from a different perspective that attempted to challenge the idealised portrait of the scholar. These attempts mainly determined, on the contrary, that Koschaker was (possibly) an involuntary supporter of the Nazi regime, and having formulated such an opinion, interpreted all events of his life as further evidence of this new scholarly perspective. De facto, it was necessary to re­examine such an eminent 20^th century Roman law scholar from a new perspective, thus going beyond his idealised image, to gain a better understanding of the events concerning his life and their importance. Several decades had passed from those events and the facts could now be analysed with more emotional distance.

However, once again, only single aspects of his life or scientific stances were taken into consideration to substantiate the foregone conclusion that he was ideologically close to the regime, and by doing so, challenge his entire scholarly works and the ideas underpinning them.^[37]

Both the above-mentioned stances towards Koschaker are well established and tend to offer black and white judgments on him; however, they are based on a smattering of standardised views based on partial research into the sources at our disposal which have ultimately led not only to a fragmentary reconstruction of the events of Koschaker’s life, but also to a partial interpretation of his scientific opinions.

Moreover, less attention has been devoted by scholars to other periods of Koschaker’s life, for example, the time he spent in Leipzig, which has attracted attention mainly in relation to his studies on cuneiform law.^[38] The same can be said about Tübingen, from 1941 to 1946, which has only recently begun to attract some scholarly interest.^[39]

In general, while great importance has been attached to the political role played by Koschaker during the time of the Nazi regime, or to the political events of his life and career, too often they have led to personalised and dogmatic opinions of Koschaker that have prevailed over the facts and, above all, the content of the sources.

On the contrary, from a methodological point of view, great attention has been usually paid to his dogmatic approach to the study of Roman law and at times Koschaker has even been described as the creator of a “second Pandect-science”.^[40] Very recently his method has been studied also by Winkler who compared Koschaker’s stances mainly with Franz Wieacker’s, and then also with the methods adopted by other Roman law scholars during the thirties and forties of the 20^th century.^[41] Winkler’s research is particularly interesting, because it does not isolate Koschaker and his studies from the rest of the Roman law debate, rather it places him in the context of his time. Of course, the investigation is circumscribed and its purview relates only to certain aspects of Koschaker’s methodology and is selective of his works, as the monograph is devoted mainly to the study on another highly important Roman law scholar of the 20^th century, namely, Wieacker.^[42] Yet again, this has inevitably led to a partial vision of Koschaker’s scientific views and tended to emphasise his dogmatic approach; in this respect, Winkler partly agreed with Giaro and Somma’s point of view.

The definition of Koschaker’s approach as a sort of “second pandectist” pinpoints an aspect of his methodology, but it does not grasp the complexity of his stances, as will emerge from this inquiry on his publications. As the links with the methods of the pandectists have been often underlined, scholars have tended to pay less attention to his comparative approach, albeit with some exceptions,^[43] or to the application of the tools of interpolationism in the works he published during the first three decades of the 20^th century.^[44]

This brief overview of the state of the studies on Paul Koschaker has clearly shown the need for a new comprehensive research on him, based on the sources now at our disposal.

1.4 Research questions and outline of the book

This book aims to try to offer an answer, or at least lay down the basis for further discussion on a number of questions relating not exclusively to the events of Koschaker’s life.

First of all, this research offers a comprehensive biographical reconstruction of Koschaker’s work and academic experience, mainly based on the recently discovered archival sources, the first question being, therefore, whether it is possible or not to shed new light (or cast shadows) on events and periods of his life that have not previously been explored in-depth.

The second research question relates to Koschaker’s main methodological postulates and how they developed over the years. The answer to such issues can only be found, as has already been mentioned, through a comprehensive analysis of Koschaker’s scientific stances and works. During this study, additional questions will undoubtedly unfold, such as to whether or not a trait-d’union existed between Koschaker as a Romanist and as a Legal historian in the field of the laws of antiquity. And further still, what role was played by comparative Legal history in his methodological postulates and works?

It should be also remembered that Koschaker lived a significant part of his life, above all from an academic perspective, under the Nazi regime. Naturally, this raises the question of how and to what extent Koschaker’s personal behaviour and scientific approach were affected by the emergence of the regime.

The third research question dealt with by this work relates to Koschaker’s European narrative and the methodological postulates closely connected to it. It is important to understand them thoroughly so that we can ask, if and to what extent they contribute to contemporary European legal discourse and its future orientation.

These research questions are clearly intertwined and for this reason they will not be dealt with separately in the following chapters.

Questions regarding Koschaker’s biography and methodological stances are among the preliminary research questions to be covered within the ambit of this research. For these reasons, the structure of this book has been organised according to a chronological criterion, with the aim of first setting out a biographical and academic setting.

Essential biographical elements, the importance of which is also determined by Koschaker’s scientific experience, emerge from the years he spent in Berlin, from 1936 to 1941 (chapter 3). Here, archival sources have been a highly precious aid in the reconstruction of many of the events surrounding his appointment to the Chair for Roman Law and Comparative Legal History at the University of the capital city, the establishment of an Institute for Ancient Near Eastern Legal history, and, above all, his decision to leave Berlin, a subject that deserves further attention thanks to the discovery of previously inedited documents preserved at the archives of the Humboldt-Universität zu Berlin.

The critical situation that Roman law teaching would actually encounter at the University of Berlin at that time will be carefully taken into consideration in this chapter, given that it is a decisive element in evaluating Koschaker’s time spent in the capital.

Thanks to the results of this new analysis of the archival sources, it will be possible to gain a clearer understanding of Koschaker’s reasons for moving to the smaller and quieter University of Tübingen, which will be analysed in chapter 4.^[47]

Unpublished documents preserved at the University archive of Tübingen and a few recent studies^[48] have enabled us to compose a new comprehensive overview of this period of Koschaker’s life. Koschaker was a highly esteemed scholar at the time, as the documents for his appointment to Tübingen suggest; nevertheless, and despite the positive debut for his career at this University, Koschaker quickly began to encounter difficulties there, as had happened in Berlin. Some of them concerned Roman law teaching. For these reasons, questions connected with the teaching problems in German universities, as well as with Koschaker’s approach to Roman law research and teaching, will be investigated in this chapter.

The final part of the chapter will deal with Koschaker’s experience after the end of the Second World War: his appointment as the new Dean of the Law Faculty in Tübingen and his subsequent and partly unexpected Emeritierung; the difficulties of life in occupied Germany; Koschaker’s disillusionment with the treatment he received in Tübingen at the time, and finally his experience as a visiting professor at other German universities and in Ankara.

The four above-mentioned chapters therefore provide the biographical basis with which to investigate Koschaker’s scientific development; in this sense, they are a sort of necessary premise that eventually lay bare the analysis of his two main publications in the field of Roman law, Die Krise des römischen Rechts und die romanistische Rechtswissenschaft and Europa und das römische Recht. Their content, the methodological issues contained therein and the meaning of such works will be discussed in-depth in chapter 5.

The analysis of Die Krise will take into consideration the main scientific aspects of this work and the reactions of scholars to it both in Germany and beyond. It will examine the situation of Roman law and scholarly debate at that time, with specific regard to the approach of Italian scholars to these matters. Point 19 of the programme of the Nazi party, as well as Koschaker’s opinion about the role it played in relation to the crisis of Roman law will be the subject of a separate paragraph.

This section of the book will also offer the opportunity for an in-depth study of the scientific premises of Koschaker’s criticism of the so-called Historisierung, the historical approach to the study of Roman law, and consider his proposal to counter the crisis of Roman law, through the Aktualisierung of its teaching and an up-to-date mos italicus. This will allow us to assemble an unprecedented and almost comprehensive picture of Koschaker’s methodological stances, which will be concluded by a study on Europa und das römische Recht; the latter will mainly focus on the novel elements of this work in comparison to Die Krise, as well as the development of Koschaker’s conception on Roman law.

As has been already been mentioned, Koschaker was central to rediscovering and proposing a narrative on the European legal tradition and culture from the end of the thirties onwards: this narrative, together with what could be defined as Koschaker’s scientific legacy, will be the subject of chapter 6.

Koschaker’s contribution to the debate on Roman law methodology and comparative legal history, as well as - what has been described by Roman law scholars - his scientific limits, will be discussed in this part of the book.

The final chapter (chapter 7) will be devoted to some final remarks on Koschaker’s conduct and scientific experience under the Nazi regime, as well as the controversies and dichotomies created by scholars about him over time; finally, consideration will be given to the significance and weight still carried by his ideas and works in contemporary Romanist methodological discourse.

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