LEGAL SCIENCE AND RHETORIC IN GAIUS' INSTITUTES

If the Roman jurists had created a legal science that was independent from rhetoric, it must be possible to find traces of a scientific system in the legal literature of the classical period.

Gaius’ Institutes, an elementary textbook of Roman law, was written in the second century.^[86] It was structured in a simple way, dividing the law into ‘persons’, ‘things’ and ‘actions’. About the author, Gaius, we know next to nothing. The textbook must have been popular because various later edi­tions have been published and because sections have been quoted in the florilegia of the fourth and fifth centuries and in Justinian’s Digest of the sixth century. It was even used as a model by the Byzantine law professors when Justinian ordered them to compose a new textbook, the (Justinianic) Institutes. However, for many centuries after the fall of the Roman Empire, the work itself was not available.

The first complete manuscript of Gaius’ Institutes was discovered in Verona in 1816, by B. G. Niebuhr. Before that time, Roman law had been studied for more than six centuries on the basis of Justinian’s Digest, Codex, and Institutes.^[87] As was pointed out in the introduction to this chapter, the sixteenth century had witnessed the rise of legal science based on the Corpus luris Civilis. The rediscovery of Gaius’ Institutes, therefore, took place after, in countries like France and Austria, the new codifications had been introduced and, in the German Länder, Savigny had just begun to create ‘das heutige romische Recht’.

There were two major issues in Gaius’ Institutes that puzzled the Romanists. First, the system of Roman law that had been developed over the centuries and that was based on the division of rights in rem (dominium and iura in re aliena) and rights in personam (obligations) could not really be recog­nised in the work of Gaius. And yet, it should be there. Secondly, through­out his textbook, Gaius mentioned approximately twenty controversies between leading Roman jurists which referred to as many unsolved legal problems. If the Roman jurists had created a system that could provide the one correct solution for every legal problem, there could not have been con­troversies, let alone in a law textbook. In the following, we will first analyse how the Romanists have tried to solve the system-related problem and give our comment. Then we will discuss the problem of the controversies and show that it can be solved by connecting it to rhetoric.

The system of Roman law in Gaius' Institutes

In his Romische Rechtsgeschichte, Max Kaser, one of the leading Romanists of the twentieth century, described the essence of legal science. In his view, it was the development of legal concepts that are well determined as to content and clearly separated from each other, and that are ordered and linked together in a logical system.^[88] Under the influence of the Greek dia­lectical method, the Roman jurists had developed such concepts and such a system, but their way of working had remained casuistic. The one exception to this rule was Gaius.

It is clear that the essential element for Gaius’ Institutes is the subdivi­sion of things into res corporales and res incorporales. In 2.13, Gaius describes corporeal things as tangible things, such as land, a slave, a garment, gold, silver, and so on. In the next section, Gaius describes the incorporeal things:^[89]

Incorporeal are things that are intangible, such as exist merely in court, for example an inheritance, a usufruct, obligations however contracted. It does not matter that corporeal things are comprised in an inheritance, or that the fruits gathered from land (subject to a usufruct) are corporeal, or that what is due under an obligation is commonly corporeal, for instance land, a slave, money; for the rights of inheritance, usufruct, and obligation themselves are incorporeal [...]

In modern Romanist literature, it is assumed that the word res and therefore also the distinction between res corporales and res incorporates refers to legal objects. However, this distinction is commonly regarded as illogical. The res corporales would be legal objects, that is, objects of ownership. However, ownership is a right. Therefore, the right must be identified with the object, and ownership must be regarded as a res corporalis. The res incorporates should be legal objects, too, but then it would be unclear what the objects were. This problem was solved by regarding the res incorporates as (subjective) rights.^[90] Consequently, the phrase ‘quae in iure consistunt’ in the first line of Inst.

In our view, this interpretation is rather far-fetched.^[92] It goes wrong at the very beginning, with the assumption that the concepts personae and res are to be interpreted as referring to legal subjects and legal objects, respectively. We think they do not. In the first book of his Institutes, Gaius describes the three categories of status that refer to persons (freedom, citizenship and family) and how a person’s status can change. He does not describe the capacity of a person to perform a legally valid act or to have property. Consequently, the word personae cannot mean ‘legal subjects’ but only ‘persons’.

In the second and third books, Gaius deals with the res. At the begin­ning of book II, he mentions a number of distinctions of things, all the time explaining why a particular distinction is relevant. He does not describe what qualifies as a legal object. Gaius defines the res corporales as things that can be touched, and the res incorporales as things that cannot be touched but that exist in iure. The relevance of this distinction is explained in Inst 2.28: incorporeal things cannot be transferred by tradition, the informal way of transferring property, but only by means of in iure cessio. This legal concept, however, originated in the law of procedure. For a proper understanding of the distinction between res corporales and res incorporales, it must be borne in mind that, in his Institutes, Gaius did not only deal with personae and res, but also with actiones. In our view, this distinction can only be explained in its context, that is, in connection with the in iure cessio as part of the Roman law of procedure.

The in iure cessio begins like a normal procedure per formulas before the praetor, when the plaintiff claims the usufruct (or another res incorporalis) from the defendant.

The procedure to claim the usufruct makes it clear that, in this connec­tion, the word res cannot be taken to mean ‘rights’. The formula of a vindicatio ususfructus was based on that of the reivindicatio (to claim dominium, prop­erty) but it was slightly adapted. Let us compare both formulae. According to the reconstruction of Lenel, the formula of the reivindicatio ran as follows:^[93]

X must be judge. If it appears that the thing at stake belongs to Aulus Agerius according to the ius Quiritium, and if this thing has not been restituted by the order of the judge to Aulus Agerius, then the judge must condemn Numerius Negidius to pay so much money to Aulus Agerius as this thing is worth. If it does not appear, then he must absolve him.

The formula of the vindicatio ususfructus is:^[94]

X must be judge. If it appears that Aulus Agerius has the right of usufruct on that land that is at stake and if this thing has not been restituted to Aulus Agerius, then the judge must condemn Numerius Negidius to pay so much money to Aulus Agerius as this thing is worth, if it does not appear then he must absolve him.

In the first part of the reivindicatio, the thing that is claimed is referred to as res, a res corporalis. In the vindicatio ususfructus, however, the thing that is claimed is referred to as ius, that is, the right of usufruct that rests on someone else’s land. In the latter part of the formula, the word res is used, but then it indicates the thing at stake, the res incorporalis.

Now the meaning of the phrase ‘quae in iure consistunt’ becomes clear: it refers to the first part of the formulary procedure, before the praetor, which is called in iure. The res incorporales only exist in iure, ‘in court’. Gaius did a good job when he added this explanation: it helped to clarify a simple distinction which he made for his elementary textbook.

The fundamental mistake made by modern Romanists is their assumption that Gaius is dealing with subjective rights. This concept was unknown to Gaius; it originated only between the fourteenth and sixteenth centuries.^[95] Gaius, and the other Roman jurists for that matter, had a completely differ­ent way of thinking than present-day civil-law jurists. It must be concluded that Gaius’ Institutes did not reflect the system of subjective rights of modern civil law and that the system that was used does not qualify as legal science in the modern sense.

The controversies in Gaius' Institutes

The second issue that puzzled the Romanists was the twenty or so contro­versies mentioned in Gaius’ Institutes. These controversies existed between the two law schools that had emerged in Rome in the early Principate, the Sabinian or Cassian school and the Proculian school.^[96] The leaders of these schools defended opposite positions over several points of private law. How could they do so, if there was only one correct solution to a legal problem? Moreover, the jurists in question gave arguments to support their opin­ions. Why would they do so if they normally did not because, according to Schulz, stat pro ratione auctoritas? The leaders of the schools may have had the ius respondendi ex auctoritate principis and will have had a lot of authority. Finally, some of these controversies were solved by a compromise, a media sententia. How could such a solution be fitted into a system that allowed only one correct solution?

Ever since the discovery of the manuscript of the Institutes, dozens of scholars have tried to solve the problem of the controversies. Most of them did so from a dogmatic perspective on Roman law, trying to find one overall interpretation that could bring the controversies within the system of Roman law. However, they did not succeed in finding one interpretation that could explain all the controversies. They have not adapted their way of working until recently.

A few years ago, Tessa Leesen wrote a monograph about the controversies in Roman law.^[97] She suggested that they could be explained by connecting them to rhetoric. Her main thesis was that jurists, like orators and lawyers, made use of the art of rhetoric, and of its argumentative theory, the topica as developed by Cicero and Quintilian, to make their opinions persuasive. By analysing the twenty-one controversies in Gaius’ Institutes, she was able to demonstrate how, in these cases, the jurists used topical arguments to support their view. There was not one correct solution, but the opinions of both jurists could be defended without one of them losing his integrity. We will give one example that is discussed by Leesen, namely, that of the controversy on specificatio mentioned in Gaius, Inst. 2.79:^[98]

On a change of species also, we have recourse to naturalis ratio. If, therefore, you have made wine, or oil, or grain from my grapes, olives, or ears of corn, the ques­tion is asked whether this wine, oil, or grain is mine or yours. In like manner, if you have made some vase of my gold or silver or if you have constructed a boat, or a cupboard, or a bench from my planks. In like manner, if you have made a garment from my wool or if you have made mead from my wine and honey or if you have a plaster or an ointment from my drugs, the question is asked whether what you have thus made from my material is yours or is mine. Some think that the material and the substance have to be taken into consideration, that is, the manufactured article is considered to belong to the owner of the material. And this opinion is above all preferred by Sabinus and Cassius. Others, however, think that the object belongs to him who created it; this is the view held above all by the authorities of the other school. However, they also think that he who owned the material and the substance has the actio furti against him who stole it and also a condictio against the same person because, although it is no longer possible to bring a vindicatio when things have perished, they may be the object of a condictio against thieves and certain other possessors.

The text forms part of a discussion on the different means of acquisition of ownership based on naturalis ratio. The first example has become classic: When somebody (A) makes wine by processing the grapes of somebody else (B) without mutual agreement, a problem of ownership arises: does the owner of the grapes (B) or the maker of the wine (A) become owner of the wine? The owner of the grapes will claim ownership of the wine from the maker who is in possession, and he will do so by means of a reivindicatio. The Sabinians supported B’s claim, the Proculians defended the view that A had become the owner.

Gaius does not explicitly mention the arguments used by the Sabinians and the Proculians, but they have come down to us via the Digest in the second book of the so-called Res Cottidiana sive aurea, a fourth-century version of Gaius’ Institutes. The relevant text, D.41.1.7.7, runs as follows:

When someone has made for himself something from another’s material, Nerva and Proculus think that the maker owns that thing, because what has been made previously belonged to no one. Sabinus and Cassius rather think that the naturalis ratio requires that the person who has been the owner of the material also becomes the owner of what is made from his material, since nothing can be made without the material: if, for example, I make some vase from gold, silver or bronze, or a garment from your wool, or mead from your wine and honey, or a plaster or an ointment from your drugs or wine, oil or grain from your grapes, olives or ears of corn. Nevertheless, there is also a media sententia of those who correctly think that, if the thing can be returned to its material, the better view is that propounded by Cassius and Sabinus. If it cannot be returned, Nerva and Proculus are sounder. Thus, for example, a finished vase can be returned to its raw mass of gold or silver or bronze. It is not possible, however, to return wine, oil or grain to grapes and olives and ears of corn. Neither can mead be returned to honey and wine or plas­ters or ointment to drugs. It seems to me, however, that some have said correctly that there should be no doubt that the grain, shaken from someone’s ears of corn, belongs to him whom the ears of corn have come from. For since the grain, that is contained in the ears of corn, has its own perfect form, the one who has shaken out the ears of corn does not make a new form. But he uncovers what already exists.

This text shows that both schools base their claim on the naturalis ratio, so there is no fundamental difference.

In the course of time, various explanations of this controversy have been offered. The most typical one is that based on philosophy: it has been argued that the Sabinians were influenced by the Stoa and the Proculians by Aristotle and the Peripatos. Other scholars explained it by the conservative­progressive antithesis, some stating that the Sabinians were conservative and the Proculians progressive, others that it was the other way around.

According to Leesen, both the Proculians and the Sabinians used topical arguments. Cicero’s Topica and particularly Quintilian’s Institutio oratoria helped her find the relevant topoi or, in Latin, loci. She reconstructed the reasoning of the Proculians with the locus ab adiunctis:

- What has been made did previously not belong to anyone.

- Therefore what someone never had, he has not lost.

- B is the owner of the material, i.e. the grapes.

- Therefore, B cannot vindicate the nova species, i.e., the wine.

The Sabinians used the locus ex causis to support their argument:

- Since nothing can be made without the material,

- the ownership of a nova species (e.g. wine, oil, or grain) must be granted to the owner of the materia (i.e. to the owner of the grapes, olives, or ears of corn).

- B is the owner of the material.

- Therefore, B is the owner of the nova species.

In D.41.1.7.7, the media sententia is mentioned that was supposed to be a compromise between the two positions. If a thing has been made from some material but cannot be reduced to its material, then the opinion of the Proculians must be followed and the thing be regarded as belonging to the maker. However, this compromise is not very convincing because it is equally reasonable to state that the material is still present in the nova species and that therefore the wine belongs to the owner of the material. Yet it was this media sententia that was approved by Justinian and was included in his Institutes (Inst 2.1.25).

In this and other controversies, the leaders of the Sabinian and the Proculian schools defended two opposite positions on a legal problem with arguments offered by rhetoric, that is, with topical arguments. Both positions were reasonable. The controversies were included by Gaius in his elementary textbook on Roman law. For him, and for his students, the relationship between Roman law and rhetoric was a matter of course.

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