Obituary: Professor David Daube
Friday 05 March 1999
Daube's interest in Judaism was far from purely academic: he was involved in many Jewish organisations and, until late in life, he strictly observed the Sabbath and the dietary laws; moreover, resistance to oppression is a recurring theme in his writings. Because his work is spread over so many different areas and he wrote no comprehensive treatise in any of them, it is impossible for any one person to survey Daube's contribution as a whole, far less to judge its likely enduring impact. What can be said, however, is that in each of his chosen fields his work was almost always original and often brilliant.
Born in 1909 in the Germany of Wilhelm II, Daube came from an orthodox Jewish background, his mother being Selma Ascher from Nordlingen and his father Jakob Daube, a wine merchant in Freiburg. Despite the First World War and its aftermath, David and his brother, Benjamin, appear to have grown up in fairly comfortable circumstances in Freiburg.
He attended the renowned Berthold-gymnasium there, with short spells in a Swiss private school for orthodox Jews and in Paris. He began his university studies in Freiburg, and came to the attention of Otto Lenel, the founder of the modern study of Roman law and himself of Jewish stock. Although Lenel was then about 80 and had retired some years before, he continued to work and singled out Daube, whom he treated as a personal pupil. Daube liked to recall how he would walk from the family home in Goethestrasse through the leafy streets of residential Freiburg to Lenel's house in Holbeinstrasse, where the two would discuss questions of Roman law. These discussions proved one of the decisive influences in Daube's academic life.
While maintaining his links with Freiburg, Daube studied for his doctorate in Gottingen, where he was taught by Johannes Hempel and the young Wolfgang Kunkel with whom he formed a lifelong friendship. His thesis was on a topic of Old Testament law and earned him his doctorate "mit Auszeichnung" in 1932. When, half a century later, he tried to obtain a copy of the entry in the university records, he was told that the page had been torn out during the Nazi period. The coming to power of Hitler was the turning point in Daube's life. Even before then, he had been alive to the threat which Hitler posed: on one occasion he had gone with a girlfriend to hear him speak and had been struck by the power of his oratory.
In 1933 Lenel lost no time in advising Daube to leave Germany. He gave him a letter of introduction to Professor H.F. Jolowicz in London. Jolowicz in turn sent Daube on to Cambridge, where W.W. Buckland was the Regius Professor of Civil Law. Although the two men were very different and, to begin with, had to converse in French, they got on well together and in later years Daube went out of his way to quote Buckland's views in respectful terms. By 1935 Daube had obtained a PhD from Cambridge for his work on the Roman statute dealing with damage to property. Part of that work was published, as his first article in English, in the Law Quarterly Review in 1936.
He married in 1936 and, happily, before the Second World War he was able to return to Germany and arrange for his family to come to Britain. In due course Daube obtained British nationality, which he retained even after he went to live in America in later years. In 1938 he applied unsuccessfully for the professorship of Civil Law in Edinburgh, but in the same year he was elected to a teaching fellowship at Caius College, Cambridge. Apart from a short spell of internment on the Isle of Man in 1940, Daube held that position until 1946, when he became a University Lecturer in Law. He wrote Studies in Biblical Law (1947) during this period.
After the war he re-established contact with scholars in Germany. In 1951 he was appointed Professor of Jurisprudence at Aberdeen, but he did not stay there long, since he accepted the offer of the Regius Chair of Civil Law in Oxford when it suddenly fell vacant after the death of Jolowicz in 1954. None the less Daube always remained particularly grateful to Aberdeen for having given him his first chair.
When he took up his appointment and his All Souls fellowship in 1955, Daube was pre-eminent in Roman law studies in Britain. He now held the foremost chair. The Oxford of those days, where Roman law was still compulsory not only in Moderations but in Schools, might seem to have been the ideal place for Daube to pursue his career among colleagues who shared his interests. For a while all did indeed go well. Daube was at the height of his powers, producing a stream of readable yet closely reasoned and convincing articles in which he often concealed his scholarship under a light, sometimes almost flippant, style. An anonymous article in the Oxford Magazine, on the origins of Humpty Dumpty as an engine used at the Siege of Gloucester, was widely acclaimed.
He soon became known as a brilliant and entertaining teacher who brought the law of ancient Rome to life; undergraduates who would otherwise have had no interest in Roman law long remembered his lectures. As in Aberdeen, he had a number of doctoral students in biblical law and Roman law. On all of his pupils he had an indelible influence. Within the university and beyond he was skilful in securing posts for his proteges.
But moves were afoot to reform the Oxford Law syllabus by introducing new subjects and eliminating the compulsory Roman law paper in schools. These incipient changes were paralleled by changes in Daube's own life. He was divorced in 1964. He moved into All Souls, where he lived and worked in overheated rooms. He seems to have become progressively disenchanted with Oxford and with what he regarded as restrictions on his freedom. By the mid-1960s he was spending more and more time in America, especially in California with Helen Smelser, whom he was eventually to marry in 1986. He had also bought a flat in Konstanz in southern Germany, where he would spend part of the Easter vacation as a visiting professor.
This unsettled period came to an end in 1970 when Boalt Hall, the Berkeley Law School, offered him positions as Director of the Robbins Hebraic and Roman Law Collections and as Professor-in-Residence. He accepted - and resigned his Oxford chair, just as the changes in the Law syllabus came into effect.
Daube moved to San Francisco and began his new life in a tiny flat in a somewhat rundown area. The climate suited him and the breathing difficulties which had plagued him for many years largely disappeared. An ice-cream in the sun with Helen at Fisherman's Wharf was a pleasant way to relax and, for a long time at least, his relationship with her brought him happiness and new interests, especially in the world of psychoanalysis.
Daube seemed to revel in what he regarded as his new, laid-back, life. Getting up early in the morning, he would greet the down-and-outs on his way through the empty streets to the bus station, where he bought a newspaper - he never watched television or listened to the radio - and caught the bus for the short journey across the Bay Bridge to Berkeley. He would arrive at Boalt Hall well before breakfast, ready for the work of the day.
For many years - and indeed long after he officially retired in 1981 - he faithfully gave courses and lectures on Roman law and other topics. But his main occupation was study and writing in a very small room filled with his books and papers behind the stacks in the law library. Boalt Hall was indeed to remain the focus of his life for as long as he was able to read and to work. Members of the staff and other colleagues did much, discreetly, to support him and, later, to look after him when he had to move into a home.
The key to Daube's work was his massive intellect and learning: in addition to the texts associated with his professional work, he seemed to have read and remembered the whole of classical, German, French and English literature and more besides. This vast store of knowledge underpinned all aspects of his work, for central to that work was close study of texts and minute attention to language and to the nuances of language.
Typically, he would start with a single text, perhaps even an isolated word in a text, and, by revealing a hitherto unsuspected meaning or dimension, he would go on to illuminate a whole area of his chosen subject. For these purposes context was often crucial. In Old Testament studies stress had been placed on the importance of a text's Sitz im Leben (setting in life) and Daube applied that technique, attractively if not always convincingly, to Roman law in Forms of Roman Legislation (1956).
Our knowledge of Roman law comes, for the most part, from the digest which is made up of thousands of extracts from the works of ancient jurists. Lenel, whom Daube revered, had revolutionised its study by identifying the original context of many of these extracts. In the 1950s and 1960s Daube published a series of dazzling papers in which he carried on Lenel's work - only in private would he hint that he might well have improved on it. It can be no coincidence that the best and most substantial of these papers, and arguably his finest article on Roman law, was written in sober academic German and appeared in the Savigny Zeitschrift. It is his monument, to be set beside the master's.
Indeed, Daube remained a quintessentially German scholar. Even after living for decades in the English-speaking world, he had a strong German accent - some surmised that this could hardly be unintentional. In later years, he would seem outwardly to have adopted the relaxed Californian way of life, with long hair, an open-necked shirt and some linguistic usages to match. To the chagrin of some of his colleagues, he professed at least to favour many of the aims of the students in Berkeley and elsewhere in the late 1960s, though he was so skilful at arguing for any point of view that it was often difficult to be sure exactly how strongly he supported a particular cause.
In truth, of course, David Daube was completely different from those students: his life's work had been built on that particular meticulous, disciplined scholarship and Wissenschaft which he had acquired long before in Weimar Germany. He was thus the product of a system of education which has vanished for ever.
David Daube, Roman law and Jewish scholar: born Freiburg, Germany 8 February 1909; Fellow, Gonville and Caius College, Cambridge 1938-46; Lecturer in Law, Cambridge University 1946-51; Professor of Jurisprudence, Aberdeen University 1951-55; Regius Professor of Civil Law, Oxford University 1955-70; Fellow, All Souls College, Oxford 1955-70 (Emeritus); FBA 1957; Director, Robbins Hebraic and Roman Law Collections and Professor-in- Residence, School of Law, University of California, Berkeley 1970-81 (Emeritus Professor of Law); twice married (three sons); died Pleasant Hill, California 24 February 1999.
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