7.3.2 The Commentators

By the close of the thirteenth century, the attention of the jurists had shifted from the purely dialectical analysis of Justinian’s texts to problems arising from the application of the customary and statute law and the conflicts of law that emerged in the course of inter-city commerce.

The enthusiasm for the study of the ancient texts that had enticed many students and scholars to Bologna in the twelfth century now waned, and the place of the Glossators was assumed by a new kind of jurists known as Post-glossators (post-glossatores) or Commentators (commentatores). The new school with chief centres at the universities of Pavia, Perugia, Padua and Pisa, reached its peak in the fourteenth century and remained influential until the sixteenth century.

The rise of the Commentators ’ school was not unrelated to the new cultural and political conditions that emerged in the later part of the thirteenth century. Of particular importance was the gradual erosion of the traditional dualism of a universal Church and a universal Empire as a result of the crises affecting both institutions^{^[709]}; and the growing strength of nation and city-states in Europe, which were able to develop their political structures with little interference from higher universal entities. During the same period, scholastic philosophy reached its pinnacle with the work of the catholic theologian Thomas Aquinas (1225-1274), who synthesized Aristotelian philosophy and Christian theology into a grand philosophical and theological system. The new dialectic that this philosophy forged was not restricted to theological-metaphysical speculation but permeated the study of both public and private law.

Unlike the Glossators, the Commentators were not concerned with the literal reading and exegesis of Justinian’s texts in isolation but with constructing a complete legal system by adapting the Roman law of Justinian to contemporary needs and conditions.

The positive law that applied in Italy at that time was a mixture of Roman law, Germanic customary law, canon law, and the statute law of the empire and the various self-governing Italian cities. The Commentators endeavoured to integrate these bodies of law into a coherent and unitary system. In executing this task, they abandoned the excessive literalism of the early Glossators and sought to illuminate the general principles of law by applying the methods of rational inquiry and speculative dialectics—thereby building an analytic framework or ‘dogmatic construction’ of law. Furthermore, in their roles as legal consultants and administrators, they contributed significantly to the development of case law, which also provided a fertile ground for the progressive refinement and testing of their concepts and analytical tools. Indeed, many of their theoretical propositions and dogmatic constructions evolved out of the pressures of actual cases. On the other hand, since the Commentators were mainly concerned with the development of contemporary law, they tended to pay scant attention to the primary sources of Roman law. Thus, the synthesis that occurred was between the non-Roman elements and the Roman law of Justinian as expounded by the Glossators. Systematic treatises and commentaries were written based on this body of law, especially in areas of the law where there was a need for the development of new principles for legal practice.^{^[710]}

Among the earliest Commentators was Cino of Pistoia (1270-1336), a student of the French masters Jacques de Revigny and Pierre de Belleperche. Cino began his teaching career at Siena, having been for about 10 years active in practice, and moved to Perugia in 1326. There he composed his great commentary, the Lectura super Codice, which continued to be read and cited for more than a century.^{^[711]} At Perugia Cino was the master of Bartolus of Saxoferrato, the most influential of the Commentators and one of the great jurists of all time.

Bartolus (1314-1357) obtained his doctorate at Bologna and lectured at Perugia and Pisa, where he also served as judge.

He produced a monumental commentary on the entire Corpus Iuris Civilis, which, like Accursius’s Great Gloss, was acknowledged as a work of authority and extensively used by legal practitioners and jurists throughout Western Europe. Bartolus also dictated legal opinions and composed a large number of monographs on diverse subjects. His reputation among his contemporaries was unsurpassed and his writings came to dominate the universities and the courts for centuries. In Italy, where the doctrine of communis opinio doctorum operated (whereby the solution supported by most juristic authorities should be upheld by the courts), the opinions of Bartolus were regarded to possess the same weight as the Law of Citations had accorded to the works of Papinian.^{^[712]}

Another influential jurist of this period was Baldus de Ubaldis (c. 1327-1400), a pupil of Bartolus. Baldus taught at Bologna, Perugia and Pavia and was also much involved in public life. Unlike Bartolus, he was a canonist and a feudalist as well as a civilian.^{^[713]} He was best known for his opinions (consilia) that proposed solutions for problems arising from actual cases, especially cases involving a conflict between Roman law and local laws and customs.^{^[714]}

The Commentators were remarkably flexible in their interpretation and application of the Roman texts regardless of the original context. They did not hesitate to apply a text to address a current issue, no matter how obsolete they might know its real meaning to be, if its use could be fruitful. However, when they derived arguments from materials that had little or no relation to current affairs, they were not recklessly distorting Roman law to fit their own needs but were consciously adopting its principles to develop new ideas. Their use of the Roman texts was partly due to a feeling that it was important to support a conclusion by reference to some authority, no matter how reasonable in itself the conclusion might have been.

The reconciliation of the scholarly Roman law and local law that was achieved though the Commentators’ work produced what is referred to as ‘statute theory’, the notion that in the fields of legal practice local statutes were the primary source, while Roman and canon law were supplementary.

However, in spite of the priority bestowed on statutory law, the Roman law-based civil law could prevail in various ways. First, a statute might expressly embody elements of Roman law, and to that extent Roman law shared in the statute’s primary authority. Second, a statute might contain technical terms or concepts, which would in almost all cases be construed in the civilian sense, especially since it was accepted that statutory enactments had to be interpreted in such a way as to involve the least possible departure from the civil law. Even when a statute required strict interpretation of its text, it could often be argued that it required declaratory interpretation in light of other available legal sources.

The Commentators succeeded both in adapting Roman law to the needs of their own time and in imbuing contemporary law with a scientific basis through the theoretical elaboration of Roman legal concepts and principles.^{^[715]} Of particular importance was their contribution to the development of criminal law, commercial law, the rules of legal procedure and the theory of conflict of laws. It was the Commentators who constructed on the basis of the Roman texts on criminal law a legal science and who created a general theory of criminal responsibility. It was they who developed commercial law in such areas as negotiable instruments or partnership; who articulated the concept and principles of international private law; who devised the detailed rules of romano-canonical procedure on the basis of the Roman cognitio procedure; who formulated doctrines of legal personality for entities other than human beings; and who gave substance to the notion of the rights of a third party to a transaction and to the law of agency. The work of the Commentators played a major part in the creation of the ius commune and enabled the reception of Roman law throughout Western Europe in the fifteenth and sixteenth centuries.^{^[716]}

7.4

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

7.3.2 The Commentators

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