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 p639  Institutiones

Article by George Long, M.A., Fellow of Trinity College
on pp639‑640 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

INSTITUTIO′NES. It was the object of Justinian to comprise in his Code and Digest or Pandect, a complete body of law. But these works were not adapted to elementary instruction, and the writings of the ancient jurists were no longer allowed to have any authority, except so far as they had been incorporated in the Digest. It was, therefore, necessary to prepare an elementary treatise, for which purpose Justinian appointed a commission, consisting of Tribonianus, Theophilus, and Dorotheus. The commission was instructed to compose an institutional work which should contain the elements of the law (legum cunabula), and should not be encumbered with useless matter (Prooem. Inst.). Accordingly, they produced a treatise, under the title of Institutiones, or Elementa (De Juris docendi Ratione), which was based on former elementary works of the same name and of a similar character, but chiefly on the Commentarii of Caius or Gaius, his Res Quotidianae, and various other Commentarii. The Institutiones were published with the imperial sanction, at the close of the year A.D. 533, at the same time as the Digest.

The Institutiones consist of four books, which are divided into titles. They treat only of Privatum Jus; but there is a title on Judicia Publica at the end of the fourth book. The judicia publica are not treated of by Gaius in his Commentaries. Heineccius, in his Antiquitatum Romanarum Jurisprudentiam illustrantium Syntagma, has followed the order of the Institutiones. Theophilus, generally considered to be one of the compilers of the Institutiones, wrote a Greek paraphrase upon them, which is still extant, and is occasionally useful. The best edition of the paraphrase of Theophilus is that of W. O. Reitz, Haag, 1751, 2 vols. 4to. There are numerous editions of the Latin text of the Institutiones. The editio princeps is that of Mainz, 1468, fol.; that of Klenze and Boecking, Berlin, 1829, 4to, contains both the Institutiones and the Commentarii of Gaius; the most recent edition is that of Schrader, Berlin, 1832 and 1836.

There were various institutional works written by the Roman jurists. Callistratus, who lived under Septimius Severus and Antoninus Caracalla, wrote three books of Institutiones. Aelius Marcianus wrote sixteen books of Institutiones under Antoninus Caracalla. Florentinus, who lived under Alexander Severus, wrote twelve books of Institutiones, from which there are forty-two excerpts in the Digest. Paulus also wrote two books of Institutiones. There still remain fragments of the Institutiones of Ulpian, which appear to have consisted of two books. But the first treatise of this kind that we know of was the Institutiones of Gaius in four books. They were formerly only known from a few excerpts in the Digest, from the Epitome contained in the Breviarium, from the Collatio, and a few quotations in the Commentary of Boethius on the Topica of Cicero, and in Priscian.

The MS. of Gaius was discovered in the library of the Chapter of Verona, by Niebuhr, in 1816. It was first copied by Goeschen and Bethman-Hollweg, and an edition was published by Goeschen in 1820. The deciphering of the MS. was a work of great labour, as it is a palimpsest, the writing on which has been washed out, and in some places erased with a knife, in order to adapt  p640 the parchment for the purposes of the transcriber. The parchment, after being thus treated, was used for transcribing upon it some works of Jerome, chiefly his epistles. The old writing was so obscure that it could only be seen by applying to it an infusion of gall-nuts. A fresh examination of the MS. was made by Blume, but with little additional profit, owing to the condition of the manuscript. A second edition of Gaius was published by Goeschen in 1824, with valuable notes, and an Index Siglarum used in the MS. The preface to the first edition contains the complete demonstration that the MS. of Verona is the genuine Commentarii of Gaius, though the MS. itself has no title. An improved edition of Goeschen's by Lachmann appeared in 1842.

It appears from the Institutiones that Gaius wrote that work under Antoninus Pius and M. Aurelius.

Many passages in the Fragments of Ulpian are the same as passages in Gaius, which may be explained by assuming that both these writers copied such parts from the same original. Though the Institutiones of Justinian were mainly based on those of Gaius the compilers of the Institutiones of Justinian sometimes followed other works: thus the passage in the Institutes (II tit. 17 §2, "si quis priori") is from the fourth book of Marcianus' Institutes (Dig. 36 tit. 1 s29); and, in some instances, the Institutiones of Justinian are more clear and explicit than those of Gaius. An instance of this occurs in Gaius (III.109) and the Institutiones of Justinian (III tit. 19 s10).

Gaius belonged to the school of the Sabiniani [Jurisconsulti]. The Jurists whom he cites in the Institutiones, are Cassius, Fufidius, Javolenus, Julianus, Labeo, Maximus, Q. Mucius, Ofilius, Proculus, Sabinus, Servius, Servius Sulpicius, Sextus, Tubero.

The arrangement of the Institutes of Justinian is the same as that of the work of Gaius; whatever difference there is between them in this respect, is solely owing to the changes in the Roman law, which had been made between the time of Gaius and that of Justinian. There has been considerable difference of opinion as to the nature of the arrangement of Gaius; and it is obvious that most persons have misunderstood it. According to Gaius: "omen jus quo utimur vel ad personas pertinet, vel ad res, vel ad actiones" (I.8). It is generally supposed that the division (the first book) which treats of Persons comprehends the status or condition of persons as the subjects of rights; others affirm that it treats of legal capacity, or of the three conditions which correspond to the threefold capitis deminutio. But the first book of Gaius which treats of Persons contains both matter which has nothing to do with legal capacity, for it does not treat of one of three chief divisions which relate to legal capacity, that of Cives, Latini, Peregrini. It treats in fact only of Marriage, Patria Potestas, Manus, Slavery, Patronatus with respect to the different classes of freed men, Mancipium and Tutela. Accordingly, this part of the work treats only of persons so far as they belong to Familia, in the widest and Roman acceptation of that term. The part which treats of res comprehends the Law of owner­ship, &c. and Law of Obligationes, which two divisions occupy the second and third books. The fourth book treats of Actiones, which is the third of the three divisions of Gaius. The division of Gaius is faulty in several respects; but this does not detract from the merit of the work, which is perspicuous and abounds in valuable matter. This view of the nature of the division of Gaius is from Savigny (System, &c., vol. I p393, &c.).

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