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.

Top 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.

• 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.

• 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.

• 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.

Verified Quotes

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.

• Book I, Title 25.15

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

• 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.

• 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.

• Book IV, Title 3.6-7

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

• 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.