5.2 The crisis of Roman law

As was previously mentioned, it seems necessary to deal separately with a particularly significant episode that took place during Koschaker’s period in Berlin, namely the lecture that he held at the Akademie für Deutsches Recht in December 1937 and the ensuing publication of Die Krise des römischen Rechts und die romanistische Rechtswissenschaft in 1938.

This peculiar event has often been considered by scholars to be a turning point in his personal and scientific experience. An in-depth analysis of the content of the lecture and subsequent publication, in addition to the circumstances of that period are particularly useful in shedding light on this important passage of Koschaker’s life.

After arriving in Berlin, Koschaker quickly became a member of both the Preußische Akademie der Wissenschaften and the Akademie für Deutsches Recht. The latter was founded by the Nazi regime with the aim of promoting a “common German law” (deutsches Gemeinrecht)^[588] In fact, it was commonly known that the regime wanted to create a new German civil code abandoning the BGB,^[589] considered to be the product of a liberal, bourgeois and individualistic legal system, modelled on the system elaborated by the Pandect-science (Pandektenwissenschaft), itself based on Roman law. The arguments against this system were set out in Point 19 of the NSDAP program,^[590] as well as the draft reform inspired by Eckhardt and published in the Richtlinien of the State Ministry of Education and Culture (Kultusminister) in 1935, where it is possible to read: “Noch immer lebt die deutsche Rechtswissenschaft in den Gedankengängen des römisch­gemeinen Rechts [...], die geistige Grundhaltung wird heute noch durch das Pandektensystem bestimmt. Diesem System gilt unser Kampf.”^[591]

By that time, the influential deputy of the Reich for the Standardisation of Justice (Reichskommissar für die Gleichschaltung der Justiz) and President of the Akademie, Hans Frank, had probably understood that the “fight” against the study of Roman law could be instrumental to fighting for the cultural hegemony in Europe as well.

That said, such considerations should not lead one to think that Roman law had begun to make a recovery in Germany, rather it was possible to broach this subject without serious peril, provided of course due caution was taken in selecting the topics to be dealt with; in fact, some of them were “more acceptable” than others.^[595] It is of note, in any case, that Roman law had been included, within the classification of the different branches of law introduced at the Akademie für Deutsches Recht, in the group “Roman law and foreign laws”, to clearly separate it from German law. Hence, there was still the feeling that Roman law was a “foreign law”, in some respects alien to the German nation and population.

In this context, Koschaker accepted the invitation to hold a lecture at the Akademie für Deutsches Recht, in December 1937. Guarino, who was in Berlin at the time, wrote that it amounted to a personal sacrifice for Koschaker himself.^[596] Despite these words - which are perhaps partly the result of an idealisation of Koschaker - written by Guarino on Koschaker’s decision to agree to speak at the Academy, it should not be forgotten that publishing a text in the Academy’s series of works, at that time, would quickly result in it being widely accepted in the academic world, and not only in Germany.

In order to ascertain what the aim of this work actually was, it is first necessary to take into consideration the content of Koschaker’s lecture and publication.^[597] The dense eighty-six page text is preceded by a brief but meaningful preface.^[598] Therein Koschaker explained that this work should not be considered as learned research (“gelehrte Untersuchung”), rather as a confession (“Bekenntnis”), immediately underlining a certain degree of personal commitment to it. Furthermore, this text was defined as a manifesto (“Kampfschrift”).^[599] Here, it is worth pausing to consider why he wanted to define Die Krise des römischen Rechts as a “Kampfschrift”. One interpretation is that Koschaker was dealing with Roman law before an auditorium of Nazis and Nazi sympathizers, and his decision could have been construed as an attack on the regime and its hatred towards Roman law. This interesting conjecture, however, goes too far and lends too much weight to the word “Kampfschrift”. In fact, “Kampfschrift” does not refer to political opposition to the Nazi regime, which in any case would not have been possible in such circumstances, rather it represents Koschaker’s own effort - or “fight” - to restore dignity to Roman law and its teaching.

It should also be noted that Koschaker wished to pre-empt two potential objections to his work. As he explained in the preface, firstly, by criticising the Historisierung of Roman law he was not recanting his past. Even though he was a well-known scholar in the field of cuneiform law and, more generally, the so-called laws of Antiquity, he wanted to distance himself from the historical trends of Roman law studies.

In his text, Koschaker offered a fascinating depiction of the development and evolution of the European legal tradition from the reception of Roman law during the Middle Ages up to the 1930s. Moreover, in the first chapter,^[601] after having described the meaning of Roman law for the jurists of his time, he made a historical excursus of Europe in order to delineate the foundations of a common cultural and legal tradition. Indeed, Koschaker expounded his idea of the so-called reception (Rezeption) of Roman law, as a European phenomenon closely linked with the conception of imperium Romanum. This imperium, to be conceived as a political power, which shifted from the Roman Empire to the Holy Roman Empire, was based on what Koschaker called Romidee. As the name suggests, Romidee referred directly to the idea of the ancient Holy Roman Empire as it developed in Europe over the centuries, from Charlemagne onwards, both as a political idea and, thanks to the foundation of universities, a cultural and juridical one. According to Koschaker, given the connection between Roman law, the Romidee and the concept of imperium Romanum, Roman law became the law of the emperor, the kaiserliches Recht, and one of the two main sources of legitimisation for the Holy Roman Empire. Nevertheless, this Empire was not only founded on Roman law, since there was another essential and equally important cornerstone to its establishment, namely Christianity. It is also clear from this first part of Koschaker’s work that he firmly believed in the idea of legal and cultural continuity in European history.

Koschaker’s fascinating description proceeds in the second chapter,^[602] where he masterfully depicted the development of the study of Roman law throughout Europe up to Savigny’s Historical School and the Pandect-science and its decline, the enactment of the BGB and the emergence of the new trend of study (which Koschaker criticised vehemently), which he referred to as Historisierung or neuhumanistische Richtung, a new Humanistic tendency.^[603] The most significant aspect of the second chapter is the constant reference to Roman law as a European issue; in particular, Roman law was described as the cornerstone of European jurisprudence and, therefore, inevitably seen as being closely related to European private law systems. According to Koschaker, only the most recent trend of Historisierung had succeeded in eroding the strong connection between Roman law and the modern European legal systems. Nonetheless, Koschaker insisted on the idea that Roman law was inextricably linked to a cultural milieu that was entirely European. Further attention will be given to this question later on in this chapter as it was one of the Leitmotive of his works from 1938 onwards, namely that Roman law was not only a legal phenomenon, but also a cultural and, of course, a European phenomenon.

Towards the end of the second chapter of Die Krise des römischen Rechts, Koschaker devoted a few pages to the influence of the new trend of Roman law studies abroad, and in Italy in particular, whereas in the final paragraph he dealt with Roman law in the Near and Middle East at that time.^[604] In this last part of the chapter, the comparative method, which always pervaded Koschaker’s approach to the study of Legal history and Roman law, clearly emerged, but in this case it was oriented towards a gaining better understanding of Roman law studies throughout the world. The third chapter also begins with a comparative study of teaching in general and, in particular, the teaching of Roman law at law faculties in England, France and Italy.^[605] This comparative inquiry proceeds with an analysis of the role of Roman law in England and in the US, and concludes with the conditions of teaching in law faculties in Germany after the enactment of the BGB.

Koschaker also analysed the situation with regard to the students and the examinations in German universities, pinpointing students’ aversion to Roman law classes. The criticism raised by Koschaker about the situation in German law faculties of the time with regard to Roman law afforded him the opportunity to again criticise the Historisierung of Roman law, which he considered largely responsible for the students’ aversion to this topic.^[606]

In his fourth and final chapter,^[607] among other considerations regarding the study of Ancient laws in general and the methodological approach of comparative legal history (vergleichende Rechtsgeschichte), Koschaker suggested reinstating Roman law and its teaching, which was perhaps best expressed through the motto Zurück zu Savigny (back to Savigny), based on the idea of an Aktualisierung of the study and teaching of Roman law through the updated method of Savigny’s Historical School. The principal Ro man law course at the universities was supposed to offer a dogmatic overview of the most important concepts and institutes of European private law tradition rooted in Roman law and its reception in Europe over the centuries. The final considerations, before his brief conclusion, related to the relationship between Roman law and national law. As to the prevailing situation in Germany at that time, Koschaker stressed in particular, that since the country was still part of Europe as it had been in the past, it could not reject Roman law, which had represented and continued to represent the thousand year old tradition of European private law systems as well as being part of a common European culture.^[608] In this respect, Koschaker seemed to searching for a definition that would accommodate the coexistence of both Roman law and German law in Germany.

As has recently been stressed, from the content of Koschaker’s work, one immediately notices that no attack is made either against Point 19 of the programme of the Nazi party or more generally, the cultural climate that had led to the crisis of Roman law in Germany.^[609] Nonetheless, it is not surprising that Koschaker failed to criticise the regime in a lecture held at the Akademie für Deutsches Recht that had actually been founded by the Nazis. It seems self-evident that once a scholar had agreed to be part of such an academy and give a lecture there, any such scholar would have necessarily agreed to follow the path of the academy and, implicitly, abstain from criticising the regime, or on the contrary, be prepared to take serious risks. If one wishes to formulate an opinion about Koschaker’s behaviour, attention should not be focused so much on the fact that Koschaker failed to openly criticise Point 19 of the Nazi party programme, but rather his decision to agree to talk at the Akademie far Deutsches Recht in the first place. This point deserves more detailed analysis and will be discussed further in the following pages.^[610] What is perhaps more surprising is that in the lecture no criticism is directed towards the Germanists’ trend at that time, who had been strongly critical of Roman law^[611] and promoted “pure” German law as the new foundation for private law in Germany, which would be carried out through the “nationalization” of German law.^[612] In this respect, the affinity between the aims of the Germanists and those of the regime were clear and outspoken. The harsh criticism regarding, in particular, the law of contracts and property law formulated by the pandectists based on Roman law, was a very popular issue among Germanists at the time and it was shared by many representatives of the regime.^[613] Probably for these reasons, Koschaker preferred not to attack the trends of the Germanists. Given the circumstances in which he found himself, his prudence is understandable, yet what is more dubious was his strong criticism of Savigny’s Historical School with regard to the relationship between Romanists and Germanists. According to Koschaker, the responsibility for the increasing tensions between Romanists and Germanist was ascribable to the approach of Savigny’s School that led to an “excess of Romanism” (“Übersteigerung des Romanismus”) and, as a consequence, to the inability of Romanists and Germanists to communicate with each other.^[614]

Once again, the question might be legitimately raised as to how deeply Koschaker was committed to the statements he made, and by doing so, to what extent did he adapt his lecture and his writing to the cultural trend fostered by the regime? These kinds of questions emerge constantly when reading the text of Die Krise des römischen Rechts und die romanistische Rechtswissenschaft and one of the aims of this chapter is to attempt to uncover some answers.

Koschaker’s work is particularly interesting then from a methodological perspective, and can be appreciated not only for its historical depiction of the Roman law tradition coupled to the need for a dogmatic approach to its study, but also for his use of a comparative method to affirm the European nature of Roman law. The interpenetration of a comparative legal history method in the study of legal history aimed at a systematically dogmatic reconstruction of juridical phenomena and institutes, and it is precisely this aspect that imbues the distinctive character of Koschaker’s works from the beginning of his career. In Die Krise des römischen Rechts, however, Koschaker’s approach entertained some specific features given the need to update (the so-called Aktualisierung) Roman law. Since these methodological issues are related to the crisis of Roman law and represent, in Koschaker’s essay, a reaction to this crisis, it is now necessary to investigate the main considerations influencing Koschaker’s perspective.