The Institutes

As previously noted, an important goal of Justinian’s program was to enhance the quality of legal education that had been largely haphazard, unsystematic and based on fragmentary sources.

In connection with this goal, the Digest as an authoritative and comprehensive statement of juristic law had a central role in legal practice and was also designed to serve as the basis for higher instruction in the law schools. However, Justinian realized before the work was even completed that it was too extensive and complex for students to use (especially for those in their first year of their studies). Moreover, the Institutes of Gaius that had served for centuries as an introductory textbook was now outdated in several respects. It was requisite to produce a textbook that would present beginners with a good foundation in the basic principles of contemporary law before progressing to the more detailed and weightier aspects of the legal system. In response to this need, Justinian ordered in 533 the preparation of a new official legal manual for use in the empire’s law schools. The task was entrusted to a three-member commission consisting of Tribonian and two of the four professors engaged in the preparation of the Digest (Theophilus from Constantinople and Dorotheus from Beirut). The commissioners were instructed to produce a book that reflected the law of their own time, omitting any obsolete matter and incorporating any necessary references to the earlier law. The completed work was confirmed on 21 November 533 under the name Institutiones or Elementa (by virtue of the Constitutio Imperatoriam maiestatem) and came into force as an imperial statute, together with the Digest, on 30 December 533 (by way of the Constitutio Tanta or Dedoken).^{^[616]}

The compilers of Justinian’s Institutes relied heavily on the Institutes of Gaius (about two-thirds of the entire work consists of materials gleaned from the latter text).

They also used the res cottidianae (‘everyday matters’), a rudimentary work attributed to Gaius; elementary works by jurists such as Ulpianus, Paulus, Marcianus and Florentinus; imperial constitutions (including many of Justinian’s own enactments); and any accessible parts of the Digest.

Justinian’s Institutes retained Gaius’ division of the subject matter into three parts, i.e. the law relating to persons; the law relating to property; and the law relating to actions. It also replicated his division of the work into four books.^{^[617]}Otherwise than in Gaius’ Institutes, each book is subdivided into titles and the titles into paragraphs.^{^[618]} Unlike the Digest’s presentation of the material as a collection of extracts, the compilers of the Institutes adopted a narrative style. They sacrificed citations and attributions, but produced a blended, continuous essay under each title to increase its comprehension. On the other hand, the method of composition does not appear considerably different from that engaged by the compilers of the Digest. The provenance of the individual passages is discoverable, although 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. In its presentation, the Institutes are couched in the form of a dogmatic, mechanical lecture. It has much less colour and character than those of Gaius—features that may well be attributed to the largely derivative nature of the work.

Numerous manuscript copies of the Institutes were produced in Justinian’s time, but none have survived.^{^[619]} We have inherited the work through various manuscripts that nearly all date from the tenth century or later. The Codex Taurinensis of the tenth century is the most famous of these manuscripts and it incorporates notes (scholia) that apparently originated from the time of Justinian. These manuscripts, combined with the text of Gaius’ Institutes discovered in 1816, furnished the basis for most of the modern reconstructions of Justinian’s Institutes.^{^[620]}

5.4.5

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The Institutes

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