The Institutes

As an authoritative statement of the law, the Digest was intended to be used not only by legal practitioners and state officials but also by those engaged in the study of law.

However, even before it was published, it became obvious that the work was far too long and complex for students to use, especially for those in their first year of their studies. What was needed was an introductory textbook which would allow students to grasp the basic principles of the law before passing on to the more detailed and more complex aspects of legal practice.^{^[1286]}[1287] It was with this idea in mind that Justinian ordered, in 533 AD, the preparation of a new official legal textbook for use in the empire's law schools. The task was entrusted to a three-member commission consisting of Tribonian, Theophilus and Dorotheus. The commissioners were instructed to produce a book that was to reflect the law of their own time, leaving out obsolete matter but including, where necessary, some mention of the earlier law. The work was to be based on the Institutes of Gaius and other introductory legal works of the classical period. The completed work was confirmed on 21 November 533 AD under the name Institutiones or Elementa (Constitutio Imperatoriam maiestatem) and came into force as an imperial statute, together with the Digest, on 30 December 533 AD (Constitutio Tanta or Dedokeri).^X5i

With respect to both content and structure, the Institutes borrowed much from the Institutes of Gaius (about two-thirds of the entire work consists of materials taken from Gaius's Institutes), as well as from another work attributed to Gaius called 'Law in Daily Life' (res cottidianaef the commissioners drew also on institutional works of other authors, such as Ulpian, Paul, Marcian and Florentinus, and on various classical commentaries.

Moreover, the Institutes incorporated many of Justinian's own enactments and legal reforms. The authors of the Institutes retained Gaius's division of the law into three parts (the law of persons, the law of things and the law of actions) as well as his division of the material into four books (but, unlike Gaius's Institutes, the books are subdivided into titles).^{^[1288]} Book one is concerned with the law of persons (except for an introductory preface on jurisprudential matters and the sources of law), books two, three and part of book four deal with the law of things, with the law of actions taking up the remainder of book four. In book four Gaius's discussion of the legis actio and the per formulam procedure has been replaced by a brief description of the cognitio extra ordinem (the procedure used in the post-classical period) followed by two titles on the duties of a judge {de officio iudicis) and on criminal law {de publicis iudiciis). Unlike the Digest, where the material is presented as a collection of extracts, the authors of the Institutes adopted a narrative style, sacrificing citations and attributions but producing a blended, continuous essay under each title to increase readability. However, the method of composition appears to have been similar to that followed by the compilers of the Digest, as the provenance of the individual passages is discoverable, although the process of creating the impression of a continuous text would have involved a different management of the extracts than that required in the preparation of the Digest.

Of the numerous manuscript copies of the Institutes which were produced in Justinian's time none has survived (with the exception of a few fragments dating from the sixth century). The work has come down to us mainly through various manuscript copies dating from the eleventh century or later.^{^[1289]} These, combined with the text of Gaius's Institutes discovered in 1816, furnished the basis for most of the modem reconstructions of the Institutes.^{^[1290]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The Institutes

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