1.1 A study on Paul Koschaker

Paul Koschaker (Klagenfurt, 1879 - Basel, 1951) is renowned as being one of the most influential legal historians and Romanists of the first half of the 20^th century. Yet his extensive and eclectic fields of research included subjects such as the laws of antiquity, notably cuneiform law, and European legal history in addition to Roman law.^[1] During his lifetime, Koschaker earned the reputation of being the “Founder of cuneiform law” and one of the most representative and pioneering figures advocating the Roman foundations of the European Legal Culture.^[2]

This book will attempt to offer a novel interpretation of the works of Paul Koschaker, and the most relevant biographical and scientific aspects of his life, from his formative days as a student at the University of Graz until his death in 1951.

One of the most important aspects of this investigation is that it has taken into consideration a very broad collection of archival sources, many of which are still unpublished, which enable us to gain a greater insight into events regarding Koschaker’s life and the political and social conditions in which he lived and worked.

Getting to know Koschaker means, first of all, coming to terms with a scholar who experienced and was a major contributor to the vast debate on Legal history and Roman law studies and the most significant changes that took place from the end of the 19^th century onwards and, in particular, in Germany, after the enactment of the German Civil Code (BGB) in 1900.^[4]

Koschaker grew up and studied in Austria, where the Pandectist approach heavily influenced the study and teaching of Roman law at the time.^[5] This early experience forged his methods for studying Roman law and Legal history, in general. His ascent as a Roman law professor in Germany began in 1915, when he was appointed to the Chair for Civil and Roman law at the Faculty of Law of the University of Leipzig, one of the most prestigious German universities at the time. Just a few years later, the Nazi party would erupt and present its political programme, which made its outspoken attack on Roman law in its notorious Point 19.^[6] In 1936, when the Nazi regime was already well established in Germany, Koschaker was appointed to the Chair for Roman law and Comparative Legal History (Römisches Recht und vergleichende Rechtsgeschichte) in Berlin, after his colleague and friend Ernst Rabel had been ousted, due to his Jewish origins, where he remained until 1941, when he eventually moved to the quieter Tübingen.^[7]

The decision to study Koschaker is based on the fact that he was an emblematic character of German academia of his time: he was able to stay in the country during the Nazi regime, being neither a Jewish scholar nor a political opponent; as a Roman law scholar he sought to defend his subject matter and its teaching in German universities. Moreover, he was neither a member nor a supporter of the regime and, nevertheless, he had an important academic career and was a highly esteemed professor in Germany throughout that period.

Koschaker’s academic development in the field of Legal history and Roman law is also interesting in that he experienced the different periods and trends Roman law and Legal history research underwent in person and became a protagonist of many of the subsequent developments in the discipline. He was still a university student during the epoch of the late Pandect-science and its ensuing decline; he later witnessed the development of new methods in the study of Roman law, and, in particular, the increasing application and definitive establishment of the methodological approach known as interpolationism (Interpolationenforschung) and the emergence of the so-called antike Rechtsgeschichte.8 At the same time, he can be considered as one of the pioneers of comparative legal history (vergleichende Rechtsgeschichte) research.

Interestingly, Koschaker played a prominent role in the debate between Romanists and Germanists, with the latter seeking to delegitimate the study of Roman law in Germany since before the enactment of the BGB as proponents of a true German law to substitute the private law system born from the works of the Pandectist.^{[8] [9] From a methodological point of view, his scientific evolution appears as a steady transition towards the new emerging methods of Roman law research, and the methodology of comparative legal history in particular, yet he was firmly guided by a solid and consistent dogmatic perspective.}

During his career, he would eventually be confronted by the exacerbation of the crisis of Roman law and its teaching during the thirties and the beginning of the forties, which he resisted by ardently defending the Roman law tradition. This ultimately made him one of the most important German Roman law scholars remaining in Germany during the crisis period. In fact, his name is indelibly stamped on that crisis through his work, Die Krise des römischen Rechts und die romanistische Rechtswissenschaft, published in 1938.^[10]

Yet Koschaker should also be remembered for his eminent contribution to building a new European legal narrative after the end of the Second World War.

Koschaker’s colleagues and friends published a two-volume tribute to him and his legacy in 1954,^{[11] [12] which ensures that his name still remains strongly associated with the narrative on European legal history.}

Yet a more complex set of issues underlie Koschaker’s work and thoughts, which will be retraced and analysed in this book. In fact, Koschaker’s opinions and stances were at the centre of and the key to interpreting several circumstances of this time, like, for example, the approach of the Nazi regime towards Roman law and its teaching in Germany, or further still, comparing Koschaker’s stances with those of many other Romanists and Legal historians who lived in Germany, or were obliged to leave at that time. In this sense, this work attempts to go beyond a mere legal analysis of his thoughts and place Koschaker in the times in which he lived.

On the one hand, this inquiry seeks to compile the first comprehensive study on Koschaker by taking into account new and previously inedited documentary sources to fill the many gaps in current literature; on the other, it aspires to present a new method of historiographical research, which could be applied to further studies on past scholars.