The Institutes of Justinian

Summary

The Institutes of Justinian is a short official textbook of Roman law, issued at Constantinople on 21 November 533 and given the force of law, together with the Digest, from 30 December of that year. It was written for first-year law students: the preface, addressed to the youth desirous of studying the law, explains that the emperor, having reconquered Africa and set in order both the imperial constitutions and the writings of the old jurists, has commissioned Tribonian, Theophilus and Dorotheus to compose an elementary book so that beginners may learn the law as it is actually in force. The work follows the plan of the second-century jurist Gaius, whose own Institutes it often reproduces, and divides private law into persons, things and actions. Book I opens with definitions that became famous: justice as the constant purpose of giving each his due, jurisprudence as knowledge of things divine and human, and the three precepts of the law, to live honestly, to injure no one, and to give each his due. Title II distinguishes the law of nature, shared with animals; the law of nations, common to all peoples; and the civil law of a particular state. The rest of Book I treats persons: free and slave, freeborn and freedmen, the power of fathers over children, marriage, adoption, and the guardianship of children and the care of lunatics, spendthrifts and the infirm. Book II turns to things: what is common to all, such as air, running water and the sea; ownership and how it is acquired by occupation, accession or delivery; servitudes; and the law of wills and legacies. Book III completes succession on intestacy and then sets out obligations arising from contract: stipulations, loans, sale, hire, partnership and mandate. Book IV covers obligations from wrongs such as theft, robbery, damage to property under the lex Aquilia and insult, then the forms of action and procedure, and closes with a brief account of the public criminal prosecutions. The Institutes became the gateway to the whole Corpus Juris Civilis when the study of Roman law revived at Bologna around 1100. The library text is J. B. Moyle's English translation, complete in four books.

Plot or Argument

• Proem: arms and laws

  Justinian declares that imperial majesty must be armed with laws as well as glorified with arms, reviews the Code and the fifty books of the Digest, and presents the Institutes as the first elements of law for students.

• Book I, Titles 1-2: Justice and the kinds of law

  Definitions of justice, jurisprudence and the precepts of law; public and private law; natural law, the law of nations and civil law; written sources (statutes, plebiscites, senate decrees, imperial enactments, edicts, juristic answers) and custom.

• Book I, Titles 3-26: The law of persons

  Freedom and slavery, freeborn and freedmen and manumission; paternal power; marriage and its prohibited degrees; adoption and emancipation; guardians for children and curators for lunatics, prodigals and the infirm, with excuses from these duties.

• Book II: Things, ownership and wills

  Things common, public, corporate and private; acquisition by capture, accession, treasure-trove and delivery; servitudes and usufruct; usucapion and gifts; who may make a will and how; legacies and trusts.

• Book III: Succession and contracts

  Inheritance on intestacy and the claims of kin; then obligations arising from contract, by delivery (loan, deposit, pledge), by words (stipulation), by writing and by consent (sale, hire, partnership, mandate), and quasi-contract.

• Book IV: Wrongs, actions and public prosecutions

  Theft, robbery, wrongful damage under the lex Aquilia and insult; quasi-delicts; the kinds of actions, exceptions and interdicts; the duties of judges; and a closing survey of criminal trials under statutes on treason, adultery, murder and poisoning, forgery, violence and extortion.

Lessons

• Definitions as foundations

  The Institutes begin not with rules but with definitions of justice, jurisprudence and law. Students learn that a legal system rests on a conception of what is due to each person, and that rules are later applications of it.

  • Why would a law textbook begin with a definition of justice rather than a list of crimes?
  • Which of the three precepts of law (live honestly, injure no one, give each his due) is hardest for a court to enforce, and why?

• Three kinds of law

  Title II distinguishes natural law, the law of nations and civil law. The text admits tension between them: slavery comes from the law of nations yet is said to be against nature. Students see an ancient legal system naming a principle above its own practice.

  • What does it mean that the Institutes call slavery an institution of the law of nations contrary to nature?
  • If natural law is fixed and immutable while civil law changes, how should a lawmaker treat the two?
  • How does the idea of a law of nations later shape international law in writers like Grotius?

• Order makes learning possible

  The division of law into persons, things and actions, borrowed from Gaius, gave Western law a lasting map. The proem stresses teaching the beginner by an easy path before details, an educational principle as much as a legal one.

  • Why might the order persons, things, actions help a student remember the law?
  • What does Title I's concern for the student's weak and untrained memory suggest about how the compilers thought law should be taught?

• Responsibility for harm

  Book IV's treatment of the lex Aquilia asks when a person who causes loss must pay, distinguishing intention, carelessness and lack of skill with concrete cases: the pruner who drops a branch, the mule driver, the surgeon. These cases became the ancestors of the modern law of negligence.

  • Why is the tree-pruner who shouts a warning not liable, while one who does not is?
  • Is lack of skill a kind of fault? How do the surgeon cases answer that?

Context

Justinian came to the throne in 527 in a Greek-speaking eastern empire that still thought of itself as Roman and still used Latin for law. Roman law had grown for a thousand years through statutes, magistrates' edicts, imperial rescripts and the writings of jurists such as Gaius, Papinian, Paul and Ulpian, and by the sixth century it was vast and inconsistent. Justinian set out to restore it as he set out to restore the western provinces, and the proem joins the two projects explicitly.

Composition

A commission produced the Code of imperial constitutions in 529 (revised 534). Tribonian then directed the compilation of the Digest, fifty books of excerpts from the classical jurists, completed in 533. While it was being finished, Tribonian, Theophilus and Dorotheus drew up the Institutes, adapting Gaius's Institutes and other elementary works and bringing them up to date with Justinian's own reforms. The work was confirmed by the constitution Imperatoriam of 21 November 533 and took effect on 30 December 533. Later legislation was issued as the Novels, mostly in Greek.

Reception

In the East the Institutes were soon paraphrased in Greek, traditionally by Theophilus. In the West the text was little studied until the revival of Roman law at Bologna around 1100, associated with Irnerius, after which the Institutes, Digest, Code and Novels, later called the Corpus Juris Civilis, became the basis of legal education across Europe. Its definitions passed into canon law, into Aquinas's treatise on law, and into the civil codes of continental Europe and Latin America; Blackstone and others adapted the persons-things-actions plan for English law. The discovery of Gaius's own Institutes in a Verona palimpsest in 1816 let scholars see how much the compilers took from him. Moyle's translation (first published 1883 with his Latin edition) was a standard English version for Oxford students.

Comparisons

• commentaries-on-the-laws-of-england

  Blackstone's Book I, Of the Rights of Persons, adapts the Institutes' order of persons, things and wrongs to English common law, a deliberate echo of Justinian's student manual.

• magna-carta

  Where the Institutes descend from an emperor who holds the people's authority by the lex regia, Magna Carta is a negotiated grant binding the king, so the two show different routes to rule of law.

• summa-theologica

  Aquinas's treatise on law (I-II, qq. 90-97) takes up the distinction of natural law, law of nations and human law and cites the Roman definitions of justice.

• cicero-republic-and-laws

  Cicero's account of a true law of right reason, the same at Rome and Athens, stands behind the Institutes' natural law that is fixed and immutable among all nations.

• grotius-rights-of-war-and-peace

  Grotius builds his law of nations on the Roman ius gentium and repeatedly cites the Digest and Institutes, turning a category of private law into a framework for relations between states.

• procopius-secret-history

  Procopius gives the hostile private portrait of the same emperor whose proem here presents him as pious, victorious and devoted to justice.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The proem's pairing of arms and laws, and its account of how the Code, Digest and Institutes were made; note what Justinian says about God's blessing and about students.
• The definitions in Book I, Titles 1-2, which later writers from Aquinas to Blackstone cite; mark each one as you read.
• Places where the text admits a gap between natural law and actual practice, especially slavery in Title 2 and Title 3.
• The worked examples in Book IV, Title 3 on wrongful damage, where the compilers teach by cases rather than abstract rules.
• The closing title on public prosecutions, a short glimpse of Roman criminal law at the end of a book mostly about private law.

Key terms and names

Ius naturale (law of nature)

In Title 2, the law that nature teaches all animals, including marriage and the rearing of children; described as fixed and immutable.

Ius gentium (law of nations)

Rules prescribed by natural reason and observed by all peoples, such as most contracts, but also war, captivity and slavery.

Ius civile (civil law)

The law a particular state makes for its own members; for the Institutes, the law of the Roman people or Quirites.

Patria potestas

The legal power of a Roman father over his children and their descendants, treated in Book I, Title 9 as peculiar to Roman citizens.

Curator

A person appointed to manage the affairs of someone over the age of puberty who cannot manage them, such as a lunatic, a prodigal or a minor under twenty-five.

Stipulation

A binding contract formed by a spoken question and a matching answer, the central contract by words in Book III.

Lex Aquilia

The old statute on wrongful damage to property, explained in Book IV, Title 3 with cases on intention, carelessness and lack of skill.

Tribonian

Justinian's chief legal minister, who directed the Digest and, with Theophilus and Dorotheus, drafted the Institutes.

Seminar Questions

1. Comprehension According to the proem, what had Justinian already accomplished before ordering the Institutes, and who were the three men commissioned to write them?
2. Comprehension How does Book I, Title 2 distinguish the law of nature, the law of nations and the civil law? Give one example the text uses for each.
3. Comprehension Why, according to Book I, Title 23 and Book III, Title 19, can a lunatic not make a contract, and what exception does Book II, Title 12 allow for wills?
4. Interpretation The Institutes say all men were born free by the law of nature and that slavery is against nature, yet they spend many pages on the law of slaves. What does this reveal about how the compilers understood the relation between natural law and the law in force?
5. Interpretation The proem claims that the emperor's authority over law rests on the people's grant in the lex regia (Book I, Title 2.6). How does this claim both strengthen and limit imperial power?
6. Interpretation In the lex Aquilia cases, why do the compilers treat unskilfulness in a surgeon as a kind of fault? What does this assume about anyone who undertakes a skilled task?
7. Big Question The Institutes define justice as giving each his due. Can a legal system decide what is due to each person without a shared account of human nature and of God?

Faith Connections

• Romans 2:14-15 (Scripture)

  Paul says the Gentiles who do not have the Mosaic law still show the work of the law written on their hearts. The Institutes' law of nature, known by natural reason and shared by all peoples, gave later Christian thinkers a legal vocabulary for Paul's point.

• Romans 13:7 (Scripture)

  Paul commands believers to render to all what is due to them, tribute, custom, fear and honour, the same idea of what is owed that the Institutes make the definition of justice.

• Thomas Aquinas, Summa Theologiae II-II, q. 58, a. 1 (Church Fathers)

  Aquinas takes the Roman jurists' definition of justice, the constant and perpetual will to render each his due, and defends it as a correct definition of the virtue.

• Augustine, City of God XIX.21 (Great Conversation)

  Augustine uses the definition of justice as giving each his due to argue that a people that does not give God his due lacks true justice, a challenge to any purely civil account of law.

Logic and Rhetoric

Central argument: Good government in war and peace requires law as well as arms; the existing law was scattered and contradictory; justice consists in giving each his due, and law is drawn from nature, from the common reason of nations and from the state's own enactments; therefore the emperor, holding the people's authority, has gathered and corrected the law and now sets out its elements in an orderly path of persons, things and actions so that students may learn the law actually in force.

Rhetorical device: definition (horismos) and division. Book I, Title 1 opens with a definition of justice, then of jurisprudence, then with the three precepts, and divides law into public and private and private law into natural, of nations and civil, so that each later rule has a place in a branching scheme.

Debate: Resolved: The Institutes' threefold division of law into natural law, law of nations and civil law is still the best starting point for understanding law.

Memory Work

The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.

Justice is the set and constant purpose which gives to every man his due.

Writing Prompts

Essay: The Institutes name a law of nature that is fixed and immutable, yet admit that the law of nations permits slavery against nature. Using Book I, Titles 2-3, explain how the compilers reconcile these claims, and argue whether the reconciliation holds.

Comparison with Commentaries on the Laws of England: Blackstone borrowed the Institutes' division of law into persons, things and wrongs. Compare Book I of each work and argue what Blackstone keeps from Justinian and what English common law forced him to change.

Medical Lens

The Institutes are a primary source for how Roman law handled mental incapacity, disability and medical fault. The lunatic (furiosus) cannot contract because he does not understand what he does, cannot make a will, and is placed under a curator, a rule traced to the Twelve Tables; yet a will made in a lucid interval stands, and later insanity does not undo an earlier valid act. The deaf, the dumb, persons of weak mind and those with chronic disease are given curators because they cannot manage their affairs, and the text carefully distinguishes the totally deaf or dumb from the partly so. Under the lex Aquilia, a surgeon who operates and then abandons the patient is liable for carelessness, and one who operates unskilfully or gives wrong medicines is liable for unskilfulness treated as fault; these are among the earliest legal statements of medical negligence, though here the patient is a slave and the claim is the owner's. The criminal title applies the lex Cornelia's death penalty to poisoners and to those who sell deadly drugs, and physicians at Rome within the legal number are excused from guardianship. Readers should take these as categories of Roman law rather than clinical descriptions; the lucid-interval doctrine passed into medieval and early modern law of capacity.

• Book I, Title 23.3-4

  Curators appointed for lunatics and prodigals, and for persons of weak mind, the deaf, the dumb and those with chronic disease.

  Madness Psychosis Disability Deformity
• Book I, Title 25.15

  Physicians at Rome, with grammarians and rhetoricians, excused from serving as guardians or curators.

  Physicians Doctors
• Book II, Title 12.1-3

  Lunatics cannot make wills except in a lucid interval; the rules for the deaf and dumb, and for those who lose hearing or speech through illness.

  Madness Psychosis Disability Deformity
• Book III, Title 19.7-8

  The dumb and the stone-deaf cannot make a stipulation, and a lunatic cannot make any contract because he does not understand what he is doing.

  Madness Psychosis Disability Deformity
• Book IV, Title 3.6-7

  Liability of a surgeon who neglects aftercare, operates unskilfully or gives the wrong medicines.

  Surgery Medical Ethics Pharmacology Poisons
• Book IV, Title 18.5

  The lex Cornelia's penalty of death for poisoners using poison and magic and for public sellers of deadly drugs.

  Pharmacology Poisons

Creative Prompts

• Classroom

  Give students the lex Aquilia cases of Book IV, Title 3 (the pruner, the javelin on the training ground, the mule driver, the surgeon) and have them state the rule each case teaches before reading the text's answers.

• Dialogue

  Write a conversation between a first-year student in Constantinople in 534 and Theophilus, his professor, about why slavery belongs to the law of nations if all men are by nature born free.

• Essay

  Compare the Institutes' definition of justice with the one Socrates tests in Book I of Plato's Republic, giving each man what is owed.

Further Reading

• The Institutes of Gaius, Gaius

  The second-century textbook on which Justinian's Institutes are modelled.

• The Digest of Justinian, Justinian I, ed. Theodor Mommsen and Paul Krueger, trans. ed. Alan Watson

• An Introduction to Roman Law, Barry Nicholas

• Tribonian, Tony Honoré

• Justinian and the Making of the Byzantine Empire, Peter Sarris