Institutes (Gaius)

The ''Institutes'' (; from , 'to establish') are a beginners' textbook on Roman private law written around 161 AD by the classical Roman jurist Gaius. They are considered to be "by far the most influential elementary-systematic presentation of Roman private law in late antiquity, the Middle Ages and modern times". The content of the textbook was thought to be lost until 1816, when a manuscript of it − probably of the 5th century − was discovered by Barthold Georg Niebuhr.

The ''Institutes'' are divided into four books: The first book considers the legal status of persons (), the second and third deal with things (), while the fourth discusses Roman civil procedure (). The original Latin text with an English translation by Francis De Zulueta covers around 300 pages (with critical notes).

Discovery and textual history

An almost complete version of the ''Institutes'' was discovered by Barthold Georg Niebuhr in 1816 in the form of a palimpsest in Verona (Austrian Empire, now in Italy). Niebuhr had just accepted a post as Prussian ambassador to the Papal States, when he was dispatched to negotiate a concordat with the Catholic Church. On his way to Rome, he systematically searched for palimpsests in various libraries, and discovered the respective manuscript in the Chapter Library of Verona. Under the visible text of the manuscript, which contained letters of Jerome, Niebuhr found an erased copy of the textbook, copied around 500 AD. The manuscript was written in uncial script and used abbreviations. An '' apographon'' of the manuscript was made in 1874 by Wilhelm Studemund.

The content of the ''Institutes'' had until then only been indirectly documented, for example in Justinian's ''Digesta''. The manuscript discovered by Niebuhr is known today as the .

In a letter to the leading German jurist Savigny, Niebuhr had at first identified the manuscript as a work of Ulpian, but Savigny immediately suggested that it was, in fact, the famous work of Gaius. Savigny publicized the discovery of the manuscript and his conjecture, that Gaius' ''Institutes'' had been found, in the 1817 volume of his ' (Journal of Historical Jurisprudence).

The reason for Niebuhr's visit to Verona is still a somewhat contentious academic issue: Some scholars argue that Niebuhr was on a confidential mission to obtain the already discovered manuscript, while many others see a fortunate coincidence.

Egyptian fragments

The authenticity of the text of the was later confirmed by the discovery of further fragments of the ''Institutes'': In 1927, a fragment of the ''Institutes'' was found in Oxyrhynchus on papyrus scrolls, which are believed to have been written between about 170 and 230 AD (P.Oxy.XVII 2103). A further fragment was located in 1933 and bought by Medea Norsa in Cairo in the same year (PSI XI, 1182); the seller claimed that the fragment stemmed from Antinoöpolis. A comparison of the fragment with the established the firm consistency of the ''Institutes''.

Indirect transmission

The work of Gaius has also been indirectly handed down to modern times, as it was frequently used as a model for various legal writings during the 5th and 6th centuries. The so-called provides relatively little insight into the text. The late antique manuscripts of the and the so-called (contained as part 3 [] of the Breviary of Alaric, Lex Romana Visigothorum of Alaric II) attained greater importance for research. The influences of Gaius also found their way into the ''Digesta'' and the ''Institutiones Iustiniani'', which together with the and the formed the , the collection with which the Eastern Roman emperor Justinian restated Roman law in the 6th century.

Significance and authorship

Significance

The ''Institutes'' were produced around 161 AD under Roman emperor Antoninus Pius as a didactic work. In , they are described by the German legal scholar as "by far the most influential elementary-systematic presentation of Roman private law in late antiquity, the Middle Ages and modern times". Some consider Gaius and his ''Institutes'' to be the "true architect of Justinian's collection". Justinian himself described him as "" ('our Gaius').

The ''Institutes'' are also distinguished by the fact that they are the only almost completely preserved work of classical Roman jurisprudence. Before the discovery of the by Niebuhr, knowledge about classical Roman jurisprudence was only indirect through Justinian's compilation and classical Roman civil procedure had been entirely unknown.

The didactic value of the ''Institutes'' as a textbook has been seen positively because of its apparent comprehensibility and simplicity. Theo Mayer-Maly argued that Gaius' legal thinking is "much closer to the dogmatic tradition of continental uropeanjurisprudence (i.e. the striving for systems, the effort to form concepts and to classify, and the tendency towards abstraction) than the method of any other ancient jurist".

Authorship

The extent to which the ''Institutes'' have been written by Gaius alone, and what part of them, if any, are glosses or interpolations, is still only subject to scholarly speculation. However, scholars agree on the enormous significance of the (re-)discovery of the ''Institutes'' since "numerous legal institutions that the Justinianic commission left unmentioned as obsolete are known only through the new find".

Structure, content and influence

Structure and content of the ''Institutes''

The ''Institutes'' are divided into four books: The first book deals with persons and family law (), the second and third book deal with things (), while the last book considers civil procedure (). The ''Institutes'' only deal with private and not criminal law. They begin with a brief description of the sources of Roman law (G. Inst. 1.1–1.7). Gaius writes in translation of Edward Poste:

The first book of the ''Institutes'' classifies persons in three distinct ways: Firstly, free men, slaves and freedmen (G. Inst. 1.9–1.47); secondly persons, who are subject to another person (; G. Inst. 1.48–1.141), and thirdly persons who are subject to '' tutela'' () or (G. Inst. 1.142–1.200)''.''

The second book on things () begins with a list of things which cannot be subject to private property rights, namely and ; G. Inst. 2.1–11), before things, which can be subject to such rights, are categorized (G. Inst. 2.12–18). Then, the aquistion of things and obligations is extensively dealt with (G. Inst. 2.19–96). Finally, the second book concludes with an overview of parts of Roman inheritance law (G. Inst. 2.97–289), especially testamentary succession.

The exposition of Roman inheritance law continues in the third book (G. Inst. 3.1–87), mainly dealing with intestacy (G. Inst. 3.1–76). Then, the law of obligations () is presented and divided into contractual (; G. Inst. 3.89–181) and tortious obligations (; G. Inst. 3.182–225), including '' furtum''. Gaius does not deal with quasi-contracts and quasi-delicts in his ''Institutes''.

The last book gives an overview of 2nd century Roman civil procedure in 187 sections.

Influence on later civil codes

The structure of the ''Institutes'' – namely the structuring of private law into , and  – has become known as the . This classification scheme, probably borrowed from the Hellenistic textbook pattern, replaced and leveled previous structures and became a basic model followed by many modern civil law systems. For example, the Austrian (ABGB) is still structured according to the institutional system, in contrast to the German (BGB), which follows the pandectistic system. Furthermore, the structure of the ''Institutes'' was a model for the Castilian , the French and even the Corpus Juris Canonici.

Citing the ''Institutes''

In academic literature, the ''Institutes'' are sometimes cited as "Gai. 1,1" (referring to book 1, section 1 of the ''Institutes''), while other authors prefer "Gai. inst. 4,44" (referring to book 4, section 44 of the ''Institutes''). The '' Bluebook'' recommends the following citation style: "G. Inst. 1.144" (referring to book 1, section 144 of the ''Institutes'').

Editions

Multiple editions of the ''Institutes'' have been published since the discovery of the ', beginning with the '' editio princeps'' of (Berlin, 1820). The author of the 1911 ''Encyclopædia Britannica'' recommends the 1885 edition by Edward Poste, which includes an English translation.

The ''editio maior'', the major critical edition, of the ''Institutes'' is, however, still in the process of being published. It is edited by Martin David and (Gai Institutionum commentarii quattuor: 1954, 1960, 1968 ooks 1 and 2 and Hein L. W. Nelson and (Gai Institutiones: 1992, 1999, 2007 ook 3.

Other editions include one by Emil Seckel and (8th edition, Leipzig, 1939) and Francis de Zulueta, which contains Zulueta's own Latin text with an English translation and commentary (Oxford, 1946).
* 'Editio princeps''*
* ontains an English translation*
* ontains an English translation*
* ontains an English translation* ontains a German translation

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{{Authority control

2nd century in law
2nd-century texts
Law books
Rediscovered works
Roman law