A Commentary on Commentaries: The Wissenschaftsrat on Legal Commentaries and Beyond

von Christian Djeffal

‘In the beginning was the word, the commentary followed swiftly…’ This wisecrack applies to many academic disciplines and it certainly applies to German legal academia. There are great many commentaries. As the Wissenschaftsrat very closely observed the practices of German legal academia, it also inquired into the genre of commentaries. What was there to say?

THE TEXT

Firstly, it defined commentaries:

“Legal commentaries usually refer to legal practice and help form structures and define principles in individual areas of law. … These commentaries render difficult legal material accessible for non-specialists, present norms in a systematic, interpretative context, provide information on the genesis of laws, and help practitioners use laws by selecting and interpreting their most important aspects.”(p22)

This definition assumes the defining features of commentaries: they appertain to an authoritative text they seek to explain. They give an account of legal practices relating to the text. As the report mentions later, “prefaces of commentaries to particular parts and sections of the law, which are often of a high standard, constitute important spaces to discuss the structure and principles of the law in a fundamental way.”(p22) The Wissenschaftsrat also observed that commentaries were “probably the most frequently cited legal publication genres”. (p54) The Wissenschaftsrat also observes an internationalisation of commentaries in the European and international sphere. (p69)

Three functions of the commentary are identified: it structures the law, it marks out its principles and it structures the discourse around the law. The recommendation goes on to critically review the current practice of writing commentaries.

“Since the 1990s, a growing number of commentaries dealing with legislation that has already been given extensive treatment have been published ...

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