2.1 The first steps of the “founder of cuneiform law”

The new subject proposed by Koschaker was related to the topic of ancient Roman law civil procedure, exactly like the one previously suggested by Mitteis, but with a narrower scope, making it more technical and less historical. Koschaker’s new research would now focus on questions regarding the translatio iudicii.^[63]

After his second and more positive experience in Leipzig, working also as an assistant to Strohal who had a Chair in Civil law (Zivilrecht), Koschaker went back to Graz to finish the book that allowed him to get his Habilitation in 1905.^[64] The result of Koschaker’s effort was the publication of Translatio iudicii. Eine Studie zum römischen Zivilprozeß.^[65] While writing it he was able to count on the help and comments of both Mitteis and Wenger.^[66] The precise analysis developed by Koschaker in his book showed immediately his deeply dogmatic tendency in dealing with Roman law topics and, despite the success already achieved by the methodology of interpolationism,^[67] there were no signs of textual criticism in the work.

The judgment written in February 1905 by Hanausek on his pupil’s work - the Habilitationsgutachten - was more than favourable, since he referred to Koschaker as one of the best experts in the field of Roman law civil procedure (Zivilprozess).^[68] Another very positive judgment on Koschaker’s work came from Wlassak,^[69] with whom Koschaker began a long-lasting friendship.^[70]

Koschaker remained in Graz and held classes as a qualified university lecturer (habilitierter Privatdozent) until 1908, when he was appointed associate professor (außerordentlicher Professor) in Roman law at the University of Innsbruck.^[71] An explanation for his call to Innsbruck lay partly in the publication of Translatio iudicii, but this was not the only reason.

The term Keilschriftrecht(e) was actually coined some years later by Koschaker himself, who used it for the very first time, in the English translation (“Cuneiform law”), for an encyclopedic entry,^[75] but he had actually already adopted the adjective keilschriftrechtlich before then and had offered an in-depth definition on the topic of this kind of research in a previous article.^[76] This text was the written version of a speech he had given at the international congress of legal historians - Internationales Historikerkongress - in Oslo in 1928. On this occasion, Koschaker decided to change the name of the topic of his studies from Babylonian-Assyrian legal history (babylonisch-assyrische Rechtsgeschichte) to legal history in the field of cuneiform law sources (Rechtsgeschichte im Bereiche der keilschriftlichen Rechtsquellen)?·⁹ In 1933 and again 1935 he returned to the topic and decided to use the term Keilschriftrecht in the title of two further articles: Fratriarchat, Hausgemeinschaft und Mutterrecht in Keilschriftrechten and Keilschriftrecht.^{[77] [78]}

During the years spent in Graz, Koschaker published two important in-depth articles on Roman Egypt in the Savigny-Zeitschrift,^[79] which were the result of his recent research on papyri. These two publications were quite impressive, not only for their quality, but also because they followed - at the time - a very important field of research on papyri, showing once more Koschaker’s eclectic nature as a scholar.

Yet it is curious to note that between 1907 and 1908, the Law Faculty of the University of Graz - at the suggestion of Hanausek and Wenger - put forward Koschaker’s name as associate professor, although he did not get the chair. Later in July 1908, his name was suggested ex aequo loco together with those of Rabel (who was in Basel) and Pfaff (who was in Prague) by Wenger for the full professorship in Roman law.^[81] On that occasion the Law Faculty decided to appoint Pfaff, paving the way for Koschaker’s call to Innsbruck, which finally took place in August 1908.^[82] Despite the need to secure a chair for Koschaker in Innsbruck, just less than a year later after having been appointed to the position at this university on 9^th August 1908 - but the appointment did not become effective until 1^st October 1908 - he was offered a position at the University of Prague, obtaining the full professorship in Roman law, together with Mayr, on 4^th April 1909.^[83] The Law Faculty at the University of Innsbruck attempted to oppose his call to Prague, sustaining that Koschaker’s name would soon be suggested for the full professorship in Roman law.^[84] However, the decision to have Koschaker in Prague had been already taken by the ministry and he moved there.

Koschaker held the chair at the Faculty of Law in Prague, which had been occupied by Pfaff until September 1908, having himself taken the place of Ludwig Mitteis in 1895.^[85] It is curious to note that in 1909, Koschaker took over from Pfaff, who moved to Graz in 1908 (where he obtained the full professorship), the very university at which Koschaker had completed his Habilitation^[86]

Three names were put forward to find a replacement for Pfaff: Rabel, Partsch and Koschaker.

It is likewise certain that his interest in this subject matter and cuneiform law and the so-called Rechte der Antike increased considerably when he was in Prague.^[89] In fact, it was just after his arrival in Prague that Koschaker, influenced by the studies and the book on the Griechisches Bürgscaftsrecht recently published by his friend Partsch,^{[90] [91] began the research that would lead to the publication of one of his masterpieces, Babylonisch­assyrisches Bürgschaftsrecht.43 His intensive work in this field of study quickly contributed to building his reputation, and not only within the German-speaking academic milieu. Koschaker was considered one of the best comparative law scholars (Rechtsvergleicher) of his time, as well as the founder of cuneiform law studies. The memories regarding the years in Prague are, therefore, positively depicted by Koschaker himself in his autobiography:}

Prag war eine geistige regsame Stadt, wie auch die Cechen geistig und wirtschaftlich die Elite der slawischen Nationen Österreichs waren. Was die kleine deutsche Minderheit betraf, so ergab sich dasselbe schon daraus, daß sie zum großen Teil aus Juden bestand, deren Familien, schon seit langem in Prag ansässig, weitgehend assimiliert und hoch kultiviert waren, so daß die Juden als Träger des Deutschtums in Prag galten. Damit scheint es mir zusammenzuhängen, daß es keinen ausgesprochenen Antisemitismus gab.

During his period in Prague, Koschaker exchanged correspondence with Carl Christian Ernst Bezold, a renowned philologist, Orientalist and Semitist, who was working in Heidelberg at the time, and was known for his Akkadian language studies. We can infer that Koschaker discussed some texts written in Akkadian with him, from three letters conserved at the archive of the Karl-Ruprechts-Universität Heidelberg, one dated 2^nd October 1911, and the other two, 4^th February and 25^th August 1913.^[93] At the time Koschaker was actually still working on his second major publication, which appeared a few years later, namely the Rechtsvergleichende Studien zur Gesetzgebung Hammurapis.^[94]

Nonetheless, on 16^th September 1914, Koschaker decided to accept the offer of the Chair as Professor of Roman law at the newly established University in Frankfurt am Main, since he wanted to work in a German university, although he actually remained there less than a year, seizing the opportunity to move to the Faculty of Law at the University of Leipzig in 1915. The short time spent in Frankfurt was remembered by Koschaker in his autobiography as one of the happiest periods of his life from a personal point of view, both for him and his wife.^[95]

Yet he could not refuse such an important offer as an appointment in Leipzig.