A.M. (Tony) Honoré, “Daube, David (1909-1999),” Oxford Dictionary of National Biography, Oxford University Press, 2004
Daube, David (1909-1999), jurist, was born in Freiburg im Breisgau, in Baden, Germany, on 8 February 1909, the younger son of Jakob Daube (1875–1954), a wine merchant, and his wife, Selma, née Ascher, from Nördlingen. Both parents were Orthodox Jews. Throughout his life he remained a loyal Badener and a loyal Jew, rigidly Orthodox in his youth and middle years, though with some relaxation in later life. The family was comfortably off. In Freiburg he attended the Berthold Gymnasium and studied law at Freiburg University. At a seminar organized by Fritz Pringsheim he met and became friendly with the octogenarian Otto Lenel. Lenel had revolutionized the study of Roman law by reconstructing the praetor's edict and fixing the original setting of the texts that form part of Justinian's sixth-century codification. Daube became expert in the Lenel method. He applied it, and insights derived from Hempel and from form criticism, to Roman, biblical, and rabbinic sources, and later to the New Testament. He qualified with distinction for a doctorate with Hempel at Göttingen in 1932 but, because it was on Old Testament law, his thesis could not be published in the Third Reich and the degree was not awarded until 1962. Besides his expertise in these areas, Daube's armoury included a dozen or more ancient and modern languages and a deep knowledge of classical, German, French, and English literature.

Daube had heard Hitler speak and was impressed by the menace he presented. When the Nazis came to power in 1933 Lenel, himself of Jewish stock, regretfully concurred in Daube's decision to leave, at least temporarily, for England. Daube left later that year with an introduction from Lenel to the Roman lawyer Herbert Felix Jolowicz in London and from Pringsheim to William Warwick Buckland, professor of civil law at Cambridge. This led to his working with Buckland for a doctorate on Roman law in Cambridge, which he obtained in 1936. With Buckland's sponsorship Daube taught Roman law at Cambridge first as a fellow of Gonville and Caius College from 1938 to 1946 and then, from 1946 to 1951, as a university lecturer. His English, rudimentary when he first arrived in England, became witty and idiomatic. From then on he wrote mainly in English, though in speech he retained a strong Baden accent. In 1936 he married Herta Aufsesser (b. 1914) in Munich. They had three sons: Jonathan (b. 1937), Benjamin (b. 1946), and Michael (b. 1948). With the help of Philip Grierson, a young fellow of Gonville and Caius College, and others he was able to arrange for his brother Benjamin and his own and his wife's parents to come to England in 1938.

Daube was briefly interned in 1940 but was soon released. He worked in London during the war on school and hospital evacuation. After the war he quickly resumed contact with most of his German colleagues, particularly his lifelong friend Wolfgang Kunkel, who had never compromised with Nazism. He helped to put the Savigny Zeitschrift, the most prestigious legal history periodical, on its feet again. In the 1940s, on account of his knowledge of Aramaic and the Talmud, he was invited to attend the New Testament seminar run by Charles Harold Dodd in Cambridge. It aroused in him an absorbing interest in the rabbinic background to Christianity and he learned to use the technique of form criticism. New Testament studies was the area in which he was to make his most original contribution to scholarship, in his eyes also a contribution to Jewish–Christian relations. He reinterpreted many New Testament texts in the light of Talmudic scholarship. The Christian scriptures could be reappraised as a form of Jewish literature, New Testament Judaism.

After the war Daube and his wife became British subjects, and Daube retained his new nationality thereafter. In 1947 he published his first book, Studies in Biblical Law. Turned down for a chair of Roman law at Edinburgh, and refusing one at the Hebrew University of Jerusalem, he became professor of jurisprudence at Aberdeen in 1951 and regius professor of civil law at Oxford from 1955 to 1970. Like some other Jewish refugees, Daube helped to introduce new standards of scholarship to British universities. His most lasting contribution to Roman law was a long paper (1959), written in a sober German, that carried forward Lenel's work of restoring legal texts to their original setting. He was a learned and entertaining lecturer, and his pyrotechnics could captivate the most unlikely students. At the doctoral level his rigorous supervision fostered a school of researchers in both Jewish and Roman law. His pupils were devoted to him, and he in return was good at securing them posts, even if this involved overstating their merits. During his Oxford period he published many papers and three books: Forms of Roman Legislation (1956), The New Testament and Rabbinic Judaism (1956), his most substantial work, and the highly original Roman Law: Linguistic, Social, and Philosophical Aspects (1969). They sparkle with original insights, along with some mirages. His virtuosity extended to a talk on the origins of Humpty Dumpty: not an egg but a ‘tortoise’—a siege engine used in the English civil war. He was a master of the pithy phrase.

Though now the most eminent Roman lawyer in Britain, Daube during the 1960s became restless. He grew disillusioned with Oxford and All Souls College, of which he was a fellow. The compulsory study of Roman law was being eroded. The climate did not, he claimed, suit his asthma. He was a ‘rotten husband’ (Jonathan Daube, funeral eulogy, Berkeley law faculty website), as he would have been the first to admit, and his divorce in 1964 was followed by bitter and protracted litigation. He travelled round the world and spent much time in California with Helen Smelser, née Margolis, whom he eventually married in 1986. Reinforcing his German links, he had a flat in Constance, where he was a visiting professor from 1966 to 1976. In 1970 he resigned the Oxford chair and from then until 1981 was professor in residence at Boalt Hall school of law, at the University of California, Berkeley, and joint director of the Robbins Hebraic and Roman law collections in the library there. He gave exciting and well-attended lectures, but spent most of his time, then and after retirement, studying and writing in a cramped room in the Boalt Library. He lived in a run-down area of North Beach, San Francisco.

Of Daube's books, only The New Testament and Rabbinic Judaism (1956) was lengthy and none of his writing was systematic. His essays—the word that best fits his favoured genre—nearly always began from a text or word and spread outwards to illuminate, often with panache, an area of human experience. Many had contemporary echoes: Collaboration with Tyranny in Rabbinic Law (1965), Civil Disobedience in Antiquity (1972), Johann ben Beroqua and women's rights (1982), Appeasement and Resistance (1987). Though apparently disjointed, the essays often centred on a recurring type, such as the Jewish collaborator Flavius Josephus. Many of his pieces were short, but together they mounted up. His collected works include not only two volumes of Collected Studies in Roman Law (1991) and a volume on Talmudic law (1992), but others on the New Testament and biblical law, along with a collection of miscellaneous pieces, Varia.

Daube received, and greatly enjoyed receiving, many honours. He was a fellow of the British and Bavarian academies. His range of learning was such that for his sixty-fifth birthday three Festschriften were published, one each on Jewish and Roman law and the New Testament. Cambridge, Paris, and Munich, among other universities, awarded him honorary degrees, but that conferred in 1990 by Aberdeen, where he held his first chair, gave him as much pleasure as any.

Daube liked to startle. It was not always easy to know how seriously to take what he said or wrote. He loved puzzles, chess, limericks, and dodges, such as the dodge of the high-born Roman lady who registered as a prostitute to avoid being punished for adultery. But despite a cover of playfulness, he was both deeply serious and unsure of ultimate truth. Even the pope had doubts, he said: he knew, because he had asked him. In California he affected a hippyish lifestyle. But though on the surface empathizing with rebellious students, he remained at core a meticulous German scholar. His timely emigration from the Third Reich bore fruit in his adopted countries. It gave them a fresh spurt in the study of Talmudic and Roman law and of the New Testament.

Tall, with hawklike eyes, jet-black hair (when young), and a waxen complexion, Daube looked the Jewish scholar that he was. A father who insisted on his children being taught Hebrew in German before breakfast was hardly an easy person to live with. He did not mean to be easy. But, though maddeningly unbusinesslike, he had a gift for friendship, entertained generously, and in later life established good relations with his children and grandchildren. Supported by his Boalt Hall colleagues he continued in his eighties to publish challenging articles. His last papers, published in 1994–5, were about Judas, the betrayer of Jesus, whose repentance, he argued, is to be taken seriously and whose suicide contemporary Judaism would not have condemned out of hand. After some years of ill health Daube died at Pleasant Hill Nursing Home, Pleasant Valley, California, on 24 February 1999. He was buried in Oakland cemetery, California. He was survived by his first wife, Herta, their three sons, and his second wife, Helen.

Tony Honoré


A. R. Rodger [Lord Rodger of Earlsferry], ‘David Daube’, Savigny Zeitschrift, 118 (2001) · www.law.berkeley.edu/library/daube [incl. eulogies by Jonathan Daube, Michael Daube, and W. D. Davies, ‘A gentle hawk’] · WWW · The Scotsman (10 March 1999) · The Independent (5 March 1999) · The Guardian (12 March 1999) · The Times (28 April 1999) · Frankfurter Allgemeine Zeitung (1 March 1999) · D. Nörr, Nachruf, Bayerische Akademie der Wissenschaften (1999), 264–70 · private information (2004) · personal knowledge (2004) · P. Stein, ‘David Daube, 1909–1999’, PBA, 111 (2000), 429–44