Legal Commentaries in International Comparison

In German legal literature, commentaries on codifications or individual statutes are a core publication format. Characterized by a scholarly approach that also looks closely at legal practice, commentaries are seen as a characteristically German phenomenon. Until now there has been no comparative research on the significance of legal commentaries in other jurisdictions. This gap has been closed by an edited volume that offers a differentiated portrayal of the various commentary formats in the context of each jurisdiction’s respective legal culture and legal history.

“Legal Commentaries: An International Comparison”, edited by Institute Director together with Reinhard Zimmermann David Kästle-Lamparter and Nils Jansen serves also as a building block for conducting research on different legal cultures in Europe and around the world. Thirteen country reports, including on France, Italy, Spain, the USA, Latin America, Japan, Russia and Israel, as well as essays on EU law and transnational private law reveal a diverse landscape of legal commentaries. The scope of inquiry is not limited to the modern German legal commentary. Related formats of legal literature are also taken into account. The analysis shows that we are not dealing here with a purely German phenomenon.

In his contribution “Privatrechtliche Kommentare im internationalen Vergleich. Verbreitung, Varianz, Verwandtschaft“ (Private Law Commentaries in International Comparison. Distribution, Variance, Relationships), Reinhard Zimmermann examines the similarities and differences in the commentary culture of national private law systems and transnational private law. He points out what role commentaries can play in the future as a bridge between different legal cultures against the background of an increasing Europeanization and globalization of the law.

Also included among the authors is Institute Director Ralf Michaels, who in his contribution examines the question of whether the commentary culture, possessing transnational origins, could return to its medieval roots with the current transnationalization of private law. He rejects this proposition on the ground that reference texts in the pre-national age mostly enjoyed universal acceptance. By contrast, the commentaries on the non-binding transnational reference texts of the present era have the main function of creating order or at least simulating order in a global legal reality that is perceived as confusing.

Open Access

The papers by Reinhard Zimmermann and Ralf Michaels are available Open Access on SSRN in the Max Planck Private Law Research Paper Series:

Reinhard Zimmermann: Privatrechtliche Kommentare im internationalen Vergleich: Verbreitung, Varianz, Verwandtschaft
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3720155 

Ralf Michaels: Kommentare zum transnationalen Privatrecht. Grenzen der Entnationalisierung eines nationalen Modells 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3723826