Abstract
The paper deals with the publications of Elemér Pólay before and during WW2. It seeks to analyse them in their context, embedded in their contemporary political and academic environment. It focuses on one of Pólay’s early works, entitled ‘The German National Socialist Conception of Law and Roman Law’ (1938). Pólay’s paper is a valuable source on the academic situation in Hungary in the 1930s and 1940s, on the views of young scholars around Paul Koschaker in Berlin, and, indirectly, on Koschaker’s personal views concerning the National Socialist party’s manifesto.
1 Introduction
The present study deals with the works of the Hungarian Romanist Elemér Pólay, published before and during WW2. It seeks to analyse them in their context, embedded in their contemporary political and academic environment. 1 The primary focus is on one of Pólay’s early, less known works, entitled ‘The German National Socialist Conception of Law and Roman Law.’ Pólay’s bibliography stated that the article was published in 1939, but in fact it came out in two instalments in the series Jurist Life in Miskolc in September/October (Nr. 7–8) and in November/December (Nr. 8–9) 1938. 2
Pólay studied at the Friedrich Wilhelm University in Berlin with a scholarship from the Lutheran Law Academy in Miskolc in 1938. Here, he attended the lectures on Roman law by Paul Koschaker 3 and on economic history by Werner Sombart. 4 Although the attacks launched by the NSDAP (National Socialist German Workers’ Party) on Roman law left their mark in Hungary as well, his experience of national socialist ideas – summarised in his article mentioned above – may have originated from his experiences in Berlin.
Jurisprudence in Hungary was traditionally German-oriented, predestined by the history of the country. In the interwar period, the official cultural policy in both countries mutually encouraged closer bilateral academic and cultural relations. 5 For example, in June 1935, with the support of the NSDAP, a large delegation of jurists led by Walter Raeke 6 arrived in Hungary for a week to spread official German ideology. 7 The Department of Foreign Affairs of the Akademie für Deutsches Recht, founded in 1933, called for comparative-law research, and established a working group for Hungarian-German relations (Arbeitsgemeinschaft für Deutsch-Ungarische Rechtsbezieungen). They also promoted several well-known Hungarian jurists as corresponding members of the Academy. 8 Several analytical papers on the legal policy of the Third Reich were published in Hungary at that time.
2 Controversy over the place of Roman law in the curriculum
The ‘national socialist conception of law’ arrived in Hungary through several channels. The German political campaign against Roman law was launched, in particular, at the 1936 National Congress of Higher Education in Hungary, where several people spoke out against teaching Roman law.
It is no coincidence that Roman law was discussed in Hungary at that time. Although Paragraph 19 in the NSDAP Party Program 9 , which launched the ideological attack on Roman law, dates back to 1920, a new Studienplan (curriculum), developed by Karl August Eckhardt, 10 came into force in Germany in January 1935, significantly reducing the number of Roman law courses. 11 A brief quotation from Eckhardt’s article (1935) illustrates the severity of the situation: ‘Noch immer lebt die deutsche Rechtswissenschaft in den Gedankengängen des römisch-gemeinen Rechts […], die geistige Grundhaltung wird heute noch durch das Pandektensystem bestimmt. Diesem System gilt unser Kampf.’ Obviously, the developments in Germany incited some professionals in Hungary to make a frontal attack against Roman law.
Gábor Vladár (later Minister of Justice) ultimately rebuked the attackers in a heated debate during the Congress: ‘the desires, that have arisen to curb teaching Roman law, are fuelled, perhaps, by fashionable slogans evolved in Germany’. 12 Vladár’s moderate views on changes in Germany may be seen, for example, in his preface to Béla Csánk’s book (1941) entitled Legal Professions in the Third Reich. The first paragraph informs the readers of his own deep impressions of the changes in the German legal system. In the next chapter, he suggests that new ideas should be compared to existing knowledge, which may serve as the basis for evaluation. 13 He also highlights the German transformation as a ‘revolutionary’ phenomenon ‘showing us a picture of six or seven turbulent years. The Germans themselves describe the legal life of this era as ‘Umbau,’ ‘neue Grundlegung,’ ‘Revolution’ and similar terms reflecting profound innovations.’ 14 During this ‘legal revolution,’ fundamental elements such as the hierarchy of sources of law, the relationship between law and the judge, public and private law, or between morality and the law have been questioned. Vladár emphasises that the process, in which the ‘struggle of world views’ played a major role, has not yet finished. The power of inertia of the revolution may lead to many exaggerations. 15 He then cautiously warns that the importation of national socialist ideas into Hungary should not be encouraged: ‘The mere adaptation to changes is not in itself ‘development’. It only becomes development if it is accompanied by an evaluation, i.e. an examination of whether the progress towards changes is a valuable act for the nation, or whether it is better to prevent changes […] or, at least for the time being, to neutralise them. ‘If I see a storm gathering, I push the top of my hat’, as the song goes in Hungary.’ 16
3 The elimination of Roman law in Hungary
The repression of Roman law was finally removed from the agenda in Hungary in 1936, not least because of the determined position of Gábor Vladár, so lectures amounting to eight hours per week (during two semesters) remained in the curriculum. 17
Pólay was not yet a member of academia in 1936, as he had not even completed his university studies at that time. He studied at the Lutheran Law Academy in Miskolc between 1933 and 1937, then completed his doctoral examination (rigorosum) in law at the Erzsébet University in Pécs 18 in 1937, and in political sciences (doctor iuris utriusque) in 1938. 19 He probably faced the tensions in higher education only later, during his studies in Berlin and after his return from there.
National socialist attacks were a real threat, which Hungarian Romanists regularly reflected on. 20 The writings of Nándor Óriás and Kálmán Személyi focused on the Christian elements embodied in Roman law, and argued for its importance. 21 Albert Kiss examined the relationship between Roman law and Germanic law, and concluded that one could see no such profound difference between them as propagated by the NSDAP. 22 Since national socialist attacks were primarily directed at Roman civil law as developed by the Pandectists, Nándor Óriás suggested that Roman public law should have been focused on, and introduced into the legal education. 23
At the National Congress of Higher Education, a representative of the University of Szeged, Sándor Kornél Túry, lecturer in commercial law, underlined the importance of teaching those parts of Roman law that are ‘expressions of the modern ideas present in modern legal systems as well,’ so they may be considered as a modern ius gentium (and must be taught in any case). 24
Although Elemér Pólay was not yet a university lecturer at the time, he could learn about the danger threatening Roman law through his teachers or from the press. During his studies in Berlin, he could gather first-hand experience of national socialist conceptions and their growing impact on higher education in Germany. Before taking a closer look at this politically motivated attack on Roman law, it seems worthwhile to give a brief summary of the life, the work, and an important paper of Paul Koschaker, Pólay’s mentor in Berlin.
4 Paul Koschaker – Berlin, 1938
As mentioned above, the recently graduated Elemér Pólay was awarded a scholarship by the Lutheran Law Academy of Miskolc in 1938, to further improve his legal knowledge in Germany. Paul Koschaker (1879–1951) was a professor of Austrian origin, lecturing Roman law in Berlin at the time, and one of the most respected experts in the field. 25 Koschaker’s carrier started in Graz, and he was invited to Innsbruck after his Habilitation (1908), but at the same time he was offered a professorship in Prague. He accepted the latter, where he started lecturing in 1909. From 1915 to 1936, he taught at the University of Leipzig, where he turned to the study of cuneiform tablets. An excellent team of researchers gathered in Leipzig at that time, contributing to the emergence of multidisciplinary research in legal history, with Koschaker as the founder of the study of Keilschriftsrecht, the legal aspects of Babylonian clay tablets. 26 In 1936, however, Koschaker accepted the appointment as head of department of Römisches Recht und vergleichende Rechtsgeschichte in Berlin, where, in addition to Roman law, he continued his research on cuneiform tablets and early Eastern legal cultures. 27
He left Leipzig with bitter feelings, as the peaceful, high-level scholarly atmosphere had been broken by the dismissal of several outstanding professors of Jewish origin. As he puts it in his autobiography, ‘Der Nationalsozialismus hat das alles zerstört […]. Ich fuhr nach Berlin, um mich beim Reichsministerium zu beschweren’. 28 Although his complaint was not taken into account, he was offered a newly available position in Berlin, Savigny’s former chair at the Friedrich Wilhelm University Faculty of Law. 29
Koschaker is one of the founders of ‘comparative legal history’, who identified many traits of Eastern influence in Greek and Roman law. 30 He also organized a research group in Berlin to study ancient Eastern law (Seminar für Rechtsgeschichte des Alten Orients). It was an important milestone in his life when he joined the editorial staff of the Savigny-Zeitschrift in 1936, after Ernst Levy and Ernst Rabel were forced to leave under political pressure because of their Jewish origins. 31 Rabel retired as early as January 1934, and he specifically recommended Koschaker as his successor. 32 However, Koschaker had not yet accepted the post at that time, and he only joined the board after Leopold Wenger left Germany for Vienna, and his seat became vacant. 33
The personality of Koschaker and his research had a great influence on Pólay, who had already become receptive to the comparative approach at the Roman law seminars of Zoltán Sztéhló, where the legal systems of the ancient Near East had been taken into account as well. This is reflected in some of his early research topics, such as the criminal law in the code of Hammurabi, 34 or the irrigation culture of ancient Egypt. 35 The scholarly current represented by both Sztehló and Koschaker is characterised by a strong emphasis on legal doctrine (Rechtsdogmatik) on the one hand, and a multidisciplinary comparative approach, 36 on the other. Their impact was decisive on Pólay’s views during his lifelong activity. The meetings of the Juristisches Seminar in the academic year 1937/1938, gathered around Koschaker, were attended by a number of Romanists who became famous later on: Antonio Guarino, 37 Emilio Betti, Karl-Heinz Below, and Walter Erbe. 38
To return to our topic, Pólay’s long treatise, published in 1938 with the perhaps confusing title, The German National Socialist Perception of Law and Roman Law, seems to be a summary of his impressions in Berlin. But already at the beginning, the author expresses his real creed: ‘As Wilhelm Coblitz, Speaker of the Reichstag says, the historical task and supreme obligation of national socialism is to give the German judiciary to the German people. That shows well why the issue of Roman law is relevant for the German National Socialist Reich.’ 39
It is a striking coincidence that in 1938, Paul Koschaker also published an 86-page short monograph entitled Die Krise des römischen Rechts und die romanistische Rechtswissenschaft. It was published as the first volume of the series Schriften der Akademie für Deutsches Recht (herausgegeben vom Präsidenten der Akademie für Deutsches Recht Reichsminister Dr. Frank, Gruppe Römisches Recht und fremde Rechte), and contained the extended version of his lecture held at the Academy in December 1937. 40
These were the years in the history of German Romanism in which the courses of many legal historians were suspended or even banned, with established professors being forced to retire or even leave the country. 41 National socialist politics considered Roman law a liberal, non-national civil law, which should be replaced with a ‘truly national’ law based on Germanic folk law/customary law. Many young associate professors had become advocates of national socialist ideas, including Franz Wieacker and Ernst Schönbauer. 42 Koschaker, however, consistently tried to stand by traditional values. His views and attitude were brought home to Hungary by his student, Elemér Pólay.
Paragraph 19 of the National Socialist Party Manifesto, published on 24 February 1920, stated: ‘Wir fordern Ersatz für das der materialistischen Weltordnung dienende römisches Recht durch ein deutsches Gemeinrecht.’ 43 The NSDAP urged that Roman law, allegedly serving a materialist world view, be replaced by a new German ‘community law.’ 44 This passage aimed at the abolition of Roman law as a field of study, and the teaching and research of a specifically German law, embedded in German legal history and promoting national socialist ideas. 45 As a propagandistic slogan, it was not yet a serious threat for the exponents of Roman law back in the 1920s, but in the 1930s, and especially after the Nazi party came to power in 1933, this political agenda can be observed in specific measures increasingly affecting the academic sphere.
It is beyond doubt that the politically motivated attack hit Roman law at a time when its theoretical and practical significance was diminishing anyway because of the Civil Code (BGB). 46 Koschaker reacted to this with a Kampfschrift, a ‘combat paper’. The Library of the Department of Roman Law at the University of Szeged holds a copy of its first edition (the pages of which are stamped ‘Roman Law Seminar at Debrecen University’, with these marks crossed out and re-stamped ‘Faculty of Law of the University of Szeged’). The yellowed pages have preserved several library inventory numbers (three of which are also crossed out), and pencil underlining in different colours (graphite, blue and red), showing the main points of interest of one careful reader. These highlights are assumed to stem from the hand of Elemér Pólay. (In the recollection of the present author, he did not hesitate to make such markings in the scholarly works he read repeatedly.)
As for the content of the work, it is remarkable that Koschaker neither argues against the National Socialist Party, nor does he openly oppose Paragraph 19 of the party manifesto. That would not have been advisable at the time, as he could have soon fallen into the hands of the Gestapo as a political enemy. 47 Koschaker, remaining within the limits of the given political system, and the ‘legality’ tolerated by the regime, assessed the current state of Roman law from an abstract position, adopting a historical perspective, to draw attention to the national and international significance of the discipline and the dangers threatening it.
The aim of the paper is to answer the question ‘what is the importance of Roman law for contemporary (German) lawyers?’ 48 His explanation starts from a historical perspective. He states that the 1495 reception of Roman law in Germany 49 is not the most important moment in its survival. The so-called Romidee, the political and ideological significance of that vast realm of Antiquity, i.e. the Imperium Romanum, is more important in the formation of Europe: ‘Die Romidee reicht in die Völkerwanderungszeit zurück. Das römische Imperium war nicht bloss eine Herrschaft über willkürlich zusammengeballte Völker, es war vielmehr ein Herrschaftssystem, das, in Jahrhunderten aufgebaut, die Kulturwelt des Altertums umfasste.’ 50 Ancient Rome embodied an important political idea or ideal. The Empire did not merely rule over arbitrarily congregated peoples, but was rather a system of domination (Herrschaftssystem) built up through centuries, and encompassing the entire ‘civilised world’ of Antiquity.
After the destruction of the Barbarian invasions, the remaining civilised world in the East and the West were shaped by ancient Roman culture. The political and legal systems of the Byzantine Empire, the realm of Charlemagne, or the Holy Roman Empire were all based on and defined by the categories of the ancient Roman system of government.
Koschaker points out that two thousand years later, the common European culture still draws on cultural and political elements of ancient Rome. ‘Zwei Säulen, die freilich im Lauf der Geschichte vielfach auseinander und gegeneinander strebten, waren es, die dieses Europa als das Gebiet der abendländischen Christenheit trugen: die Kirche und das Kaisertum.’ 51
Sources from the time of Charlemagne already use the terms regnum Europae or rex Europae. The two pillars of Western culture are the concepts of the Christian Church and the Empire. These two are the symbols of medieval Europe. Although in the course of history, the unity between the Church and the imperial idea has been torn apart, our common European culture is still based on the historical ‘idea of Rome’: ‘Die Grundlage der europäischen Kultur ist das, was die historische Forschung heute die Romidee nennt, unter welchem Namen alle Einwirkungen der Reichs- und Weltkultur des römischen Imperiums auf die Völkerwelt des Abendlandes zusammenfasst.’ 52 Rome as a political concept supported, in particular, the rule of Charlemagne, and later various German-Roman emperors, but the direct influence had been lost by the 20th century.
However, according to Koschaker, ‘Rome as a cultural idea’ played an even more important role in shaping European identity. Ancient Rome was a source of civilization, erudition, and knowledge, and through these, it has remained dominant for centuries and millennia even after the fall of the respective political system. Rome is urbs sacra (the sacred city), caput mundi (head of the known civilised world) and Roma mater, the mother city uniting all the churches. 53 Secular culture, which started to flourish from the 12th century onwards, relies on the knowledge based on ancient philosophy, medicine, science and law transmitted by Rome. Thus, Roman law has been transposed to European state and legal systems as a cultural phenomenon. 54
Roman law was slowly and gradually incorporated into the legal systems of different countries, merged with national legal institutions, which raised the law to the level of ‘European jurisprudence’. 55 In the beginning, Northern Italian universities were the centre of European jurisprudence, then scholars in France and later in the Netherlands took over during the period of Renaissance humanism, giving shape to new intellectual currents. 56 Since the 19th century, it is German jurisprudence that has had the greatest impact.
Koschaker briefly summarises Savigny’s struggle against the Natural Law School and then the emergence of the Historical School. He stresses that Savigny was focusing on doctrinal systematisation rather than historical research, as his primary and ultimate goal was not to do ‘legal history.’ This latter was more of an instrument for him to shape and to better understand the ‘Roman law in force’. As he put it, ‘Die Rechtsgeschichte als solche war überhaupt nicht ihr primäres Ziel, sondern nur ein Mittel zu einem anderen Zwecke, nämlich zur Erkenntnis und zum Verständnis des geltenden Pandektenrechts.’ 57
Savigny himself emphasized that Roman law needs to be known and taught even in the field of codified law, since studying the original sources is essential for understanding the current legal institutions of the law codes based on Roman law. 58 ‘Das Corpus Iuris war der historischen Rechtsschule nicht bloss ein geschichtliches Dokument zur Erforschung der Vergangenheit, sondern immer noch ein geltendes Gesetzbuch […]’ 59 Linking legal history and doctrine has had and may have many advantages in the future, because it protects against excessive legal positivism, promotes creativity, innovation, and the continuous critical development of the legal system, as realised in the ‘law-making’ of Rome embodied in the Praetor’s Edict.
The private-law jurisprudence of the Pandectists followed in the footsteps of Savigny, and culminated in the work of Jhering, Puchta, Dernburg, and Windscheid. 60 Koschaker names Windscheid a second Ulpian or Paulus. His books on the Pandects gained world fame and had a tremendous influence on the development of continental legal doctrine, even in the English-speaking world. 61
German Pandectism has, however, lost its ground with the making of the BGB. By contributing to the unification of German private law, it has fulfilled its role. Moreover, Koschaker points out, it had a significant international influence. In international legal scholarship before WWI, its impact overshadowed even that of the Code civil.
However, after the BGB entered into force, Pandectism (and thus Roman law) lost its primarily practical significance: ‘Der Pandektenwissenschaft, scheinbar am Höhepunkt ihrer Entwicklung, war in der Tat das Rückgrat gebrochen.’ 62 It was no longer necessary to develop and doctrinally refine specific legal institutions on the basis of Roman sources. Therefore, Roman law scholarship tried to find new ways. One of the dominant new trends was interpolation research, which used methods of textual criticism to distinguish classical quotations from those of Justinian within the Corpus Iuris. 63
According to Koschaker, both interpolation research and the current of ‘ancient legal history’ established by Ludwig Mitteis have had an unfavourable effect, significantly weakening the authority of Roman law among professionals, and especially in legal education. In his ground-breaking monograph Reichsrecht und Volksrecht…, published in 1891, Mitteis extended the scope of research on Roman law to Near Eastern and Egyptian material. 64 Being a disciple of Mitteis while in Leipzig, Koschaker always wrote about his master with great respect. In this paper he also highlights that Mitteis founded a new school in Roman legal history, drawing attention to the great cultures of the ancient Near East. It was, in fact, due to his influence that Koschaker himself began to study cuneiform tablets and the law of Babylon and Assyria. 65
Although the current of ‘ancient legal history’ has vastly broadened the horizon of research, it has at the same time fragmented the study of Roman law, distancing it from the relevant law in force, and finally making it only one of the ancient legal systems. Another exponent of this conception was Leopold Wenger, who developed the concept of antike Rechtsgeschichte. His work, however, was regarded rather negatively by Koschaker, in terms of the prospects for Roman law. 66 Research trends neglecting Rechtsdogmatik relegated Roman law to a state of ‘splendid isolation,’ cutting it off from the living doctrine of civil law.
It was only the work of Italian Romanists that Koschaker, who continued his research on central doctrinal problems, regarded as flourishing. 67 In his conclusion, the study of Roman law, especially in Germany, was threatened by ‘ernste Krankheitskeime’, germs of serious illness.
The third chapter of Koschaker’s book compares the teaching of Roman law in Germany, Italy, France, and England. 68 His explanations critically evaluate the situation in Germany, and the decline of Roman law education in the wake of national socialist education policy. While in Italy fascist education policy explicitly strengthened the position of Roman law, the German regime had a hostile attitude towards it. Law Faculties were no longer meant to foster jurisprudence and research, but to train and ‘drill’ legal professionals and practitioners. The university was no longer a place of ‘education’ but merely conveyed practical knowledge. 69 State intervention grew stronger in education, its declared goal being the ‘Ausbildung eines Berufsbeamtentums’, that is, the training of professional civil servants. The cultivation of pure and abstract scholarship was no longer one of the preferred tasks at Law Faculties. Indeed, the scope for creative and critical thinking was practically eliminated for members of the new generations of lawyers.
The publication of the National Socialist Party manifesto marked the culmination of these unfavourable developments in the German political scene. Koschaker commented that ‘Nimmt man noch hinzu nationale Strömungen, die das römische Recht als Feind unseres nationalen Rechts ansehen, Punkt 19 des nationalsozilaistischen Parteiprogramms, der ‘Ersatz für das der materialistischen Weltordnung dienende römische Recht durch ein deutsches Gemeinrecht‘ fordert’. 70 He emphasized that the manifesto did not actually attack Roman law, but was aimed at the capitalist legal system embodied in the codifications in the 19th century. Thus, it seemed to overlook the cultural-historical importance of Roman law and its role in the development of European legal systems.
The fourth chapter summarises the values inherent in Roman law and draws attention once again to its general, transdisciplinary significance: ‘Wir leben heute in einer Zeit der Umwertung der Werte. Aber wenn ich recht sehe, so gehört zu den Werten, die heute noch Bestand haben, die europäische Kulturgemeinschaft,’ with Roman law being the basis and one of the indispensable carriers of that European cultural community. 71
5 Pólay’s stance for Roman law
In 1938 Elemér Pólay published an extensive survey in the columns of Jurist Life in Miskolc on the legislative and jurisprudential conceptions of the German National Socialist Party, the second part of which (pp. 173–204) defends Roman law against the escalating attacks. There are no specific biographical data on its publication, but it seems obvious that someone from Miskolc, perhaps Béla Zsedényi, then editor-in-chief of the journal, could have asked the young man who had just arrived home from his study trip to Berlin, to give their readers some insight into the situation in Germany.
It is nevertheless striking that Pólay never quotes Koschaker in the paper, nor does he mention any of his writings, while the reader would expect, at least, a reference to ‘Krise des römischen Rechts’. Koschaker’s paper may not yet have been published at the time Pólay left Berlin, or the first booklet of the series Schriften der Akademie für Deutsches Recht may not have arrived before the deadline of his manuscript submission. 72 Despite the lack of explicit links to Koschaker’s work, it seems safe to assume that Pólay’s overview was based on experience from his Berlin period. He perfected his university studies at Koschaker’s seminar in Berlin, and it was there that he could gather in-depth knowledge on the current tensions of university life, and especially the situation and acceptance of Roman law courses.
Already the first sentence of Pólay’s Introduction quotes a fundamental point of the German party manifesto, as interpreted by Wilhelm Coblitz (head of the Reichsamt), which led to the inevitable conflict with Roman law: ‘the historical task of National Socialism is to give the German people a German law.’ 73 Roman law, in contrast, is not a product of German ‘folk spirit’, but a foreign law of the ancient Roman Empire, later taught at the universities of northern Italy from where it eradiated in the form of ius commune. It was by that route that it influenced the development of German law, being fully received through the Reichskammergerichtsordnung of 1495. 74 The other main argument against Roman law, also set out in Paragraph 19 of the manifesto, was that it conveyed a materialist world view through the legal doctrine of 19th-century German Pandectists, and became the basis of capitalist civil law. ‘The task of National Socialism in the field of law is therefore […] twofold: on the one hand, to displace law that is alien to the German people, first suppressing, then completely eradicating it. Instead, a German law based on ancient German legal principles needs to be constructed. On the other hand […] Roman legal principles serving the ‘materialist world order’ need to be eliminated, and replaced by a (German) legal system permeated by the principle of ‘Gemeinnutz vor Eigennutz’, which no longer protects individual interests only, but makes service of the community the foundation of legal order.’ 75 Pólay cites the objectives of the national socialist manifesto through the interpretation of Wilhelm Coblitz (1909–1945) and Hans Frank (1900–1946) (see Handbuch 76 ). 77 Pólay first outlines national socialist legislation (pp. 129–134) and then the basic features of the law of the national socialist state, in an objective, descriptive manner (pp. 134–155). Laws enacted under national socialist influence predominantly concerned public law, administrative, racial and family law, inheritance law, labour law, and the protection of certain cultural values. In the field of public law, the Gleichschaltung der Länder (1933) and the Gesetz über den Neuaufbau des Reiches (1934) substantiated German unity and the all-encompassing power of the Führer. 78 National socialist racial theory fundamentally rewrote family law, linking family policy to the protection of ‘racial purity,’ mainly through the prohibition of marriage and sexual intercourse with Jews (Blutschutzgesetz, 1935). The ideology of ‘Blood and Soil’ made arable land and the farming peasantry one of the main pillars of the state, and changed the existing rules of property and inheritance law accordingly. 79 National socialism fought against Marxist doctrines in labour law, in order to break down the self-organisation of the working class and the attempts at class struggle (e.g., the prohibition of strikes). The protection of cultural values included the ‘Aryanisation’ of culture, which often led to the persecution of artists of Jewish origin, and the destruction of their works (entartete Kunst).
A comprehensive analysis of the national socialist law and state cannot be the goal of this paper. What needs to be highlighted, though, are those elements of Pólay’s ‘popular’ description which contribute to our understanding of these attacks on Roman law. German national socialist propaganda put the German people at the centre of its argumentation. The constitution and pivotal elements of the legal system were reshaped with reference to the Volk and their interest. 80 Public interest came to the fore in order to push individual rights into the background. The idea of ‘community’ had become central in civil law, and was used to deny the principles of the Pandectist doctrinal system based on Roman law. The concept of law was defined in an arbitrary and subjective manner, with the phrase ‘Alles was dem Volke nützt, ist Recht, alles was ihm schadet, ist Unrecht’ as a key notion. 81 Hans Frank added that ‘Recht ist das, was arische Männer für Recht finden’. 82 It seems that the concept of law and the boundary between law and injustice were entirely subjective in the national socialist conception. ‘National socialism sees the people as the source of all kinds of law, rather than the state. A certain law has been written into the soul of the people, which is the standard of all kinds of laws. This is the ‘eternal idea of law’ carried by the people, the source of all kinds of law’, as Pólay quotes the explanation of German exponents of the ideology. 83 The ideal of ‘protection of race and soil’ led to a transformation of property and inheritance rights concerning the land (Reichserbhofgesetz, REG, 1933). 84 The list could be extended.
Coming back to the problems directly affecting Roman law, in the second part of his study Pólay briefly summarizes the history of the reception of Roman law and Pandectist jurisprudence in Germany. This part of his writing comes closest to the arguments of Koschaker’s Kampfschrift (1938). He starts tracing the history of the revival of Roman law in Europe from the activity of the glossators in the 12th and 13th centuries, to outline the specific development of European law, i.e. the formation of a supranational ius commune. 85 Like Koschaker, he points out that Roman law was for centuries a spiritual treasure of ‘educated and dedicated’ people, which left almost no trace in German city statutes. Later, however, it became the basis of the supra-provincial ‘scholarly law’ of the Holy Roman Empire, as well as the foundation of its public and civil law, first in the form of customary law, then received through a legislative act, as early as the 15th century.
Interestingly, Pólay quotes the opinion of Karl Adolf Schmidt (1815–1903) on this subject, who emphasised the ‘resistance of the German people’ against the infiltration of foreign law. Schmidt argued that ‘Das Volk wehrte sich mehrere Jahrhunderte lang mit grösster Energie gegen das Eindringen des römischen Rechts, beugte sich aber schliesslich vor der Erkenntnis, dass da dasselbe nun einmal als Recht des heiligen römischen Reichs und Deutschland gelte, auch die Berufung der Romanisten in die Gerichte eine zwar traurige, aber unabweisliche Consequenz dieser Geltung sei, und das römische Recht drang jetzt rascher und tiefer als in den übrigen Ländern in die gerichtliche Praxis ein.’ 86 Folk resistance, fuelled by ancient Germanic traditions, against the medieval infiltration of Roman law, was the dominant conception in the 19th century, which no longer appears in modern research in this form. Pólay may have added this quote to take the wind out of the sails of National Socialist propaganda: he referred to the German ‘national spirit’ to give a more nuanced picture of the process of the reception of Roman law. At the same time, Schmidt’s view that the idea of Roman law and that of the Empire were interwoven was communis opinio, which appeared in Koschaker’s work as well.
It is also worth mentioning that even Pólay’s description of Pandect law delivers implicit arguments against national socialist accusations. He emphasises that the reception of Roman law had been greatly influenced by German custom: ‘However, the spread of Pandect law did not exclude certain German legal norms from remaining in force. These lived on in local legislations.’ 87 The development of German private law followed two lines at the same time. Pandectist scholarship and German civil jurisprudence developed in parallel. That process came to an end with the making of the BGB, since the Bürgerliches Gesetzbuch, promulgated on 18 August 1896 and entering into force on 1 January 1900, created a uniform civil law throughout the Empire. 88 ‘National socialism aims at eliminating this civil-law order, to replace it with a peculiar German civil law rooted in [the] German soul and German soil.’ 89 Yet, like Koschaker, Pólay emphasised that the target of national socialist attacks is not the ‘pure Roman law’ and, in particular, not the classical law of ancient Rome, ‘but the law built on Justinian’s codification, and interwoven with German legal elements adapted to modern life. What national socialism considers to be irreconcilable with its principles is not the detailed rules but the basic principles and institutions of Roman law.’ 90
We see here Pólay struggling to ‘purify’ Roman law in order to make it acceptable, that is, to remove it from the front line of the national socialist attacks.
He then points out that national socialists have been proclaiming their new conception of legal system for over ten years, but what they have published so far is ‘only the principles of the new civil law’, and a detailed regulation is still missing. In his view, such a code is not be expected in the foreseeable future, so the BGB, based on Roman law is not going to become obsolete soon.
Pointing to the importance of international and European principles as well as the institutions of civil law, all based on historical foundations, he warns that it would not be practical for Germany to break away from European culture: 91 another argument that appears in Koschaker’s Kampfschrift as well.
Pólay tackles national socialist charges against Roman law one by one, reiterating that these attacks are not primarily directed against ancient Roman law but 19th-century liberal ideology as embodied in the BGB. According to national socialism, liberalism leads to foolish liberty, and the depraving effects of freedom, and therefore ought to be eliminated. 92 They further claim that Roman law is a legal system that is too technical, too practical, too rigid, and insensitive to social problems, putting the individual interest first. Pólay emphasises that these were virtues rather than vices of Roman law, then challenges the validity of the accusation of social insensitivity. The main points of his argument are: Roman law is indeed rooted in the past but so is the law of the German Volksgeist, which is not a purely modern law either; sobriety is a virtue in any legal system; taking into account individual interests is evident in civil law; Roman law also has ethical principles, etc. Without a doubt, when reading the ruthless attacks made by German lawyers committed to national socialism, Pólay’s enthusiastic argument seems like tilting at windmills. To quote just another example: ‘Roman law also obscures national self-consciousness and makes the individual selfish, according to Kersten, while German law gives individuals the right direction on how to behave, that direction being provided by the public will […]. While Roman law is the law of individualism, German law is the law of the collective.’ 93
Pólay then examines each branch of law in turn, to highlight the differences between Roman law and the so-called national socialist civil law. He repeatedly emphasises that the promised new civil code has not yet been finalised, with only the relevant guidelines of the party manifesto being known. There is no trace of a similar line of argument in Koschaker’s work discussed above. Yet these and similar arguments may have appeared at the Roman law seminar in Berlin, or in the everyday conversation of young scholars with and around Koschaker. It also seems likely that the kind of straightforward (and perhaps somewhat naïve) counter-arguments put forward by Pólay would have been politically too risky in Germany at the time, especially for an established professor at the University of Berlin.
For instance, Pólay emphasises that the Roman law of persons distinguishes legal subjects and legal objects, and ‘classifies human beings without any individual, racial etc. difference’ as legal subjects, while national socialist law discriminates on the basis of race and excludes certain groups of people from certain rights. 94 The ‘new’ concept of law is not homogeneous in terms of legal objects or things either, as it distinguishes between living and lifeless objects.
A further argument against Roman law was that the concept of legal personhood remained largely undeveloped. The significance of that issue can be better understood if one recalls that the doctrine of legal persons was central to national socialist law. Hans Frank, Hitler’s chief lawyer, defended his doctoral dissertation at the University of Kiel on the topic of legal persons. 95
Looking at property law, Pólay points out that while the concept of property in classical law is a generic and unified one, archaic law distinguished between res mancipi and res nec mancipi in terms of ‘peasant rights’. ‘That classification in ancient Roman law served to protect Italian land property. 96 Several leading Romanists attempted at the time to elaborate on that idea, to demonstrate the sensitivity of Roman law towards socio-economic goals, and to show that Roman property was not always and not merely an individualistic phenomenon (one may think of Max Kaser’s early monographs on property 97 ). National socialist laws excluded trees, living animals, certain natural assets (rocks, springs, etc.), and farmed soil from the general concept of ‘things’, providing them special protection. 98
According to national socialists, the concept of property in Roman law ‘has a vague meaning that extends to immorality,’ 99 since owners could do anything with the things they owned, regardless of the needs and interests of the collective. National socialist legislation imposed restrictions on property, and introduced an allegedly new form of ownership through the Reichserbhofgesetz (1933, the cornerstone of the Blut-und-Boden-Ideologie). In their view, the ‘hereditary farm’ was a completely new form of property, being under state supervision, with restrictions in terms of disposition among the living or in the event of death, as well as racial, economic, and so-called moral constraints in terms of its subjects. 100
Several jurists committed to national socialism regarded the right over the Erbhof as a new form of ownership, which differed from the Roman concept. Franz Wieacker argued this with particular vehemence. In his view, the institution was completely new, and not based on the principles of Roman law. 101 He stressed that what the holder of an Erbhof had was a gemeinschafts- und pflichtgebundenes Sondereigentum. It was not merely property, as the core of that right was ‘eine verantwortliche und sozialrechtlich beschränkte eigene Zuständigkeit des Gemeinschaftsgliedes’. 102 Pólay summarises Wieacker’s position as follows: ‘According to Wieacker, any attempt at harmonising the concept of ownership according to the BGB (that is, Roman law) and the REG is futile. For the REG created a new concept of property. 103 The new system of property thus created is, naturally, not based on the principles of Roman law, where all things were equal in terms of property rights, but corresponds to the new concept of property, which makes a profound distinction among things.’ 104
Pólay is strongly critical of Wieacker’s idea of dividing things on the basis of the ‘extent of responsibility that the owners of various things have towards the community’. 105 This would create a number of forms of ownership that would focus on the obligations, rather than the rights, of the owner.
Pólay describes the attempts of German jurisprudence to doctrinally classify Erbhof ownership provided for by the REG. However, he himself argues that Erbhof is not a new kind of property sui generis, but a version of Roman property with strong constraints, and similar constructions may be found in other European legal systems. He states that ‘In our view, however appealing that latest concept may seem, we must join the second group, which regards EH ownership as a very limited kind of property right in the Roman sense.’ 106 He further emphasises that even the Roman concept of property was not unlimited; on the contrary, we know a number of restrictions, which, in some cases, even make distinctions among kinds of things (as the res mancipi – res nec mancipi). The national socialist conception only differs by substantially increasing the scope of property restrictions.
It is worth noting that one finds a similarly critical view of national socialist ideas, or at least one calling for moderation, in the Foreword by Gábor Vladár quoted above: ‘The slogan is new, the content is old. The new dress of ownership is what is left by the public for the individual. The content is the old one, that is, the owner can exercise their right only within the limits set by public interest. […] The new gown is called ‘gesundes Volksempfinden’, its old content is good morals and fairness. Et cetera. It would be a mistake, then, to see only the dress but not the content.’ 107
It remains for us to take a closer look at the position of contract law in relation to national socialist principles, because Roman law was also attacked from this perspective. According to the accusations, the doctrine of legal transactions, and the theories of will and declaration are too individualistic, as the idea of duty should be subordinated to community ideals that are more elevated than obligations. The theory of will must be rejected, with the economic equality of the contracting parties being enforced instead, and the validity of the contract should depend on whether the law allows it, and whether the given obligatio is ‘compatible with the idea of the community’. 108 The liberal civil law based on Roman law ‘establishes a monopoly for the creditor against the debtor’, providing that the obligation must be fulfilled even if it ‘results in the complete economic destruction’ of the debtor. 109
Pólay raises the question: ‘Let us see, then, whether national socialism, by proclaiming and implementing the above mentioned principles, really introduced principles into its legal system that were unknown to Roman law, or [whether] the seeds of these principles were already known to the latter as well?’ 110
6 Some early studies of Pólay critical of the national socialist conception of law?
The next few paragraphs deal with two further studies by Pólay. Both of these academic papers focus on topics and contain arguments that fit into the line of thought discussed in the preceding sections. 111
Pólay’s entire oeuvre has been characterised by an affinity to contract law. That also explains why most of his earliest papers on Roman law examine issues related to the law of obligations. Readers of his essay on the national socialist conception of law may have the impression that his choice of subject for the articles published before and during WW2 was determined by the combative attitude that first appeared in that text. At that time, Pólay devoted his attention to topics through which he was able to refute, even if implicitly, the accusations raised against Roman law in national socialist propaganda. His endeavour is particularly conspicuous in the case of the papers on ‘Datio in solutum’ and ‘Interest in Roman Law’. 112 Both fall on the intersection of economics and law, and discuss how legislation reacts to the dysfunctions of economic life.
Undoubtedly, Roman law is based on private autonomy: the key factor in contract law is the will of the parties, and contractual provisions are sometimes called lex contractus in the sources. Thus, the parties create a quasi-‘law’ related to the contractual relationship that is being set up between them by the mutual declaration of their will. Yet, as Pólay also notes in his paper on national socialism, ‘even in the earliest times, there were legislative measures meant to alleviate the strictness of archaic debt laws and protect debtors’. 113 In a few lines, he touches upon the statutes restricting interest, which appeared in Rome from the time of the Twelve Tables. ‘Given all that, it would be unfair to accuse Roman law that through making the will of the parties sovereign […] it put the creditors unilaterally in the ruling position, with the debtors as their slaves’. 114
The department copy of Datio in solutum is also marked with the stamp of the ‘Roman Law Seminar of the University of Debrecen’. Pólay starts from the doctrine of facts terminating obligation, and analyses the legal effect of performance in the light of Pandectist doctrine. 115 He cites Steiner, Koschaker and Partsch, 116 and other exponents of ‘ancient legal history’, to support his argument that the private law of the ancient Near East was already familiar with the possibility of datio in solutum (performance in lieu of fulfilment) as well as the difference between Schuld and Haftung. Traces of that can be discovered in Old German law as well (it should be noted that the reference to Old German law is also an argument against National Socialist accusations). 117 The satisfaction of debts by dividing the body of an insolvent debtor undoubtedly shows the strictness of Roman law and the weaker position of the debtor, but Pólay points out that as early as the 4th century BC, laws had protected the debtor from the cruelty of the creditor. 118 Datio in solutum upon mutual agreement had already appeared very early in ancient Rome. Thus, the parties had the possibility to change the object of the obligation if the debtor could not offer the payment originally stipulated (in solutum dare and accipere, pro debito accipere). 119
Pandectists did not favour that legal institution, as it was actually an aliud performance. Some jurists tried to incorporate the phenomenon into a tighter doctrinal system, i.e. to classify it as a compensatio, exchange, purchase, or agreement. 120 Finally, Pólay accepts Steiner’s definition, according to which datio in solutum is a discharge of liability with the consent of the creditor by providing ‘something other than the goods stipulated in the obligation’. 121 Pólay emphasizes that, in the prevailing view, datio in solutum is a legal transaction, an agreement based on mutual trust between equal parties.
Later on, Justinian’s laws made it obligatory in some cases for the creditor to accept the ‘aliud performance’ offered by the debtor, in order to protect economically vulnerable debtors. 122 All these demonstrate the socio-economic sensitivity of ‘equitable Roman law’, the preference of community interests to the detriment of individual ones. 123
Pólay’s paper on interest shows similar considerations: it is apparent that the author seeks to elaborate arguments against contemporary accusations made against Roman law. Interest (foenus) is a legal institution related to loans. In a comparative chapter, Pólay gives an overview of the relevant rules in ancient Babylon and of Jewish, Greek, Egyptian, and Germanic law. Interestingly, according to Tacitus, the Germans were not familiar with interest rates. 124
The paper discusses provisions limiting interest rates, aimed at curbing usury, throughout the nearly thousand-year history of ancient Roman law, in six chapters. 125 Pólay cites a number of examples to show that the Roman law of obligations, which was criticised for being individualistic and too liberal, protected not only ‘the dominance of the creditors’ but also the interests of debtors (and thus the interest of the community).
Pólay states that even though ancient Germanic customary law and canon law did not accept interest rates, it was a reasonable and even necessary legal institution from an economic point of view. ‘The legal institution of interest was generally known in the laws of all ancient peoples. This legal institution owes its existence to economic rationality, as it would not have been consistent to prevent the owner from benefitting from their capital (money lent or otherwise invested and turned over), since, by investing and rotating it, the owner had taken on the full level of risk, while the fruits of the land, livestock, etc. were due to the owner as a reward for the work invested. It is natural, therefore, that the materialistic Roman conception adopted the principle that there need to be some compensation for the use of capital.’ 126
Finally, Pólay’s Habilitationsschrift, entitled The Role of the Praetor in the Development of Roman Private Law, published in Miskolc in 1944, also needs to be mentioned, as it also reflects on national socialist charges, in defence of Roman law. Although these reflections are not explicit but hidden between the lines, they are clearly visible to any reader acquainted with Pólay’s 1939 paper. For example, in his assessment of the Praetor’s Edict as a legislative phenomenon, he argues that ‘the praetor, when creating the edictal rule, takes as his starting point the practice based on decrees, that is, he eventually vindicates the conviction of the people […]’. 127 He then goes on to clarify that it is actually a joint act of the people and the magistrate (who proclaims the edict within his imperium), i.e. ‘the harmonious will of the people and the magistrate’ is manifested in it. Thus, Romans also recognised the importance of ‘the spirit of the people’ and took it into account when making laws. The claim that giving the Volksgeist a role is a national socialist ‘invention’ is therefore unfounded.
To sum up, Elemér Pólay’s comprehensive study on the national socialist concept of law is a very interesting source in many respects, and also important for the history of legal scholarship. On the one hand, it gives an impartial and detailed picture of German legislation inspired by the NSDAP manifesto, summarising the key features of recent developments in the law of persons, family, property, inheritance, and contracts. Pólay seeks to provide a critical assessment and doctrinal classification of the changes in the legal system, in the light of the system of Pandectist private law. On the other hand, he sets out to protect his chosen discipline, the study of Roman law, seeking to refute each of the charges raised by national socialist scholars. In particular, he challenges Franz Wieacker’s theories of property celebrated in Germany at the time. Pólay’s paper is a rich source on the situation in Hungary in the 1930s and 1940s, the spread of national socialist doctrines, as well as the academic currents that were formed against these. It further provides valuable evidence on the views of young (Italian, German, and Hungarian) scholars gathering around Koschaker. It is an indirect source of information on Koschaker’s actual arguments against the national socialist manifesto, which may have been formulated much more sharply in the narrow circle of his pupils than what he could express in public.
Conflict of interest
The author, Éva Jakab, is the editor-in-chief of the journal. Peer review has been handled without her involvement, hence, she does not have a conflict with the review process.
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It is not the intention of the present paper to discuss the life of Elemér Pólay. On that, see Jakab (2015) 17–32, P. Szabó (2015) 46, Molnár (1999a), Molnár (1999b) 7–12. Pólay was extraordinary professor at the Law Academy after 1945, and, after his habilitation, full-time adjunct professor at the Law Academy from 1946, see Stipta (2009) 83.
Jurist Life in Miskolc (in Hungarian: Miskolci Jogászélet) was the official journal of the Miskolc Law Academy of the Lutheran Diocese of Tisza. Its editor-in-chief was Béla Zsedényi, an affiliated university professor and ordinary professor at the Law Academy. Bruckner (1996) 108–109 emphasises that Jurist Life in Miskolc was a popular and ‘marketable’ scholarly journal, and a prestigious one in academic circles. Its scope included the discussion of current professional issues in a critical spirit. At the same time, it sought to address ‘new constitutional and social issues in countries near and far’ through in-depth studies. Pólay’s paper is mentioned as an example of this by Bruckner.
Paul Koschaker’s work and his Berlin years will be discussed below.
Although Werner Sombart (1863–1941) had become emeritus professor in 1933, he taught at Friedrich Wilhelm University until 1938. Sombart was a renowned sociologist and economist, and had been a member of the Akademie für Deutsches Recht since 1933, but was also elected member of the Preussische Akademie der Wissenschaften and the Bayerische Akademie der Wissenschaften. Pólay’s early interest in sociology is attested by Pólay (1938b) 5ff.
On the subject cf. Herger (2019) 95, 97–100.
Raeke was an MP in the Reichstag and President of the Deutscher Anwaltsverein, see Herger (2019) 97–98. He was one of the leaders of the racial cleansing of the German Bar Association.
Herger (2019) 97.
Herger (2019) 99 mentions the names of Zoltán Magyary, Ödön Mikecz, István Oswald, József Stolpa, Géza Töreky, Gábor Vladár and László Radocsay.
On this paragraph of the National Socialist Party manifesto, cf. Pieler (1990) 440, Beggio (2018a) 227–30.
Karl August Eckhardt was member of the NSDAP and an SS Sturmbannfürer, as well as the intellectual initiator of the reform.
See Beggio (2018b) 645–46; Frassek (2000) 294, Finkenauer (2017) 2. The relevant text is cited by Eckhardt (1935).
Gábor Vladár’s opinion is also quoted by Pólay (1972). The period is discussed in more detail in the book of Pozsonyi (2020), from fn. 31.
Vladár (1941) IV.
Vladár (1941) IV.
Vladár (1941) VI.
Pozsonyi (2020) fn. 34.
According to contemporaries, Lutheran students mostly chose Pécs for their doctoral examinations.
Jakab (2015) 18.
Following the national socialist attacks, Romanists at German and Austrian universities developed similar Anpassung strategies, i.e., instead of Justinian’s laws, which had had Eastern influences, and were challenged by current politics, they put classical law at the centre, pointed to parallels in German and Roman legal norms, and emphasised certain fundamental values: loyalty, community, guiding principles, etc. Cf. Finkenauer (2017) 2–3, Meissel and Wedrac (2012) 44, Stolleis (1974) 32–36.
Óriás (1936), Személyi (1939), cf. Pólay (1972) 17–18.
Kiss (1937), esp. from p. 9.
Óriás (1936) 7–8.
Túry (1937) vol. II, 93., quoted in Pólay (1972) 18.
Koschaker was born in Klagenfurt, graduated in law from Graz, and then obtained his doctorate there (sub auspiciis Imperatoris). His mentor in Graz, Hanaus, sent him to Leipzig to Ludwig Mitteis. He first had difficulties with the latter, but became his faithful disciple later on. Cf. Beggio (2018a) 33–35.
Koschaker (1929) 188–201, Pfeifer (2001) 11.
Beggio (2018b) 660–62.
Koschaker (1951) 117.
Beggio (2018a) 64–67, Beggio (2018b) 650–52.
Cf. Ries (1980) 608ff, Varvaro (2010–2011) 303–15.
The Roman legal section of the Savigny-Zeitschrift also underwent ‘Aryanization’ due to the Gleichschaltung. Articles by Jewish researchers were not published, and reference to them was banned. See Finkenauer (2017) 3.
Finkenauer (2017) 11–12.
Pólay (1936a) 53–58.
Pólay (1936b) 218–23.
Beggio (2018a) 50ff.
Cf. Labruna (2015) 29–31 and 25–72, Mazzola (2014) 1–24 and 25–72.
Tenorth (2012) 465–538.
Pólay (1939) 125.
Koschaker was elected to member of the Akademie für Deutsches Recht, formed in 1933 under the chairmanship of Hans Frank. This stage of his life is critically discussed by Beggio (2018a) 83ff, Giaro (2001) 166, Beggio (2018b) 647.
It is enough to refer here to the fate of Fritz Schulz, whose adversities are documented in detail by Ernst (2004) 105–203.
The biographies of renowned Roman lawyers during the totalitarian regime have been analysed in the publications of the Finnish research group Reinventing the Foundations of European Legal Culture 1934–1964, led by K. Tuori.
Beggio (2018a) 224ff.
Cf. Pieler (1990) 428ff, 435ff, Stolleis (1989) 178ff.
Cf. Stolleis (1974) 60ff.
We shall return to this problem later.
Cf. Giaro (2001) 159.
‘Was bedeutet das römische Recht und die romanistische Rechtswissenschaft dem heutigen und insbesondere dem deutschen Juristen?’, Koschaker (1938) 1.
Cf. Molnár and Jakab (2019) 75.
Koschaker (1938) 10.
Koschaker (1938) 10.
Koschaker (1938) 13.
Koschaker (1938) 15.
Koschaker (1938) 17–18.
Cf. Jakab (2013) 20–32.
Koschaker (1938) 24ff.
Savigny (1840) 104.
Koschaker (1938) 26.
Albeit much later, Pólay (1976) and Pólay (1981) wrote a short monograph about Pandectism.
Koschaker (1938) 30.
Koschaker (1938) 42.
For example, Gradenwitz, Eisele, Lenel, Pernice; cf. Koschaker (1938) 37.
Mitteis (1891) 61ff.
Koschaker (1938) 42–43.
Koschaker (1938) 43–44.
Koschaker (1938) 46ff.
Koschaker (1938) 54–75.
Koschaker (1938) 63.
Koschaker (1938) 72–73.
It should be noted that Roman lawyers of ‘Aryan’ descent, when engaged only in education and research, were mostly not prosecuted by the national socialist regime, and the teaching of Roman law was eventually not abolished. Cf. Finkenauer (2017) 3, who quotes Koschaker as well: ‘Keinem Romanisten [wurde] wegen seiner Wissenschaft von der Regierung ein Haar gekrümmt, selbst wenn er öffentlich Hymnen an das römische Recht sang.’ Cf. Koschaker (1966) 314.
This assumption is supported by the fact that it was a newly founded series, which may have been known to and ordered by Hungarian libraries with some delay.
Pólay (1939) 125.
Brósz and Pólay (1986) 88–89.
Pólay (1939) 127 quotes, in Hungarian, Coblitz’s introductory words to Frank’s Handbuch.
Wilhelm Coblitz was one of the leading lawyers of the Nazi regime. He received his doctorate in Munich in 1933. He became an early and committed member of the NSDAP, soon became a SA Hauptsturmführer and head of department at the Reichsrechtsamt, and from 1940 a member of the Generalgouvernement in Krakow, a close associate of Hans Frank, head of the Institut für Deutsche Ostarbeit. Hans Frank was one of the key figures of the national socialist regime, one of the ‘old guard’ grouped around Hitler, and finally one of the 24 defendants in the Nuremberg Trials. He was executed on October 16, 1946. He also studied law in Munich and became a member of the DAP as early as 1919, then took part in the Munich coup. He was ‘Hitler’s lawyer’ and his number one jurist, and Generalgouverneur of occupied Poland from 1939, who built concentration camps and was one of the main organisers of the ‘industrialised’ liquidation of Jews (‘Hangman of Poland’). The elaboration of the legal ideals of the National Socialist Party is linked to his name.
Pólay (1939) 129–130.
Pólay (1939) 181-182 dwells long upon the description of statistical data concerning land distribution. This may recall his participation in the Statistics seminars back in his university years, where he wrote a serious paper under the supervision of Károly Schneller, on the relationship between the distribution of ownership and population density in the Mezőcsát district. Cf. Bruckner (1996) 193–94. Horváth (1993) 13 mentions Pólay among Schneller’s talented students (the author thanks Richárd Gyémánt for the reference).
Pólay (1939) 134ff.
Pólay (1939) 128 quotes the text of Frank and Coblitz (1935) XIV, 1.
Pólay (1939) 128 quotes the text of Frank and Coblitz (1935) XIV, 1.
Pólay (1939) 145.
Pólay (1939) 151ff.
Pólay (1939) 155ff.
Pólay (1939) 158–59.
Pólay (1939) 160.
Pólay (1939) 160.
Pólay (1939) 160.
Pólay (1939) 161.
Pólay (1939) 162, on the basis of contemporary National Socialist literature.
Pólay (1939) 164–65.
Pólay (1939) 168.
Frank (1924), his examiner was Walter Jellinek.
Pólay (1939) 174.
Pólay (1939) 176.
Pólay (1939) 177, quoting the words of Lange.
On that institution, cf. Pólay (1939) 177–89.
Wieacker (1934) coll. 1446ff, cf. Rüthers (2012) 177–78, Isensee and Kirchhof (2010) §173.
Wieacker (1938) 36; Wieacker (1934) col. 1449. On the topic cf. Schubert, Schmid and Regge (eds) (1995) XV.
Emphasis in the original.
Pólay (1939) 184.
Pólay (1939) 184–85.
Pólay (1939) 185.
Vladár (1941). He also evaluates the new regulations on employment in a similar way.
Pólay (1939) 190ff.
Pólay (1939) 191.
Pólay (1939) 191.
The core of both papers was formed during Pólay’s years at Miskolc Law Academy, where he was a diligent and enthusiastic member of Zoltán Sztehló’s Roman law seminar. He had already become involved in scholarly work there, and for three consecutive academic years, he won the prize for excellent papers on Roman law (in 1933/34 on interests, in 1934/35 on patria potestas, and 1935/36 on datio in solutum), cf. Bruckner (1996) 197.
Pólay (1938a) and Pólay (1943). Later on, the excellent Romanist Géza Marton praised, in particular, the clear Pandectist argument of Datio in solutum.
Pólay (1939) 191.
Pólay (1939) 192. Pólay describes the National Socialist conception of housing and employment contracts, as well as on family law and inheritance law in the following pages. An analysis of these would go beyond the limits of the present paper.
Pólay (1938a) 4–7.
Pólay (1938a) 16–17.
Pólay (1938a) 8–9.
Pólay (1938a) 12.
Pólay (1938a) 13–14.
Pólay (1938a) 16, 27ff.
Pólay (1938a) 28.
Pólay (1938a) 48–49.
Pólay (1943) 5–6.
Pólay (1943) 7ff.
Pólay (1943) 22.
Pólay (1944) 166–67.
