THE CIVIL LAW BECOMES A SCIENCE

The humanist professors at Bourges believed that law should be capable of being presented in the same way as other scientific disciplines, in par­ticular by proceeding logically from what is universal to what is particu­lar.

The only part of the Corpus iuris that was arranged in a rational order was the Institutes. It had not received great attention from the Commentators but henceforth it was to figure prominently in attempts to recast the civil law in more systematic form. The manifesto of the Bourges group was a short tract by Francois Duaren (Duarenus) on teaching and learning law (Epistula de ratione docendi discendique iuris, 1544). After castigating the customary teaching methods, he argued that law should be expounded in the same way as other sciences, by proceeding from what is universal and familiar to us to what is particular. To this end he commended the briefer and more systematic approach of the Institutes as superior to any other. Among the few humanists to move from the stage of planning programmes to that of producing actual re­arrangements were Francois Connan (Connanus), who died in 1551, and Hugues Doneau (Donellus) (1527-1591).

Connanus started from the Institutional division of the law into persons, things and actions, but he disposed of the material under those heads in a new way. The traditional order was rational insofar as it treated of the different capacities of persons and different kinds of things, but it ceased to be rational when it treated of actions.

Donellus was less radical and more influential than Connanus. He assumed that Justinian's law must be logical, even though it did not appear to be so, and applied himself to identifying what he conceived to be its underlying rational structure. In view of the great influence of his work on the future development of the civil law, it is worth considering his argument in some detail.

Justinian's definition of law gives one aim for all law, namely to assign to each what is due to him (suum cuique tribuere). So divine law is concerned with what is God's, public law with what is the public's and private law with what belongs to private individuals. When the Roman jurists referred to civil law, however, they meant essentially private law, the subject of nearly forty-nine of the fifty books of the Digest and nearly nine of the twelve books of the Code. So Donellus saw his task as the analysis of a law that assigned to private individuals what was their ius in various situations. In Latin and most European languages the same word, ius, Recht, droit, is used to indicate both the objective law, for example, the law of obligations, and a subjective right, for example, the right to sell a thing, and this double meaning masks a potential ambigu­ity, which does not exist in English. For Donellus the word ius normally meant a subjective right appertaining to an individual, so that for him the law as a whole was a system of rights.

In analysing the institutional scheme, Donellus concentrated on the meaning of actions.

Previously the rules of law were not clearly distinguished from the particular remedies by which they were enforced. Now, for the first time, private law was divided into substantive law, on the one hand, conceived as a system of subjective rights, and civil procedure on the other. Logically the identification of what is legally due to each person must necessarily precede any discussion of the means for obtaining it. If that be so, then it must be wrong to begin the treatment of private law with a discussion of actions and judgments. Yet that is what the compilers of the Digest have done. The institutional system, by putting actions last, is therefore preferable.

The division between substantive law and procedure was the basis for Donellus’s great Commentaries in twenty-eight books, of which the first sixteen were devoted to substantive law and the last twelve to civil pro­cedure. The rights which comprise the substance of private law are divided into two categories, what is truly and properly ours and what is owed to us. The first category includes both the rights which we enjoy as free men, such as life and liberty, and also our rights over external things. The second includes rights derived from what another person is bound to do for us. Thus although obligations are not truly ours, in the sense that our reputation or our house is ours, yet they are still rights belonging to us.

Donellus sought to reproduce the substance of Justinian’s law purged both of its original defects of form and of its medieval corruptions. For example, the Roman notion of ownership (dominium) was indivisible.

In their search for an ever more logical arrangement of the law, late- sixteenth-century jurists exploited the potentialities of printing through the use of extensive tabulation, advocated by the French logician Peter Ramus. The tables indicated in diagrammatic form the relationship between general and particular categories.

An influential example of the application of Ramist methods to law is the Dicaeologicae lib. III of the German scholar Johannes Althusius, which appeared in 1617. The sub-title indicates its aim: ‘The whole law in force, methodically set out, with parallels from Jewish law, and supple­mented by tables.' Althusius first distinguishes between law and facts, by which he means the transactions between persons which have effects in the law. Building on Connanus's idea that in the institutional scheme actions should be understood as covering not just legal proceedings but all human acts, Althusius developed the notion of the negotium. This cat­egory includes every transaction which affects the social life of man, either by adding something useful or necessary or by providing an obsta­cle to it. The negotium is classified into parts and species. The parts are, first, the objects with which the transaction is concerned, which are sub­divided into corporeal and incorporeal and so on, and secondly, the persons involved in the transaction, who may be singular or collective, etc. The species are the types of transaction which may be voluntary acts, such as contracts, or involuntary acts, such as delicts. Substantially Althusius's discussion was based on the Roman civil law, but he subor­dinated the content to a form that owed little to Roman law.

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