87 Calif. L. Rev. 1051



Kathleen Vanden Heuvel

Deputy Director, Law Library, and Lecturer, School of Law, University of California, Berkeley.

David Daube died on February 24, 1999 at the age of 90. Although most students at Boalt today did not have the good fortune to know David, from 1970 to 1994, he taught three of Boalt's most popular courses, Law of the Bible and Talmud, Ancient Law, and Roman Law. David is considered by many to be the greatest Talmudic and Biblical scholar of the 20th century. He was also a legal scholar of enormous prominence and influence. His brilliance defies description, but perhaps his grandson, Matthew Daube, put it best when he said that David combined both mind and spirit into the uniquely German concept of geist. His intensely rigorous, yet breathtakingly insightful, studies of the New Testament and the Talmud will live on not only for their profound understanding of the texts, but also as models for all intellectual inquiry.

David was an original thinker and magnificent teacher. He believed that truth could be found only by following ideas into a black hole, where one does not know the answers and cannot even imagine the questions. He often said that original thought meant either a courageous or a foolish capacity to face the reality of one's explorations. He never wasted time following an idea if he knew where it would lead. The power of his teaching came from his ability to give all his students the courage to look into their own souls and confront the basic questions and contradictions they found there. Everyone who knew David became his student, whether they were leaders of countries or people who slept at the Transbay terminal, and so his influence permeates the culture in ways it is difficult to imagine.

While David appreciated the clever rationalizations and mental gymnastics of his fellow academicians, he was never taken in by them. He delighted in respectfully and carefully exposing the underlying false assumptions of the most elaborate and dearly held theories. He wrote seminal essays on almost every aspect of 20th century life, including organ transplantation, [FN1] the law of civil disobedience, [FN2] detective stories, [FN3] and genetics. [FN4] Although David was fearless in tackling new and modern topics, he rigorously applied his late 19th century- style training and sensibilities to his analyses. He felt that human beings must refer back to all the resources that history has to offer in order to explain ideas and technology that seem new and frightening. The crucial thing for David was to capture change and bring it back into the realm of shared human understanding.

Born on February 8, 1909, David's core values came from his Orthodox Jewish upbringing and from the southern German culture of Freiburg-im-Breisgau. He was descended on his mother's side from the Maharam, the famous Rabbi who lived in the 1200s and for whom every eldest son in David's family has been named ever since, and on his father's side from French converts to Judaism who came to Germany in the 1600s. David had a great love for both his Jewish and his German heritages. In the aftermath of the Nazi era he was deeply saddened that German Jews were separated from the German culture they had helped to create. To him, this only compounded the devastation and loss of the Holocaust.

David wrote his first musical composition at the age of five. He told me that this piece began as a celebration of the glories of war, but quickly became a lament as the pain and destruction of the Great War became apparent to him. David considered becoming a composer, but his genius for biblical interpretation and Roman law and Hitler's rise to power in the early 1930s forced him in a different direction. He received his initial degree from the University of Freiburg and a doctorate with highest honors from the University of Gottingen in 1933. (The Nazis would later expunge the record of this achievement.) In that same year, the famous Romanist, Otto Lenel, convinced David that he must leave Germany. With Lenel's and Cambridge scholar H.F. Jolowicz's help, David took a post as a research fellow at Cambridge. Under the influential Roman historian, William Buckland, David earned his second doctorate in Roman Law.

When David first arrived in England, he spoke no English, but quickly added this new language to his already impressive linguistic accomplishments. Although he had previously considered English to be a crude and vulgar tongue, he found the works of Shakespeare to be the language's saving grace. Later, he published a charming and fascinating essay entitled Shakespeare on Aliens Learning English. [FN5]

Amazingly, David was able to return to Germany before the war and engineer the escape to England of his parents, his gravely ill and adored older brother Benjamin, his wife's parents, and other German Jews. Although he and his family were able to make it back to England, his position there was not always comfortable. During the war, the British interned David as a German alien on the Isle of Man. Although he was released, he was almost immediately re- arrested as an undocumented alien and placed in a London prison for a brief time, where he shared a cell with three Nazi spies who were awaiting execution.

At the end of the war, David was one the few scholars at Cambridge or Oxford who opposed the Nuremberg trials and he often said in later years that his stand on this issue made his position at Cambridge difficult. In 1951, he was offered a Chair at the University of Aberdeen and decided to go there. Although he remained in Aberdeen for only four years, he developed a lasting bond with the institution that had given him not only his first Chair but also refuge. In 1955, he was named Regius Professor of Civil Law at Oxford. Along with this enormously prestigious position he was also awarded the Doctor of Civil Law, which was conferred on him by Queen Elizabeth. Throughout David's illustrious career, he received a number of honorary degrees as well, including an especially treasured one from the Sorbonne. David always said, however, that his academic achievements paled in comparison to the sense of achievement he felt when he learned that he was on Hitler's death list, where his name fell alphabetically above the King's doctor, Lord Dawson of Penn.

During the 1960s, David visited Boalt Hall and in 1970 he left Oxford to come to Berkeley permanently. He held the position of Director of the Robbins Hebraic and Roman Law Collections until his retirement on June 30, 1976, but continued to teach at Boalt Hall until 1994. He was an omnipresent figure in the law library's old Robbins reading room until 1996, when failing health prevented him from coming to the law school. A great many scholars, as well as David's family, students, and friends, and David himself, believe that he did his most creative work while he was at Berkeley. David often explained that the sense of freedom, openness, and diversity at Berkeley allowed him to expand his views. He applied his powerful mind and rigorous training to people and ideas that previously had fallen outside his realm of inquiry. It was at Berkeley that he most fully demonstrated his mind-boggling range of interests and accompanying understanding. David often said, however, that he could not have flourished at Berkeley if he had not already mastered the disciplined aspects of scholarship.

In 1985, the Oakland Tribune ran an article about David with which he was especially pleased. He loved the reporter's portrayal of him as the last of the hippies, and was utterly charmed by the description of his long, wild, beautiful white hair as looking like a dandelion gone to seed. In spite of his lofty credentials, David took true joy in the simplest things. A leaf, a cloud, a 'small beast' as he used to call all forms of insect life, would send him into wonderful discourses on beauty and the nature of life.

I have not spoken of his family, because that is a complex story in itself. Suffice it to say that David's three sons were the meaning of his life. His six grandchildren were a source of enormous joy, fascination, and hope. David also had the wonderful good fortune to meet and marry his second wife, Helen, and to share in the upbringing of her two children. This made David's years in Berkeley infinitely richer.

David Daube was an absolutely brilliant, committed scholar who lent his prestige, integrity, and honor to Boalt Hall for nearly thirty years. I can only wonder at Boalt's sheer good fortune in this, because it is not something we (or any university) could have earned or deserved. He had vast knowledge of the texts upon which western-raised people have founded their lives for more than two thousand years. He also saw and experienced almost every horror of the 20th century. His ability to understand truth and reality is unmatched. To say he will be missed only touches the surface. Leonor Clelo, who was David's secretary during his last years at Boalt, put it best when she asked, "What will happen to the world now that David Daube is gone? How can we enter into the new millennium without him?" There will never be a scholar of David's caliber and insight again. He was one of the 20th century's most impressive and most deeply human creations. He was also one of the dearest friends I have ever had.

[FN1]. David Daube, Organ Transplants: Cannibalism, Consent, and Control, 18:2 Colorado Quarterly 134 (1969).

[FN2]. David Daube, Civil Disobedience in Antiquity (1972).

[FN3]. David Daube, Die Gerburt der Detektivgechichte aus dem Geiste der Rhetorik (1983).

[FN4]. David Daube, Medical and Genetic Ethics; Three Historical Vignettes (1976).

[FN5]. David Daube, Shakespeare on Aliens Learning English (1942).