Institutes  of  Justinian,  Titles  I  to  XII.  ©2014  SARSantiago,  Block  B2018   1    

The Institutes of Justinian PROLOGUE IN NOMINE DOMINI NOSTRI JESU CHRISTI. IMPERATOR CAESAR FLAVIUS JUSTINIANUS, ALAMANNICUS, GOTHICUS, FRANCICUS, GERMANICUS, ANTICUS, ALANICUS, VANDALICUS, AFRICANUS, PIUS, FELIX, INCLYTUS, VITOR AC TRIUMPHATOR, SEMPER AUGUSTUS, TO THE YOUTH EAGER TO KNOW THE LAWS. XXX Receive, therefore with all diligence and with eager attention these laws of ours, and show yourselves so well-versed in them, that the fair hope may animate you of being able, when the whole course of your legal study is completed, to govern our Empire in such regions as may be entrusted to your care. Given at Constantinople on the eleventh day before the Kalends of December, in the third Consulship of our Lord, Justinian, ever August. ABSTRACT After defining Justice and Jurisprudence, and stating the three fundamental principles of Law: “honeste vivere, alterum non laedere, sum cuique tribuere,” Justinian separates Law into its two branches, viz. Public and Private, and dismisses the former as unconnected with his subject. Private Law he then tells us is derived from three Sources, viz.:

1. Jus Naturale 2. Jus Gentium 3. Jus Civile

These he defines; and proceeds to divide the whole body of Private Law, 1st, according to its Form into Written and Unwritten: 2nd, according to its Application into

1. The Law relating to Persons, 2. The Law relating to Things, 3. The Law relating to Actions.

SECTION I. The Law Relating to Persons The primary division of Persons is into Liberi (Free) and Servi (Slaves). Liberi again are either Ingenui or Libertini (Free-born or Free-made). The mention of Libertini necessitates an explanation of the origin and method of manumission: and a discussion of the restraints imposed on a master’s right to manumit. Another division of Persons is according to their exemption from or subjection to Potestas: thus we have

1. persons Sui Juris, not under Potestas, 2. persons Alieni Juris, under Potestas.

A. As to persons Alieni Juris Potestas is of two varieties:

1. Dominica Potestas, exercised by Masters over their Slaves;

2. Patria Potestas, exercised by ascendants over their descendants.

After a brief description of the powers attaching to Dominica Potestas, Justinian proceeds to specify the classes of persons subject to Patria Potestas, viz.

1. Children born “ex justis nuptiis,” 2. Children legitimated; 3. Children adopted.

The mention of Justae Nuptiae leads to a digression on Marriage, Conubium and the Prohibited Degrees. It is next explained that Adoption is of two kinds; viz. Arrogation, which takes place by Imperial Rescript, and simple Adoption, which merely requires the sanction of a Magistrate. The rules affecting these matters are thereupon stated. Potestas of either kind is terminable: Dominica Potestas by Manumission, as already explained in I. 5-7. Patria Potestas by:

1. The death or captivity of the Ascendant.

2. The emancipation, adoption or promotion of the Descendant.

Source: Abdy, J.T. & Walker, B. (1876). The Institutes of Justinian. Cambridge, UK: Cambridge University Press .

I. JUSTICE AND LAW (Title 1) A. IMPORTANT CONCEPTS JUSTICE: constant and unceasing wish of rendering to everyone what is due. JURISPRUDENCE: knowledge of things divine and human; the science of that which is accordant and that which is at variance with right1.

PRINCIPLES OF LAW

BRANCHES OF LAW

• i.e. the Roman state vs. the individual)

• The Institutes are more concerned with private laws, which are derived from the following sources:

o Law of Nature o Law of Nations o Civil Law

                                                                                                               1  Rights come into existence by means of laws. Some classes of rights are divine, natural, moral, and positive, all corresponding to duties and obligations. A person who has duties to do is invested with corresponding rights, which then follow from laws.  

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II. PRIVATE LAW A. SOURCES: Law of Nature, Law of Nations, Civil Law (Title 2) LAW OF NATURE (jus naturale)

• That which nature has taught all animals.

• Living creatures are gifted with a perception of this law.

Justinian here equates natural law to instinct, when in fact it is the unrevealed law of God which can be only obeyed by rational creatures (such as humans). LAW OF NATIONS AND CIVIL LAW • All associations of men which are

governed by laws and customs employ a system of law that is:

o partly peculiar to themselves (jus civile, a.k.a. CIVIL LAW)

! established as law for the state’s own guidance

! bears the name of the state that obeys it (i.e. Civil Law of Rome)

o partly shared in common by all mankind (jus gentium, a.k.a. LAW OF NATIONS)

! observed by all peoples alike

! in general harmony with the law of nature, which aims for the advantage of mankind at large

B. CLASSIFICATIONS OF PRIVATE LAW 1. According to FORM (Sec. I. 2)

DEFINITIONS: STATUTE: what the entire Roman people (populus Romanus) enact on the proposition of a senatorial magistrate. PLEBISCITE: an enactment of the common people (plebs) 2 on the proposition of a plebeian magistrate. SENATUS-CONSULTS: what the senate, the representatives of all the populus Romanus, enacts. WILLS OF THE EMPEROR: by virtue of lex regia3, a decree of the senate, people have granted him all their authority and power. Whatever he says becomes the law (called a constitution). Usually general in application.                                                                                                                2 plebs = common people only populus Romanus = plebs + (patricians + senators)

 3  The emperor was nominated by the people or the army and then invested with imperial authority by a senatusconsultum, which was called a lex regia, because under the emperor’s legis;ation emanated in appearance from the senate, although dictated to them by the prince, “Caesare auctore.”. From Abdy, & Walker, supra.

 

EDICTS OF THE PRAETOR (also jus honorarium): a compendium of rules set by him at the start of his term, binding himself to them throughout. A praetor is an elected magistrate tasked to administer civil justice and is second only in power to a consul4. RESPONSES OF THE JURISPRUDENTS: opinions and views of persons authorized to determine and expound the law. When unanimous, these became binding—not even the judge can overturn their decision.  2. According to APPLICATION (§ I. 2)

       III. LAW RELATING TO PERSONS A. CLASSIFICATION OF PERSONS A.1. In relation to LIBERTY (§§I.3,4)

   

                                                                                                               4  praetor. (n.d.). Dictionary.com Unabridged. Retrieved October 26, 2014, from Dictionary.com website: http://dictionary.reference.com/browse/praetor  

1.1. LIBERI et SERVI

1.2. INGENUI (freeborn) (§I.4) • A person who is free at the very

moment of birth by virtue of the mother being free at such time

• However, even though the mother be enslaved at the time of birth, the child is still considered free.

1.3. LIBERTINI (freed men) (§I.5) • A person who has become freed from

slavery through manumission. • The same has acquired back Roman

citizenship. i. MANUMISSION (§1.5) • The giving of freedom from manus,

from another person’s hand and power • Slave may be released at any time,

upon the master’s whim5. • done in several ways:

o either in the church according to imperial constitutions

o by default in a fictitious vindication

o before friends o by letter o by testament

                                                                                                               5  i.e. can be done even on the way to the bathhouse or the theatre. Abdy, supra.  

Institutes  of  Justinian,  Titles  I  to  XII.  ©2014  SARSantiago,  Block  B2018   5    

ii. PERSONS UNABLE TO MANUMIT and the CAUSES FOR THEIR INCAPACITY (§1.6) • Manumission is not allowed for all

masters, though (ex. an owner who would attempt to defraud creditors)

• An insolvent owner, however, can set free a slave, in his will so the latter will become his sole and “necessary” heir

o This is to protect the reputation of the insolvent owner, as all the obligations of the master would pass on to the slave being manumitted.

1. Manumission for purposes of defrauding creditors • Manumission is voided when:

o person is insolvent at time of manumission, or

o becomes insolvent after manumission

• But giving of liberty to slave not voided when done in good faith

2. When the master is <20 years old (newer law lowered the limit to 18). • Manumission in the mode of fictitious

vindication, is not allowed except when sufficient proof of lawful cause is presented to council.

LAWFUL CAUSES OF MANUMISSION (§1.6) • parent/natural or adoptive

child/natural or foster sibling of manumitter

• governor/nurse or teacher • slave whom master wishes to make an

agent (provided slave is at least 17 years old)

• slave whom master wants to marry (provided that they be married within 6 months)

iv. REPEAL OF THE LEX FUFIA CANINIA (§1.7) The repeal of this statute abolishes the number of slaves that can be manumitted by testament. A.2. In relation to EXCEPTION or SUBJECTION TO POWER/AUTHORITY (Potestas) (§§I.3, 4)

• Either a person is dependent or

independent. Or, conversely, either a person exercises authority over another or he does not.

• Where a person is subject to another’s authority, this person is either:

o A slave (under dominica potestas) or

o A descendant (under patria potestas)

i. Masters over slaves (dominica potestas) (§1.8) • A slave is under the authority of the

master. • Manumission, as earlier discussed, is

the key to freedom from slavery.

ii. Ascendants over descendants (patria potestas) (§1.9)

• Fathers would have power (paternal

power) over his descendants begotten through marriage:

o His children o His son’s children o The son’s subsequent

descendants, too. • His grandchild by his daughter would

not be under his power, but under his son-in-law’s.

iii. Marriage (§I.10) DEFINITION The union of the male and female involving the habitual intercourse of daily life. ESSENTIAL REQUISITES 1. Man and woman 2. Of legal capacity

a. Man be at least of pubertal age (14 years old)

b. Woman of marriageable/ child-bearing age

• If dependent, parental consent is needed.

• Children of insane allowed to marry others.

WHO CANNOT CONTRACT MARRIAGES • The rules on the subject of prohibited

degrees may be thus summarized6: 1. Ascendants or descendants can in

no case marry 2. Collaterals within the fourth degree

cannot marry a. though first cousins may b. step-siblings may

3. If marriage is impossible with any person’s son or daughter, so also is it with the grandchild of that same person.

4. The relation created by adoption during its continuance is a bar in itself as the relationship is of blood.

a. Emancipation though, in dissolving adoption, allows adoptive siblings to marry each other.

5. Affinity bars marriage with ascendants or descendants of a former consort, and with their collaterals up to the second degree, i.e. a deceased wife’s sister or deceased husband’s brother.

 iv. Adoption (§I.11)

• Two kinds, depending on who is being adopted: simple adoption, for dependent persons; adrogation/ arrogation for those not subject to potestas.

                                                                                                               6  Abdy, supra.  

Institutes  of  Justinian,  Titles  I  to  XII.  ©2014  SARSantiago,  Block  B2018   7    

1. ADROGATION (independent persons) • The will of the emperor dictates if and

how an independent person can be subject to the potestas of another.

• The ascendants of the “adrogatee” also become subject to the potestas of the adrogator.

2. SIMPLE ADOPTION (dependent persons) • Two further kinds: adoption made by

an ancestor and by a stranger.    a. ADOPTION BY AN ANCESTOR • The adopted son passes entirely from

the original family and as recognized by the law as a member of the new family in all respects.  

• The adopted son is now under the patria potestas of the adopter only.  

 b. ADOPTION BY A STRANGER • The son lost no rights and was still

bound under the potestas of his true ascendant.  

• The son, with respect to his adopter, had no duties and rights, except that he may receive a son’s portion of the adopting father’s estate, the latter either dying intestate, or not executing a will specifying to the contrary.    

c. More notes on adoption • A man cannot adopt an older person. • A man may adopt persons as

grandsons or granddaughters, even if he has not had any children.

• Similarly, he may adopt other people’s grandchildren as own children.  

• An adopted child in many respects is on equal footing as with a child from a lawful matrimony.

• Sterile people may adopt, but those castrated may not.

• Women may not adopt.

o Though the emperor may, in some cases, allow them to adopt.

i. MODES IN WHICH PATRIA POTESTAS IS EXTINGUISHED (§1.12) 1. Death of the parent.

a. If the parent is the father, his children become independent.

b. If the parent is the grandfather, his death releases the children provided that his son, the father, is dead.

2. Deportation to an island as penal offense (i.e. Roman citizenship is lost.

a. Imperial clemency grants him his former rights.

3. When father becomes a penal slave, as when condemned to the mines or exposed to wild beasts.

4. When the father is taken by the enemy, his rights become suspended temporarily and resumes upon his return.

5. When the child becomes a senator. 6. Emancipation is granted by parent by

means of going to a competent judge or magistrate and in his presence releases his child.

a. Though immediate children may be emancipated, grandchildren may be kept under power of the grandfather.