Josef Kohler

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Josef Kohler

Josef Kohler (born March 9, 1849 in Offenburg , † August 3, 1919 in Charlottenburg ) was a German lawyer .


Kohler was the son of an elementary school teacher. He studied at the Universities of Heidelberg and Freiburg , passed the first state examination in 1871 and the second state examination in 1873 (both with distinction) and also received his doctorate in 1873 (with a thesis on French private law). In 1874, after a short internship, he became a district judge in Mannheim . In 1877/78 he published his two-volume dissertation, a fundamental presentation of patent law (which came into force on July 1, 1877). In 1878 he was appointed to the University of Würzburg on the intercession of Bernhard Windscheid - without ever having completed his habilitation in the formal sense . From there he moved to the University of Berlin in 1888 , where he became professor for civil law , commercial and criminal law , civil litigation and legal philosophy .

Kohler researched and worked in almost all areas of law. His list of publications includes around 2500 entries, including around 100 monographs. His work on intellectual property law - patent , trademark and copyright law - as well as legal history and comparative law are particularly fundamental . He was also a musical person. He wrote and composed, of course without being remembered.

Its international reputation was excellent. In 1886 he received - very unusual at the time - a lucrative offer to go to Tokyo as a professor, which he refused. In 1904 the University of Chicago awarded him an honorary doctorate. The German Kaiser Wilhelm II sent him a congratulatory telegram on this occasion. During the trip to America associated with the acceptance, Kohler also met the American President Theodore Roosevelt , who received him at the White House. He also got to know the prominent American lawyer Oliver Wendell Holmes .


Josef Kohler's list of works includes around 2,500 titles and shows him to be an extremely fruitful and versatile scholar. His special focus was comparative law , which he already applied in his early work from 1878. It also led him to the ethnological consideration of non-European rights, such as cuneiform rights . This year he was a co-founder of the Journal for Comparative Law . Since 1909 he has also published the Rheinische Zeitschrift für Zivil- und procedural law , a comparative German-French journal, together with Ernst Rabel .

In the field of patent law, he established the doctrine of exhaustion , according to which the rights from a patent expire (are exhausted) if the protected object was brought into circulation in Germany with the consent of the patent owner, → patent . Its definition of the patent was incorporated into the Japanese Patent Act in 1959 .

Based on his research on patent law, he also devoted himself to copyright law , where he supplemented the previously purely property law approach with aspects of personality law with the term intellectual property law he had coined . His teaching prevailed against the theory of intellectual property based on natural law by Rudolf Klostermann .

He also devoted himself particularly to the legal sources, of which he also created critical editions . In 1900 he published the Constitutio Criminalis Carolina together with Willy Scheel , but also participated in editions of Assyrian , Babylonian and ancient Greek legal texts.

In his later years he turned to legal philosophy . Following the ideas of Hegel and Schopenhauer, his considerations led to a cultural-scientific interpretation of law, which he understood as the natural law of the respective cultural period . In 1907 he and Fritz Berolzheimer founded the Archive for Legal and Economic Philosophy . Two years later he was co-founder of the International Association for Legal and Economic Philosophy (since 1933: International Association for Legal and Social Philosophy ).

His comprehensive overview of jurisprudence qualified him after the death of Franz von Holtzendorff as the editor of the revised version of his Encyclopedia of Jurisprudence , which appeared for the first time in 1904 and in its second edition in 1917.

On the one hand, his interest in literature led him to legal considerations of literary works, e.g. B. from Shakespeare . But he was also active in literature and published a. a. Copies of works by Dante Alighieri and Francesco Petrarca , but also of Laotse's thoughts . He also published the autobiographically inspired novel "Eine Faustnatur". A play has also come down to us from him. Finally, he also wrote a number of articles on cultural topics.

The "postage stamp Kohler"

An example of Kohler's endeavors to capture, “construct” and incorporate into the system of the science of law the legislation, case law and daily business practice of his time against the conceptual jurisprudence, in particular in new areas of law, is his preoccupation with postage stamps. A publication that he himself classified as a minor work was his article on postage stamps from 1892, eight years before the Civil Code (BGB) from 1900 came into force. This article is practically the first comprehensive work on the legal character of the 50-year-old postage stamp at the time. which is fundamental to both civil and criminal law. Kohler characterized the acquisition of a postage stamp as the purchase of a civil-law document in the sense of a bearer paper that certifies a debt-law claim. Under criminal law, postage stamps are therefore subject to the right to forge documents . Josef Kohler thus shaped the prevailing opinion of German legal science and practice for an entire generation. Kohler's private law theory of postage stamps was last represented in the German Reich in 1929, by the Hamburg lawyer Oswald Lassally in his article in the legal journal Juristische Rundschau .

The Federal Court dealt after the privatization of the postal system in a decision in 2005 to the legal nature of the stamp, quoting Kohler's work as "essential" for the previous state of the law. For the legal status after privatization, the BGH defined the postage stamp as bearer paper.

Reception and commemoration

On the reception of Kohler and his work, see Bernhard Großfeld (2010), p. 382 f.

In the introduction to her habilitation thesis published in 2014, the Swiss historian Monika Dommann outlines Kohler's position in the history of copyright law .

The Josef Kohler Institute for Intellectual Property Law has existed at the Humboldt University of Berlin since spring 2012 .

Works (selection)

In 1931 Kohler's son Arthur, a lawyer, published a full bibliography.

  • Studies on mental reservation and simulation. In: Yearbooks for the dogmatics of today's Roman and German private law. Vol. 16 = NF 4 (1878), pp. 91-158 ( digitized version ).
  • German patent law. Systematically processed with comparative consideration of French patent law. Bensheimer, Mannheim 1878.
  • The right to author, a civilistic treatise, at the same time a contribution to the doctrine of property, co-ownership, legal transactions and individual law. In: Yearbooks for the dogmatics of today's Roman and German private law. Vol. 18 = NF 6 (1880), pp. 129-478 (= dissertation; digitized version ).
  • Shakespeare in front of the Jurisprudence Forum. Stahel, Würzburg 1883 ( digitized version ); 2nd Edition. Rothschild, Berlin 1919 ( digitized version ).
  • On the doctrine of blood revenge. Würzburg 1885 ( digital copy from HAAB Weimar ).
  • Litigation research. Müller, Berlin 1889 ( digitized version ).
  • with Felix Peiser : From Babylonian legal life. Pfeiffer, Leipzig 1890.
  • Old Indian procedural law. With an appendix: Old Indian property acquisition. Enke, Stuttgart 1891.
  • Textbook of bankruptcy law. Enke, Stuttgart 1891.
  • The literary and artistic work of art and its author protection. A juridical-aesthetic study. Bensheimer, Mannheim 1892.
  • Aztec law. Enke, Stuttgart 1892 ( digitized version ).
  • Melusine. Dramatic poetry in 3 acts. Bensheimer, Mannheim 1896.
  • To the prehistory of marriage. Totemism, group marriage, mother right. Enke, Stuttgart 1897 ( digitized version ).
  • The criminal law of the Italian statutes from 12. – 16. Century. Bensheimer, Mannheim 1890–1897.
  • Handbook of German Patent Law in a comparative legal representation. Bensheimer, Mannheim 1900.
  • J. Kohler, Willy Scheel : The embarrassing court order of Kaiser Karl V. Bookstore of the orphanage, Halle a. P. 1900.
  • Free adaptation of the Divina Commedia. Dante's sacred journey. 3 volumes. Ahn, Berlin 1901-1903.
  • Introduction to Law. Deichert, Leipzig 1902 ( digitized version ).
  • From Petrarch's sonnet treasure. Free reseals. Reimer, Berlin 1902.
  • The proceedings of the court in Rottweil. Weber, Berlin 1904 ( digitized version ).
  • Copyright in written works and publishing law. Enke, Stuttgart 1907 ( digitized version ).
  • Presentation of Talmudic law. In: Journal for Comparative Law. Vol. 20 (1907), pp. 161-264 ( digitized version ).
  • The greatest wisdom of the Orient. Laotse. Rothschild, Berlin 1908.
  • From four parts of the world. Travel pictures. Rothschild, Berlin 1908.
  • Textbook of Legal Philosophy. Rothschild, Berlin 1909; 2nd, revised and enlarged edition 1917; 3rd edition, revised and edited. by Arthur Kohler Arthur Kohler, 1923.
  • with Arthur Ungnad : Assyrian legal documents in transcription and translation together with an index of personal names and legal explanations , Leipzig 1913 ( digitized version )
  • Law and Personality in Contemporary Culture. German publishing company, Stuttgart 1914.
  • Aequitas against res judicata (= archive for civilistic practice. Vol. 114). Mohr, Tübingen 1916.
  • International criminal law. Enke, Stuttgart 1917.
  • Basics of international law. Past present Future. Enke, Stuttgart 1918.


  • Bernhard Großfeld : Josef Kohler (1849-1919) . In: Festschrift 200 Years of the Law Faculty of the Humboldt University in Berlin . De Gruyter, Berlin 2010, pp. 375–404.
  • Johann Adrian, Wilhelm Nordemann , Artur A. Wandtke (eds.): Josef Kohler and the protection of intellectual property in Europe. Berlin-Verlag, Berlin 1996.
  • Barbara Dölemeyer: "Copyright is a world right". Intellectual property law and comparative law with Josef Kohler. In: Elmar Wadle (Ed.): Historical studies on copyright in Europe (= writings on European legal and constitutional history. Volume 10). Berlin 1993, pp. 139-150.
  • Adalbert Erler : Josef Kohler. In: Concise dictionary of German legal history (HRG). II. Volume, Schmidt, Berlin 1992, Sp. 925-927.
  • Sérgio Fernandes Fortunato: Kohler, Josef. In: Concise dictionary of German legal history (HRG). 2nd Edition. Volume II, Schmidt, Berlin 2012, column 1936.
  • Norbert Gross : Josef Kohler - The life of a universal scholar In: Journal for Intellectual Property , Vol. 6 (2014), pp. 407 ff.
  • Norbert Gross: Josef Kohler. Paths of life of a universal lawyer from Baden. Karlsruhe 2009, ISBN 978-3-922596-78-3 .
  • Norbert Gross: Josef Kohler - Ways to a German competition law. In: Hans-Jürgen Ahrens , Joachim Bornkamm , Hans Peter Kunz-Hallstein (eds.): Festschrift for Eike Ullmann. 2006, p. 615 ff.
  • Hans Kelsen : Hundredth Birthday of Josef Kohler. In: American Journal of International Law . Vol. 43, No. 2, April 1949, p. 346 f.
  • Rainer Maria Kiesow: Josef Kohler's poetry. In: Rainer Maria Kiesow u. a. (Ed.): Summa - Dieter Simon on his 70th birthday. Frankfurt am Main 2005, ISBN 3-465-03433-3 , pp. 297-318 ( online at google.books ).
  • Arthur Kohler et al. a .: Josef Kohler Bibliography. List of all publications and main awards. With a picture of Josef Kohler by Alfred Enke. Rothschild, Berlin-Grunewald 1931.
  • Rolf Kreimer: Josef Kohler. In: Bernhard Großfeld (ed.) Comparative law - misunderstood, forgotten, suppressed. Münster u. a. 2000, p. 145 ff.
  • Klaus Luig:  Kohler, Josef. In: New German Biography (NDB). Volume 12, Duncker & Humblot, Berlin 1980, ISBN 3-428-00193-1 , p. 425 f. ( Digitized version ).
  • Klaus Luig: Joseph Kohler. In: Michael Stolleis (Ed.): Juristen. Beck, Munich 1995, p. 351 f.
  • Ingeborg Malek-Kohler: In the slipstream of the Third Reich. Encounters with film artists and resistance fighters. Freiburg 1986, p. 25 ff.
  • Ingeborg Malek-Kohler, Heinz Püschel : In the footsteps of Josef Kohler. In: UFITA . Vol. 139 (1999), p. 5 ff.
  • Kirsten Nies : Science in Berlin: The Legal Scholar Josef Kohler - Prophet of an Era? In: Communications from the Association for the History of Berlin. II, 2007, DNB 010054162 , pp. 476-484.
  • Kirsten Nies: "The story is further than us". On the development of political and international law thinking of Josef Kohler in the Wilhelmine era. Berlin 2009. (Review in: Neue Juristische Wochenschrift. 14 (2010), njw aktuell, p. 64.)
  • Kirsten Nies: From “Caligula” to pacifism. Ludwig Quidde and Josef Kohler in the German Peace Society. In: Sources and research from Italian archives and libraries. Edited by the German Historical Institute in Rome . De Gruyter, Berlin 2008, pp. 556-568.
  • Eva-Inés Obergfell: The importance of Josef Kohler and the further development of his ideas in modern intellectual property law In: Journal for Intellectual Property, Vol. 6 (2014), p. 397 ff.
  • Albert Osterrieth : Josef Kohler, a picture of life. Berlin 1920.
  • Louis Pahlow : Josef Kohler (1848-1919). In: Simon Apel, Louis Pahlow, Matthias Wießner (eds.): Biographisches Handbuch des Intellectual Property , Mohr Siebeck, Tübingen 2017, pp. 165–173.
  • Gerold Schmidt: Does the issuing of official “postage stamps” violate Article 87f of the Basic Law? In: NJW. Volume 51, 1998, pp. 200-204.
  • Günter Spendel : Josef Kohler. Image of a universal lawyer. Heidelberg 1983.
  • Günter Spendel: Josef Kohler (1848–1919). In: Life pictures of important Würzburg professors. 1995, pp. 178-203.
  • Günter Spendel: Josef Kohler (1848–1919). In: Journal of the Savigny Foundation for Legal History . German Department, Vol. 113 (1996), p. 434 ff.

Web links

Commons : Josef Kohler  - Collection of pictures, videos and audio files

Individual evidence

  1. Page no longer available , search in web archives: Keiko Kawakami Obtaining Patents on Computer implemented Software Inventions in Japan Japan Patent Attorneys Association (JPAA), May 16, 2008, p. 4.@1@ 2Template: Dead Link /
  2. ^ Concordia Verlag, Berlin, undated 1908.
  3. ^ Josef Kohler, The postage stamp in the right. In: Archives for civil law, 1892, p. 316 ff.
  4. but only for the opinion rejected by the Federal Court of Justice that stamps are money surrogates, BGH, judgment of October 11, 2005, Az. XI ZR 395/04 = BGHZ 164, 286 = NJW 2006, 54–56 = JZ 2006, 368.
  5. ^ Monika Dommann: Authors and Apparatus. The history of copyright in the changing media . S. Fischer Verlag, Frankfurt 2014, ISBN 978-3-10-015343-2 ; Die Zeit 13/2014, p. 35 review ("What remains for the creator?")
  6. S. .
  7. Arthur Kohler: Josef Kohler Bibliography. List of all publications and main awards. With a picture of Josef Kohler by Alfred Enke. With the participation of Victoria Eschke. Rothschild, Berlin 1931.