Commentators is the name given to a group of legal scholars who dealt with the interpretation of the texts of the so-called Corpus Iuris Civilis between the late 13th and the end of the 15th century . They coined the mos italicus , which originated in Italy and tried to combine Roman legal theory with legal practice.
Konsiliator ( lat. Consilium : advice, expert opinion) is another term used by commentators, who are also called post-glossators , to refer to the expert activity .
Differentiation from the glossators
After the late ancient Roman digests had been rediscovered in the last third of the 11th century by representatives of the legal school of Bologna , the so-called glossators , the legal sources contained therein were provided with explanatory texts ( glosses ), either in the margin of the text or between the lines of the original text were attached. They contained information on the meaning of individual words or text passages and thus had an exegetical character for the original text. The glossators wanted to make the Justinian texts accessible themselves. The glossators could not set effects on the legal practice, which was shaped by the canonists and by personal and local rights, since the corpus iuris lacked direct impact on everyday legal life. For them, Justinian's law was already directly practical law, and Roman law was regarded as the law of the western empire and at the same time the ius commune with a claim to validity . The same working method was transferred to sources of canon law (in particular the texts of the Corpus Iuris Canonici ), which in the Middle Ages and later in the early modern period assumed an important legal practical position alongside the Roman legal texts. Over time, the explanations became more and more detailed. In this way, extensive gloss apparatuses emerged. The work of the glossators found its conclusion in the gloss apparatus of the Accursius , who created the Glossa ordinaria in the middle of the 13th century . In this work, Accursius combined various apparatuses of glosses into a single explanatory work.
The lawyers who followed Accursius no longer wrote glosses. Shaped by the scholasticism driven by theology , the commentators were already beginning to open up to a systematic exploration of the legal material. They noticed in particular that the glossed law hardly had any points of contact with the real municipal statutory law. Since the legal influences were not exhausted in this, but Longobard legal influences also had an effect and canonical law also applied, they looked for a link between the individual rights. Ultimately, real legal law arose, unhistorical and downright authority-bound, but it helped Roman law on its way. These writings, which were later attested in bad Latin , testify to a very creative legal activity that soon shaped the intelligent thinking of the time and prepared the breeding ground for the mos italicus , which soon found recognition in large parts of Europe. So far there was no only receptive work on Roman law. The scientific approaches were further developed through the findings of the time of humanism , which from then on also required legal scholars to have philological knowledge and a historical awareness.
The commentators prepared detailed explanations of the individual legal passages ( leges ) of the Corpus Iuris, which was then still known as this . These explanations, which followed the source text less closely than the earlier glosses, were called comments, which helped the authors to call them commentators or post-glossators. The commentators were active to a far greater extent than their predecessors, because they entered into a real competition with the canonists for new legal creations. Both disciplines became avant-garde of modern private law dogmatics and established the style of European jurisprudence that prevailed up into the 17th century, temporarily slowed for the first time by the purism of the humanists. They succeeded in reconciling the existing local, clerical and Roman legal approaches and thus making Roman law suitable for everyday use. In particular, they created expert opinions, so-called consilia , for legal cases that are difficult to decide . These legal opinions have been collected and published. The designation of the commentators as consultants comes from this expert activity.
The commentators opened up areas of law that did justice to the political, social and economic realities. Institutions and disciplines for which the legal basis was still lacking in Justinian law - apart from individual casuistic provisions - because they were of church or Germanic origin, were developed by them, such as a criminal law in complexu , interlocal and commercial law, as well as the process for disputes from it. Marital property law, land use rights and the law of corporations also took shape under them. The interpretation of Justinian texts was to be carried out more freely and carefree than it was with the glossators. The publications in the consultation literature were included.
In so far as the public perception of the glossators was primarily still carried by the “spiritual Rome idea of the High Middle Ages”, “the authority of the consultants was essentially based on coping with the present” ( Wieacker ). Taken together, both the theory of the glossators and, based on them, the practice of the consultants had a lasting influence on the social order of Europe, because the new jurisprudence served classical European standards for public disputes, the rational spirit and a methodical awareness.
The first lawyers to be counted as part of the commentary school were - like Petrus de Bellaperthica and Jacobus de Ravanis († 1296) - working in southern France at the end of the 13th century. In particular, Cino da Pistoia (around 1270–1336), contemporary and compatriot of Dante and author of the Lectura super Codice (commentary on the first nine books of the Codex Iustinianus ), made the new direction known in Italy. One of the students of Cinus was Bartolus de Saxoferrato (1313–1357), who, together with his student Baldus de Ubaldis (1327–1400), is likely to be the most important representative of the school of commentators, the views of these two lawyers achieved almost the same effect in judicial practice. The commentaries of Bartolus are considered by scholars to be even more important than the Glossa ordinaria des Accursius.
From the 15th century, Paulus de Castro († 1441) and Iason de Mayno (1435–1519) deserve mention. Iason de Mayno was the teacher of Andreas Alciatus (1492–1550), the founder of the new humanistic jurisprudence (also: mos gallicus ), which was based on an exact philological and historical understanding of sources and was less concerned about the practical application of the received Roman law . Even after Jason there were still practically oriented lawyers who worked according to the commentator's method. These followers of the so-called mos italicus (Italian method, because the most important commentators were Italians, while the main exponents of the new humanistic jurisprudence worked in France) in the 16th and 17th centuries are no longer regarded as representatives of the commentary school.
From the 15th century onwards, the consultants favored the full reception of Roman law in Germany as well.
- Paul Koschaker : Europe and Roman law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966. pp. 87 ff. (87 f.).
- Franz Wieacker : History of private law in the modern age. With special consideration of the German development. 2nd, revised edition from 1967, 2nd unaltered reprint, 13-14. Thousand. Vandenhoeck & Ruprecht, Göttingen 1996, ISBN 3-525-18108-6 , p. 80 ff.
- Franz Wieacker : History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. pp. 80 f.
- Gerhard Dulckeit : SZ , Romance Department (RA, ) 56, 400 f.
- Wolfgang Kunkel , In: Sources for the recent history of private law. First volume, half volume: Landrechte des 16. Century (Weimar 1938), esp.IX ff.
- Franz Wieacker: History of private law in the modern age. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. p. 87.
- Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 2 no. 7 (p. 24).
- Norbert Horn : The legal literature of the time of commentators and the spread of learned law. In: Helmut Coing (Hrsg.): Handbook of the sources and literature of the recent European history of private law. Volume 1: Middle Ages (1100–1500). The learned rights and the legislation. Beck, Munich 1973, ISBN 3-406-03631-7 . Pp. 261-364.
- Paul Koschaker : Europe and Roman Law . 4th edition, CH Beck'sche Verlagbuchhandlung. Munich, Berlin 1966. pp. 87-105.
- Martin Schermaier : The determination of the essential error from the glossators to the BGB (= research on the modern history of private law. Volume 29). Böhlau Verlag Vienna / Cologne / Weimar 2000.
- Franz Wieacker : History of private law in modern times. Taking into account the German development. 2nd edition, Vandenhoeck & Ruprecht, 1967. pp. 80-96.