The Institutes

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

Even before its publication, the work was obviously far too long and complex for students to use (especially for those in their first year of their studies). An introductory textbook was required that would allow students to grasp the basic principles of the law before progressing to the more detailed and complex aspects of legal practice. This idea inspired Justinian to order, in 533, the preparation of a new official legal textbook for use in the Empire's law schools. The task was assigned 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. In performing their work, the commissioners relied heavily on the Institutes of Gaius (about two- thirds of Justinian's Institutes consists of materials gleaned from the latter text). They also drew on the res cottidianae (‘everyday matters'), a rudimentary work attributed to Gaius; introductory 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. Unlike the Digest's presentation of material as a collection of extracts, the compilers of the Institutes adopted a narrative style that produced a blended, continuous essay under each title to increase readability. 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).

Justinian’s Institutes retained Gaius' division of the subject matter into three parts: the law relating to persons (ius quod ad personas pertinet); the law relating to things or property (ius quod ad res pertinet); and the law relating to actions (ius quod ad actiones pertinet).¹¹⁰⁰⁸ It also replicated his division of the work into four books. However, otherwise than in Gaius’ Institutes, each book is subdivided into titles and the titles into paragraphs.

Book one deals with the law of persons, except for an introductory preface on jurisprudential matters and the sources of law; the second book explores the law of property and part of the law of succession; book three addresses the remainder of the law of succession and the major part of the law of obligations; and book four concerns the remaining part of the law of obligations and the law of procedure. In book four, Gaius’ discussion of the legis actio and the formulary procedures was replaced by a brief description of the cognitio extraordinaria (the procedure used in the post-classical period). It was followed by two titles on the duties of a judge (de officio iudicis) and on criminal law (de publicis iudiciis). Justinian’s Institutes are couched in the form of a dogmatic, mechanical lecture that displays much less colour and character than the Institutes of Gaius—features that may well be attributed to the largely derivative nature of the work.

The Institutes became very popular, especially in the lands of the former WestRoman Empire, and therefore its text has been preserved in many manuscript copies. However, nearly all of these manuscripts date from the tenth century or later (only one fragment dating from the sixth century has been preserved). A standard edition of the Institutes was published by P. Kruger in the late nineteenth

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Institutes

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