by Klaus Luig
The eras of the modern history of private law have customarily taken their names from either the dominant form of legal literature (glossators, commentators, pandectists), from the dominant intellectual movement (humanist jurisprudence), from the sources which were most important in a particular period, such as natural law, or from the dominant substantive or methodological features, as with the usus modernus of Roman law. If one wished to bring these latter categories into line with the most frequently used method of categorization (naming the era after the dominant form of legal literature), we could identify the era of the humanist observatio and that of the institutional textbook. The latter covered the 17th and 18th centuries. These works contained most of the significant innovations in private law scholarship and doctrine of their period. This phenomenon was evident not only across almost all of Europe, including England, but also in America. Above all, this means that the most important advances in legal scholarship were achieved in textbooks and systems which presented themselves as conceptions of a national legal system, especially national private law systems configured according to the institutional scheme of persons, things and actions. Thus, they were generally written in the vernacular of the particular European territories, which had begun to establish themselves as nation states, something which as far as the law was concerned was also evident in the growing significance of legislation.
In most cases, the institutional textbooks were primarily intended for education, but they often presented themselves as preparation for comprehensive legislation or even codification. In the ideal case they expressed, albeit with varying degrees of deviation in the detail, the usus modernus of Roman law. That is to say, they presented an account of those elements of Roman law which were considered to be valid customary law either by virtue of reception or as ratio scripta (ius commune) together with the derogations and additions (limitationes and amplificationes) based on contemporary interpretation (usus modernus) of Roman legal texts. To this, established indigenous law and modern legislation were added, as well as rules of contemporary customary law based on or established by judicial decisions and elements of natural law. However, the extent to which natural law was used varied greatly between the individual works. The exclusion of those elements of Roman law which were no longer considered as being in force and therefore superfluous (haud receptum vel abrogatum) and the integration of non-Roman elements of the law that were in force were central characteristics of this scholarly literature.
These textbooks were an attempt, in the first place, to provide a systematic and comprehensive account of the Roman legal materials contained in the various parts of the Corpus Juris and, secondly, with placing this material alongside national materials of a very different provenance in a unitary system. The institutional textbooks at the national law level dealt with the difficulties connected with these variations in provenance by categorizing the Roman legal materials following the four-book structure of personae—res (corporales and incorporales)—actiones as found in Justinian’s Institutes, with varying degrees of fidelity based on the individual case. The rules of native law were inserted into the Roman institutional system. Thus the German institution of Einkindschaft was inserted into the section on adoption (Inst. Just. 1,11) and insurance contracts (assecuratio) were dealt with as innominate contracts, following the criteria of Roman law.
As well as borrowing its system, the writers of institutional textbooks culled from Roman law the core terminology associated with individual fields. This was even true of important matters governed by domestic rules which were completely independent of Roman law. Thus, the lawyers’ mindset was essentially Roman. The elements of a native rule such as meubles n’ont point de suite par hypothecque quand ils sont hors de la possession du debteur were expressed in the terms of Roman law: meubles, hypothecque, possession, debteur. The import of these terms, as used in this rule, came from Roman rather than native law.
The Institutes of the Roman jurist Gaius, which appeared around 160 AD, were the first forerunner of the institutional textbook as a literary form. The work was intended for legal education and stood out for the completeness with which it considered all of the essential questions, for its clear and rational arrangement, as well as for the ease with which it could be understood. This example was followed by the Emperor Justinian (525–565) in the official textbook, also called the Institutiones, which he placed at the head of his codification project (Corpus Juris Civilis). In his introductory constitution, Justinian explained what he intended the work to achieve. Addressing students of law, he wrote that it had been written ‘so that you might acquire your first rudiments of law not from ancient stories but through the splendour of the Emperor and that both your ears and your minds might receive the truth in these matters without that which is unnecessary or erroneous’ (Constitutio Imperatoriam). The tone of this constitution is summed up by the words ‘the truth in these matters’.
In the course of the history of legal scholarship from the beginning of the reception in the 12th century to the end of the 19th century, the example of Justinian’s Institutes played a major role in attempts to present the law in force in a comprehensible and practical form. Admittedly, textbooks in the form of the Institutes did not play a significant role in the literature of the glossators. Yet the systematic summaries found in the Summa of that period can be understood as forerunners. This is particularly true of the Summa of the Code and the Institutions written by the glossators. The same can be said of the commentators. Their preferred literary form of commentary had no systematic pretensions. The only starting points for ‘institutional textbooks’ in this period are found in the introductory remarks on the titles of the Institutes. The humanists were less interested in summarizing textbooks of the law in force, yet their systematic designs were very much inspired by Justinian’s Institutes.
The institutional textbooks from the 17th and 18th centuries presently under discussion were responding to a fundamental change in the doctrine of legal sources. A more or less complete acceptance of Roman law with no major alterations was replaced by a positive legal doctrine which described the law in force in particular nations. The medieval expansion of Roman law in orbem terrarum was succeeded by national differentiation in the various European states. Despite all the national differences and the differences from book to book, the typical expression of these national laws was the institutional textbook.
Institutional textbooks had their origins in France. One of their fundamental ideas, the unification of the law in force at a national level, was first expressed by Charles Dumoulin (Molinaeus) (1500–66). Dumoulin wanted to reduce all the French coutumes to a single consuetudo generalis, to be recorded in an absolutissimus libellus. He spoke loftily of a brevissimus, candidissimus, expeditissimus et absolutissimus libellus. Roman law was to play the roll of ratio scripta in this enterprise. The French lawyer Jerosme Mercier described the contents of such an absolutissimus libellus in 1655 in his Remarques du droit François: ‘We are content to report here that which is most widespread in France, and certainly that which is predominant in the decisions of the Parlement de Paris.’ The first example of a work which was institutional in spirit was Louis Charondas le Caron’s (1536–1617) Pandectes ou Digestes du droit français. It was followed by the Institution au droit français of Guy Coquille (1523–1603), which was published in Paris in 1607 together with anonymous Institutes coutumiers, the latter actually written by Antoine Loisel (1536–1617). Coquille did not follow any recognizable system, but the conceptual substratum of his account was Roman. His content was an overview of the various territorial coutumes, with a tendency to identify commonalities and towards unification in cases when the differences were not insurmountable.
Loisel’s work was a collection of old and new legal maxims of the droit coustumier & plus ordinaire de la France. The basis of the six-volume work was a modified institutional scheme of persons, things, contracts and actions. French peculiarities were inserted in the appropriate places. The conceptual apparatus is largely that of the European ius commune.
8. National survey
The best of these textbooks was that of Gabriel Argou. His Institution au droit François first appeared in 1692 but was reprinted many times, having been revised by Antoine Boucher d’Argis. It was arranged in four books: 1. Persons; 2. Things; 3. Obligations (which was primarily concerned with marriage, but also with sale, annuities, etc); 4. Supplements to contracts, namely deposit, suretyship, mortgages, cession, and thereafter dissolution of obligations and novation. The theoretical foundations were Roman, but throughout French institutions are found alongside those of Roman origin, eg retrait, rente, bail, waiver of succession rights by daughters with a dowry and primogeniture in feudal succession. Argou admitted that there were significant variations from coutume to coutume but maintained that, despite this, there were common principles. This had been the dominant view since Dumoulin.
The best example of an institutional textbook—in the present account described in simplified terms—is the Inleidinge tot de Hollandsche Rechts-Geleerdheid of Hugo Grotius (1583–1645). It was first published in The Hague and has since been republished and translated many times.
In Spain, the composition of institutional textbooks served the wider programme of legal unification under the rule of the house of Bourbon, which ruled from 1700. The project was essentially one which promoted Castilian law. For this reason, the rules of Roman law were restricted to providing theoretical foundations and basic concepts. However, the essential elements of Roman law had already been received by virtue of medieval legislation. The main example of a Spanish institutional textbook is the Instituciones del derecho civil de Castilla by Ignacio Jordan de Asso y del Rio and Miguél de Manuel y Rodriguez, which was published many times from 1771 onwards.
The first German author of a work of this type was Andreas Perneder (c 1499–1543). However, his book was only published in 1544, after his death. The title revealed the author’s aim: Institutiones. Auszug unnd anzaigung etlicher geschriben Kayserlichen und des heyligen Reichs rechte, wie die gegenwertiger Zeyten in Uebung gehalten werden (Institutions. A brief summary and account of the law of the Imperial and Holy Empire, as it is in use at the present time). The work was a summary account of the material in Justinian’s Institutes with the omission of obsolete materials such as the legal position of freedmen and the introduction of German materials such as those on serfdom. The best known of the works in Germany was the Iurisprudentia Romano-Germanica forensis by Georg Adam Struve (1619–92), which from 1670 onwards was disseminated in numerous editions and revisions. However, Struve’s comprehensive German language work, Juris-Prudenz, oder: Verfassung der Land-üblichen Rechte from 1689 was closer to the ideal of this type of literature, exemplifying the role of this work as preparation for legislation. The separation (common since the time of Christian Thomasius (1655–1728)) of Roman and German private law led to the abandonment of the institutional textbook in the 18th century.
In contrast to what was usual in Germany, institutional textbooks in other European countries were written in the vernacular rather than Latin. The Neapolitan Niccolo Valletta (1748–1814) justified this practice in 1776 arguing that, in the past, statutes had been made mysterious. According to Valletta, the law should be presented in such a way that every citizen could learn from simple principles what his rights and obligations were.
In view of the political fragmentation of Italy, significant institutional textbooks could only be expected from the gius veneto of Venice and the dritto del regno napoletano of Naples. Andreas Benedictus Ganassoni set out the law of Venice on the basis of natural law principles in the Roman institutional form of personae, res and actiones. Ganassoni explained this system in terms of natural law as an expression of the basic rules of society. The starting point is the homo socialis, who needs the objects in his environment for survival. For the satisfaction of these requirements, man concludes contracts, whose security the law serves by upholding the proper rights of each person in court.
As regards the conceptual foundations, the Dane Laurids Nørregard expressed the importance of Roman law as the basis for learning ‘legal reasoning and system’. For this reason, Nørregard held that all rules of Roman law were applicable insofar as they can be seen as concrete expressions of natural law principles.
Those lawyers designated as ‘institutional writers’ in Scotland, who formed Scottish private law between the end of the 17th century and the first third of the 19th century, did so primarily on the basis of the decisions of the highest Scottish court, the Court of Session. For this purpose, they employed a conceptual apparatus and an arrangement which must be characterized as Roman. Roman law also played an important role in the substantive content of the Scottish rules. Yet the pre-eminence of native law, characterized as customary law and derived principally from the decisions of the Court of Session, was preserved in Scotland. James Dalrymple, Viscount of Stair (1619–95) was the first and most important of the Scottish institutional writers. His Institutions of the Law of Scotland first appeared in 1681; in common with lawyers in other European countries, he made reference to civil, canon and feudal law ‘… from which the terms, tenors and forms … are much borrowed: and therefore these (especially the civil law) have great weight with us, namely in cases, where a custom is not yet formed’. In his proposed system, Stair presented Justinian’s Institutes, in a manner similar to that of the Italian Ganassoni mentioned above, as a series of essential freedoms: freedom of the person, freedom of property, and freedom of contract. One peculiarity of the Scottish institutional textbooks remains to be mentioned: a certain number of them (the precise number is unclear) were granted particular authority by the courts in the 18th century.
Klaus Luig, ‘Institutionenlehrbücher des nationalen Rechts’ (1970) III Ius commune 64; in English: ‘The Institutes of National Law in the Seventeenth and Eighteenth Centuries’ (1972) Juridical Review 139; Helmut Coing, ‘Das Schrifttum der englischen Civilians und die kontinentale Rechtsliteratur in der Zeit zwischen 1550 und 1800’ (1975) V Ius commune 1; Christian Chêne, L’enseignement du droit français en pays de droit écrit (1982); John W Cairns, ‘Institutional Writings in Scotland Reconsidered’ (1983) 4 Journal of Legal History 76; AWB Simpson, ‘The Rise and Fall of the Legal Treatise’ in AWB Simpson (ed), Legal Theory and Legal History—Essays on the Common Law (1987) 273; John H Langbein, ‘Chancellor Kent and the History of Legal Literature’ (1993) 93 Columbia LR 547, 585; Italo Birocchi, Alla ricerca dell’ordine (2002); Jens Peter Meincke, ‘Die Institutionen Justinians’ in Martin Avenarius (ed), Die Institutionenhandschrift der Sammlung Wallraf im Historischen Archiv der Stadt Köln (2008) 15.
Hugo Grotius, Inleidinge tot de Hollandsche Rechts-Geleerdheid, ‘s Gravenhage (1631); Georg Adam Struve, Jurisprudentia Romano-Germanica Forensis, Jenae (1670); Antoine Boucher d’Argis (ed), Gabriel Argou, Institution au droit françois, 2 vols (8th edn, Paris 1753); William Blackstone, Commentaries on the Law of England, 4 vols (Oxford 1765–69); James Kent, Commentaries on American Law (New York 1826).