Sein oder Nichtsein: Roman (German Edition)

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To him, my sincere thanks. I have shared many significant moments with them working together and discussing our research field, and they have taught me to study my subject matter from diverse perspectives I was not familiar with before. I wish to thank them wholeheartedly for their scientific assistance and support, and, above all, for their friendship. The work presented in this book began at the Faculty of Law of the University of Helsinki in the fall , and continued from the fall until the end of , at the Network for European Studies at the Faculty of Social Sciences of the same University.

Thanks to Professor Pia Letto-Vanamo of the Faculty of Law and the Director of the Network for European Studies, Professor Juhana Aunesluoma, and all of its members for having welcomed me at the Network and given me the opportunity to work in a friendly setting. I wish to express my sincere gratitude to Professor Christian Baldus for his hospitality and generosity in sharing with me his ideas and suggestions, and for having involved me in several scientific enterprises that were fundamental to my growth as a Romanist.

I would also like to extend this gratitude to all the collaborators and members and scholars of the Chair for Roman and Civil law of the University of Heidelberg. My warmest thanks are also extended to Professor Massimo Miglietta of the University of Trento, il mio Maestro, who has always followed and guided me in my studies, offering his comments and assistance, since from the time I was a University student.

He has also been equally important in teaching me how to study Roman law and in transmitting the passion for the fascinating world it represents, both through his words and example. I would also like to express my sincere thanks to Professor Valerio Marotta of the University of Pavia, who was my tutor when I was a Ph. I would like to express my deepest thanks to Professors Antonio Banfi and Martin Avenarius for their kind hospitality and the opportunity they gave me to participate in edifying scientific discussion.

Saara Uvanto of the University of Helsinki and Friederike Michael of the University of Cologne have significantly contributed to the transcriptions of the archival documents and their revision. I have also received an essential assistance in the editing process and the proofreading of the text by Dr. Mark Shackleton and Dr. Simon Towle.

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To all of them, a sincere thank you. And finally, a special thanks to Doctors Filippo Bonin of the University of Cologne and Nicola Recla whose human support and scientific knowledge in those years were an incredibly precious asset for me. It has at times been difficult to spend so much time away from them, but at the same time, this has allowed me to grow to understand of what their presence means to me.

In many ways, they have helped me and have always been close to me, despite the physical distance. Without their support, I would not have been able to do what I have done. Naturally, the responsibility for the views, opinions and errors in this book is entirely mine.

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. Yet this work neither aims to be a simple biography about Koschaker, nor is it merely a work about his life during the Nazi regime. This broader perspective will examine events from the end of the 19 th century up to the years immediately after the end of World War II, lending particular attention to the fate of Roman law and its study in Germany in the first half of the 20th century.

Archival documents have been a major source of documentation for this work. His ascent as a Roman law professor in Germany began in , 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 The questions will be dealt more in depth with in the following chapters: chapter 2, pp. On Ernst Rabel , whose methodological influence had been particularly relevant on Koschaker, see: Gerhard Kegel: Ernst Rabel 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.

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. 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.

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. Symposium aus Anlass des Geburtstags von Klaus Luig am This masterpiece was published in the aftermath of totalitarian devastation while Europe was still in ruins, and it ascribed to Roman law not only its historical and cultural role as having laid down the foundation stones for numerous European legal systems, but also underscored its importance in the rebuilding of Europe for the future.

With the publication of this text, Koschaker offered a European message for the future generations. In a period when a new European narrative was emerging as a reaction to the tragedy of the totalitarian experience, Koschaker became one of the most important exponents of this discourse from a Legal history perspective. In this sense, he rediscovered the Roman foundations of the European legal culture, which had been undisputed until the rise of the totalitarian regime in Germany.

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.

Further unrevised editions of the book followed in , and The publisher of all the four editions was C. Studi in memoria di Paolo Koschaker, II voll. This research is not only a story of contexts, as was previously mentioned, rather it is also a study of contexts and sources themselves. The analysis and the use of the archival sources is the backbone for the reconstruction, which will attempt to be as impartial as possible, of events and opinions. Collecting sources was the preliminary and most important pre-requisite for this study, the archival research for which took place in Germany, Austria and Italy.

Many of them are handwritten, and had to be painstakingly transcribed,15 before finally interpreting them. I would like to add a further archive to this list, which I contacted but I did not have the opportunity to visit, namely the Bundesarchiv Berlin. On Salvatore Riccobono , one of the most eminent Italian Roman law scholars, whose scientific influence on Koschaker revealed itself at times to be decisive, see: Varvaro: Riccobono, Salvatore sr.

A careful examination of the sources therefore enables us to draw the line between his scientific approach and personal opinions. First, it is necessary to collect as many documentary sources as possible, which can prove quite difficult, above all if such a person did not leave any Nachlass estate , as was the case with Koschaker. It was therefore necessary to reconstruct his life and career in order to discover, as far as possible, the connections that he had with other scholars and important people at the time.

For these reasons, there may be areas of weakness in the collection of sources given the difficulties in discovering the links between Koschaker and certain scholars, or due to the limited accessibility to some sources, or again, the actual time limits available for carrying out the research. Consummate caution should be taken before making final judgments about Koschaker in relation to certain circumstances, and this caveat has been followed throughout this parts of words.

On the contrary, I have used the brackets with three dots […] to state that the document contains a part of text that has not been transcribed. In memoria di Mario Rotondi, Milano , pp.

Sein oder Nichtsein (Trailer - deutsch/german)

Other important elements in evaluating the authenticity and weight given to the sources are the addressees themselves, the time they were written — whether they were from the period of the regime or not - as well as the context in which they were written. However, this criterion alone is not sufficient to distinguish between the varying degrees of reliability of the documents; in fact, it should also be remembered that, often, scholars might have been close to members and even supporters of the regime itself.

Nonetheless, the documents written by Koschaker to ministries or members of the regime, are particularly important in their own right, albeit difficult to interpret at times, given the unenviable task of discerning that Koschaker really meant what he wrote, having considered the role of the addressee in the regime. Moreover, the diverse styles, tones and registers adopted by Koschaker in his texts need to be analysed as further indicators discerning the true intent guarded by the archival sources.

It is also very important to consider the time a document itself was written: in this respect, the degree of reliability changes with documents written after the end of the Second World War as opposed to those dating back to the time of the totalitarian regime; in fact, the texts written after the end of the War usually offered a retrospective reconstruction influenced by the conditions existing at that time or by the intent to describe past situations in a particular or personal manner.

However, the handful of letters sent by Koschaker to his pupil Kisch, at the end of the Second World War and in the following years, do offer a true reflection on the feelings of their author. See, e. The Historian and Uses of the Past, London , pp. Gelehrter, Mensch und Freund.

Briefe aus den Jahren bis , Basel und Stuttgart, These circumstances may have influenced the way Koschaker addressed his interlocutor as well as the content. Not many documents were addressed to Koschaker by officials of the regime, yet those at our disposal are highly significant, since they offer the opportunity to discover or infer the opinions the regime had of him. Of course, and with hindsight, they have to be construed in the light of cultural, political and historical facts and events of that time, as well as the sources studied by exegesis.

Unless the documents at our disposal produce certain conclusions, it has been considered preferable to avoid any kind of unequivocal statements about facts or events. However, this approach should not be mistaken for an excessive reliance on ars ignorandi: interpretation and analysis of the sources are offered to the reader, every attempt has been made not to indulge in posthumous evaluations that are easily swayed by personal ideas to the detriment of the documents at our disposal. Such evaluations are typically made about scholars who are relatively close to us in time but who lived under very different circumstances, enduring great hardship, in particular, as is the case with recent European history.

Often, what appeared most plausible seemed to be the best criterion to adopt in arriving at an opinion about certain events. A limit that emerges from most studies on Koschaker relates to the fact that they focus only on some aspects of his life and his legal writing: ultimately, this does not allow for a clear understanding of the facts under evaluation.

In particular, they tend to focus on his major publications at the time of the Nazi regime, neglecting the links with his previous works and the connections between his scientific stances and the pre-existing legal history tradition in Germany. In this sense, the meticulous study of archival documents has at times corroborated the opinions of the majority of scholars, and often allowed for a deeper understanding of the facts. Accordingly, questions already raised in the available literature on Koschaker 22 The hermeneutic question is too vast and too far beyond the aim of this study to be properly dealt with in this work.

An overview can be found in some recent works, like, e. The problem of the position of the scholar towards the historical events to analyse has been recently discussed in: Dominick LaCapra: Writing History, Writing Trauma, Baltimore , pp. Perspectives on Mnemohistory, London , pp. Similar considerations can be made about his scientific opinions on the historical approach to the study of Roman law, when compared to his ideas about research in the field of laws of antiquity and, in particular, cuneiform law. It is plausible to affirm, therefore, that during his scholarly life Koshaker indeed had two different souls: the soul of the Roman law scholar, interested in ancient Roman law, and its reception in Europe, and the soul of the scholar who focused on laws of Ancient Near East.

Understandably, his methodological stances developed over decades of time, and therefore his scientific approach cannot be properly understood without a comprehensive analysis of his academic and methodological experiences. Zum Research into his scientific works, on the contrary, took all his publications into consideration, and included those regarding the laws of antiquity and Roman law.

This invites readers to consider a second important methodological question regarding this research: namely, the context in which Koschaker lived and worked. On the contrary, by restricting the focus of our attention to single events and periods of time, we simply run the risk of not making unbiased judgments on Koschaker, whether as a scholar or person. 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.

He met Koschaker for the first time when they both were in Prague, where Kisch was born, studied and obtained his Doctorate at the Law Faculty, and where Koschaker was appointed to the Chair of Roman law in Geburtstag, III, Weimar , pp. Da Savigny a Kelsen, Madrid , pp. Geburtstag am Personen-Ereignisse, Leipzig , pp. Biographisches Werklexikon. Der Neue Pauly Supplemente 6, Stuttgart , pp.

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.

On his work Aktualisierung Europas see the following reviews by: Antonio Guarino: Sine ira et studio, in: Trucioli di bottega, 8, Napoli , pp. Giaro, Aktualisierung Europas. X; Below: Paul Koschaker, pp. 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.

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Koschaker was repeatedly defined as a committed antifascist who decided to face the regime on the matter of Roman law before a Nazi institution. 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. X; Giaro: Aktualisierung Europas, pp. 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 re- examine such an eminent 20th 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.

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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. 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 20th century.

Jahrhunderts, Hamburg , pp. August — Februar , in: Stefan Grundmann ed. Eine Ideengeschichte in Einzeldarstellungen, 1, Berlin , pp. 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. 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. 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. Both his formative years at the University of Graz as a student, and later as a young scholar at various Austrian and German universities, as well as his main research interests at that time, namely, the laws of antiquity and, above all, cuneiform law, will be thus investigated.

Specific attention will be paid to the long period he spent in Leipzig as a professor from to These years, which are considered as the happiest of his life by Koschaker himself,45 were particularly meaningful from a scientific 45 Koschaker: Selbstdarstellung, p. Some of them concerned Roman law teaching.

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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. His father was Theodor Koschaker, a civil servant who married Clementina Kamprath. Studi in memoria di Paolo Koschaker, I, Milano , pp. V-XII, and p. VII in particular. Pocta Petrovi Blahovi k Akademie der Wissenschaften, phil.

Todesjahres Leopold Wengers, pp. It is interesting to note that during the Sommersemester Koschaker also attended the course Ergebnisse der Papyrusforschung held by his future friend and colleague Leopold Wenger. Koschaker obtained his Ph. This happened in The topic that Koschaker was supposed to study, according to Mitteis, related to the so-called leges Iuliae iudiciorum privatorum et publicorum, but Koschaker was not at ease with such a theme,13 which was too historical, in his opinion.

Mayer-Maly zum Koschaker underlined how uncomfortable he felt with the first topic given to him by Mitteis as well as the fact that he was not a wonder boy Wunderkind , like his friend Josef Partsch. He stressed that he was not able to deal with any kind of topic with equal success. It is an oddity that a number of Romanists who were born in and had studied and worked in the Austro- Hungarian Empire, like Mitteis, Wlassak and the younger Wenger and Koschaker, showed a special interest in topics relating to ancient Roman trials.

This suggests a scientific community with tight links and a commonality of interests. Juristas del siglo XX. Er war — und blieb immer — in einem sehr entschiedenen Sinne Jurist. 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 had already begun to show a deep interest in the study of papyri and research into cuneiform law Keilschriftrecht or, in plural, Keilschriftrechte when he was in Graz.

There he was influenced by the German translation of the Code of Hammurabi by Hugo Winckler in 24 and by the presence at the university of the Semitic language scholar, Nikolaus Rhodokanakis 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 21 Wlassak was one of the most important and influential Roman law scholars in the field of Roman legal trial both in Roman private and criminal law.

See below, p. Later in July , 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. One may compare, e.

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Mitteilungen der Vorderasiatisch- Aegyptischen Gesellschaft E. Koschaker held the chair at the Faculty of Law in Prague, which had been occupied by Pfaff until September , having himself taken the place of Ludwig Mitteis in There was a specific reason for the Faculty of Law choosing one of these three scholars. At the time when Mitteis was professor of Roman law there, he began an intensive and successful study of papyrology.

It was a new trend, of which Mitteis was one of the main exponents. Koschaker had already published two works based on the study of papyri in and , regarding the Archidikastes in Roman Egypt. See also Id. Oberkofler quotes the words written in the decree of the Law Faculty. As mentioned above fn. They usually worked within quite a restricted number of universities, unless they were appointed for a professorship at a major German university.

Koschaker failed to mention another name that should be cited among the founders of the juridical papyrology, namely Otto Gradenwitz. On Gradenwitz , see his autobiography in Hans Planitz ed. Koschaker was considered one of the best comparative law scholars Rechtsvergleicher of his time, as well as the founder of cuneiform law studies. Koschaker and Partsch became friends when Koschaker went to Leipzig for the first time to study with Mitteis and Strohal.

They are considered, together with a few other scholars, to be representative members of the School developed in Leipzig by the same Ludwig Mitteis. On this point, see below, pp. Josef Partsch defined this book as a fundamental text on comparative legal history, while Kunkel wrote that it represented a foundation stone for a new branch of the history of law. See Partsch: Bespr. 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.

Mitteis was a highly prominent name in the field of Roman law, as Emil Strohal was in the field of Civil law. Moreover, from onwards, another important Roman and Civil law scholar, Heinrich Siber, had held the Chair in Roman law, alongside Mitteis. He wrote in his autobiography that the time in Leipzig, from to , were the best years of his life. The initial settling-in period was not easy for him, both with regard to the city and to the faculty, mainly because of the First World War. Over time, the situation at the Law Faculty improved; Koschaker felt increasingly at ease and, in particular, well accepted by his colleagues, which he considered a great personal success.

As has already been mentioned, Mitteis had been one of the most influential Roman law professors in the German-speaking countries since the end of the nineteenth century. He was not only one of the pioneers of 52 Koschaker: Selbstdarstellung, p. During his classes, Mitteis was able to combine the methodology of the study of interpolations Interpolationenforschung from a juridical point of view with a dogmatic approach, looking at the connections between ancient Roman texts and contemporary legislation currently in force.

Als solche kamen in Frage das griechische Recht und orientalische Recht […]. Daneben erhielt ich eine vortreffliche dogmatische Schulung durch Strohal […]. Koschaker, however, never defined the group of scholars working together with Mitteis as a school, since there were no programmatic works that indicated the main features of the trend of studies. Almost every pupil and member in the Mitteis School tried to develop these new methodological approaches to the best of their abilities.

In particular, two important trends developed within the School: the first was based on the comparative method as a means to study ancient law and Roman law the so-called vergleichende Rechtsgeschichte. According to this trend — although scholars at times adopted different erspectives in their studies — this methodological approach sought to allow for the comparison with modern legislation, and in any case, did not call into question the supremacy of Roman law within the field of ancient laws. The most important representatives of the trend were Partsch, Rabel, Schwarz and Koschaker himself.

The second scientific trend, on the contrary, was much more focused on the comparative study of ancient legal history: in this case the comparative approach was not a means to gaining a better understanding of ancient laws in order to subsequently compare them then with modern legislation, but in fact to reach a better understanding of purely ancient laws, from a historical perspective. This very innovative way of studying Ancient and Roman law — thus defined merely as one of the laws of the past, even if a very prominent one — was suggested by Wenger.

He expounded the new trend of the so-called antike Rechtsgeschichte at the University of Vienna in , during the inaugural lesson of his course the Antrittsvorlesung. Since the use of Roman law as a foundation stone of modern legislation was no longer effective, it was necessary according to Wenger to study all the legal experiences of the past from a purely historical point of view. Roman law was thus seen as a historical- juridical phenomenon; it represented a very important legal experience but was one among other legal systems, such as Greek law or Babylonian law.

Oktober , Graz Wenger offered a shorter description of this new trend in , in Wenger: Wesen und Ziele der antiken Rechtsgeschichte, in: Emilio Albertario et al. A proposito della Dissertazione di L. Vortrag, gehalten im Verein der Freunde des humanistischen Gymnasiums am 3. Schon dort habe ich die Universalrechtsgeschichte, die Riccobono mit der antiken Rechtsgeschichte zu vermengen scheint, abgelehnt und nur die Berechtigung und Notwendigkeit der komparativen Methode anerkannt.

Denn die vergleichende Rechtsgeschichte ist an sich keine Wissenschaft, sondern eine wissenschaftliche Methode. As has already been mentioned, Partsch and Rabel attempted to do the same, albeit with a different approach and aims; both of them influenced Koschaker in his research. Thanks to this Institute and the scholars who worked there, the University of Leipzig became the most important in Germany for studies in the field of Keilschriftswissenschaft during the twenties and thirties — until the Nazi racial legislation and reform of university study, together with the dismissal of Landsberger, led to its decline.

Landsberger presented his manifesto on the study of the Ancient Middle East in Benno Landsberger: Die Eigenbegrifflichkeit der babylonischen Welt, in: Islamica 2 , pp.

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Leipzig, Ges. Reihe 28 , pp. Moreover, he was able to introduce the methodology of a jurist to a field of study which until then had been dominated by philologists and historians. After eleven years, the development of this field of studies and the prestige that Koschaker had acquired as a scholar of cuneiform law and Altorientalistik led to his decision to establish a new Institute.

Koschaker had succeeded in his aim of legitimising the autonomy of this field of research 94 Renger: Altorientalistik, p. Words that prove a true friendship between Koschaker and Landsberger emerge from the text of three letters sent by Koschaker to his pupil and friend Guido Kisch.

See Kisch: Paul Koschaker. Gelehrter, Mensch und Freund, pp. Geburtstag, Wiesbaden , pp. On Lautner, see above, p. Geburtstag, I, Weimar , p. This important book, dedicated to Strohal, who died in , was the result of a long period of work that began around , which was then interrupted and eventually resumed around , during the years that he spent in Prague.

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Although he was trained in the 99 Ibid. This meant that Koschaker could consider the new material discovered in the meanwhile, as can be seen in the preface of the book. See Koschaker: Rechtsvergleichende Studien, pp. It was quite unusual to opt for textual criticism with regard to cuneiform law sources. On this point, see below, 2. At the same time, Koschaker was not indifferent to the new trend of interpolationism, in particular during the twenties.

What emerged in relation to his method during this period can therefore be seen as a sort of syncretism, sometimes apparently inconsistent with other methods. A radical interpolationistic approach, for example, could not easily be combined with a dogmatic and systematic one. Nevertheless, it can be argued that his kind of syncretism was actually aimed at finding a more precise and refined metholodogical approach. Thanks to his talent, Koschaker was able to make linguistic analyses that were usually the realm of philologists, and in this way he opened up yet another new branch of studies, cuneiform law.

A significant role with regard to the teaching in Austrian universities was played by Joseph Unger Von der Antike bis zum From the pandectist and dogmatic approach, typical of Hanausek, Strohal and, in part, of Mitteis, he learned how to use juridical concepts — Begriffe, Begriffsjurisprudenz and Begriffsgeschichte — in order to construct a legal order: his points of view, both regarding ancient laws and Roman law, had always been systematic. Every concept, every rule, every institution had to be organised and defined within a concept of legal order.

The related problem of definitions emerged at a very early stage, for example, with regard to the topic of cuneiform law. Koschaker underwent constant development from up to the end of the twenties concerning definitions of this branch of studies. At the beginning he referred to Babylonian-Assyrian law, but the comparative approach led him to think that this nomenclature was too restrictive for the research field; he began, therefore, to use the term cuneiform law, Keilschriftrecht, in the singular, and then later Keilschriftrechte in the plural.

Koschaker had a peculiar awareness and sensitivity for the essential juridical manifestations Erscheinungsformen and was always able to create a lucid overall description of the results of his research. Volkstum, Sprache, Heimat, Kultur. Festschrift H. Hirt, Heidelberg , pp. The alleged evolution towards textual criticism that took place during the late period of his academic career could alternatively be considered as a return to his origins.

In fact, Koschaker clearly showed his acutely critical mind towards sources in his works on cuneiform law. For a useful overview of the question, see Santos: Brevissima storia, pp. Autenrieth in dankbarer Verehrung zugeeignet vom Lehrerkollegium des Kgl. In the period of maximum expansion of textual critical studies, which developed rapidly and had already found eminent supporters in Italy as well, Koschaker did not therefore disdain the methods, tools, and teachings developed by Interpolationenforschung.

Textual criticism was thought of as a useful means — a Hilfsmittel — to acquire a better understanding of more complex juridical problems. See in the same volume the contribution on the reaction to Interpolationismus and its later development in Germany in Baldus: La critica del testo nella romanistica tedesca a dieci anni dalla morte di Max Kaser, pp. The fact that he chose a specific juridical question for his monograph the guaranty under Assyrian-Babylonian law was motivated by his desire to offer a complete historical overview of its development; hence, it was possible to retrace the comprehensive historical and dogmatic depiction of the question analysed.

The problem concerning the assumption of such a kind of study — not only the wider one, regarding a general Assyrian-Babylonian legal history, but the more circumscribed one regarding the guaranty studied by Koschaker — was the difficulty of legitimising it before other jurists. Once again, with this somewhat rigid definition, he wanted to point out a question of method regarding the different approaches to sources of jurists and historians.

On Kohler, Wenger and Rabel, see above, respectively: pp. These modern approaches represented a new trend in Legal history studies and were welcomed with enthusiasm by jurists as well. However, as Koschaker pointed out in his article, this method had to be used with due caution. Any scholar wanting to adopt the comparative Ibid. See also Koschaker: Forschungen und Ergebnisse, pp. For Koschaker, the methodological approach was liable to be constantly influenced by the character of the scholar who is adopting it, and so it was preferable not to use comparative legal history at all rather than misuse it.

Koschaker added that this kind of research must focus first of all on the sources, giving that the already existing tools and results of comparative law are only a subsidiary means for a better knowledge of the different juridical situations. He also added that the jurist — and he insisted in drawing a clear difference between jurists, historians and philologists — cannot carry out this kind of study without the necessary language skills.

However, jurists need — whether they have learned the languages of the sources or not — to collaborate with Ibid. Schlechte Rechtsvergleichung ist schlimmer als keine. Collaboration and an interdisciplinary approach are essential to accomplish the very demanding task that a jurist alone can not fulfil without running a real risk of failing.

It is not surprising, therefore, that from the end of the second to last page of the preface of his book Koschaker thanked many colleagues, in particular experts in Akkadian language the first on the list is Rhodokanakis. It has been recently affirmed, however, that from the s on Koschaker decided to abandon the comparative method, at least as regards the possible influences and transfers between different legal orders and towards Roman law.

The choice of adopting a different perspective if it is truly a different one at a certain point, was actually based on the different weight Koschaker attributed to Roman law from the thirties onwards, a problem clearly connected to the deep crisis it faced in Germany. When this trend started to decline, with many scholarly publications arguing that the influence of these laws on Roman law was not so important, Koschaker could not be deterred from studying the subject, but he decided to devote less attention to the problem of the juridical transfers between legal orders.

At first, works by Spengler and then later Nazi ideology played an essential role in here. Not surprisingly, his methodological stances developed over the decades, and at times, one might prevail over the other depending on the aim he was pursing at that moment. Comparative methodology alone could not help to find the general principles of law that were needed to depict a coherent legal order.

This kind of order had no links with a superior natural law and was on the contrary the result of comparison between different legal systems. See Koschaker: Forschungen und Ergebnisse, p. First, there was a clear-cut distinction between the study of Ancient Oriental laws and cuneiform law on the one hand, and vergleichende Rechtsgeschichte on the other. As such, comparison was and should remain only a scientific method and a useful tool, a Hilfsmittel or an Instrument, to study the history of law.

According to Koschaker, however, and despite his deep interest in cuneiform law, only the study of Roman law could fulfil a predominant role — and this was one of the main sources of disagreement with Wenger — because it represented the cornerstone of European legal tradition and culture. While Wenger therefore desired to focus on a historical study of legal experiences of the past in itself, Koschaker sought to adopt this kind of research as a means to obtain a better understanding of the development of historical Private law systems and of the Roman and consequently, as will be seen in the next chapter, the European one , in particular.

In any case, the method of comparative legal history was to allow jurists to refine their own perspective and research questions: it illustrated that many elements of single legal orders, which were the expression of a national sentiment of a given and specific people Volk , should not therefore be considered a peculiar aspect of a single national law. According to Koschaker, the dogmatic approach and the legal comparative method were not two separate elements; in fact, they were the two faces of the same coin, in which each single component was essential to create the whole complex methodology he applied in the study of the history of law.

Indem sie gewisse typische Komponenten in der Rechtsentwicklung eines Volkes aufdeckt, zwingt sie uns allerdings, diese Teile von dem nationalen Sondergut abzuziehen. During his time at Leipzig, he was appointed Dean of the Law Faculty on no less than three occasions, in , in and then in At the same time, he was able to create links Koschaker: Selbstdarstellung, p.

Nevertheless, in the list of the deans of the Law Faculty at the University of Leipzig the name of Koschaker appears only for the years and Heft, Leipzig , pp. Koschaker also wrote many reviews, mainly published in the Zeitschrift der Savigny-Stiftung. In this respect, the manuscript offers a very traditional textbook on Roman law and further proof of the influence that the pandectistic method had on Koschaker, since the years of his studies at the University of Graz.

Koschaker was a very good friend of both Riccobono and Albertario, even though the two were at academic loggerheads due both to academic questions and their different approach towards interpolationism. For an overview regarding their different stances on textual criticism, see Talamanca: La ricostruzione del testo, pp. In and Koschaker sent two letters to Schiller that show an academic friendship between the two. The letters are conserved — uncatalogued — in a box box nr. However, the correspondence between Koschaker and Schiller continued until at least , as can be seen from a letter of that year written by Koschaker when he was in Ankara.

See pictures nr 1, 2 and 3 below, pp. On this manuscript see also Giaro: Aktualisierung Europas, p. As he wrote in his autobiography, the textbook was important both as a basis to study Roman law and from a pedagogical perspective. Koschaker: Selbstdarstellung, p. It is reasonable to affirm that from the s Koschaker began to intensify his research on Roman law, given the death of Mitteis a few years before in and the increasing numbers of publications on this subject matter. Even though the situation was apparently still more than favourable for Koschaker in Leipzig at the time, with the advent of the Nazi regime in things began to change.

Studies in the field of cuneiform law faced an imminent demise, as many of the scholars dealing with the topic were Jewish. It was probably not easy to reach an agreement with Koschaker, but the process reveal, in any case, the high consideration the members of the Ministry had of him. First page of the Table of Contents. Moreover, his time in Berlin was a period in which Koschaker decided to focus his studies and teaching on Roman law much more than he had done previously.

He felt somehow impelled to defend this important field of research that was beset by a deep crisis, particularly in Germany, from the beginning of the thirties, if not before. Even though, as will become clear in the following pages, he did not abandon the study of cuneiform law and the Near Eastern Legal history, nonetheless he decided to devote particular attention to Roman law. Both these reconstructions, however, often seem to follow a preordained course.

Thus, in when Koschaker received an offer to move to Berlin, he decided to negotiate the conditions for his move. To Koschaker, the move to Berlin was the precursor to the successful completion of a brilliant career. As Below and Falkenstein have pointed out, from this illustrious position he could defend Roman law in its struggle for existence Kampfexistenz. One demand was that he would keep working with Landsberger, and although Landsberger was not offered a position at the University, a minor appointment at the Near Eastern section of the National Museums vorderasiatische Abteilung der Staatlichen Museen was suggested.

Koschaker seemed to find this proposal acceptable. The text of the agreement contains eight points with the conditions accepted by Koschaker to move to Berlin, where he obtained the Chair for Roman law and comparative legal history from 1st April Koschaker had to accept the compromise in order to secure a place for Landsberger in Berlin. As a Jew, it is difficult to imagine that Landsberger would have been able to survive in Germany in any case, at the time.

Renger argued that Walther Hinz,8 who at that time was a consultant Referent at the Ministry of Education and on good terms with both Koschaker and Landsberger since his study days at Leipzig, could have played a decisive role in this affair. Koschaker believed that his friend and colleague could not have avoided the concentration camp.

See Koschaker: Selbstdarstellung, p. For a different reconstruction, see: Giaro: Aktualisierung Europas, p.

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Just a moment while we sign you in to your Goodreads account. Once again, with this somewhat rigid definition, he wanted to point out a question of method regarding the different approaches to sources of jurists and historians. Mar 31, Ich seh ihn stets, an jedem Ort verfolgen mich sein Blick, sein Wort. England, hierin einer edlen Gesetzgebung erfreuen.

See Kisch ed. Gelehrter, Mensch und Freund, p. Ich hatte ferner wiederholt Gelegenheit, mit dem damaligen Sachbearbeiter Herrn Dr. Koschaker was appointed its director and a place for the Seminar was found at the Near Eastern section of the National Museums. The institute was connected both to the Faculty of Law and to the Faculty of Philosophy, since Koschaker wished to give an interdisciplinary imprint to this field of studies, even though its rooms belonged to the National Museums.

II, Bl. See also pp. The document is typewritten and three pages long recto and verso. On this point, see Renger: Altorientalistik, p. Two years after his arrival in Berlin, however, Falkenstein decided to join the Nazi party. According to Koschaker, although it eventually became impossible to escape this negative influence, it did not affect the life of the Academy as strongly as in other institutions. As Koschaker wrote in his autobiography, he gave numerous presentations and lectures at the Prussian Academy of Science, in which he had the opportunity to deal with and to discuss together with the other members the topics of his research.

To gain a majority it was necessary to obtain 31 white balls. Eduard Schwyzer was appointed a member of the academy along with Koschaker. The plenary assembly voted favourably on the proposal on 25th May and Riccobono became a member of the Prussian Academy of Science. Since , the year the Nazis seized power, all German journals went through the so-called Gleichschaltung imposed by the new regime. Some of them adapted very quickly to the new situation in , others took a little longer, between and , when the Zitierverbote of the so-called Judenzitate the ban on quoting Jewish authors in journals and books took effect.

Still in , two of the five chief editors were Jewish, namely Levy30 and Rabel, Levy playing an eminent role within the editorial board. I would like to thank the authors, who allowed me to have a draft copy of the text before the final printing. This sequence of events also concerned Koschaker. In March , he had been requested to take the place of his close friend Rabel, who had resigned in January of the same year, but Koschaker refused to do so. When Wenger was offered a position at the University of Vienna in and was forced to give up his position on the board,36 the place was once again offered to Koschaker, who this time accepted it.

According to Koschaker, in a short period both of them would be removed from their respective positions, and he wanted to protect himself. Kreller had been a pupil of Mitteis in Leipzig, like Koschaker. The authors quote a letter written by Rabel and sent to Koschaker on the 7th April , as well as a letter that Rabel sent to Levy and another one that Levy sent to Rabel. Koschaker wrote the letters on 15th March and on 11th April Geburtstag, Bielefeld , pp.

Eine kritische Studie, Jena ; Id. Jahrhundert, in: OIR 2 , pp. As Calasso pointed out, for the first time a German scholar had decided to talk about such a topic during an event organised by the Nazis and in a Nazi institution. Even if it is true that the decision to deal with Roman law and its crisis in Germany on such an occasion may have caused consternation among the Nazi audience, it is nevertheless implicit that agreeing to speak before such an audience meant, at the same time, accepting the rules and procedures of the people who formed that audience.

Alla memoria di Paul Koschaker, in: Id. See also below, chapter 5. As Koschaker himself acknowledged in his autobiography, although his position at Berlin began well, the situation quickly deteriorated. Writing after WWII, Koschaker painted a grim picture of the time he had spent in the German capital from to His autobiography tells us that he had never felt at ease in Berlin, that he suffered from the huge size of the city, and, in particular, from the increasing presence of Nazis Nazifizierung at the University.

Ich revoltierte. Das waren sie von Professoren nicht gewohnt. Das ist eine Feststellung, aber kein Vorwurf gegen die Berliner […]. Although the situation was still acceptable in , things quickly degenerated and Koschaker was soon burdened by many problems and complications mainly due to the behaviour of the Dean, Wenzelslaus Graf von Gleispach, and the Rektor Willy Hoppe. In a letter sent to the Ministry for Science, Education and Popular Education on 10th October , Hoppe inferred that if Koschaker was unable to adapt to a large university organisation, then he should perhaps find a place in a quieter university.

Moreover, the letter sent by Koschaker to Kisch in revealed the oppressive climate felt by Koschaker at the University in Berlin due to the presence of members connected with the Nazi regime. It is nonetheless worth mentioning that these words were written by Koschaker himself and, what is more, after WWII had ended. The letter sent to Kisch is a note that Koschaker wrote to his Jewish pupil, who had escaped to the US, and having faced the tragic loss of some of his family in the Nazi concentration camps. I, Bl.

The letter begins as follows: Hochgeehrter Herr Prorektor! Es steht in Ihrem Belieben, ob Sie ihn ungelesen in den Papierkorb werfen oder seine Mitteilungen verwerten wollen. In der Tat ist mir die Genehmigung des Ministers schon am Leider hat man Ihre weitere Bitte, Sie telefonisch von der Erledigung meines 54 Koschaker used the term Parteibonzen in the letter that I have quoted to indicate followers of the Nazi regime. In this case it is highly probable that he intended to refer in particular to Nazi professors and scholars and Nazi members of the Ministry of Education.

In any case, Parteibonzen was the common term used to refer to officials and members of the Nazi party during the regime. I, Sonderheft: Auslandsreisen, Bl. Typewritten three-page long recto and verso letter. So habe ich nach Paris abgeschrieben. Even though the Ministry of Education affirmed that it had taken into due consideration the need to give German scholarship proper representation at foreign conferences, it seemed to Koschaker that the bureaucracy, which was at the service of the Ministry, had considerably hindered this aim. The letter continues: Gestatten Sie mir im Anschlusse daran noch folgende zu berichten.

Aber sie besteht keineswegs aus Linksradikalen und Kommunisten.

Kurt Habitzel: Der historische Roman der DDR und die Zensur

Jedenfalls hat niemals ein sowjetrussischer Professor dort ein Referat erstattet. Aber dieses Vertrauen habe ich nicht von heute auf morgen erworben […]. Jedenfalls bedient es sich hierbei eines Verwaltungsapparates, der in hervorragender Weise geeignet ist, diese wohlmeinenden Absichten zu durchkreuzen. Nonetheless, it is possible to argue from the text that Koschaker could still count on the support of the Prorektor, who helped him to obtain the travel permit Reisegenehmigung and gave his aid during the entire procedure of his travel request. It is clear that his plans, in the end, had not been impeded by the Ministry, which gave him permission to travel.

The difficulties were — most likely — bureaucratic rather than personal reasons. It is not easy to say whether Koschaker, with this description, wanted to defend his position in the eyes of the Prorektor and the Reichsministerium and to secure the future possibility of obtaining further travel permissions. A second interesting letter, dated 1st June , illustrates other kinds of problems connected to the tasks that Koschaker had to conduct in Berlin.

The letter is typewritten and three pages long recto and verso.

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As he had pointed out when negotiating the conditions of his move to Berlin, he wanted to secure a position for a personal assistant and a precise reference to this point had been underlined in the letter of 30th March , regarding his call to Berlin. After that, Koschaker no longer had a personal assistant. He sent a further request for an assistant in May or June — as he wrote in the letter — to the Kurator of the University and then, in the autumn of the same year, he wrote to the Ministry asking for a meeting with the person in charge of these decisions the Sachbearbeiter , in order to try to find a solution, but he obtained no answer.

Koschaker wrote in the letter that the position had originally been conceived to be in the interests of the assistant, who could thus have the opportunity to work on his research projects and perhaps write his Habilitationsschrift. As nothing happened after he had written to the Ministry for the first time in the autumn of , Koschaker decided to send another letter. After the preamble, the text reads: […] Wenn ich mir erlaube den Antrag [auf]61 Wiederherstellung der Stelle zu erneuern, so bleibt dieser Zweck aufrecht.

Access content through your institution. Any other coaching guidance? Sie haben kein Konto? There has been no dearth of writing on Shakespeare reception in Germany. This introduction acknowledges the richness of scholarship while simultaneously suggesting how the making of the German Shakespeare can be read anew and fruitfully by drawing more emphatically than has been the case on aspects of book history, on the development of translation theory and practice in the eighteenth century, and on thinking about the mechanisms of cultural transfer.

Combining these perspectives offers a fuller response to the guiding question here: how could the Briton so rapidly become a mainstay of the German literary canon and be seen as a German writer alongside Goethe and Schiller in full accord with the German spirit? Shakespeare , and G. This introduction also establishes the broader historical and theoretical framework for the individual case studies that follow. Nicht registriert? Autor: John A. In den Warenkorb. Have an Access Token? Enter your access token to activate and access content online. Please login and go to your personal user account to enter your access token.

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