postglossators

The postglossators or commentators formed a European legal school which arose in

Italy Italy ( it, Italia ), officially the Italian Republic, ) or the Republic of Italy, is a country in Southern Europe. It is located in the middle of the Mediterranean Sea, and its territory largely coincides with the homonymous geographical ...

and

France France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of overseas regions and territories in the Americas and the Atlantic, Pacific and Indian Oceans. Its metropolitan area ...

in the fourteenth century. They form the highest point of development of medieval Roman law. The school of the ''

glossator The scholars of the 11th- and 12th-century legal schools in Italy, France and Germany are identified as glossators in a specific sense. They studied Roman law based on the '' Digesta'', the ''Codex'' of Justinian, the ''Authenticum'' (an abridged ...

s'' in

Bologna Bologna (, , ; egl, label=Emilian language, Emilian, Bulåggna ; lat, Bononia) is the capital and largest city of the Emilia-Romagna region in Northern Italy. It is the seventh most populous city in Italy with about 400,000 inhabitants and 1 ...

lost its vitality, resulting in the rise of a new school of legal thought in the 14th century, centred on

Orléans Orléans (;"Orleans"
(US) and Bartolus and Baldus were the most famous of the commentators. Rather than simply seeking to explain the law, the commentators were more concerned with the potential for practical application of the law. Politically at this time, the idea of the Spirit of One – one church and one empire, was popular in Europe.

Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Ju ...

thus appealed as bringing the potential for one law in addition. Roman law was written and certain as well as being generally consistent and complete. The educated liked its roots and saw the potential for application. The commentators faced head on the conflict of law with custom as they saw the potential for practical application of the Roman law. They were opportunistic and as

medieval Italy The history of Italy in the Middle Ages can be roughly defined as the time between the collapse of the Western Roman Empire and the Italian Renaissance. The term "Middle Ages" itself ultimately derives from the description of the period of "obsc ...

flourished, there were many opportunities to be the mediator between the developing political, scientific and economic spheres. Thus many of their ideas were based on practical morality, bold construction of the law and clever interpretations. For example, feudal law, which violated the absoluteness of dominium, was harmonised with Roman law by drawing links with the long lease, which gave rise to a vindicatio directa. The commentators argued that the vindicata directa was evidence of another type of ownership and that feudal ownership could fall within this category. This made Roman law more flexible, although was clearly a move away from the texts, and thus made it of greater practical use to rulers who were seeking a rational and coherent law. The Commentators went beyond the

glossators The scholars of the 11th- and 12th-century legal schools in Italy, France and Germany are identified as glossators in a specific sense. They studied Roman law based on the '' Digesta'', the ''Codex'' of Justinian, the ''Authenticum'' (an abridged ...

, who had treated each text separately. The commentators instead wrote prose commentaries on the texts (rather like lectures,) working through, book by book, through the Digest. Rather than simply taking individual Roman law texts at face value, making it useful for practical application involved considering the rationale and principles behind the law. Certain areas were thus not considered at all, for example, Bartolus makes no attempt to consider culpa. However, this general approach produced a far more sophisticated law and enabled harmonisation between Roman law and local law. For example, Roman law said that a will was valid if you had 5 witnesses and that Roman law superseded customary law, whilst Venice law only required 3 witnesses. Bartolus’ approach was to consider why Roman law superseded custom. He concluded that this was because custom was presumed bad. However, in certain circumstances, custom would be allowed by the Emperor, where the law was considered good. Since the

Venice Venice ( ; it, Venezia ; vec, Venesia or ) is a city in northeastern Italy and the capital of the Veneto region. It is built on a group of 118 small islands that are separated by canals and linked by over 400 bridges. The isla ...

law had come into practice after the Emperor, the Emperor had not considered if it were good law. However, it clearly was and therefore it should be allowed to continue. The Commentators also harmonised

canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...

with Roman law to some extent. Canonists argued that bare agreement could give rise to an action (but they only had jurisdiction where that agreement was made by oath.) The Commentators said that the canon law was simply a form of clothing which could make a bare pact enforceable. The extraction of general principles allowed Roman law to be used in situations which were unfamiliar to the Romans, it provided a coherent and convenient set of rules, which could then be used to interpret local customs, which were given primacy but very narrowly interpreted. The impact of the commentators was thus substantial. Their commentaries were found throughout Europe, in fact it was said that if one was not a Bartolist (a commentator), one could not be a lawyer at all. {{Authority control Roman law 14th century in law Philosophy of law