The Law Under the Swastika (11 page)

Still, the questions concerning the future status of ancient (specifically Roman) legal history, the extent to which it would be taught and how it would be taught, and the international connections of the discipline were still unresolved. The discipline remained under threat, having already been very seriously affected by the expulsion of Jewish scholars.
¹⁷
The number of hours in the curriculum was cut back,
¹⁸
the number of students dropped, the humanistic educational canon unraveled with increasing speed in a hostile environment. The Nazi party, insofar as it even took an interest in the content of what was studied, continued to regard Roman law with suspicion after the Curriculum Regulations of 1935, seeing it as “Jewified” and as the stronghold of everything the Nazis opposed: individualism, formalism, liberalism, “bookish wisdom,” and “hair-splitting sophistry.”
¹⁹
Roman law became the “foreign” per se;
²⁰
it was regarded as the “strongly orientalized law of a degenerate mixed European-Asiatic population, a law of the ruthless large-scale capitalist exploitation of one’s fellow man.”
²¹

More important still than the situation created by such phrase-mongering and the deterioration of the external context was the “crisis of Roman law” itself. This crisis had been talked about ever since the Civil Code had gone into effect.
²²
Freed from the dogmatism of the current civil law, legal history had begun to see itself increasingly as a purely historical field, and, as Franz Wieacker put it in 1939, it had gone on an “Alexander campaign” to Egypt and the Orient to conquer new fields.
²³
Much of what had been, until the nineteenth century, part of the foundation of the dogma of Roman law now fell prey to historical criticism, as the study of interpolations undermined a “thousand-year-old faith in the sources.”

The price for this “progress” of historical understanding was that the place of legal history within legal education became uncertain. With the usefulness of legal history for the prevailing law becoming increasingly doubtful—especially at a time when the faith in finding certain truth through deductive-conceptual methods was wavering, and high priority was being given to the idea of practical purpose and the analysis of interests—all that remained was the educational value of a legal history that was seen as “antipandectistic” (Wieacker). In Wieacker’s eyes, it had lost its role as the “preparatory school
[Vorschule]
of civil law.”
²⁴

The majority of legal historians, however, thought differently. Paul
Koschaker (1879–1951) had published his work
Die Krise des römischen Rechts und die romanistische Rechtswissenschaft
(The crisis of Roman law and Romanistic jurisprudence) through the Academy for German Law, incidentally without being a member of the academy.
²⁵
He saw the neo-humanist separation of prevailing law and legal history as the greatest danger, the true cause of the crisis, indeed as the departure of legal history from a centuries-old tradition.
²⁶
In 1947 he noted that National Socialism had not caused the crisis of Roman law, it had only made it visible and more acute; the real problem lay in the historicization of legal history. His response was to pursue a kind of dual strategy. The neo-humanistic, strictly historical study of the sources should continue, but “in addition” a renewed connection between legal history and the theory of civil law should be sought.
²⁷
As Koschacker had put it in 1938, the Romanist should “present Roman law with the Corpus Juris in one hand and the Civil Code in the other.”
²⁸

The problems arising from this dual strategy were discussed in the 1950s but soon put aside again.
²⁹
The crisis was not resolved, and to this day little has changed about the hidden division of legal historians into “neo-humanists” and “neo-pandectists.” Some historians are still looking for a concept that unites legal history and the dogmatics of civil law “on a new level of the history of science,” in the words of G. Dilcher—notwithstanding all indications that the formulation of historical questions is distorted by references to normative application.
³⁰
At the same time, the diagnosis of crisis is confirmed by the fact that in 1987 D. Simon could speak about a “continuous loss of substance” in legal history at German universities and draw no voice of disagreement.
³¹

Even if Simon’s diagnosis reveals a continuity of the problem, the situation today is fundamentally different from that after 1933. When Koschaker, Wieacker, Erich Genzmer, Max Kaser, Hans Kreller, Ernst Schönbauer, Jürgen von Kempski, and others were discussing the contemporary value of Roman law between 1933 and 1944, they were trying to ward off an acute danger.
³²
Point 19 of the party program, despite its absurd content, was a very real threat. “The German study of Roman law,” Kreller argued, “must therefore demonstrate that it can continue on the current path without ending up in opposition to this plank of the program, indeed, that by doing so it can in fact contribute to its implementation.”
³³
In this situation every argument for the defense was welcome. For instance, once Hitler and Mussolini had formed the Berlin-Rome axis, scholars liked to point out the Indo-Germanic blood kinship between the Romans and the Germanic peoples, long invoked in ethnic-nationalistic writings.
³⁴
Defenders also
emphasized the danger of international isolation, pointed out that Roman law was intensively cultivated among all cultured nations, even the Japanese, and said in 1936—the year of the Berlin Olympics—that Germany could not afford
not
to participate “in these Olympics” of Romanistic scholarship.
³⁵
Others explained that it was perfectly possible to separate the good, ancient Roman and classical law from later, corrupted layers. Moreover, Kreller argued, the point was not the content of Roman law, but the introductory technique of legal work, and even if it was all about content, one could still work on it “in the spirit of a national-conscious German science.”
³⁶

This amassing of arguments and the indifference toward the contradictions they harbored reveal how strongly scholars felt the outside pressure. It seems that all Romanists had agreed to form one great coalition to defend their discipline. Welcome reinforcement came from the few colleagues who had come out in favor of the regime: Heinrich Lange, for example, who had let himself be carried away into making less than honorable attacks on Fritz Schulz;
³⁷
or Ernst Schönbauer (1885–1966), dean in Vienna and later rector at the university and “hereditary farmer”
(Erbhofbauer)
, whose support for National Socialism was beyond question, which is precisely what allowed him to stand up for Roman law and play a kind of protective role.
³⁸

Roman Law as a “Communal Order”
(Gemeinschaftsordnung)

III.
Schönbauer’s name is also linked with the first larger attempt to defend Roman law against the well-known accusation of individualism or the lack of communal bonds
(Gemeinschaftsgebundenheit)
. One way to do so was to follow the old theory of the decline of the Roman world and retrace the story of Roman law from the good old agricultural order via the republic, the principate, and the “Syrian-Jewish-Byzantine” decay all the way to the study of the Pandects in the nineteenth century. In this way scholars could at least save classical Roman law as having been “community bound.”
³⁹
This was the usual approach: It made sense historically, was supported by popular and nationalistic writings, and even met with approval from Germanist colleagues.

However, a second defensive strategy that now appeared seemed more effective, since it reopened the entire debate on a fundamental level and sought to prove that the clichés about Roman law were false. Scholars using this approach rejected the charge of individualism in general and pointed to the manifold ethical and transpersonal bonds that had accompanied the Roman legal order as a kind of parallel normative
system. For example, Fritz Schulz (1879–1957), in his lectures on the principles of Roman law,
⁴⁰
singled out the Romans’ attachment to tradition, their patriotism and sense of freedom, their concepts of
auctoritas
and
fides
,
⁴¹
and emphasized the communal bonds of property. In this way he drew a picture of classical Roman law that clearly contradicted National Socialist propaganda, and this also prompted Heinrich Lange’s protest against Schulz.
⁴²
By declaring, for example, that the so-called Roman individualism was a myth
⁴³
and pointing out that none of the legal institutions and instruments of modern capitalism—land annuity bonds, negotiable instruments, stocks, letters of exchange, capitalist trading companies, mortgages as capital investments, direct proxy
⁴⁴
—was derived from Roman law, Schulz cut the ground from under point 19 of the party program. Lange sensed this when he argued that “Schulz was gently showing the claws of opposition under the velvet glove of scholarly objectivity.”
⁴⁵
In the epilogue of his book, Schulz revealed that he was fully aware of how his theses related to contemporary events: “A new experience of the state and politics also lets us experience the Roman world and its law anew and shows us many things in a new and clearer light.”
⁴⁶
This might have been a
captatio benevolentiae
, an attempt, perhaps, to escape the imminent expulsion. It was, at any rate, an attempt undertaken with the intent of lending support to Roman law in a changed political landscape by underlining its imperial traits and communal values.

In any case, this appeared to be the right defensive strategy against the pressure coming from the Nazis. Schönbauer, in his lecture “The Communal Element in the Structure of the Roman Legal Order,” delivered in 1936 at the Fifth Conference of Legal Historians in Tübingen,
⁴⁷
staked out this very approach by endowing Roman law with all the characteristics that had hitherto been ascribed to Germanic-German law: community-relatedness, an orientation to the whole, subordination of self-interest, the absence of basic rights inimical to the community, the idea of the Führer, and a consciousness of race reflected in the fact “that the Romans usually integrated conquered territories politically but not by blood. The excess of national strength went afield in a ‘sacred spring’ to establish an outpost of the homeland.”
⁴⁸

However, this vigorous defense of Roman law—after the motto “the Romans, too, were Aryans”
⁴⁹
—apparently went too far in the eyes of the Germanists. In the discussion following Schönbauer’s talk, Claudius von Schwerin emphasized that the Germanic tradition was “sufficient for us” (!). In a later article he reiterated that the attempt to prove that certain fundamental ideas of Germanic law existed also in Roman law could only lead to distortions.
⁵⁰

Three years after the legal historians’ conference, Max Kaser published his short monograph
Römisches Recht als Gemeinschaftsordnung
(Roman law as communal order).
⁵¹
Gently distancing himself from his countryman Schönbauer, Kaser maintained that Schönbauer, “full of glowing passion for the political greatness of the Roman world,” had undertaken a “first and very useful excursion” to free Roman law from the charge of irresponsible and unfettered individualism. But since it had been only an “excursion,” Kaser would now take a more thorough approach “to answer the question about the communal value of Roman law on the basis of its levels of development in antiquity and from a historical perspective that has been purified by our national experience.”
⁵²
He proceeded to do this step by step. In the early period we find
gens, curia
, and
tribus
as “associations of blood and soil”; the “Führer position of the king” and the concomitant duty of loyalty and allegiance; and
mos maiorum
as the “categorical imperative of the common good.” Then came the separation of law and mores, with the latter, as an uncodified social conscience, counterbalancing, reinforcing, but also softening the harshness of the law. The transition to the principate was, of course, accompanied by a loosening of the mores. Self-interest and the abuse of power appeared on the scene: “Individualism replaced community.”
⁵³
Although Augustus succeeded once more in stopping the evil through education, inner recovery, racial protection, and moral austerity, things went downhill after his death: “The general process of dissolution had undermined not only the racial existence of the Roman people but also the sense of community.”
⁵⁴
What was handed down as Roman law in the following centuries was therefore only its shell, not its essence. Hence the nineteenth century, with its individualism and liberalism, had, so to speak, presented “un-Roman” Roman law. Kaser therefore exhorted his readers at the end to despise, not Roman law, “but only its modern distortion and the
Zeitgeist
that pressed it into service in this form.”
⁵⁵

What interests us in this monograph are not those elements that were conditioned by the time and that neither Kaser nor his students would care to emphasize today: the nationalistic and racial tones, the emotional embrace of community, and talk of the “evil of individualism.” We are, instead, interested in those elements underneath this veneer that strike us as “progress” even today. For Kaser, like Schulz, did in fact offer a clearer view of Roman law and Roman mores, a view that was apparently possible only when the political context had changed and the nineteenth century itself receded into history. Beginning at the turn of the century, the nineteenth century had been vigorously attacked in all areas of intellectual history. Legal history was no
exception, even though it owed so much to the nineteenth century. As the distance from the study of the Pandects grew, scholars gradually realized that it was conditioned by its time and had been cast into a liberal mold, underneath which the historical substance had to be rediscovered.
⁵⁶
Today it is well recognized that Schulz’s and Kaser’s observations that there was a correspondence between law and mores, and that the application of the law depended on unwritten social constraints, are historically “correct” and were new insights in the 1940s. While it is obvious that such a “more accurate” view could arise only at a certain distance from the nineteenth century, its politics and economic system, we need to formulate the phenomenon even more clearly: Only Nazi propaganda against Roman law, which had derived its distorted materialist-liberal picture of that law from the nineteenth century, on the one hand, and anti-individualist Nazi propaganda about the unity of law and mores, of the individual and the community, on the other, gave legal historians the incentive to construct a new picture of Roman law. In this way, the pressures of the
Zeitgeist
, the defense of the scholarly discipline of Roman law, and historiographical progress could merge.