Gaius Noster: Substructures of Western Social Thought
Author(s): Donald R. Kelley
Reviewed work(s):
Source: The American Historical Review, Vol. 84, No. 3 (Jun., 1979), pp. 619-648
Published by: Oxford University Press on behalf of the American Historical Association
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Gaius Noster:
ofWesternSocial Thought
Substructures
DONALD R. KELLEY
"tu regereimperiopopulos, Romane, memento...
OF CLASSICAL JURISTS, is apparently a modern
MOST INFLUENTIAL
discovery. The dramatic storyof his resurrectionhas oftenbeen told. In i8i6
the historian Barthold Georg Niebuhr came across a manuscript in Verona, a
text from Saint Jerome writtenover a much earlier work. He reported this
palimpsest (at some points ter scriptus,a double palimpsest) to his friend
Friedrich Karl von Savigny, the greatest legal scholar of the age and the
emerging leader of the so-called Historical School of Law. Savigny immediately recognized it as the work of the second-centuryjurist Gaius, otherwise
preserved only in fragmentaryformin that great sixth-centuryanthology,the
DigestofJustinian. "Let us hope that we can decipher more of Gaius in these
pages," he wrote to Niebuhr. (So it fortunatelyturned out, for over eleventwelfthsof the Institutesof Civil Law were recovered with the help of this
manuscript.) "This will surelygive new lifeto our jurist," Savigny predicted.2
This book, the only nearly complete pre-Justinianiantext, has indeed had a
profound impact upon Roman legal history and scholarship since its publication in 1820.
Yet in a deeper sense Gaius had never really been lost to view. Despite the
elementary and defectiveformin which his work was transmitted,the structure of his Institutes
can be traced in the thoughtofmany generations not only
of jurists but also of historians and of political and social philosophers.
Whether consistingof notes by Gaius himselfor by a student (the same sort of
debate that has raged around the works of Aristotle), the book became more
influentialthan those of more authoritativejurists like Ulpian and Pomponius
(who, unlike Gaius, possessed the right to interpretthe law, the jus respondendi). Distilling, simplifying,and organizing the resources of ancient legal
GAIUS, THE
As so oftenbefore,I mustexpressgratitudeto friendsand colleaguesat the InstituteforAdvancedStudy
forsympatheticstimulationand, formaterialsupport,to the National Endowmentforthe Humanities.
1 Vergil,Aeneid,
6. 851. Also see note85,below.
no. 321.
vonSavigny,
2 (Berlin, 1929):
2Savigny to Niebuhr,December 5, i8M6,in A. Stoll,Karl Friedrich
Also see Savignyto Eduard Schrader,July i6, 1817, in ibid.,no. 33: "Das muss ein neues Leben unter
unserenJuristengeben!"
6I9
620
DonaldR. Kelley
wisdom, Gaius became the mentor not only of Rome but also of Byzantium
and Europe. He was "the true architect of Justinian's collection," his most
recent commentator has told us;3 he was the model formany later constructions as well, including national codes like the Siete Partidas and the Code
of Customary
Law, SavNapoleon,legal treatises like Antoine Loisel's Institutes
igny's own Systemof ModernRoman Law, and a variety of more tangential
philosophical ventures. Gaius' pedagogical role has been almost as various
and substantial as that ofAristotle.To Justinian he was "Noster Gaius," and
so he has remained forcenturies to many others, including Savigny. He was,
so to say, "our teacher."
"Gaianism" is not a conventional term, but in view of his role perhaps it
should be. Many lesser authors-jurists as well as philosophers-have engendered eponymous "isms" with inferiorclaims, while Gaius formulated (if he
did not create) one of the most distinctiveand enduring systemsof thoughtin
Western history.It is not too much to say that Gaius established a dominant
archetype of social thought, a more practical and human paradigm to rival
the metaphysical structureof Aristotelianism.4Though by intenta method of
teaching law, his book suggested an epistemology, a potentially "scientific"
method and various guiding principles forthe systematicstudy of society and
culture. His work exhibits, it seems to me, the fundamental kinship between
the old science of jurisprudence (legitima,legalis, or civilisscientia,as jurists
liked to call it) and the modern science of society.
In recent times, however, the Gaian tradition has been virtuallyunappreciated, and most likelyunperceived,by historians ofphilosophy and ofculture
in general. What is the reason forthis? Why has such neglect fallen on Gaius'
Institutes
and not, forinstance, on Cicero's relativelyvacuous De Legibus?One
answer is surely that the study of law, even in Savigny's time, has diverged
from history,literature,philosophy, and other fields with which it formerly
had so many vital connections. A more importantanswer, perhaps, is that the
significance of Gaianism-even for those disciplines apparently closest to
jurisprudence, such as political and social philosophy-cannot be perceived
merely fromthe literal and legalistic surface of the text. To appreciate this
significance we must try to grasp the underlying meaning of the text by
deciphering another-a historical and conceptual sort of-palimpsest. Not in
any sense, however, should this approach be tried through speculative interpretation or what textual criticsused to call "divination." Rather, we should
proceed by tryingto assess some of the implications that have in fact been
A. M. Honore,Gaius (Oxford,1962), 128. In general,see H. Wagner,StudienzurallgemeinenRechtslehredes
Gaius (Zutphen,1978);and Pauly-Wissowa.RE 21, Pt. I (1951): 286.The secondary(and tertiary)
literature
on Gaius and his textis enormous.The text,forexample,is thesubjectofa periodical,Gaius Studien,begun
in 1968,editedby R. G. B1ohm,and publishedout of Freiburg.Here, as elsewhere,I will not attemptto
providebibliographicalreferences
on law and legal history,
exceptas theybear upon relevantquestionsof
social thoughtand, even then,onlyselectivelyin termsof the argument.
4 For the standard study,see F. X. Affolter,
Das romische
Institutionen-System
(Berlin, 1897). Also see
Methodenlehre
RomanFoundations
HelmutCoing,Juristische
(Berlin,1972);and H. Jolowicz,
ofModernLaw
withan excellent
see G. Fasso,Storiadella
(Oxford,1957),6i-8i. Forthemostrecent
survey
bibliography,
deldiritto,
3 vols.(Bologna,1966-70).
filosofia
Gajus JNfoster
62 1
drawn out, some of the transformationsthat historicallyhave been attempted:
the aim is not to read between the lines of Gaius but, instead, to surveythe
career of Gaianism. The subject of these remarksis not ille but nosierGaius.
GAIUS LITTLE IS KNOWN, not even his full name, and his
doctrinal background is not clear. When he began to teach and to assemble
his book, there were already two schools of legal thought in Rome. One was
the conservative and republican "Proclian," the other the imperial-minded
"Sabinian." It may or may not be significantthat Gaius belonged to the
latter,more innovative group. Whatever its provenance, the power of Gaianism derives in general from three distinguishing features. The first is his
basically historical approach, displayed most prominentlyin the fragment
heading the famous second title of the Digest: "On the Origin of Law."5 His
historical orientation is, however,most concretelyevident in the substance of
the Institutes,
which constitutesa kind of ordered cornucopia of Roman legal
wisdom. The second is his dialectical method, which generated essential
distinctions,divisions, and methods of interpretation.The last, and the most
important, is the celebrated tripartite arrangement of social categories, a
sequence of rubrics that entail not only moral priorities and a means of
ordering reality but also a characteristic mode of perceiving and construing
the world. What Gaianism suggests is not quite a doctrine (on the analogy,
say, of Calvinism) but rather a methodological system (on the analogy of
sixteenth-century"Ramism," which accommodated Calvinism, yet was distinct fromit), a frameworkfora Weltanschauung
encompassing natural as well
as social experience.
Although never satisfactorilyexplained, the Gaian triad, set forthunder the
rubric De juris divisione,has fascinated scholars for centuries. Down to the
present day it has enjoyed, if not self-evidentrationality,at least extraordinary authority in some circles.6 According to this anthropocentric,secular
trinity,judicial and pedagogical cognizance had to be taken firstof persons
(de personis),second of things (de rebus), and last of actions (de actionibus):
(I) "personality"-the sinequa non,so to speak-including degree of"liberty,"
kinship,citizenship, and other social relations;7 (2) the "real" world, though
for Gaius res could be intangible (incorporales)as well as tangible; and (3)
the relations between and among subjects and objects-that is, "actions in
a general sense, themselves divided reflexivelyinto "personal" and "real"
types. This presumably exhaustive classification represents, in effect,one
enduring expression of the metaphysical foundations of social thought.
OF THE JURISCONSULT
Digest,
I.
2.
i:
"Gaius libro primo ad legem duodecimtabularum: Facturus legum vetustarum inter-
pretationemnecessariopriusab urbisinitiisrepetendumexistimavi...."
6
(Florence,
i. 8, in J. Baviera, ed., FontesIuris RomaniAntejustiniani
Digest, 1. 5. 3; and Gaius, Institutiones,
1940):"Omne autem ius quo utimurvel ad personaspertinetvel ad res vel ad actiones."
ofRomanLaw (Oxford,1936), 42, 140-63. And,in particular,see P.
7 In general,see FritzSchulz,Principles
Duff,Personalityin Roman PrivateLaw (Cambridge, 1938); Paolo Zatti, Personagiuridicae soggettivita(Padua,
1975); and Carlo Maiorca, La Cosa in senso giuridico (Turin, 1937). Also see Adolf Berger's standard
EncyclopaedicDictionaryof Roman Law (Philadelphia, 1953).
622
DonaldR. Kelley
This distinctiveformmakes it possible to isolate a Gaian tradition,even
thoughGaius himselfhad no claim to originalityor profundity.
For underneaththe Gaian textthereare stillolderformulations.
In fact,Gaius was not
the firstsystematizer
of Roman legal science.This honorseemsto belongto
Mucius
Quintus
B.C. juristwho, accordingto Fritz
Scaevola, a first-century
Schulz,created"the firstdialecticalsystemoflaw in thegrandmanner." The
Mucian schemewas quacfripartite,
restingupon the divisionsof inheritance
law, persons,things,and obligations;but it bore obviousaffinities
to thatof
Gaius. As late as the second centuryScaevola's work was the subject of
commentaries
by Pomponiusand by Gaius himself.Thereafter,
itdisappeared
and was unknownto Justinian'seditors."Well may we complainof a fate
which has preservedso utterlyworthlessa work as Cicero's De Legibus,"
Schulz has writtenwithcharacteristic
"but whichhas allowed
assertiveness,
thebookwhichlaid thefoundations
ofnotmerelyofRoman,but ofEuropean,
jurisprudenceto perish."8 Paleographical fortunemore than intellectual
merit,then,leads us to celebrate a Gaian instead of a Mucian tradition,
derivativeand perhapsevendegenerateas it mightbe in termsofRoman legal
history.
What morefundamentally
qualifiesGaian claims,ofcourse,is themanifold
indebtednessof Roman legal science in general to Greek philosophyand,
moreparticularly,
to Greekrhetoric.No one places much stockin the story
(told by Pomponius and included in the Digest-paired, incidentally,with
Gaius' celebrationofhistory)about the visitofthe Decemviri
to Athensbefore
the establishmentof the law ofthe Twelve Tables, but the tale does nicely
symbolizethe culturalcontribution
ofGreekthought.Althoughthechannels
oftransmission
are obscure,Platonicideals,Aristoteliancategories,sophistic
topoi, and especiallydialecticalmethodconstitutethe originallevel,unfortunatelyillegiblein detail, ofthe Gaian palimpsest.It was Greekconceptualization,especiallythetheoryofinterpretation
so centraltojurisprudence,that
transformedthe practice and teaching of Roman law into a Hellenistic
"science" in theclassical (as wellas medievaland, beforethepresentcentury,
modern)sense ofthe term.9
More specificGreek influencecan be detectedat certaincrucial points.
Among the most importantare the practice of making divisions (divisio,
differentia,
distinctio,
correspondor,especiallyamongmedievalcommentators,
ing to the AristotelianbtalpEfst),the settingdown of initial definitions
or regula,corresponding
to '6potor Kav6O's), and a numberofrhetori(definitio
cal topics,such as the contrastbetweenthe letterand the spirit,or meaning,
ofa statement(verbaand voluntas
or ratio).Indeed, manyofthebasic termsof
civil law are simplytranslationsfromGreekterminology,
such as the distinctionbet'weennaturaland civillaw (jus naturale
and civile,corresponding
to
8 Schulz,History
ofRomanLegalScience
(Oxford,i193),94. Also see G. Scherillo,'II civilisticopre-Gaiano,"
in Studiinonore
di Vicenzo
Arangio-Ruiz,
3 (Naples, 1953):445-67.On "abstraction,"see Schulz,Principles
of
RomanLaw, 53-65.
9Schulz, Historyof RomanLegal Science,
62-69. In general,see the monumentalwork of Erich Wolf,
Glriechisches
Rechtsdenken,
6 vols. (Frankfurt,
1950-)-
623
GaiusNoster
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624
3iKatov), betweenthelaw ofnationsand civil
cV/iEwt3LKatOV and 6&Ertor vo6AW
law (jus gentiumand civile,corresponding to KOLVOV tLKatov and lOXLTLKO6v
law (jus scriptum
and nonscriptum,
and unwritten
3LKatov), and betweenwritten
vo,os 7E7pa,puEvos
(aequitas, 7rLELKEta)
and voAos aypaqos).
So it was, too, with the idea ofequity
in utramque
and the method of disputation(disputatio
partem, btuLoL X6,yot).10
IfGaianismmade use ofGreekforms,it gave thema Latin dressand style.
thereare philosophical
Indeed,behindthepedagogicalintentofthe Institutes
Roman. Consider,in the firstplace, the
implicationsthat seem distinctively
orderingof social cateepistemologicalsignificanceof the anthropocentric
began not withcosmology,in otherwords,
gories.For Gaius understanding
but withthehumansubject-the subjectofconsciousness,thatis,as wellas of
for
hominum
rights.Thus, the problemof the human condition(De condicione
provided the
Gaius, encompassed by the civilian rubric De statuhominis11)
point of departure,and the philosophicalimplicationwas a sort of rudimentarysociologyof knowledge.Having establishedthe subject, horizons
could be expanded to includeotherindividualsand naturalobjects,potentially possessions; and, finally,the social field could be completedwith
-of various sorts. Secondly,and
considerationof actions and interactions
correlativeto this, the Gaian systemwas aimed not merelyat causal explanation-value-freescience, so to speak-but also at human problems
and the renderingof practicaljudgments.On thesegroundsjurisprudence
concernedwiththe lifeactiveas well as the
was usefulas wellas theoretical,
and enabled jurists to argue forthe superiorityof their
lifecontemplative,
it with"true philosophy."12
"science" and to identify
In a fundamentalway,then,Gaianismwas set apart fromthe naturalistic
traditionofGreekphilosophy.Perhapsthebest way to clarifythisis to recall
thefundamental
polaritythatarose in Greekthoughtbetweennature(/vn5tg)
and convention,or law (gotog)."3"By conventionexistcolorand taste,"said
Democritus;"in realitythereare atomsand thevoid." As laterelaboratedby
Roman as well as Greek,the oppositionwas by implicationberhetoricians,
tweenthe worldof human will and behavior(of symbolsand "civilization")
and thatofextra-human(objectiveor transcendent)reality.In the tradition
ofRoman law, ofcourse,both conceptshave theirplace: thefirstas a rational
the secondas thehumansubnormidentified
withnaturallaw (jus naturale),
as the law ofnastanceofcivillaw and thatextra-Romangrowthformulated
In contrastto the
But the procedurewas quite different.
tions (jus gentium).
naturalisticor mathematical(especiallyEuclidean) strategyof startingwith
10See H. Habner, "Subjektivismusin der Entwicklungdes Privatrechts,"
in Festschrift
fJrMax Kaser
(Munich, 1976),5-42; and GiovanniPugliese," 'Res corporales,''res incorporales,'eil problemadel diritto
Arangio-Ruiz,
223-60. Also see the workscited in note 7, above.
soggetivo,"in Studiin onoredi Vicenzo
1. 3.
"Digest, 1. 5; and Gaius, Institutiones,
'2For thisrelatedsubject,see my "Vera Philosophia:The PhilosophicalSignificanceof Renaissance
cited therein.
ofPhilosophy,
14 (1976): 267-79,and the references
oftheHistory
Jurisprudence,"
J7ournal
Rechtsdenken,
passim.Also see C. A.
undPhysis(Basel, 1945);and Wolf,Griechisches
'3 F. Heinemann,Nomos
giuridici
romani
(Milan, 1937); and F. Lanfranchi,II
etdegliistituti
naturalistica
deldiritto
Maschi, La Coscienza
romani(Milan, 1938).
Dirittoneiretori
Gaius Noster
625
general principles and reasoning fromthem, Gaianism gave prominence and
priorityto the human aspect, to what fromthe twelfthcenturyonward would
be termed "positive law,""14 and then advanced, empirically in a sense, to
higher degrees of rationality and universality.
What about the structural significance of Gaianism? Does the secular
trinityof persons-things-actionsreflectsome religious or procedural convention? Does it have some logical or linguistic base? Or is it merely, as one
modern expert has suggested, one more manifestationof a general Roman
fixation on "trichotomy"?"5Whatever the prehistorical source, the arrangement was repeated and elaborated in countless ways formany centuriesdown
to the present day. It antedated, and became hardly less ingrained than, the
Christian trinity; and, because of its function in liberal as well as legal
education, it may have played a larger role in the historyof thoughtthan has
generally been recognized. Almost seventeen centuries afterGaius the young
method forced
Karl Marx complained about the trichotomizing(trichotomisch)
on him by Savigny and other of his teachers-but not before Marx composed
a three-hundred-pagetreatise of private law based on the Gaian scheme.'6
And, though he abandoned both this scheme and the "idealism" associated
with it, Marx went on, under Hegel's influence,to adopt another not dissimilar trichotomylikewise based on a dialectic of subject-object. In other
ways, too, ghosts fromthe Roman past haunted Marx's mature works,but of
course this discussion goes beyond the confines of the direct tradition of
Gaianism.
AFTER GAIUS' DEATH (A.D.
I 78 OR LATER) his authority grew in legal as well
as pedagogical terms, especially from426 onward, when the law of citations
named him as one of fivejurists to be followed in the courts.17 The worldwide
is suggested by various survivalsoutside Italy, such as
appeal of his Institutes
the excerpts made for the Breviariumof Alaric and the sixth-centurycommentarymade forthe law school of Autun. At about the same time,Justinian
remarked that Gaius' work was the only elementarytextbook assigned to law
students in the Byzantine schools, though by 533 it was already obsolete in
some respects.'8 In fact,Justinian, or rather his editor Tribonian, preserved
Gaius forposterity,until the nineteenthcenturyat any rate, not only by citing
him often(53I times to be exact) in the Digestbut also by making his book the
model forJustinian's own Institutes.In his preface the emperor revealed his
ereximus
philosophic intentionof "bringing into brightharmony" (in luculentam
14 StevenKuttner
comesfroma misreadingof"positedlaw"
has shownthat"positivelaw" (juspositizvum)
15
eletranger,
dudroitfrangais
Kuttner,"Sur les originesdu terme'droitpositif,'"Revuehistorique
(juspositum);
(1936): 728-30.
desheutigen
inRomanLaw (Oxford,191o); and Karl FriedrichvonSavigny,System
H. Goudy,Trichotomy
Rechts,i (Berlin,1940): 322-26.
romischen
1, pt. I (Berlin,1927):
Gesamtausgabe,
16Marx to HeinrichMarx, Novemberio-iI, 1837,in Marx-Engels
and see note 87, below.
213-31;
17 CodexTheodosianus,
1. 4. 3.
" Deo auctore," Constitutionprefacingthe Digest
626
DonaldR. Kelley
theconfusedmass ofancientjurisprudenceand legislation,and,
consonantiam)
indeed,just at this point he made the famous proprietaryclaim that his
manual was largelybased on theworkof"our Gaius" (praecipue
excommentariis
Gaii nostri.. )." Through this Byzantine vehicle and, secondarily,throughthe
Digestthe formand substanceofGaianismwas transmitted
to modernEuropean culture.
ofJustinianbegan withthe same premiseas the Institutes
The Institutes
of
Gaius: "All ofour law is relatedeitherto personsor to thingsor to actions."
Justinianthenexplainedthe reasonforthatorder-"it is oflittlepurposeto
knowthe law ifwe do not knowthe personsforwhomthe law was made."20
Book i is a topicaldiscussionofthetitle,"De personis," includAccordingly,
ing analyses of the levels and limitationsof personal liberty,especiallyin
termsof paternaland maritalpower (thepatriapotestas
ofthe fatherand the
potestasde manuof husbandand wife).Books ii and iii continued"De rebus"
and were devotedto particularproblemsof possession and property,exchange and inheritance,exceptforthose thingsdesignatedas public, common to all, or unpossessable because of their ecclesiasticalcharacter(res
sacrae).Finally,Book iv treated"De actionibus"-logicallyand interlockingly
divided into personaland real things-and concluded withjudicial procedure and criminalactions.
This Byzantineeffortat remodelingdiffersin two fundamentalrespects
fromthe Gaian original.One difference
is the considerableemphasisplaced
upon public law, illustratedabove all in thenotorious,post-Gaiantextfrom
Ulpian, "What pleases the princehas the forceof law" (Quodprincipi
placuit
legishabetvigorem).2'This emphasis,ofcourse,arose fromJustinian'sdeterminationto exalt,ifnotto deify,his imperialauthorityabove all previouslyrecognizedsourcesoflaw, includingjuristicresponses(responsa
prudentum);
but it
did notdirectlyaffectthe social categoriesencompassedby privatelaw. The
otherdifference
is thatJustinian,drawingon laterclassicaljurisprudenceand
rhetoricalhyperbole,made largerphilosophicalclaimsforthe scienceoflaw,
even claiming for it the status of true wisdom (divinarum
ac humanarum
notitia,
the equivalentof the Ciceronianformulation
of sapientia).But his hyperbole
onlyservedto enhancetheattractions
ofGaianism.22Thereis no denyingthat
-fromthis point most of the words of the Roman legal canon are those of
Justinian(or ratherhis paraphraseof many generationsofjurists), but in
manyrespectsthe assumptionsand conceptualbase continueto be thoseof
"our Gaius." In any case, in this somewhatdisguisedformGaianism was
passed on to the West and preservedforthe nextphase of its posthumous
career.
" Constitution
19 "Imperatoriammaiestatem,
prefacing
the Institutes.
And,in general,see L. Wenger,Die
Quellendesramischen
Rechts(Vienna, 1953),600-37.
20Institutes,
1. 2. 12. Also see Gaius, Institutiones,
i. 8.
21Institutes,
7.21. 6.
22 Digest,i. i. 1. The systemof the Digest-and, indeed,that of the Code-has its own characterand
history;but it is closelyrelatedto, and in some waysdependenton, thatoftheInstitutes,
and it was much
more severelycriticizedin later centuries.Because of its pedagogical and "methodical" purpose and
because ofits broaderimpact,the Institutes
has been chosenforexaminationhere.
Gaius Noster
627
terscriptus,
The thirdleveloftheGaian palimpsest,historically
began during
the twelfth-century
revivalof Roman law and the establishmentof profesAt this
sional facultiesof law at the Universityof Bologna and elsewhere.23
stage the problemof decipheringbecomes increasingly
complicatedby the
intrusionof other intellectualforces,includingcanon and feudal law and
Aristotelian
philosophyin itsscholasticform.Henceforth,
theGaian tradition
was enmeshedin glosses, commentaries,questions,opinions,and-though
strictlyforbiddenby Justinian himself-more or less distorting"interpretations."24
As Gaius' work was lost, so Gaianism became increasingly
difficult
to perceive.
the basic principleswerepreserved,and certainlyno alternaNevertheless,
of glosses,that by Accursius,
tiveswere suggested.The most authoritative
remainsmostlygrammaticalcorrections,
small quibbles, and largejustifications. About the firstGaian text in the Digest-the law "omnes populi"
declaringthat "all people are ruled by civil law or the law of nations"Accursiuswondered,"But whatofthosewho are not so ruled?" The answer
was not difficult:
"I respondthattheseare uncivilizedmen."25This simplified
versionofthedisputatioin utramque
partemAccursiusalso applied to thebroader
question whetherGaius' threefolddivisionmightbe false (hoc videturesse
falsum),and again he resolvedthedifficulty,
in thiscase byarguingfora more
than merelyliteralview of "things" and "actions." There was also a tendency,illustratedby Petrusde Bellapertica,to replace"action" by the more
sophisticatedconceptof "obligation,"whicharose froman agreement(obligationascensex contractu)
and was guaranteedbynaturallaw.26But despitesuch
rationalizingtendenciesthe Gaian systemwas not seriouslyquestioned.
Followingthe Glossatorsfromthe late thirteenth
century,the still more
philosophicallymindedCommentatorsbegan to divergemorebasicallyfrom
Gaian principles.Concerningthe same law "Omnes populi," forexample,
Baldus had a different
answerto the problemwhether"all people" were
indeedruledas Gaius had asserted."I respondthatnotall are," said Baldus,
"formanycitieshavetheirown statutesby whichtheyare ruled."27Although
technicallytheemperorwas stilltheonlysourceoflaw, therightofpeople to
maketheirown law (jus proprium
orjus proprissirmum)
could be justifiedin legal
23
For generalorientationon the Roman legal tradition,see Paul Koschaker,Europaunddas romische
see Franz Wieacker,Privatrechtsgeschichte
derNeuzeit(2d
Recht(3d ed., Berlin,1958). And, forbibliography,
ed., Go5ttingen,1967); and Walter Ullmann, Law and Politics in the Middle Ages (Ithaca, N.Y., 1975). On
particularthemes,see E. Cortese, La Normagiuridica,2 vols. (Milan, 1962-64); and my "Clio and the
MedievaliaetIHumanistica,new.
Lawyers:Formsof HistoricalConsciousnessin MedievalJurisprudence,"
ser., 5 (1974): 25-29.
24 M. Fuhrman, "Interpretatio," in Sympotica
Franz Wieacker(G6ttingen, 1970), 80-1i10; F. Pringelsheim,
2 (Heidelberg,
Abhandlungen,
"Justinian'sProhibitionof Commentariesto the Digest," in his Gesammelte
nei commentatori,"
Annalidi storiadel
ig61): 86-io6; and V. Piano Mortari,"II Problemadell'interpretatio
diritto,2 (1958): 29-109.
2 Accursius, Ad Digestum, I. 5. 1, which is the equivalent of Gaius, Institutiones,
i. 8.
26 Petrus de Bellapertica, In libros Institutionum
commentarii(Lyon, 1536), iii. And, in general, see C.
Karsten, Die Lehrevon Vertragebei den italienischen
juristen des Mittelalters(Rostock, 1882).
di
27 Baldus, SuperDigesto veteri(Venice, I535), f. 26. In general, see L'Opera di Baldo, percuradell'UJniversita
(Perugia, 1901 ); and, in particular, see J. Tarducci's
Perugia nel V centenario
della mortedel grandegiureconsulto
desBaldus(Cologne, 1968);and, forthe classic
essay in ibid.,409-66;NorbertHorn, Aequitasin denLehren
work, C. N. S. Woolf, Bartolusof Sassoferrato(Cambridge, 1913).
628
DonaldR. Kelley
terms,Baldus argued; fordid not the imperialruleagainsta people making
"illicit statutes"implythat theycould make licit ones? In this way Baldus,
followinghis masterBartolusand otherItalianjurists,builtup the case for
thelegitimacyofcity-states
and otherpoliticalunitsthatwereindependentof
imperialjurisdictionand so, presumably,ofRoman forms.For somejurists,
ofcourse,therewas an answerto thisproblem,too: suchpost-Romanstatutes
and customsshouldbe includedin thejus gentium.
Gaius' famousstatementabout the legal "conditionof men" likewisereceived expanding interpretation-and"interpretations,"as Accursius remindedhis students,impliedcorrection.In the firstplace thetopic"De statu
hominum"was an invitation
to somejuriststo philosophizeabout thehuman
conditionin general,about thenaturalas wellas thesocial stateofthat"most
worthyof creatures" (dignissimacreaturarum),
as Alberigode Rosate called
man. But the main themewas the historicalchangethathad occurredsince
thetimeofGaius, thedifference
betweentheancientand the"modernstateof
men" (statusmodernus
"In moderntimes" (secundum
moderna
hominum).
tempora),
observedAlberigo,"thereare variousstatesofmenthatare nottreatedunder
the title"ofGaius. "And, because the stateofmenis in constantmotionand
neverat rest,"he proposedto bringthe discussionup to date by treatinga
varietyofmorerecentquestions,includingthoseoftheJewsand Saracens and
different
sorts of Christians(real and supposed)-laymen and clerics.28In
fact,the general problemthat absorbed most of the energiesof European
juristswas how to accommodatetheirown experienceand institutions,
feudal
as wellas ecclesiastical,to Roman formsand rulesor, in otherwords,how to
as Justinianhad transformed,
transform,
thejus antiquumintoa ususmodernus.
In thiseffort
juristsincreasingly
turnedto extra-Romanexperience,but they
did so in orthodoxtermsof custom(consuetudo)
and thejus gentium,based (as
Gaius had said) on "natural reason."
Anothermajorforcethatacted to transform
Gaianismwas theintrusion,
or
ratherre-intrusion,
ofAristotelianphilosophy.Attemptsto findor to impose
logical species, especiallythe use of the famous"fourcauses," again illustratesthe infiltration
of naturalismand metaphysicsintojurisprudenceand
social thought.Accursiushad accepted Gaius' demand forthe studyof the
"originoflaw," thoughhe interpreted
"necessary"as "useful"and justifiedit
on
of
simply
grounds logic and propriety-thatit provideda way of introducingbasic elements(principia)and that it agreed withthe methodof a
lawyer(advocatus),whichwas to startwithhis exordium.For commentators
like Baldus, however,concernfororiginsand sourceswas translatedintothe
systemofAristotle'sefficient,
material,formal,and finalcauses; and, indeed,
thisprocedurewas associatedwiththe growingclaimsofscholasticjurisprudence to be a rational "science" because it was universaland treatedits
materialin termsof cause and effect(per causas).29The long-rangeimplica' Alberigo,In primam
FF [Digesti] Veter.
part.(Venice, 1585),f. 44v.
R. Weigand,Die Naturrechtslehre
derLegisten
undDekretisten
vonIrnerius
bis
bisAccursius
undvonGratian
Joihannes
Teutonicus
(Munich, 1967);and my"Vera Philosophia:The PhilosophicalSignificanceofRenaissance Jurisprudence," 274.
29 See
Gaius Noster
629
tionsof these tendencieswere momentous;theycontinuedto informprofessional jurisprudencedown to Savigny'stime and after.Yet Gaianism was
modifiedratherthan replaced; anotherlevelwas added to the multilayered
Gaian text.
paradigmbegan in the
first
condition
of
this
mutation
sixteenthcentury.The
was theriseofhumanliterarycirclesand then
isticjurisprudence,beginningin fifteenth-century
the academic and professionalstudyof law.30From the second
infiltrating
quarter of the centurydeepening historicalperspectivesand expanding
geographicalhorizonsencouragedby humanismled certainjuriststo begin
the task of "reforming"the Roman systemofjurisprudencefixedby Gaius,
codifiedby Justinian,and canonized by the medievalGlossators.The "reformers"wanted to fulfillthe famousCiceronianideal of "reducinglaw to
an art" (jus inartem
redigendo)-or,
better,Justinian'sideal ofelevatingit to a
science,a conceptthat was vital and a primerubricof Romanistjurisprudence. Pursuedby elaborateviolationsofJustinian'sstrictures
against"interpretation,"the task was justifiedin the name of that abstractreason contained in the law (rectaratio;ratiojuris) as well as a novel concern for
"method," whichwas a dominantforcein the intellectuallifeofthesixteenth
werethefoundersofthatmodern
century.The meninvolvedin thisenterprise
" (dieSysteschoolofjurisprudencethatSavignydesignated"the systematists
and thatrepresents
a latter-dayGaianism-the last,or perhapsnextmatiker)
to-last,layerofthe Gaian palimpsest.3"
Underlyingthis traditionwas anothermovementfor"reform"associated
withhumanism,namelythe attemptto improveand to re-orderdialecticby
This aim of
it in, rhetoric.32
bringingit intocontactwith,or evensubmerging
variouspedagogicalreformers,
includingRudolfAgricolaand PetrusRamus,
was carriedoverby like-minded
juristsintotheirownfieldofstudy,which,of
tieswithrhetoricin technicalways.In 1520,
course,had otherlonger-standing
building on Agricola's work, Claudius Cantiuncula published his Topica
forthemajor"commonplaces"
to finda betterarrangement
legaliain an effort
SERIOUS
CRITICISM AND TRANSFORMATION of the Gaian
300n the historicalimplicationsof "legal humanism,"see D. Maffei,Gli Inizi dell'umanesimo
giuridico
(Milan, i156); and myFoundations
ofModernHistorical
(New York, 1970). For the philosophical
Scholarship
implications,see Hans Troje, GraecaLeguntur
(Cologne, 1971), whichis usefulfororientation,
new insights,
and bibliographyifnot forall of itsjudgments.
desBesitzes(7thed., Vienna, 1865),10. For the classic and stillindispensablework
31 Savigny,Das Recht
on this tradition,see R. Stintzingand E. Landsberg,Geschichte
der deutschen
Rechtswissenschaft,
4 vols.
(Munich, 1880-1910).
32 See, in general,Neal Gilbert,
Renaissance
Concepts
ofMethod(New York,1956); and WalterOng, Ramus,
andtheDecayofDialogue(Cambridge,1958).On law in particular,therehas been an upsurgeofwork
Method,
"
lately;see, forexample,Hans Troje,"Wissenschaftund Systemin derJurisprudenz
des i6.Jahrhunderts,
in J. Bluihdorn
and J. Ritter,eds., Philosophie
undRechtswissenschaft
(Frankfurt,
i969), 63-88; Aldo Mazzacane, Scienza,logica,e ideologianellagiurisprudenza
tedesca
delsec.XVI (Milan, 1971); F. Carpintero," 'Mos
italicus,' 'mos gallicus,' y el humanismoracionalista,"lus Commune,
6 (1977): 108-71; C. Vasoli, "La
deldiritto
moderna
Dialetticaumanisticae la metodologiagiuridicanelsecoloXVI, " in La Formazione
storica
in
Europa,i (Florence,1977): 237-79;and A. Giuliani,"The InfluenceofRhetoricon theLaw ofEvidenceand
Pleading," Jfuridical
Review( I962), 2 16-5 1.
630
DonaldR. Kelley
of law (locorumdivisio).33This work was pursued furtherin the Methodica
dialecticis
ratiobyJohannApel, who illustratedhis topicalreformwitha series
of diagramsshowingthe logic of social, especiallyas contrastedto natural,
and process.AmongGermanjuristslikeJohannFreyand Nicolaus
structure
Vigeliusthe influenceofRamus was particularlystrong,partlybecause they
hoped withhis help to restorejurisprudenceto a more centralpositionin
general learningand, throughits association with oratory,to enhance its
foran "idea of
social utility.As Freysuggestedin his schematicprescription
the good and completejurisconsult,"the finishedproduct,a paradigmof
practical and theoreticalknowledge,would be the "political man" (homo
But mostofall, raisingtheirsightsfrompedagogyto philosophy,
politicus).34
thesejurists wanted to fashionthe Roman legal traditioninto an orderly
system;for"order,"wroteChristopherEhem, anotheroftheselegal reformesseanimamipsarumrerum).35
ers, "is the soul of things themselves" (ordinem
Althoughnot generallyappreciatedor even admitted,the movementsto
reformdialecticand jurisprudencecontinuedto have recourseto old traditions of naturalismand scholasticism,despite a lot of careless anti-Aristotelianrhetoric.JohannOldendorp,in anothertreatiseon "legal topics,"
and theidea of
used Aristotelian
and exempla
categoriesto organizehismateria
the fourcauses to interpret"actions" in particular.36
Even more systematically,Vigelius,who indeed set out to reorganizein such dialecticalterms
the whole Institutesof Justinian (resolutioInstitutionum
Imp. Jfustiniani),
relied
theoriesof
upon Aristotle.37
Similar attitudesare evidentin contemporary
had becomea recog"interpretation,"
which,despiteJustinian'sprohibition,
nized part of law.38The "order" soughtby criticalmethodologists
likeJean
Coras and Pietro Gammaro was a natural order,which they contrasted
sharplywithcivillaw. The latterwas founded"not on nature,"as Coras obThis social
served,"but only on opinionand the authorityof legislators."39
authoritymightsufficeforlaw as an "art," but a science needed to judge
proposed
"throughcauses"-precisely whatthenew theoriesofinterpretation
to accomplish.A rationalmethod,or methodicalrationale(methodica
ratio),as
places or means of makingdistinctions;see his Topicalegalis,printed
33 Cantiunculalistedtwenty-five
(Basel, I545).
withJohannApel, Methodicadialecticisratioad iurisprudentiam
siveCynosura
3 NicholasReusner,ed., XEIPAr QIA
iuris,2 (Speier,1588),no 32: Freigius,"Idea boniet
perfecti
iurisconsulti" (fold-outdiagramin theappendix).Also see Mazzacane, Scienza, logica,e ideologia.
3 Ehem, De principisiuris libri septem(Basel, I556), i.
in septemclasses distincta(Lyon, 1566), f. 3v. Also see his
36 Oldendorp, Actionum
forensiumprogymnasmata
der deutschenGeistesgeTopica legalis (Lyon, 1555). On Johann Oldendorp, see E. Wolf, GrosseRechtsdenker
seinerZeit (Basel,
schichte(2d ed., Tubingen, 1951), 134-75; and Guido Kisch, Erasmus und die Jurisprudenz
1960), 227-59, Claudius Cantiuncula(Basel, 1970), 57-71 ("Methodenlehre"); and MelanchthonsRechts-und
Soziallehre (Basel, 1967). For a topical analysis of Bartolus, see A. Brederode, Loci communes. . . novi et
uberrimiin Bartoli . . . opera omnia (Basel, 1589).
37 Vigelius, Dialectici iuriscivilislibriIII (Basel, 1620). Also see his Methodusuniversi
iuriscivilisabsolutissima
(Lyon, 1591).
38 See V. Piano Mortari, Ricercasulla teoriadell'interpretazione
del dirittonelsec. XVI (Milan, 1956). Also see
i:
derdeutschen
H. Schurpf, "Ratio interpretandi," in Stintzing and Landsberg, Geschich/e
Rechtswissenschaft,
107I.
3' Coras, De iurecivilein artemredigendo,
in Tractatusuniversiiuris, i (Venice, 1584): 59; and Gammaro, De
in ibid.,I8: 247. On Coras, see A. Fell, "The Classical Four Causes in the RenaissanceArtof
extensionibus,
1974).
Columbia University,
Law" (Ph. D. dissertation,
Gajus Noster
631
of law have recourseto the
Oldendorp put it, "requires thatthe interpreter
law of nature."40
Yet thiswidespreadsearchforsystem-"methodus,""schemata,""ratio,"
and "partitiones" are among the operativeterms-by no means implied
abandoningthe humanand positiveaspectsofjurisprudence.The juristhad
to judge fact as well as law; he had to find authoritiesas well as devise
arguments.The dual aim ofjurisprudence,accordingto Conrad Lagus, was
to answerboththehistoricaland thephilosophicalquestions:Philosophy,he
explained,was no doubt"the firstpartoflaw, thatis, thetruthand reasonof
law insofaras the human mindcan attain them"; but no less essentialwas
"the secondpart" (that is, history),"the bare narrationoffacts. . . to show
the formsof law observedby Roman legislationin particularcases."'41 Preciselyin this sense of "history"could law be analyzed in termsof persons,
things,and actions.In theprefaceto his standardanthologyoflegal treatises
on method,Nicolas Reusnerprovidedthe aphorismthatbest expressesthe
he
enduringimportanceof the Gaian scheme: "Bonus Institutionalista,"
"42
stated,"bonus Jurista.
The continuingand cumulativecritique of the Roman canon was an
internationalenterprise;but the major effortsof revisionwere begun in
ofBourges.
France,especiallyby disciplesofAndreaAlciatoat theUniversity
Alciato was the founderof humanisticjurisprudence,ofthemosgallicus as it
was later called, althoughhe personallylacked any particularsystematic
interests.The most notable of his followers-FrancoisConnan, Eguinaire
Baron,Francoisle Douaren, and Hugues Doneau-were deeplyindebtedto
modthe humanistmovement;but each made a practiceofalso introducing
ern materialsand ideas, not only feudallaw, whichwas regularlytaughtat
Bourges,but a varietyofhistoricalissues,such as the influenceofCelticand
massivelyto thecriticism
Each ofthemalso contributed
Frankishinstitutions.
ofthe Roman legal canon,and none hesitatedto breakwithRoman formsin
theirattemptsto realize the ideal of law as "true philosophy."
Connan's masterwork,publishedposthumouslyin 1557, was called Comon CivilLaw; but its generalpurpose was actuallyto shiftemphasis
mentaries
away fromcivil law and to discuss instead such topics as obligationand
propertyin termsof the law of nations,as Gaius had definedit. For Connan
thejus gentinum
was equivalentto the "formofa people" (ormapopuli),and it
"priorto civillaw." As a consequence,he
was, logicallyifnotchronologically,
tendedto examineconventionaltopicsof civillaw in the contextnot onlyof
prirmum),
withthe "firstlaw ofnations" (iushocgentium
naturallaw, identified
but also of European, oftencomparative,history.He also gave large and
and tojuristsin
continuingrolesto customin theprogressoflegal institutions
law," he wrote,and "judgrationalizingthesecustoms."Custom interprets
resjudicataeconsuetudinem
ments confirmcustom" (consuetudo
leguminterpretatur;
40Oldendorp,Iurisnaturalis
etcivilisEloraywy5
(Antwerp,1539),sig. Aiii.
gentium
" Lagus, Methodus
traditio
(Lyon, 1566),3.
iurisutriusque
iuris,1: 13.
Reusner,XEIPArPrIA siveCynosura
42
632
Donald R. Kelley
Law was, of course, grounded in nature, but the firstlaws (priscae
confirmat).43
leges) were barbaric; there was no original "golden age" (aetas aurea), only
"the rule of lusts, factions,evils, seditions, plunderings, war, and an absence
of equity and justice. "44 The perfectionof law only developed over the course
of time, with the ratiocinations of jurists and especially with the effortsto
establish a rational systemof law. Connan had reservationsabout the triadic
systemof Gaius and argued that the rubric of actions was unnecessary since it
could be divided between persons and things. On a more general level,
however, Connan carried on the spirit of the Gaian tradition.
So, in even more modernizing and vernacularizing terms, did Eguinaire
Baron, the eldest and in some ways the most original of these four French
pioneers. In addition to a manifesto of the new jurisprudence, Baron produced a series of commentaries on all parts of civil law according to a unique
bipertita,
and self-consciouslycomparative method that he termed commentaria
by which he "accommodated civil law to French customs and legislation"
hujustituliad moresGalliarumetlegesregias).45He "accommodated"
(accommodata
both the Institutesof Gaius and the Digest of Justinian, in part simply by
translation. He explained, forexample, that "among the French the plebs is
the Third Estate" and went on to point out parallels and contrasts in the
respective social and legal systems. He agreed with Gaius that all law concerned persons, things, or actions, but his experience prompted him to
expand "the condition of man" beyond the distinction of free and unfree.
Women were "persons" too, and, like Connan, he was aware of their peculiar
deteriorin multiscausis). There were also the
position (quia statusfoeminarum
et lettresde
problems of foreignersand naturalization (aulbains, ou etrangers,
naturalite);and, in fact, Baron composed a monograph on succession among
Other difficulties,such as the antiquated Roman paternal power
foreigners.46
(patriapotestas),likewise led him to depart from Roman convention, though
without rejecting the entire Roman frameworkofjurisprudence. The work of
Baron, a marvelous and many-sided illustration of the cultural shock that
antiquity could inflicton sensitive and learned moderns, certainly deserves
closer study.
Better known and probably more influential is the work of Baron's colleague and rival Le Douaren. Although these two "Alciateans" had a variety
of disputes, personal and religious as well as professional and political, they
fundamentallyagreed about "method"; and Baron subscribed to his younger
colleague's formulationthat emphasized the systematic-pedagogical (ars doproprietas)aspects of the
cendi)as well as the humanistic-philological (sermonis
43 Connan, Commentariorum
iuriscivilis libri X (Paris, I557), f. 43. For analyses, see C. Bergfeld, 1"ranciS2US
(Cornanuis(Graz, 1968); and V. Piano Mortari, "La sistematica come ideale umanistico dell'opera di
Francisco Connano," in La Storia del dirittonel quadrodelle scienzestoriche(Florence, 1966), 52 1-31. The same
formula appears in Lagus' Methodusiuris utriusquetraditio,42, from the Digest, I. 3. 37.
" Connan, (ommentariorum
Luriscivilis libri X, ff.32v, i6.
civilitimab
passim, and Instititiontini
45 Baron, Opera omnia, ed. F. Baudouin (Paris, 1562), Commentarii,
Iostiniano(aesare editarumlibri 1111(Poitou, I550). On Baron there is no useful study of any sort.
46 Baron, Opera omnia,
52, 78 ("De statu hominum"), 92.
Gaius Noster
633
newjurisprudence.47
For Le Douaren legal educationoughtto beginwiththe
Institutes
and, despitethe humanistprejudiceagainst scholasticism,oughtto
include the worksof Bartolus, Baldus, and the best of the philosophical
commentators.
Like his friendConnan, Le Douaren was devotedto theideal
of "true philosophy,"and he declaredthat"thereis nothingeitherdivineor
human that thejurisconsultdoes not treatand that is not relevantto civil
science." He wroteextensivelyon both canon law and, under the civilian
headingof "custom," feudallaw; and he deniedthatRoman law had in any
sense been "received" into France. Nevertheless,
civillaw continuedto providethetermsand framework
ofhis legal philosophy.In his discussionofthe
problemsof legal system,he leaned perhaps more towardthe naturalistic
interpretation,
making an analogy to mathematicsin particular,since he
believedthat"the elementsoflaw, thegroundsofitsmaximsand basic issues
are as points,lines,surfaces,etc.,are to geometry.'48
Such was thebasis ofLe
Douaren's various"methodical"discussions(methodica
methodica
enarratio,
partitio,and tractatio,
as he characterizedhis interpretations
oftheRoman canon).
Of all of the workof the great "systematists,"that of Hugues Doneau,
disciple and successor of Le Douaren at Bourges, is probably the most
comprehensiveand influential.For Savigny,Doneau's Commentaries
on Civil
Law markedthe introductionof the Frenchschool into Germany,and for
Savigny'sdisciple R. Stintzing,the greatauthorityin the field,Doneau was
"49 At Bourgesand laterat the Univer"the creatorofmodernjurisprudence.
sitiesofAltdorfand Heidelberg,Doneau carriedon theworkoftransforming
Romano-Byzantinelaw intoa universalsystemin accordancewiththe ideal
oflaw as "true philosophy,"as an expressionof"rightreason."50Like many
othercontemporary"anti-Tribonianists,"Doneau was much disturbedby
the stateof the Codeand especiallyof the DigestofJustinian,althoughit was
the form,or ratherthe formlessness,
instead of the substance (the postclassical interpolations,
or "Tribonianisms")thathe wantedto correct.The
on the otherhand, he continuedto admire,especiallythe tripartite
Institutes,
classification;and, in fact,much of his workof "reformation"consistedof
tryingto gathertogetherand to arrangethe scatteredand sometimescontradictorymaterialon persons,things,and actions into an intelligibleand
symmetricalsystem.For Doneau each of these headings had three subheadings: (i) divine and human, with the latterdivided into public and
private; (2) obligations,which followedthe discussionof rightsand which
were groupedunder"things"; and (3) formsof procedureto obtain rights,
whichappeared under"actions." Doneau's work,like thatof his elder colleagues, shows the strongimprintof formalphilosophy,includingthe four
47Le Douaren, Operaomnia,i: i. For an analysis,see W. Vogt,Franciscus
Duarenus(Stuttgart,1971).
48Le Douaren, Operaomnia,i: i. Also see Coras, Operaomnia,i (Wittemberg,
1603): 1.
41 Stintzing,
HugoDonellusin Altdorf
(Erlangen,1869),42.
50Doneau, Operaomnia,i (Rome, 1828): 133. On Doneau, see the old appreciationand analysisby A.
Eyssell,Doneau(Dijon, 186o); on Doneau's significance
forFrenchsystematizing
and codifying
see
efforts,
A.-J.Arnaud,Les Origines
doctrinales
du CodecivilfranSais(Paris,1969),12 1.
634
DonaldR. Kelley
Aristoteliancauses, and at least a touchofRamist,or Ramoid, method;but
remainswithinthe Gaian tradition.
in generalthe Commentaries
In the generationafterDoneau the risingtide of "vernacularhumanism"
broughtthis traditioninto contact with the tangled questionof customary
law. In Francetwoclose colleagueswho studiedat Bourges,EtiennePasquier
as the modeland guidefortheir
and AntoineLoisel, tookJustinian'sInstitutes
Pasquierfoundparallelsto the
law.
to
vernacular
system
some
efforts
to bring
Gaian model in other"institutes"-Quintilian's "oratorical," Lactantius's
"divine," and Ramus's "dialectical" (to whichwe mightadd Calvin's "institutes" of religion)-and began his workwitha shorthistoryof Roman systematizingfromthe timeof Scaevola.5' Pasquier argued that law was more
closelyallied to rhetoricthan to philosophyand that,because of thejurist's
relianceon memoryand humanjudgment,his artwas calledjurisprudentiainstead ofjuris scientia.Like his Latinate colleagues,Pasquier operated in the
domainof thejus gentium,whichhe equated simplywith"human law" (droit
of the Institutesof Justinian(unpublished until the
humain). His Interpretation
nineteenth
century)startedout as a translationbutended up as a comparative
followingthe Gaian pattern
studyof Roman and Frenchlegal institutions,
verymuch in the style of Baron's work. Pasquier, however,was generally
hostileto civil law, deploredits tyrannicaland rigidtendencies,and was at
pains to pointout contrastswithFrenchcustoms.Withrespectto thefirstdiexceptin
vision,forexample,all French"persons" werefree(libresetfranches)
In mostways Loisel agreed withand,
a fewantiquatedprovincialcoutumiers.
indeed,consultedPasquier on these matters,and was moreinsistenton the
statusof French"persons," arguingthat the primarydivisionwas
differing
and vilain),since all men
(itselfdivided into bourgeois
between nobleand roturier
again
Institutes,
were or could become free by baptism. Loisel's Customary
followingthe Gaian patternbut composed of nativeproverbs,literaryexpressionsof folkwisdom,and maximsofcustomarylaw, movedeven further
fromRomanismtowardsome sortof nationalsystem."2
in the sixteenthcentury,but
There were othereffortsat system-building
tendedto be concerned
of
Jean
Bodin,
like
the
celebrated
theseworks,
Republic
exception,
withpoliticalratherthan social or legal thought.One instructive
fashionedby Bodin's
abused when not neglected,is the curiousconstruction
rival,PierreGregoireofToulouse. For Gr6goire"method"was an "imitation
he triedto assemblea man-cenofnature,"and in his own grandioseRepublic
tered cosmology to emulate the natural cosmos.53 Gr6goire,like Bodin, denied
Frenchsubjectionto
oftheRoman traditionand, specifically,
theuniversality
it; but on the fundamentalpoint,the natureofthe commonwealth,he had a
emphasis.The centerof his politicalcosmoswas occupied not
verydifferent
aux ordonnances
avecla conference
de chaqueparagraphe
des Institutes
de Justinian,
Pasquier, LInterpretation
de la France,ed. M. le duc Pasquier (Paris, 1847),9, 45.
et coustumes
de Parlement
generales
royaux,
arrestz
52 Loisel,Institutes
ed. M. Reulos (Paris, 1935).
coustumiers,
De republica
librisexetviginzti
(Frankfurt,
x609),lo: 54, 13: 12, 21. And see thediscussionby C.
5 Gregoire,
(Paris, 1965).
de droit
publicde Pont-a-Mousson
Collot, LEcole doctrinale
Gaius Noster
635
by the prince-as it was for Bodin and for that "most pernicious man,
Machiavelli "-but by that Roman formof wisdom called law. This emphasis
is even clearer in Gregoire's othersystematiceffort,his Syntagmajuris
universi,
a
book treating "all law, divine, human, and natural," according to a "new
method.""" The noveltyof this method, however, fades on examination, not
only because it relies on traditional views of hierarchy but also because its
principal categories turn out to be variations on the old Gaian theme. The
firstvolume (books I-6) covers a wide range of things-natural, divine, and
human (including "communal" and "feudal")-and then (books 7-19) persons and the various conditions thereof.The second volume concludes with an
elaborate consideration of human "actions," criminal as well as legitimate,
collective as well as individual, public as well as private. Reversing the
position of the firsttwo categories was done for the orthodox reason that in
Creation things had in fact preceded persons. In general, Gregoire's work
illustratesa crucial turningpoint in the career of Gaianism-the shiftfroma
normativelegal doctrine to a descriptiveinterpretationof societyand culture.
Other endeavors, apart fromthe tinkeringwith the Roman system, were
operating to transformmodern views ofjurisprudence. One was the gigantic
contemporary enterprise in the field of classical and historical scholarship,
although this effortmay have served to confuse as well as to broaden
perspectives on the old legal tradition. Jacques Cujas was the symbol and
leading spiritof this critical assault on the textual aspect ofthis tradition.Also
positive and empirical in a certain sense was the growing appreciation even
among academic jurists of the value of modern judicial experience. Cujas's
student, Pierre Ayrault, forexample, turned fromtheoryto practice (usus) as
the best means of access to legal wisdom. For him the true source oflaw lay in
particular judgments (resJudicataeis the civilian rubric). These Ayrault regarded as the firstor only or "supreme" part of the law; and he compiled a
modern digest (pandectae)of such judgments that followed, of course, the
conventional order. "Look to the practitioners," he advised, "for those things
that pertain to their art."55 Finally, there were the long-standing ideological
objections to Romanism, especially national jealousy of imperial-papal intrusions and claims to universalism. In France the standard formula was "that
the civil laws of the Romans may not be alleged in the courts of France or in
any inferiorcourts on the basis of theirauthoritybut only on the basis oftheir
rationality" (proratione).56
In this way, though in fewothers, nationalism can
be said to have reinforcedrationalism. In all of these ways the intimidating
position of the Roman canon and of Gaianism in a general sense was increasingly undermined, or at least relocated, in a more pluralistic and rational
conception of human historyand society.
etpraeceptis
(Lyon,
64 Gregoire,Syntagma
iurisuniversi
(Colg ne, 1623).Also see his De iurisarte,methodo,
1580).
Pandectae,
6rAyrault,Rerumab omniantiquitate
iudiciarum
i (Geneva, 1677): 84. On Digest,42. 1 ("Res
judicatae"), also see Ulrich Zasius, Operaomnia,3 (Lyon, I550): col. 360. There is no modernstudyon
Ayrault.
" Charles de Grassaille,Regalium
Franciaelibriduo (Paris, 1545),45.
636
DonaldR. Kelley
THIS POINT THE GAIAN PALIMPSEST
seems to be exhausted: betweenthe
historicaland empiricalassaults on the one hand and the efforts
of rationalizationon the other,academicjurisprudencecould hardlyretainits conventional form;it moved,in a sense, fromthe letterto the spiritof Roman
notonlywith
jurisprudence.In general,theseventeenth
centurywas suffused
de systeme
but also with1'espritde geometrie,
and thesecombinedwiththe
1'esprit
enthusiasmforthe"new science"ofGalileo and Descartesto ensurethatlegal
scholarshipwould be intimidatedif not dominatedby what has inelegantly
been termed"jusnaturalism."For the next two centuries,so it seemed to
many observersat that timeand since, legal and social as well as political
philosophywas captive to this modern idea-"antique-modern," as Otto
Gierkepreferred
to call it-of naturallaw.57This cast ofmindis a deflection
fromGaianism. The resurgenceand prominenceofthe idea of "nature" was
used in theexplanationand legitimation
ofhumancategories,social as wellas
as well as normative).Indeed,the "state ofnature"
legal (thatis, descriptive
tendedto takeoverthefunction
bothofthemoralbasis ofsocial behaviorand
of the historicalinterpretation
of civilization.Thus, the significance
of"convention,"so essentialto Gaius and otherRomanists,was subordinatedor
distorted.Moreover,the principleofauthority-and withit the forceofcustom, prescription,tradition,and even "interpretation"in a usual sensetendedto be overshadowedby the claimsofuniversalreason.The resultwas
thatthe "law" seemedin manyways to be dehumanized:man himself-his
will,his history,his culturalindividuality
as wellas his irrationality
and perhaps sinfulness-was increasinglylost to view.
Gottfried
WilhelmLeibniz,who publishedhis own "new method"ofj urisprudence in I667, providesthe most extremeexample of legal rationalism
(jurisprudentia
rationalis).Althoughthoroughly
groundedin legal scholarship
and attached to the "reformed"dialectic associated with Ramus, Leibniz
turnedto mathematics,
to Euclid, forhis modelofrationality.He
specifically
rejectedthe threefolddivisionof Gaius because, as so many othershad
pointedout,"actionsderivefrombothpersonsand things." Most fundamental to his objectionwas the apparentlyrandomempiricismofconventional
jurisprudence."Its method,"he remarked,"was takenfromtheinmostparts
not of law but of fact" (haec Methodusnonex Jurissed Facti visceribus
sumpta),
"forpersonsand thingsare termsof fact,as power,obligation,and the like
are termsof law."58The confusionand irrationality
inherentin such an approach was too absurd fora modernconceptionof law: "Who would not
laugh at such a new Euclid?" For Leibniz, however,jurisprudence,along
withotherhumanisticstudies,was subordinatedto metaphysics,ultimately
AT
"Still fundamental,
in additionto Stintzing
and Landsberg,
derdeutschen
Geschichte
is
Rechtswissenshaft,
Otto Gierke,Das deutscheGenossenschaftsrecht,
therelevantpartofwhichhas beentranslatedbyErnestBarker
as NaturalLaw andtheTheory
ofSociety,
1500-1800 (Boston,
1957);but,ingeneral,
thesubjectofnatural
lawis
too peripheraland too voluminousto allow bibliographicalcommenthere.
58 Leibniz,
Nova methodus
discendae
docendaeque
iurisprudentiae
(Frankfurt,
1667),in Samtliche
Schriften
und
Briefe,6, pt. i (Berlin, 1971): 298. On Leibniz in general,see K. Dickerhof,Leibniz' Bedeutungfur die
Gesetzgebung
seinerZeit (Freiburg,
1941),and F. Sturm,
Das romische
Rechtin derSichtvonGottfried
Wilhelm
Leibniz(G8ttingen,1968).
Gaius Noster
637
to mathematics;and his positionrepresentsa pole ratherthan a school of
thoughtin the range of legal and social doctrines.
of natural law was Hugo Grotius,
The major figurein the re-emergence
thoughhe, too,was steepedin humanisticand legalerudition.His mainlegal
relations,which
workswere devotedto thatanarchicarena of international
itselfseemedto representa pre-or extra-legal"state ofnature."Like Leibniz
particulars.
a generationlater,Grotiushad a basic contemptforunclassifiable
"For theprinciplesof thelaw ofnature,"he wrotein theprolegomenato the
Law ofWarandPeace,"since theyare alwaysthe same,can easilybe brought
into a systematicform;but the elementsof positivelaw, since theyoften
in different
places, are outsidethe domain
undergochangeand are different
just as othernotionsofparticularthingsare."59 In a
ofsystematictreatment,
workon prizesand bootyhe tookthesame viewand, reasoningfrom
youthful
a set ofgeneralrulesand law, affectedan evenmoredeliberatelymathematical plan.
Yet thisrenewedemphasison natureand reasonis by no means thewhole
storyofsocialand legal thoughtin theage ofreason.The iusnaturalewas,after
all, an essentialpart of the Roman legal tradition;and, as Richard Zouche
contemporaries,Gaius himselfhad exremindedhis seventeenth-century
plained thatthe basis of the law of nationswas that"naturalreasonamong
Indeed, the continuingassociation of
men" (naturalisratiointeromneshomines)."0
thelegal traditionto maintainits
permitted
the 'usgentium
and thejus naturale
human groundings.Grotius,forexample,was not only a jusnaturalistand
law" but also, as GiambattistaVico latercalled him,
"fatherofinternational
the "jurisconsultof the human race."'" Like Vico, Grotiusneitherforgot
historynor despisedtradition.He persistedin citingancient"authorities,"
includingnot only the Bible, jurists,and scholasticphilosophersbut also
literaryand especiallyhistoricalwriters,who providedjudgmentsas well as
illustrations.Grotius'sintentionswere,perhaps,less rationalizingthan universalizing;forhis primaryfieldof operationswas indeed "positive law,'"
voluntarium)
specificallythe kind of "voluntaryhuman law" (jus humanum
exclusiveofthejuscivileas positedby
definedas thelaw ofnations(jusgentium,
Gaius). Universallaw, accordingto Grotius,arisesnotonlyfromnatureand
fromdivineordinancebut also fromcustomor tacitconsent-that is, from
humanwill. "And the Law of Nationsis provedin the same manneras the
of
unwritten
Civil Law," he wrote,"namely,by longusage and thetestimony
its professors;forthislaw, as Dio Chrysostomsays,is 'the inventionof time
and experience,'and here the greathistoriansare of the greatestserviceto
59Grotius,De iurebelliac pacislibritres,trans.W. Knight(London, 1922), prolegomena,22, and De itre
trans.G. Williamsand Q. Zeydel (Oxford,1950), 7.
praedaecommentarius,
8 Zouche, Iuriset iudicii
fecialis(i65o), ed. T. Holland (Washington,i9i i), i. Also see J. W. Textor,
ed. L. von Bar (Washington,19 16), 2.
i'uris
gentium,
Synopsis
"1See Dario Faucci, "Vico and Grotius:Jurisconsults
of Mankind," in G. Tagliacozzo and H. White,
(Baltimore,1969),61-76; L. Rosa, "Grozio frail giusnaSymposium
Vico:An International
eds., Giambattista
Adriano
moderno,"in Miscellanea
turalismoscolasticoe il giusnaturalismo
Gazzana,2 (Milan, ig6o); Wolf,
deldiritto.
and Fasso, Storiadellafilosofia
derdeutschen
GrosseRechtsdenker
Geistesgeschicte;
638
DonaldR. Kelley
use."62 In theseways Grotiusmanagedto retainat least indirectcontactwith
the old Roman tradition.
In France at the veryheightof the enthusiasmforCartesianismand that
"geometricspirit"sensed and to some degree resistedby Blaise Pascal, the
persistenceof Gaianism is apparent in a sublimatedform.The clearest
example, as well as the greatestmonumentofjurisprudencebeforeRobert
Jean Domat, whosegreatsystembegan
Pothier,is theworkofPascal's friend,
to appear in I695. Although Domat's Civil Laws . .. were arranged . .. in Their
NaturalOrder(an excellentillustrationofthe cravingto reduceconventionor
historyto nature),theyremained,in effect,a rationalizingcommentaryon
Roman experience.And, thoughhe affectedto seek out fundamental(natural,perhapsprehistorical)principles,Domat foundtheirhumanexpressionin
the usual textsof civil law. He gave precedenceto the naturalover the civil
state,but he continuedto conceptualizewithinthe Roman paradigm,keeping
the rubricsof persons,things,and actions. Conventionand not nature,for
example,led himto definepersonsin termsof"liberty"(or thelack thereof),
as in foreignor exiled status), and
citizenship(or the exclusiontherefrom,
The generalimpressionis ofrationality,
fatherhood(or subjectionthereto).63
or the rhetoricof rationalism,imposed on the old Roman categories.Even
Domat's ultimategoal, famouslydefinedas the "spiritof the laws," was a
morerationalizedversionoftheoldjuristicaim ofgettingat thetruemeaning.
Montesquieu'sL'Espritdesloisof I 748is, ofcourse,the workthatmade this
phrase and concept universallyfamous,althoughthe connectionwith the
earlierlegal traditionwas effectively
obscuredby the authorhimself,whose
claims to originalityhave neverbeen disputedand seldom even examined.
I have been obliged,
"My ideas are new," wroteMontesquieu,"and therefore
to findnew words,or givenew acceptationsto old terms,in orderto convey
mymeaning."64To pointout the relationofMontesquieu'ssystemto theold
and
Roman tradition,which he had surveyedhistoricallyin his Grandeur
Decadence
oftheRomans( 734),is notto denyitsnoveltyor conceptualforce.His
basic concernwas not withantecedent"laws of nature" but ratherwiththe
old law of nations and civil laws; and, if he construedhis subject in an
extraordinarily
wide-rangingfashion,he followedthe lead of Baron, Bodin,
and othersin adoptinga comparativeapproach, in takinguniversalhistory
and the law of (all) nationsas his field,and in emphasizingclimate,geography, and culturaltradit'ion.In more specificways,too, he retainedcontact
with Roman formsas well as withthe textsand modernscholarshipof civil
"
law, and thebookhas withsomejustice been regardedas a "new De Legibus.
As Le Douaren and otherswho commentedconsecutively
on the Corpus
juris
Grotius,De iurebelliac pacis,xiv.
Domat, Les Loix civilesdansleurordrenaturel, (Paris, 1835).On Domat, see R. F. Voeltzel, eanDomat
G. Tarello,ed., Materiali
perunastora dellacultuira
(1625-1696) (Paris, 1936),Io7; and, mostrecently,
giridca,
2 (Florence, 1972): 127-57.
see Franz
6 Montesquieu,L'Espritdeslots (Paris, 1748),preface.On theproblemofthe work'sstructure,
Neumann's introductionto the English translation,The SpiritoftheLaws,trans. T. Nugent (New York,
Mark Waddicor,Montesquieu
andthePhilosophy
ofNaturalLaw (The Hague, 1970);
1949),and, morerecently,
S. Goyard-Fabre,Philosophie
dudroitde Montesquieu
(Paris, 1973);and Tarello, Materialiperunastoria,vol. 1.
62
63
Gajus Noster
639
of the law, its species, and its sources (quidjus, de
began with a definition
juris, and undejus), so Montesquieu began withgeneral definitions,
divisione
continuedwith the species of constitutions(correspondingto democratic,
aristocratic,and monarchicalsourcesof law) and thenlikewiseproceededto
the law ofpersons(libertyand servitude)and of things(commerce),family,
and succession.Montesquieualso ended up witha discussionof feudallaw
to the Librifeudorum,
whichmodernjuristshad acceptedas a
(corresponding
continuationof"Roman law"). AlthoughMontesquieu'sbookmayhavebeen
"withouta mother"(prolem
sinematrem
creatam
was its motto),it did have a
kind of conceptual godfather:the "spiritual consanguinity"of the basic
Roman paradigm. The SpiritoftheLaws can be read as a set of variations,
on Gaian and Justinianianthemes.
howeverremoteand figurative,
As Cartesianismdid not entirelyeffacethe old Roman canon in France,
did notexcludethestudyofpositivelaw or evenend thetraditionof
Naturrecht
ofjusnaturalismin Germanywas
Gaianismin Germany.Most representative
the encyclopedicworkofJohannGottliebHeineccius,thoughhe belongedas
wellto thecontinuingenterprise
ofhumanisticscholarshipand lookedback in
particularto Le Douaren. Like Le Douaren, Heinecciusworkedalong both
philologicaland philosophicallines. His historicalsurveysof civiland Germaniclaw and his variousinvestigations
intocrucialtopicsofmoderncritical
" the
jurisprudence-includingJustinian's
prohibition
against"4interpretation,
ignoranceofGreek(thatis, the "speciousdictum,"Graecum
est,nonpotest
legi),
the "anti-Tribonianistsect," and biographicalsketchesof Cujas and other
jurists-exemplifyhis philologicalanalysis.65The second line of endeavor
consistsof a series of commentaries-"Elements,"he called them in Euclidean style-not onlyof philosophyin generalbut also of naturallaw, the
law of nations,and especiallycivillaw, fromthe Twelve Tables down to his
of 17I8, a
own day. The Gaian traditionis representedby his Syntagma
but also making
systematictreatise"accordingto theorderofthe Institutes,"
use of Oldendorp and othermodernscholars.66In general,his firstconcern
was withthe human condition(destatuhominis),
and he expresslyrepudiated
Thomas Hobbes's naturalistictendencyto deriveall law fromcontractual
agreement.For Heineccius the mainstreamof wisdom,thoughit certainly
originatedin Greek philosophy,was that "knowledgeof thingsdivineand
human" (the title of anotherof his dissertations)identifiedwithjurisprudence.67In a numberofwaysHeineccius-like Grotius,Domat, and othersprovidesa link betweenenthusiasmfornatural law and older traditionsof
positivescholarship-and also, not accidentally,betweenthe old jurisprudence and newerviewsof how to go about studyingsociety.
The importanceof the Roman experiencein thethoughtofthe Enlightenmentis mostconspicuousin thehistoricalworksofMontesquieuand Edward
65 Heineccius,Operaomnia,
4 vols. (Geneva, 1744),3: 17,21, 171,203. On Heineccius,see Stintzingand
Landsberg,Geschichte
derdeutschen
3. 179-97.
Rechtswissenschaft,
ordinem
66 Heineccius, Antiquitatem
illustrantium
secundum
Institutionum
Romanarum
iurisprudentiam
syntagma
digestum,
in Operaomnia,4. Also see Operaomnia,i: 191.
Justiniani
67 Heineccius,"De iurisprudentia
divinarumhumanarumquererumnotitia,"in Operaomnia,
3: 374-89.
640
DonaldR. Kelley
Gibbon, but it was not onlydecadence and declinethatfascinatedscholars.
The positiveforceof Gaianism persistedin a varietyof ways and so did the
grand traditionof Renaissance scholarshipthat had accumulated around
Roman law. Francois de Boutaric,like Loisel more than a centuryearlier,
offered
a comparativeanalysisofFrenchcustomarylaw withintheframework
of Justinian'sInstitutes.68And Damiano Romano,in the fashionof Bodin
almosttwo centuriesearlier,offereda treatise"on thetruelaw ofnatureand
of nations"thatwas organizedaccordingto universalhistoryand drewupon
the scholarlyworkof Francois Hotman, Cujas, Doneau, Le Douaren, and
many other,especiallyProtestant,jurists of the sixteenthand seventeenth
centuries.69
Otherexamplesofadherenceto older scholarlytraditionscan be
foundamongjuristswho ostensiblybelongedto thenaturalschool but who
wererepelledby the naturalisticexcessesof Hobbes, Samuel von Pufendorf,
ChristianThomasius,and Wolf.This repugnancewas especiallyclear in the
to improveinternational
law, therootsofwhichwentback
continuingefforts
encyclodirectlyto Gaius via Grotius.Gaian notionsalso continuedto inform
ofUniversal
Jurisprupedic enterprises;forinstance,Joachim Daries' Institutions
proposedto describethe
dence,
somewhatlikeGregoirede Toulouse's Republic,
natureof man, society,and public and privatelaw in a "systematic,""methodical," and "scientific"fashion,yet again followingthe old Roman
forms.70
But the clearestexpressionofGaian influenceduringthe age ofEnlightenment was surelythe effortto codifypositivelaw, whichcame to maturity
during the next centuryand, indeed, became a central political issue in
Savigny'stime. Once again the centerof attentionwas France, wherethe
codificationmovementhad arisenin thesixteenthcenturyin connectionwith
the workof Charles Dumoulin and other"systematic"jurists already discussed. What was requiredforsuch an enterpriseto succeed, accordingto
was the"juridicalrationalA. -J.Arnaud,a recenthistorianofthemovement,
ism" and "modernphilosophy"oftheage ofDescartes,especiallytheworkof
Domat and his eighteenth-century
successors,includingMontesquieu but
evenmorePothierand Henri Daguesseau, who weremoredirectlysignificant
forthe Napoleonic Code.7' Yet, as Arnaud himselfhas shown,the "order"
achieved by modernphilosophyretainedmuch of its Roman composition,
especiallythe tripartiteGaian scheme,whichcarriedover into the French
civilcode. The "philosophic"ideal ofthe rationalizing
jurists,ofcourse,was
itselfa centralfeatureofthe Roman legacy.AntoineTerrassonwas, perhaps,
"the firsthistorianof law reallyconcernedwiththe philosophyof law"; but
Les Institutes
de Justinien
avecle droitfrancais(Toulouse, 1738). In general,see
688De Boutaric,
conferes
des nationalenRechts im 17. und i8. Jahrhunderts,"Ius ComKlaus Luig, "Institutionen-Lehrbucher
mune,3 (1970): 64-97.
89 Romano,Del vero
diritto
dellanatura
e dellegenti(Naples, 1757).
70 Daries, Institutiones
iurisprudentiae
universalis
in quibusomniaiurisnaturaesocialiset gentium
captain usum
(3d ed., Jena, 1748).
auditorii
sui methodica
explanantur
scientifica
71 Arnaud, Les origines
civilede
du Codecivilfrancayis,
doctrinales
27, passim;and Ph. Sagnac, La Legislation
la revolution
francaise
(Paris, 1898),51.
Gaius Noster
641
Terrasson's historyis specificallyof Roman law as an embodimentof this
philosophy.And, whenhe wrote,"Philosophyis the truesourceofjurispruofUlpian, notofDescartesor Leibniz." In any case,
dence," he was thinking
what was reallyrequiredto achievea code in France was not a conceptual
effort;it was a revolution.
centurywere
TENDENCIES
in theeighteenth
PARALLELING
THESE RATIONALIZING
various and increasinglyobvious survivalsof older humanistictraditions.
Indeed, this resurgenceof historicaland literaryeruditiondividedthe Enfromthe earlier"age ofreason." Despite attacksby naturalizing
lightenment
on history),positivelegal and
philosopherson "authority"(and, by inference,
literaryscholarshipcontinuedto flourishamong a varietyof unfashionable
in doubt.
who refusedto allow the new philosophyto cast everything
erudits,
NeitherDescartes's skepticismnor Galileo's scornforhistorians("memory
experts") could stem the flowof antiquariansocial, legal, and institutional
history.In GermanyHermannConring,Heineccius,and Leibniz (!), in the
NetherlandsPerizoniusand Grotius,in FranceJacques Godefroy,
Terrasson,
and Montesquieu,in Italy GiovanniGravina and Ludovico Muratori,and
even in England John Selden and Henry Spelman carried on the great
enterprisebegun by earlier humanists." Withoutthem, it is too seldom
recalled,the worknot onlyof Gibbon and otherhistoriansofthe Enlightenmentbut also of Niebuhrand Savigny,howeveroriginaland ground-breaking,would have been impossible.Indeed, Savigny'sfamousmanifestoof the
HistoricalSchool, "The Vocation of Our Age forLegislationand Jurispruof
dence" (1814), maybe regardedas a celebrationofthemonumentalefforts
this(philosophically)tenuoustraditionofscholarshipas wellas an assaulton
naturalismand its attendantfallacies.74Under cover of these tendencies,
Gaianismcould maintaina certainprecariousexistenceevenoutsideofnarrow professionalcircles.
In fact,resistanceto a physical,or metaphysical,approachto the studyof
historicalschools.
humanitylongantedatedtheriseofthenineteenth-century
The firstgreatnemesisofradicalnaturalismwas GiambattistaVico, whowas
at thesame timea leadingchampionofRomanjurisprudence.Vico wagedhis
campaignnot onlyagainstthe currentCartesianformofnaturalismbut also
For him a true"science" of
againstits earlierphilosophicalmanifestations.
notonly
humanityhad to accommodatenot onlynaturebut also convention,
reason but also authority(and unreason), not only determinism(necessitas
but also the freeand creativewillsof men. As Le Douaren, Lagus,
naturae)
72 Terrasson,Histoire
delajurisprudence
romaine
(Paris, 1750),101
73 In additionto Stintzing
derdeutschen
volumethree,thereare
and Landsberg,Geschichte
Rechtswissenschaft,
Gravina,
giurista
e storico
variousspecializedstudies.For two notableones,see C. Chisalberti,Gian Vincenzo
rechtsgeschzichtliches
Verdienst
(Cologne, 1939).
(Milan, 1962);and K. Kossert,Hermann
Conrings
desBesitzes.For otherworksby and about Savigny,see notes8o74 See, forexample,Savigny,Das Recht
8i, below.
642
DonaldR. Kelley
Grotius,and manyothershad said, humansciencehad to combinehistoricalphilological with philosophicalinvestigations.And according to Vico the
model forsuch a science was neitherGreek philosophynor rhetoric,which
remainedconceptuallyseparate,but insteadthatcharachad unfortunately
teristicRoman kind of "wisdom" (sapientia)that was jurisprudence-or,
rather,the modernexpressionofthis"civil doctrine"bornofhumanismand
best expressed by Grotius.75In the contextof Vico's epistemology,itself
derivedfromor, at least, analogous to civil law, the "new jurisprudence"
combinedthe study of the cultural productsof human will, the "certain,"
withthe studyoftheproductsofGod's will,or nature,whichwas the"true."
It had to combine, in other words, an understandingof "authority,"or
history,witha searchfor"reason," or the divineideal, injust the same way
thatphilosophicaljuristsproceeded.Such was the argumentof Vico's treatLaw, whichwas indeed the firstversionof the NewScience-the
ise, Universal
bottomlevel of an intellectualpalimpsesthardlyless complex than Gaius'
own.
Vico was one of the great transformers
as well as championsofjurispruinto
everything
dence. His method-indeed, his obsession-to reformulate
historicaltermsmeanthe could not directlytake overthe staticGaian triad.
and his own neotrinitarian
a trichotomizer;
Yet Vico himselfwas notoriously
structuresdisplayedcertainanalogies withthose of Gaius. On the level of
or psychology,the Vichian classes were nosse,velle,and posse;
epistemology,
(perhaps selfand theymightbe renderedrespectively
as self-consciousness
vitality(or the urgeto liveand to relateto others),
possessionor self-control),
and activity(or desireto act and to achieve). In the courseof the historical
into
process these threebasic facultiesof human naturewere transformed
what can be consideredas social, beyond a mere individual,consciousness
(mens),rationality(ratio),and awarenessof divinity(Deus). In the sphereof
civil society,anotherhomologoustriad, the institutionalcategories,again
whichcan be understood
wereproducedby historicaldevelopment:dominium,
in social
as controlofthings,the basis ofcivilpossession,or property;libertas,
termsthe legal order,the rule of law; and tutela,active controlover and
directionof societyon behalfof its values and goals-that is, government.76
betweenthe Vichianand
It will not do to make too close an identification
proudofthe"geomettheGaian systems.For one thingVico was inordinately
ric" designof his "new science," and increasinglythe Romanoid structure
sublimatedversionsofthesystem.
was lost in the successiveand increasingly
containeda commondenomiBut both the Universal
Law and theNewScience
nator:both systemsretained,on theone hand, a primarycategoryofpersonality (that is, the subject of rightsand obligations) and, on the other,a
secondarycategoryof naturalreality(that is, objective"otherness,"which
representedthe fieldforacquisition-both naturaland civilpossession). In
76 For a fullertreatment
ofthe place ofrhetoric,see my"Vico's Road: FromPhilologytoJurisprudence
and Back," in G. Tagliacozzo and D. Verene,eds., Giambattista
Vico'sScience
ofHumanity
(Baltimore,1976),
15-29.
76
Vico,De universi
jurisunoprincipio
etfine
uno,ed. F. Nicolini(Bari, 1936).
Gaius Noster
643
both systemsactions were definedin terms of these two classes. These
remarkshardlybeginto revealVico's relationsto thelegal tradition,notonly
to the ancientsourcesbut to the scholarshipof Domat, Grotius,the French
"systematists,"and othercommentators
oftheprecedingtwocenturies;they
may, however,serveto suggestsome of his importanceas a link between
jurisprudenceand a modernphilosophyofsocietyand culture-anotherway
in whicha traditionallegal sciencecould becomethepointofdeparturefora
modernsocial science.
In variousways Vico anticipated,even if he had no directimpacton, the
new view ofjurisprudencethatbegan to appear in the late eighteenthcentury-the HistoricalSchool of Law, whichbecame morefullydefined,and in
some waysevendominant,in the wake oftheNapoleonicwars. The pointof
departureofthisschoolwas a historically
naminded-whetherconservative,
tionalistic,or "romantic"-rejectionof theoriesof naturallaw or, at least,a
reformulation
ofthem.Its hometerritory
was, ofcourse,Germany,wherethe
wars of liberationweredirectednot onlyagainstNapoleonicdominationbut
also against Bonapartistand Jacobinideology."To simplify
a verycomplex
matter,the assault on rationalismand jusnaturalism(and, relatedto this
attack,the emergenceof the HistoricalSchool) took its strengthfromthree
interrelated
traditions.First,the continuingeffortsof antiquarianresearch
intothenationalas well as theclassicalpast followedtheworkofHeineccius
and earlierhistoriansand ultimatelystemmedfromthe philologicalachievementsof Renaissancehumanism.Second, again relatedto sixteenth-century
concernswithpracticalmatters,"cameralisticscience" (whateverits politics
and goals) acted as a solventupon grand theoriesof naturallaw, whether
olderrationalistschemesor neweridealisticconstructs,
such as thatofKant.
Third,most immediateand mostemotionalwas oppositionto thatconcrete
embodiment(or, at least, symbol)of oppressiveand arbitrarysystems,the
Napoleonic Code (and, to some extent,its earlierPrussian and Austrian
counterparts).These were the groundson whichthe Historische
Rechtsschule
was establishedin the earlynineteenth
century.
The man mostoftenregardedas thefounderofthisschool-Altervater,
Marx
called him, and Naturmensch-was
Gustav Hugo, whose attitudesstemmed
quite directlyfromthe traditionofclassical humanism.Amongotherworks,
he publisheda new editionofthefamousfragments
ofUlpian (firstpublished
by Cujas and referred
to by both Montesquieuand Vico) and a translationof
Gibbon's forty-fourth
chaptersurveyingthe historyof Roman law, likewise
based on humanistscholarship;he also wrotevoluminouslyon and taught
legalhistory.He beganpublishinghis systematic
and historicalworksin 1789,
takingas his special target"dogmatic"jusnaturalismand settingin itsplace
his own realisticsortofnaturallaw.78His systemwas foundedon a "juristic
" LikeGaius himself,
theHistorische
Rechtsschule
has spawneda literature
toovoluminousto mentionand
a longconcatenationofjournals startingwiththoseofSavignyand Hugo and endingwiththeZeitschrijf
der
Savigny-Stiftung
furRechtsgeschichte.
See, forexample,GeorgesGurvitch,L'Ideedu droitsocial(Paris, 1932).
78 Hugo, Lehrbuch
desNaturrechts
als einePhilosophie
despositiven
whichwas partofhis Lehrbuch
Rechts,
eines
whichbegan to appear in 1789.
civilistisches
Cursus,
644
DonaldR. Kelley
ofpersons
anthropology,"in whichhe consideredthe animal characteristics
(derMenschals Tier)and wenton to considerlaw as "natural" in thesensenot
of rationalitybut of a defactogrowth.In one sense, Hugo recapitulatedthe
methodofGaius, who likewiseacceptedwithoutquestionthe"reality"ofpast
Roman experience,therebygiving"authority"to history,and thenrationalHugo was, likeGaius,
ized it throughdialecticalargument.Not surprisingly,
open to chargesof being arbitraryand authoritarian;and, as conventional
Romanismcame under firefromrationalistslike Leibniz, so the Historical
School was attackedby idealists-especially Hegelians,the most famousof
a
whomwas theyoungMarx. Althoughhe recognizedthatHugo represented
"reaction against the frivolousspiritof the eighteenthcentury,"Marx obof the alternative.About Hugo's historicalmethod
jected to the irrationality
Marx observed,"Everythingserves him as an authority,everyauthority
serves him as an argument"; and about the true principlesof justice he
concluded that Hugo "desecratesthemin the eyes of reason in orderafterSo Hugo seemed
wards to make them honorablein the eyes of history."79
even to justifyslavery;and, in general,Marx reduced Hugo's philosophyof
law to the propositionthat "the sole juridical featureof man is his animal
nature."
joined and thensupersededHugo in the
Savigny,Marx's teacher,who first
leadershipoftheHistoricalSchool,regardedthisattack,ofwhichhe was only
an indirecttarget,as unfairand obtuse.Throughouthis lifeSavignyrejected
der
the charge that his view supportedthe "tyrannyof the past" (Herrschaft
and he argued thatthe basis of his thoughtwas not authority
Vergangenheit),
but realistichumanperspective.His viewswereexpressedfirstin his youthful
yet magisterial treatise on possession, Das Rechtdes Besitzes (1803).8
Here
Savignydecisivelycontributedto a discussionthathad been goingon forcenturies,a discussionthathad indeedbegun withGaius and thatincludedother
assumpjurists,especiallyLe Douaren, Doneau, and Pothier.The controlling
in terms
settled
law
to
had
be
tionofthisbook was thatpracticalquestionsof
but also historically-that
of Roman law understoodnot onlysystematically
is, in termsofa processthatincludednotonlyancientformsbut also medieval
Savignylaterfollowed
transformations.
and modern(heutige)
interpretations
this methodin his treatiseon the law of obligationsand, above all, in his
ofModernRomanLaw; presumably,he also maintainedthe same stance
System
in his teaching and in his career as ministerof justice forthe reformof
conPrussian law. Savignywas involved,of course, in othercontemporary
troversies,most notablythat betweenthe "idealists" (especiallythe Hegelians) and the "realists," with whom he was identified;but the extentto
whichhis ideas can be understoodin termsofthelongerlegal traditionas well
as the moreimmediatecontextof Germanphilosophyis surprising.
71 Marx, "Das philosophischeManifestoder historischen
Rechtsschule,"in Marx-Engels Gesamlausgabe,
25I-59. Also see H. Jaeger,"Marx et Savigny,"Archivesde Philosophiedu droit, I2
i, pt. i (Berlin, I927):
und 'Philosophiedes positivenRechts,' " Tidschriftvoor
"Naturrechtskritik
(1967): 65-89;and J. Bliuhdorn,
45 (1974): 3-17.
Rechtseschiedenis,
80 Savigny,
Das Rechtdes Besitzes,124, and A. Rudorif's
addition,543-62. Also see Vogt,Franciscus
Duarenus,
89-io8.
Gaius Noster
645
From the first,Savigny, like Gaius, had systematicambitions; and his age,
like that ofGaius, was similarlydivided, both ideologically and pedagogically,
over jurisprudence. The basic question of the suitabilityof a modern code of
laws for German society was the issue on which Savigny and the Historical
School rose to prominence.81Savigny ridiculed the "positivist" notion advanced by A. F. J. Thibaut of constructingan abstract and academic code as
simplistic and outmoded naturalism already discredited historically by the
evident failures of the Napoleonic, Prussian, and Austrian codes of the previous half-century.Arguing that law, like language, was the product ofa long
and gradual development, Savigny concluded that the answer lay in the
tradition of Roman law, which had been officially"common law" for three
centuries and, in fact, for longer than that. As a result, he came to replace
Hugo as the leader of the Historical School, especially afterthe publication of
his manifestoof 1814and the foundingof his journal, Zeitschriftfur
geschichtliche
in
Rechtswissenschaft,the followingyear. The premise ofthisjournal, that a true
"science" must be the product of centuries of development, was another
illustrationof the affinitybetween Savigny and Gaius. Thus, it is appropriate
that in the next year came the miraculous discoveryof that most ancient relic
and deepest root of Roman legal science-Gaius' Institutes.
GAIUS APPEARED
IRONICALLY,
TOO LATE to be of practical value forthe science
of jurisprudence; it was too late in the evening for the Roman owl to take
flight.The principal significanceof the discovery lay in the field of historical
scholarship and Roman antiquities. Even more ironically-tragically, in fact,
for Savigny-the Historical School was itselfmore important in the long run
for academic-scholarly and philosophical-than for professional achievements. In a sense this culmination of a long process of "historicizing" (Historizierung,as a recent historian of eighteenth-centuryuniversities calls it82)
underlies the great works of Theodor Mommsen, Rudolf von Jhering, and
others of the next century.In fact, Savigny's reputationtoday rests largelyon
his massive Historyof Roman Law in the Middle Ages, even though it was
intended originally to be a preliminarystudy of the sources of law and, thus,
ancillary to its author's professional aims and ambitions. Nevertheless, Savigny's SystemofModernRomanLaw was the principal monument of the Historical School; and in many ways it proposed, in modern terms,to carry out the
same sort of task, philosophical as well as pedagogical, that Gaius had set for
himself.In a sense, it was a move back toward Gaianism.
Savigny's neglected masterworkrepresentsnot only the culmination of the
Historical School but also a kind of historically oriented summaof the legal
81Savigny,VomBeruf
unserer
ZeitfurGesetzgebung
undRechtswissenschaft
(Heidelberg,1814),publishedwith
Thibaut's articleand othermaterialinJ. Stern,ThibautundSavigny
(Darmstadt,1959). On theproblemof
codification,
see J. Vanderlinden,La Concept
ducodeenEuropeoccidentale
duXXIIIe au XIXe siecle(Brussels,
1967); G. Tarello, Le Ideologie
della codificazione
nel secoloXVIII (Genoa, 1971); W. Ebel, Geschichte
der
in Deutschland
Gesetzgebung
derGesetzgebung
(2d ed., Gottingen,1958); S. Gagn6r,Studien
zur Ideengeschichte
(Stockholm,1960); and Koschaker,Europaunddas romische
Recht.
82 NotkerHammerstein,
jus undHistorie(G6ttingen,1972), 216.
646
DonaldR. Kelley
tradition going back to the classical period of jurisprudence-most specifically to Gaius himself,who figures prominently in as well as provides the
prototype for this treatise. Like Gaius, Savigny proposed to give shape to a
vastly "rich heritage" through critical and selectivejudgment.83 He rejected
the current fallacy of both historical and legal scholarship, which assumed
that a systematic treatment could merely be a collection of monographs
(though that treatment,indeed, drew upon such works, including Savigny's
own on possession and obligation). "Scientific" jurisprudence was the creation not of amateur philosophers like Cicero (or even Montesquieu, despite
his training) but only of men of professional authority (auctoritasprudentium)
like Gaius and Savigny himself. To Savigny's system in general Gaius had
made at least three contributions. One was the transmission of particular
formulas derived frommore ancient Roman legal wisdom. Another was the
distinctionbetween the two basic kinds of law-that is, civil law and the law
of nations, which was properly identified with natural law (as Savigny
thought, in contradiction to those who recognized it as a third type) since it
was based on "natural reason." And, almost unavoidably, the third was the
notorious Gaian triad. Although Savigny had critical remarks to make about
the triad, he did incorporate it into his own structure.What is more, he went
on to point out a number of analogous trichotomies of Roman law that
history,if not nature, had endorsed.
At the center of Savigny's (as of Gaius') cosmos was, of course, the individual "person," the first member of the Gaian trinity,which perhaps not
originally but eventually opened up the whole question of the "status" and
"condition" of man in a philosophical as well as a legal sense. In this
connection he referredto Doneau, one of the most important of his systematizing predecessors, who elaborated on the concept of personhood by distinguishing aspects not only of life and security but also of liberty and belief
(existimatlo),all of which stemmed from an "original" rather than an "ac"Man stands in
quired " right.As Savigny described the basic conditio
hominum,
the midst of the outer world, and the most important element, to him in this
surroundingof his, is the contact with those who are like him, by theirnature
and destination." From the individual Savigny moved to the social sphere,
where as he put it, "in the richness of living reality all jural relations forma
systematic whole." On the level of this web of jural relations (Rechtsverhaltnisse),the counterpart of the individual was the "people" (Volk-that is, the
Roman gens), and the law thereofwas an expression of the old law of nations
(jus gentium,rendered as Volksrecht).84
Then, in Gaian fashion, he took up the
law of things,actions, and their various derivativesand interactions. Romantic and organistic imagery aside, Savigny's strategywas quite in keeping with
the Romanist tradition, which he was, in his "historicist" way, espousing.
83 Savigny, Systemdes heutigen
ro5mischen
Rechis, ix, 413, 393, 38. And, for a very important article, see Aldo
Nlazzacane, "Savigny et la storiografia giuridica tra storia e sistema," in Scrittiin onoredi SoalvtorePubljatti,4
(Milan, 1978): 515-29.
84 Savigny, Systemdes heutigenromischen
Rechts,357, 331, xix, 17.
Gaius Noster
647
Savigny'sinfluence,thoughrestrictedin the long run to the intellectual
sphere (his struggleagainst modernjusnaturalismwas defeatedwith the
adoptionoftheGermancivilcode in I900), was profoundand in manyways
pervasive,illustrating
again thehumanistcommonplacethatRome,although
it had collapsed as a politicalstructure,continuedits dominancethrough
linguistic,literary,and especiallylegal channels. Gibbon opened his fortyfourthchapterwiththe observationthat"the public reason of the Romans
has been silentlyor studiouslytransfusedinto the domesticinstitutions
of
Europe .
. . ,"
but even deeper and more enduring has been the effectupon
legal,historical,and social thought.BeforeSavignythisRoman influence
was
mostconspicuouslyevidentin the workof Montesquieuand Vico, who had
also strivento recapturetheessenceofthetraditionand giveit modernform;
afterhim,it was evidentin the workof manyothers,not only disciplesbut
whosemagisterialSpiritofRomanLaw was
also criticslikeRudolfvonJhering,
devoted to the same purpose. To illustratethis purpose, both Vico and
Jheringquoted the famouslinesof Vergil,
0 Romans,youkeepuniversal
ruleovernations
Remember,
In theseways:bymaintaining
peacethrough
law,
Bydoingjustice
tothelowly,
bybringing
downthehaughty..8.
This prophecymightbe takenas the epitaphofSavignyand his school-not
onlyin theirefforts
to reformand to regulatesocietybut also in theirimpact
on modernsocial thoughtin general.
ACHIEVEMENT OF THE HISTORICAL SCHOOL had repercussions
farbeyond
thelegal scholarshipofSavigny,JohannEichhorn,and theirdisciplesand the
parallel historicalwritingsof BartholdGeorg Niebuhrand of Leopold von
Ranke and his academic offspring.
Based upon a totaland "organic" viewof
culture,this approach involvedmany other areas of culturalstudy,most
notably language, religion, and political economy. Out of the interand overlapping"histordisciplinarymatrixcreatedbythesecomplementary
ical schools" emergedone phase ofa new disciplinecalled sociology.One of
thefirsthistorians(and in thiscountrya founder)ofthatdisciplinepointedto
the HistoricalSchool of Law, especiallyto the Savigny-Thibaut
controversy,
as seminalforthe growthof sociology.86
A moreconcreteillustration
of this
connectionis Marx, whose social thoughtarose in the contextof his legal
education and, specifically,in the quarrel betweenthe Hegelians and the
HistoricalSchool; and a numberof his ideas, includingclass structureand
"alienation,"weredirectlylinkedwiththeciviliantradition.87
Otherparticular instancescould be added-including, perhaps, the systematicworkof
Max Weber and, certainly,his sociologyof law.
THE
85 Vico, Dirittouniversale,
seiner
214; and Rudolfvon Jhering,Der Geistdesr8mischen
Rechts
aufdenStufen
i (Berlin, 1852): 306.
Entwicklung,
86
AlbionSmall, Origins
ofSociology
(Chicago, 1924),37-62.
87 See myarticle,"The Metaphysicsof Law: An Essay on theVeryYoung Marx," AHR, 83 (1978): 35067, which is a continuationof the presentdiscussion.
648
DonaldR. Kelley
A centralremainingquestion is the significanceof the old Roman and
Gaian paradigmformodernsocial thought,especiallyin itssystematicsociological forms.Althoughto providean answermovesthe discussionfromthe
historicaldimensionto transhistorical
speculation,the questionat least provides a logical terminus
ad quemforthis discussionof the afterlife
of Roman
formsand ofGaianism in particular.To concludewitha retrospective
glance
at thistradition,it seemsclearthatthefirst,
and perhapsthemostfundamental, continuinginfluencewas pedagogical. Civil law was a major vehicleof
fromthe thirteenth
to the
secular highereducationin European universities
nineteenth
century(as it had been in Gaius' time),and theInstitutes
(firstin a
Gaian, thenin a Justinianian,and finallyin a nationalformforvariousEuropean states) constituted
one of the basic textbooksofWesterncivilization,
introduction
to social thought.Certainly,
arguablythesinglemostinfluential
theoverwhelming
majorityofsocial thinkers
priorto Savignywerejuridically
trained.Secondly,Roman civillaw was an almostinexhaustiblesourceofassumptions,insights,terminology,
methods,formulas,and conceptsforsysand process; and evenforthosewho,
tematicthinkingabout social structure
like Marx, reacted against it, the importanceof civil law in negativeways
was considerable.Finally,throughits ideals, systematicform,and practical
" and "philosophical"
Romanj urisprudence
a " scientific
intentions,
furnished
model forthe understandingof human society.The specificrelationships
betweentheold legal traditionand the new fieldsofhumanstudy,including
economics,sociology,and anthropology,
forthe mostpart stillawait investigation.
In assessingthesignificance
ofcivillaw in Westernsocial thought,let us, in
conclusion,returnto theoriginalepistemologicalbasis oftheGaian tradition.
The ancientdualismofnatureand conventionimplieda distinctionbetween
the naturaland the social or historicalconditionof man; and Gaius' subjective and "personal" startingpointgave priorityto the latter,in contrast
bothto theintimidating
politicalphilosophyofAristotelianism
and to modern
naturalism.Jurisprudencecould not extricateitselffromthe conventional,
howevermuch it reached towardthe natural: as "true philosophy,"it was
incorrigibly
man-centered,
value-laden,and action-oriented.
It had to view
the human conditionnot as a naturalprocessor a logicalconstructbut as a
human epic or drama thatfocusedon the conflictof willsand the means of
resolvingthemwithintheoverallcommunalpattern.Ultimately,
perhaps,the
natural and the conventional-reason and custom, the "spirit of law,"
and the realityof society-mightbe reconcilable;but mencannotjudge, act,
and live "ultimately,"thoughtheycan talk about doing so. Of this human
yetglobal approach to "science," the symboland in some contingent(and
"conventional")sense the startingpointis "our Gaius."