I posted on the web a set of schematics for Justinian’s Institutes. It is much more elaborate than the one that we looked at in Lecture 2. Learning this scheme and its terminology will repay itself handsomely, not only for this course or any future work that you might do in legal history, but also for modern European law. Much of this terminology is still with us today. I do not, however, want to spend the whole class (or even half of it) focusing on the details of this scheme. Please feel free to ask questions at any time about any of it that puzzles you. Our focus, however, will be, once more on the basic categories: ius vs. lex; public law vs. private; persons, things, and actions; individual things, things in the aggregate, and obligations; contract and delict. The more we think about these distinctions, the more puzzling they are; yet they have shaped legal thought in the west for centuries. Then I would like to go on to look at the legacy of Roman law on our specific topics: marriage, wild animals, and witnesses.

Major Categories in Justinian’s Institutes

1. Ius vs. lex. This isn’t even in the scheme. It’s simply fundamental to the language. The only place where J uses the word lex in the sources of law section is where he is referring to the Republican statutes.

                                    our law (ius nostrum)
         _______________________________|______________________
         |                                                    |
      written                                             unwritten
  ____|_______________________________________________________
  |          |             |           |         |           |
 statutes  plebiscites advice of   orders      edicts       responses
 (leges)                the senate  of princes  of magis-    of the
                                                 trates       wise
                                                          JI.1.2.3–11

2. Public law vs. private law. What’s the problem with this distinction?

                       ‘positions’ of the study of law
           _____________________________|_____________________
           |                                                 |
      public law                                       private law
                                   ___________________________|________
                                   |                  |               |
                              natural law       law of nations    civil law
                                                          JI.1.1.4–2.2

3. Persons, things, and actions. Capacity, substantive rights and remedies, procedure. What’s the problem with making these distinctions?

                                    all law
       _________________________________|______________________
       |                                |                     |
 to persons                        to things           to actions
                                                          JI.1.2.12

4. Acquisition of individual things, acquisitions of things in the aggregate, obligations (i.e., contract and delict). In rem vs. in personam.

                               “things”
_________________________________|_____________________________
|                                |                            |
individual things            succession                    obligations
(roughly “property”)        (mostly upon death)       ________|_______                                                                |              |                                                            contract        delict

5. Where do you think the provisions in JI on the formation of marriage go?

                                   persons
                 _______________________|________________
                 |                                      |
         of their own right              of another’s right (in power)
     ____________|_______                 ______________|___________
     |           |      |                 |                        |
[totally]  tutelage  care         paternal power         owners’ power
                                    ______|________
                                    |             |
                          from lawful nuptials  adopted
                                                           JI.1.8–26

6. JI on the formation of marriage (1.10, i.e., book 1, section 10):

“Roman citizens are joined together in lawful wedlock when they are united according to law, the man having reached years of puberty, and the woman being of a marriageable age [Other texts tell us that these ages are presumptively 14 and 12.] whether they be sui iuris or in potestate [all Roman children of whatever age were in the power of their fathers as long as the father was alive, unless the child were expressly emancipated.] provided that in the latter case they must have the consent of the parents in whose power they respectively are, the necessity of which, and even of its being given before the marriage takes place, is recognized no less by natural reason than by law. [The consent of the husband and wife seems to be presumed. Parental consent is clearly important.]”

Austrian Civil Code of 1811:

49. Minors [defined in c.21 as those under 25], as well as persons, who have attained their majority, but who for whatever reason, are not able alone to conclude a valid obligation, are likewise incapable of marrying without the consent of their legitimate father.  If the father is no longer alive, or incapable of representing his children, besides the declaration of the proper representative, the consent of the tribunal is required for the validity of the marriage.

71. The publication of the banns must take place on three sundays or holidays before the usual congregation of the parish, and when each of the persons intending to marry live in another parish, before the usual congregations of both parishes.  For marriages between non-catholic Christians, the publication of the banns must take place not only in their meetings for the celebration of divine service, but also in those catholic parish-churches, in the district of which they live; and for marriages between Catholic and non-Catholic Christians, both in the parish-church of the Catholic, and in the prayerhouse of the non-catholic party, as well as in the catholic parish-church in the district, in which the latter lives.

75. The solemn declaration of consent must take place before the proper guardian of souls of one of the persons intending to marry, whether his denomination, according to the difference of the religion, be parson, pastor or otherwise, or before their representatives, in the presence of two witnesses.

7. Before J. and G. get to the res corporales/res incorporales distinction, they both make another distinction, principally, it would seem, for excluding topics from the book:

                              things
              ___________________|__________
              |                            |
        in patrimony               out of patrimony
                     ______________________|_____________________________
                     |          |          |            |               |
       by natural law (things  public    of a         holy        of no one
       common to all)                    corporation  religious
                                                          JI.2.1.pr-10

8. J. then deals (as Gaius had not, though it is in G. at a later point) with the “natural modes of acquisition,” and the connection is almost certainly our old friends the wild animals, who are at once res nullius and are naturally acquired by occupatio.

                         [natural modes of acquisition]
      _____________________________________|___________________________
      |         |          |               |       |         |        |
occupation alluvion   specification  [fixtures] fruits  treasure  handing
            avulsion   confusion                                   over
                                                          JI.2.1.11–48

9. Let us take a look at the “natural mode” of acquiring wild animals. J.I.2.1.12ff (p. I–22):

“Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. So far as the occupant’s title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man’s land for the sake of hunting or fowling, the latter may forbid him entry, if aware of his purpose. An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. It is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it. It has been doubted whether a wild animal becomes your property immediately [when] you have wounded it so severely as to be able to catch it. Some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of the opinion that it does not belong to you till you have actually caught it. And we confirm this latter view, for it may happen in many ways that you will not capture it. Bees, again, are naturally wild ... [skipping to the end of the section]. A swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it.”

Austrian Civil Code of 1811:

381. For vacant (freistehenden) things the title consists in the inborn liberty to take possession of them.  The mode of acquisition is occupancy, by which one seizes a vacant thing with the intention to treat it as his own.

382. Vacant things can be acquired by all members of the State by means of occupancy, insofar as this right is not restricted by political laws (politische Gesetze), or insofar as some members do not have the privilege (Vorrecht) of occupancy.

[c. 383 emphasizes that there are a lot of ‘political laws’ that deal with hunting and fishing.]

384. Domestic swarms of bees and other animals, which are tame or have been tamed, are not an object of the free catching of animals; on the contrary the proprietor has the right to follow them on the land of another person, but he must make up any damage caused to the proprietor of the land.  In case the proprietor of a bee-hive kept for breeding has not followed the swarm within two days; or in case an animal, which has been tamed, has remained away of itself for forty two days, every one can take and keep it on common ground and the proprietor on his land.

10. The notion of obligation is never defined in the classical texts. J.3.13 is justly famous and is his own: “An obligation is a legal bond, with which we are bound by necessity of performing some act according to the laws of our State.”  For Justinian obligations are then divided:

                                 obligation
           _________________________|_____________________________
           |                 |                  |                |
  from contract    quasi from contract   from delict   quasi from delict
                                                          JI.3.13, 28–9

11. I dealt with J’s scheme of procedure in the lecture, and I won’t repeat what I said here, unless there are questions. We should, however, note that there’s nothing about witnesses in the Institutes. Does anybody have any idea why? There are, however, titles on witnesses in both the Digest and the Code, both of which are included in full in Chapter 1 of the Materials.  P. I–33 and I–35.  By comparison with the title on marriage, the Digest title is very short.  Why?  What little material that there is is late.  One can tell this by looking up the names of the jurists.

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