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Kelley Reviewed Work(S): Source: the American Historical Review, Vol 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 Stable URL: http://www.jstor.org/stable/1855400 . Accessed: 09/11/2012 06:39 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Oxford University Press and American Historical Association are collaborating with JSTOR to digitize, preserve and extend access to The American Historical Review. http://www.jstor.org Gaius Noster: Substructuresof Western Social Thought DONALD R. KELLEY "tu regereimperio populos, Romane, memento... GAIUS, THE MOST INFLUENTIAL OF CLASSICAL JURISTS, is apparently a modern 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 immedi- ately recognized it as the work of the second-centuryjurist Gaius, otherwise preserved only in fragmentaryform in that great sixth-centuryanthology, the Digestof Justinian. "Let us hope that we can decipher more of Gaius in these pages," he wrote to Niebuhr. (So it fortunatelyturned out, for over eleven- twelfths of the Institutesof Civil Law were recovered with the help of this manuscript.) "This will surely give 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 pub- lication in 1820. Yet in a deeper sense Gaius had never really been lost to view. Despite the elementary and defectiveform in which his work was transmitted,the struc- ture of his Institutescan be traced in the thought of many 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 respon- dendi). Distilling, simplifying,and organizing the resources of ancient legal As so oftenbefore, I mustexpress gratitude to friendsand colleaguesat the Institutefor Advanced Study forsympathetic stimulation and, formaterial support, to the National Endowmentfor the Humanities. 1 Vergil,Aeneid, 6. 851. Also see note85, below. 2Savigny to Niebuhr,December 5, i8M6,in A. Stoll,Karl Friedrichvon Savigny, 2 (Berlin, 1929): no. 321. Also see Savignyto Eduard Schrader,July i6, 1817, in ibid.,no. 33: "Das muss ein neues Leben unter unserenJuristen geben! " 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 construc- tions as well, including national codes like the Siete Partidas and the Code Napoleon,legal treatises like Antoine Loisel's Institutesof CustomaryLaw, Sav- igny's own Systemof Modern Roman Law, and a variety of more tangential philosophical ventures. Gaius' pedagogical role has been almost as various and substantial as that of Aristotle.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 engen- dered eponymous "isms" with inferiorclaims, while Gaius formulated (if he did not create) one of the most distinctiveand enduring systemsof thought in 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 civilis scientia,as jurists liked to call it) and the modern science of society. In recent times, however, the Gaian tradition has been virtually unappre- ciated, and most likelyunperceived, by historians of philosophy and ofculture in general. What is the reason forthis? Why has such neglect fallen on Gaius' Institutesand 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 inter- pretation or what textual critics used 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,Studien zurallgemeinen Rechtslehredes 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,for example, is the subjectof a periodical,Gaius Studien,begun in 1968,edited by R. G. B1ohm,and publishedout of Freiburg.Here, as elsewhere,I will not attemptto providebibliographical references on law and legal history,except as theybear upon relevantquestions of social thoughtand, even then,only selectivelyin termsof the argument. 4 For the standard study,see F. X. Affolter,Das romischeInstitutionen-System (Berlin, 1897). Also see HelmutCoing, Juristische Methodenlehre (Berlin, 1972); and H. Jolowicz,Roman Foundations of Modern Law (Oxford,1957), 6i-8i. Forthe most recent survey with an excellentbibliography, see G. Fasso,Storia della filosofiadel diritto, 3 vols.(Bologna, 1966-70). 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 survey the career of Gaianism. The subject of these remarksis not ille but nosierGaius. OF THE JURISCONSULT 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 significant that Gaius belonged to the latter, more innovative group. Whatever its provenance, the power of Gaian- ism derives in general from three distinguishing features. The first is his basically historical approach, displayed most prominently in 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 constitutes a 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 dis- tinct fromit), a frameworkfor a Weltanschauungencompassing 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 extraordi- nary 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
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