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The following set of schematics for Justinian’s Institutes is obviously much more elaborate than the one that we looked at in Law Section Outline 1. 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 section (or even half of it) focusing on the details of this scheme. Please feel free to ask questions 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. Schematics of Justinian’s Institutes (translated; Latin terminology
given below) ‘positions’ of the study of
law
_____________________________|_____________________ |
| public law
private law ___________________________|________ | | | natural law law of nations civil law
JI.1.1.4–2.2 our law
_______________________________|______________________ |
| written
unwritten ____|_______________________________________________________ | | | | | | statutes plebiscites advice of orders
edicts responses the senate of princes
of magis- of the trates wise
JI.1.2.3–11 all law
_________________________________|______________________ | | | to persons to things to actions
JI.1.2.12 the law of persons
________________________________|____________________ |
| slaves
free
_____________|________
| | free-born freed
JI.1.3–7 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 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 [natural modes of
acquisition] _____________________________________|___________________________ |
| | | | | | occupation alluvion
specification [fixtures]
fruits treasure handing avulsion confusion over
JI.2.1.11–48 things ___________________|__________ | | corporeal incorporeal _____________________________________|________________________ |
| | | | servitudes
usufruct use &
habitation inheritance obligations [see
JI.2.5.6]
JI.2.2–5 [civil modes of acquisition]
______________________|__________________________ |
| single things ‘in a
bunch’ _______|__________ ______________________|_______ | | | | |
| | usucapion donation legacy
heir adrogation condemnation bankruptcy __________________|_______________________ | | | by testament legacies and trusts from an intestate
JI.2.6.-3.12 obligation
___________________|____________________ | | civil pretorian obligation _________________________|_____________________________ | | | | from contract quasi from contract from delict quasi from delict
JI.3.13, 28–9 from contract ______________________________|_______________________________ | | | | by thing by words by letters by consent ___|_________________________ _____________________________| | | | | | | | | loan bailment deposit
pledge purchase letting
partnership mandate sale hiring JI.3.14–26 JI.3.27—quasi-contract, mostly involuntary agency from delict
____________________|_____________________ | | | | theft goods taken damage wrongfully injury by force done (l. Aquilia)
JI.4.1–4 JI.4.5—quasi-delict, mostly examples of absolute or vicarious
liability actions [procedure] ______________________________|__________________________________ |
| | | | | actions exceptions interdicts [abuse of office of crimes |
[& further pleas]
process] the judge |
(4.13–14) (4.15) (4.16) (4.17) (4.18) |_______________________________________________ | | | | [in general] [by or for others] [security]
[extinction] (4.6) (4.7–10) (4.11) (4.12)
JI.4.6–18 |
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Schematics of Justinian’s Institutes (translated above) positiones studii
iuris
_____________________________|_____________________ |
| publicum ius
privatum ius ___________________________|________ | | | ius naturale ius gentium ius civile
JI.1.1.4–2.2 nostrum ius
_______________________________|______________________ |
| scriptum
non scriptum
____|_______________________________________________________ | | | | | | leges plebiscita
senatusconsulta placita edicta responsa principum
magistratuum prudentium JI.1.2.3–11 omne ius
_________________________________|______________________ | | | ad personas ad res ad actiones JI.1.2.12 ius personarum
________________________________|____________________ |
| servi liberi
_____________|________
| |
ingenui liberti JI.1.3–7 personae
_______________________|________________ | | sui iuris alieni iuris (in
potestate) ____________|_______ ______________|___________ | | | | | [totally] tutela cura
patria potestas
______|________ | | ex iustis nuptiis adoptivi
JI.1.8–26 res ___________________|__________ | | in patrimonio extra patrimonium
______________________|_____________________________ | | | | | naturali jure (res publica
universitatis sacrae
nullius communia omnium) religiosae
JI.2.1.pr-10 [natural modes of
acquisition] _____________________________________|___________________________ |
| | | | | | occupatio alluvio
specificatio [fixtures]
fructus thesaurus traditio avulsio confusio
JI.2.1.11–48 res ___________________|__________ | | corporales incorporales _____________________________________|________________________ |
| | | | servitutes
usufructus usus &
habitatio hereditas obligationes
[see JI.2.5.6]
JI.2.2–5 [civil modes of acquisition]
______________________|__________________________ |
| singulae res per
universitatem _______|__________ ______________________|_______ | | | | |
| | usucapio donatio
legatum heres adrogatus
addictio bonorum emptio
__________________|_______________________ | | | ex testamento legata et fideicommissa ab intestato
JI.2.6.-3.12 obligatio
___________________|____________________ | | civilis praetoriana obligatio
_________________________|_____________________________ | | | | ex contractu quasi ex contractu ex delicto quasi ex delicto
JI.3.13, 28–9 ex contractu ______________________________|_______________________________ |
| | | re
verbis
litteris consensu ___|_________________________ _____________________________| | | | | | | | | mutuum commodatum depositum pignus emptio
locatio societas mandatum venditio conductio
JI.3.14–26 JI.3.27—quasi-contract, mostly negotiorum gestio ex delicto
____________________|_____________________ | | | | furtum vi bona rapta damnum iniuria iniuria datum (l.
Aquilia) JI.4.1–4 JI.4.5—quasi-delict, mostly examples of absolute or vicarious
liability actiones [procedure] ______________________________|__________________________________ |
| | | | | actiones exceptiones interdicta [abuse of
officium crimina |
[& further pleas]
process] iudicis |
(4.13–14) (4.15) (4.16) (4.17) (4.18) |_______________________________________________ | | | | [in general] [by or for others] [security]
[extinction] (4.6) (4.7–10) (4.11) (4.12) JI.4.6–18 |
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Christianity (Cont’d) The logia on divorce Mark 10:9: “What God has united, man must not divide.” Mark 10:11–12: ““The man who divorces his wife and marries another is guilty of adultery against her. And if a woman divorces her husband and marries another she is guilty of adultery too.” Luke 16:18: “Everyone who divorces his wife and marries another is guilty of adultery, and the man who marries a woman divorced by her husband commits adultery.” Matthew 5:32: “Everyone who divorces his wife, except for the case of fornication, makes her an adulteress; and anyone who marries a divorced woman commits adultery.” Matthew 19:6: “What God has united, man must not divide.” Matthew 19:9: “The man who divorces his wife—I am not speaking of fornication—and marries another, is guilty of adultery.” 1 Corinthians 7:10–12: “A wife must not leave her husband—or if she does leave him, she must either remain unmarried or else make it up with her husband—nor must a husband send his wife away.” Hypothetical reconstruction of the earliest form of the more common logion: “The man who divorces his wife and marries another is guilty of adultery.” Mishna Gitin 9:10, as reported in the Babylonian Talmud Gitin 90a (Soncino trans. modified by CD): “The school of Shammai say: a man should not divorce his wife unless he has found her guilty of some unseemly conduct, as it says, because he hath found some unseemly thing in her. [See Deutoronomy 24:1]. The school of Hillel, however, say [that he may divorce her] even if she has merely spoilt his food, since it says, because he hath found some unseemly thing in her. R. Akiba says, [he may divorce her] even if he finds another woman more beautiful than she is, as it says, it comes to pass, if she find no favour in his eyes. [Again, a reference to Dt 24:1.]” Dt 24:1 reads in the NRSV: “Suppose a man enters into marriage with a woman, but she does not please him because he finds something objectionable about her, and so he writes her a certificate of divorce, puts it in her hand, and sends her out of his house … .” The Hebrew is more ambiguous. Marriage as a
“mystery” Ephesians 5:25–33: “Husbands should love their wives just as Christ loved the Church and sacrificed himself for her to make her holy. He made her clean by washing her in water with a form of words so that when he took her to himself she would be glorious, with no speck or wrinkle or anything like that, but holy and faultless. In the same way, husbands must love their wives as they love their own bodies; for a man to love his wife is for him to love himself. A man never hates his body, but he feeds it and looks after it; and that is the way Christ treats the Church, 30because it is his body—and we are its living parts. For this reason, a man must leave his father and mother and be joined to his wife, and the two will become one body. [Gn 2:24] This mystery has many implications; but I am saying it applies to Christ and the Church. 33To sum up; you too, each one of you, must love his wife as he loves himself; and let every wife respect her husband.” Two witnesses Dt. 19:15: in ore duorum vel trium testium stabit omne verbum. “In the mouth of two or three witnesses every word shall stand.” Mt. 18:16: in ore duorum testium vel trium stet omne verbum. “In the mourth of two witnesses or three let every word stand.” 1 Cor. 13:1: in ore duorum vel trium testium stabit omne verbum. As in Dt. 19:15. |
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