THE ORDERING OF THE LAW

The elaboration of classical law remained largely centred on cases, either real cases or hypothetical cases devised in the schools. Inevitably a casuistic system becomes intricate and complex and in need of cate­gorisation and systematisation.

About ioo bg the jurist Quintus Mucius Scaevola had published a small treatise on civil law as a whole. It begins with wills, legacies and intestate succession, which occupy about a quarter of the whole work. Problems arising out of the succession to the inheritance of someone who had died produced more disputes than any other kind of case. The social order was based on the family as a unit and the main purpose of a will was to designate the heirs who, on the death of the family head, would take his place and continue the family into the next generation. Apart from nominating his heirs in his will, a testator might grant lega­cies, appoint tutors for his children under puberty and free slaves. Since property was concentrated in the family rather than in the individual, it is not surprising that succession on death loomed so large in the law. Apart from succession, Mucius grouped the methods of acquiring own­ership and possession of property together but the remaining subjects of private law seemed to be jumbled up without any recognisable order.

A century later another jurist, Masurius Sabinus, who gave his name to the Sabinian school, built on Mucius's scheme and brought together other topics, which were beginning to be recognised as having a relation­ship with each other. For example, Mucius treated theft of property and damage to property as quite separate from each other, but Sabinus brought them together, thus recognising a category of wrongdoing (delict), which gave the victim a civil action for a penalty against the wrongdoer.

Most classical jurists presented their collections of opinions either in the form of a commentary on Sabinus's treatise on the civil law or of a commentary on the (now codified) praetorian edict. It was not until the middle of the second century that a major advance was made in arrang­ing the substance of private law, but it was noticed only in academic circles. The author was an obscure jurist, known simply as Gaius (without the full Roman complement of three names), who was a law teacher. Earlier jurists had had pupils but their main work was con­cerned with their practice. Gaius, however, seems to have been exclu­sively a teacher and as such lacked recognition in his own time.

The scheme of his student's manual, the Institutes, is based on a classification of all the law into three parts. Trichotomy was especially attractive to teachers as being a manageable number, suitable for stu­dents with a short attention span. The three parts of the law in the Gaian scheme relate to persons, things and actions. The first category was con­cerned with different kinds of personal status, considered from three points of view, namely, freedom (is the individual a freeman or a slave?), citizenship (is he a citizen or a peregrine?) and family position (is he a paterfamilias or is he in the power of an ancestor?).

The second category, things, bore the main brunt of the classification. It included anything to which a money value could be attributed and comprehended both corporeal and non-corporeal things. Physical things, whether moveable or immoveable, had always been recognised as things. Under the new class of incorporeal things, Gaius put first col­lectivities of things, which pass en blrc (per univedsitatem) from one person to another, such as the inheritance of a deceased person, which passes en blrc to his heirs.

Jurists before Gaius had seen that most obligations were derived from a prior agreement between the parties, even though what made them binding at law might be something more than mere agreement. So most obligations were seen to have a common feature in that, whatever gave them binding force, there had been an agreement between the parties. The category of contracts, imposing duties on the parties, had been born. Gaius now viewed an obligation in a new way; he saw it not just as a burden on the debtor but also as an asset in the hands of the cred­itor. By treating the creditor's right to sue the debtor as an obligation, Gaius was able to expand the notion of obligations and include in the category not only contracts but also civil wrongs, delicts, as sources of obligations.

The third part of the law in the Gaian scheme was actions. This part was concerned not so much with the procedure for suing in court but rather with the different kinds of action, such as those that can be brought against anyone, as, for example, actions to claim property, in contrast with those that can be brought only against particular individ­uals, such as actions to enforce obligations.

By the time of Gaius, the heyday of the classical period, the contents of private law were more or less fixed, and he could identify its compo­nent elements. His scheme contained several novel features. He included actions among the legal phenomena to be classified, on a par with persons and things; he recognised incorporeal things as falling in the same category as physical things; he classified inheritances and obliga­tions as incorporeal things; and he recognised both contracts and delicts as sources of obligations.

The Institutional scheme was destined to have enormous influence on law in the future but at the time it had little impact outside the schools. The professional jurists did not need a systematic order.

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