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

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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 publication 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 structure 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 interpretation 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 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.

Digest, I. 2. i: "Gaius libro primo ad legem duodecimtabularum: Facturus legum vetustarum inter- pretationemnecessario prius ab urbisinitiis repetendum existimavi...." 6 Digest, 1. 5. 3; and Gaius, Institutiones,i. 8, in J. Baviera, ed., FontesIuris RomaniAntejustiniani (Florence, 1940):"Omne autem ius quo utimurvel ad personaspertinet vel ad res vel ad actiones." 7 In general,see FritzSchulz, PrinciplesofRoman Law (Oxford,1936), 42, 140-63. And, in particular,see P. Duff,Personality in Roman PrivateLaw (Cambridge, 1938); Paolo Zatti, Personagiuridica e soggettivita(Padua, 1975); and Carlo Maiorca, La Cosa in senso giuridico (Turin, 1937). Also see Adolf Berger's standard EncyclopaedicDictionary of Roman Law (Philadelphia, 1953). 622 DonaldR. Kelley

This distinctiveform makes it possible to isolate a Gaian tradition,even thoughGaius himselfhad no claim to originalityor profundity.For under- neaththe Gaian textthere are stillolder formulations. In fact,Gaius was not the firstsystematizer of Roman legal science.This honorseems to belongto Quintus Mucius Scaevola, a first-centuryB.C. jurist who, accordingto Fritz Schulz,created "the firstdialectical system of law in the grandmanner. " The Mucian schemewas quacfripartite,resting upon 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 commentariesby Pomponiusand by Gaius himself.Thereafter, it disappeared and was unknownto Justinian'seditors. "Well may we complain of a fate which has preservedso utterlyworthless a work as Cicero's De Legibus," Schulz has writtenwith characteristic assertiveness, "but whichhas allowed the bookwhich laid thefoundations of not merely of Roman, but ofEuropean, jurisprudenceto perish."8 Paleographical fortunemore than intellectual merit,then, leads us to celebrate a Gaian instead of a Mucian tradition, derivativeand perhapseven degenerate as it mightbe in termsof Roman legal history. What morefundamentally qualifies Gaian claims,of course, is themanifold indebtednessof Roman legal science in general to Greek philosophyand, moreparticularly, to Greek rhetoric.No one places much stockin the story (told by Pomponius and included in the Digest-paired, incidentally,with Gaius' celebrationof history) about the visitof the Decemvirito Athensbefore the establishmentof the law of the Twelve Tables, but the tale does nicely symbolizethe culturalcontribution of Greekthought. Although the channels oftransmission are obscure,Platonic ideals, Aristotelian categories, sophistic topoi, and especiallydialectical method constitute the originallevel, unfortu- natelyillegible in detail, of the Gaian palimpsest.It was Greekconceptual- ization,especially the theory of interpretation so centralto jurisprudence, that transformedthe practice and teaching of Roman law into a Hellenistic "science" in theclassical (as wellas medievaland, beforethe present century, modern)sense of the term.9 More specificGreek influencecan be detectedat certaincrucial points. Among the most importantare the practice of making divisions (divisio, differentia,or, especially among medievalcommentators, distinctio, corresponding to the AristotelianbtalpEfst), the settingdown of initial definitions (definitioor regula,corresponding to '6potor Kav6O's), and a numberof rhetori- cal topics,such as the contrastbetween the letterand the spirit,or meaning, of a statement(verba and voluntasor ratio).Indeed, manyof the basic termsof civil law are simplytranslations from Greek terminology,such as the dis- tinctionbet'ween natural and civillaw (jus naturaleand civile,corresponding to

8 Schulz,History of Roman Legal Science (Oxford, i193), 94. Also see G. Scherillo,'II civilisticopre-Gaiano," in Studiin onoredi VicenzoArangio-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, GlriechischesRechtsdenken, 6 vols. (Frankfurt,1950-)- GaiusNoster 623

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r~~ ~ ~ ~ Gau,Isttow,4~ ~ ~ ~ ~ ~~~~~~~r~4f4194,1.snuae 624 DonaldR. Kelley cV/iEwt3LKatOV and 6&Ertor vo6AW3iKatov), betweenthe law ofnations and civil law (jus gentiumand civile,corresponding to KOLVOV tLKatov and lOXLTLKO6v 3LKatov), and betweenwritten and unwrittenlaw (jus scriptumand nonscriptum, vo,os 7E7pa,puEvos and voAos aypaqos). So it was, too, with the idea of equity (aequitas, 7rLELKEta) and the method of disputation (disputatioin utramque partem, btuLoL X6,yot).10 If Gaianism made use ofGreek forms, it gave thema Latin dressand style. Indeed, behindthe pedagogicalintent of the Institutesthere are philosophical implicationsthat seem distinctivelyRoman. Consider,in the firstplace, the epistemologicalsignificance of the anthropocentricordering of social categories.For Gaius understandingbegan not withcosmology, in otherwords, but withthe human subject-the subjectof consciousness, that is, as well as of rights.Thus, the problemof the human condition(De condicionehominum for Gaius, encompassed by the civilian rubric De statu hominis11)provided the point of departure,and the philosophicalimplication was a sort of rudi- mentarysociology of knowledge.Having establishedthe subject, horizons could be expanded to includeother individuals and naturalobjects, potentially possessions; and, finally,the social field could be completedwith considerationof actions and interactions-of various sorts. Secondly, and correlativeto this, the Gaian systemwas aimed not merelyat causal ex- planation-value-freescience, so to speak-but also at human problems and the renderingof practicaljudgments. On these groundsjurisprudence was usefulas wellas theoretical,concerned with the lifeactive as well as the lifecontemplative, and enabled jurists to argue forthe superiorityof their "science" and to identifyit with"true philosophy."12 In a fundamentalway, then,Gaianism was set apart fromthe naturalistic traditionof Greekphilosophy. Perhaps the best way to clarifythis is to recall the fundamentalpolarity that arose in Greekthought between nature (/vn5tg) and convention,or law (gotog)."3"By conventionexist color and taste," said Democritus;"in realitythere are atomsand thevoid." As laterelaborated by rhetoricians,Roman as well as Greek,the oppositionwas by implicationbe- tweenthe worldof human will and behavior(of symbolsand "civilization") and thatof extra-human(objective or transcendent)reality. In the tradition ofRoman law, of course,both conceptshave theirplace: the firstas a rational normidentified with natural law (jus naturale),the secondas the human substanceof civil law and thatextra-Roman growth formulated as the law ofnations (jus gentium).But the procedurewas quite different.In contrastto the naturalisticor mathematical(especially Euclidean) strategyof startingwith

10See H. Habner, "Subjektivismusin der Entwicklungdes Privatrechts,"in FestschriftfJr Max Kaser (Munich, 1976),5-42; and GiovanniPugliese, " 'Res corporales,''res incorporales,'eil problemadel diritto soggetivo,"in Studiin onoredi VicenzoArangio-Ruiz, 223-60. Also see the workscited in note 7, above. "Digest, 1. 5; and Gaius, Institutiones,1. 3. '2For this relatedsubject, see my "Vera Philosophia: The PhilosophicalSignificance of Renaissance Jurisprudence,"J7ournal ofthe History of Philosophy, 14 (1976): 267-79,and the referencescited therein. '3 F. Heinemann,Nomos und Physis (Basel, 1945);and Wolf,Griechisches Rechtsdenken, passim. Also see C. A. Maschi, La Coscienzanaturalistica del diritto et degli istituti giuridici romani (Milan, 1937); and F. Lanfranchi,II Dirittonei retori romani (Milan, 1938). Gaius Noster 625 general principles and reasoning fromthem, Gaianism gave prominence and priorityto the human aspect, to what fromthe twelfthcentury onward 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-actionsreflect some religious or procedural convention? Does it have some logical or linguistic base? Or is it merely, as one modern expert has suggested, one more manifestation of a general Roman fixation on "trichotomy"?"5Whatever the prehistorical source, the arrangement was repeated and elaborated in countless ways formany centuries down 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 thought than has generally been recognized. Almost seventeen centuries afterGaius the young Karl Marx complained about the trichotomizing(trichotomisch) method forced on him by Savigny and other of his teachers-but not before Marx composed a three-hundred-page treatise 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 dis- similar 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 from 426 onward, when the law of citations named him as one of fivejurists to be followed in the courts.17 The worldwide appeal of his Institutesis suggested by various survivals outside Italy, such as the excerpts made for the Breviariumof Alaric and the sixth-centurycom- mentary made forthe law school of Autun. At about the same time,Justinian remarked that Gaius' work was the only elementary textbook 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 nineteenthcentury at 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 philosophic intentionof "bringing into brightharmony" (in luculentamereximus

14 StevenKuttner has shownthat "positive law" (juspositizvum)comes from a misreadingof "posited law" (juspositum); Kuttner, "Sur les originesdu terme'droit positif,' "Revue historique du droitfrangaisel etranger, 15 (1936): 728-30. H. Goudy, TrichotomyinRoman Law (Oxford,191o); and Karl Friedrichvon Savigny,System des heutigen romischenRechts, i (Berlin, 1940): 322-26. 16Marx to HeinrichMarx, Novemberio-i I, 1837,in Marx-EngelsGesamtausgabe, 1, pt. I (Berlin,1927): 213-31; and see note 87, below. 17 CodexTheodosianus, 1. 4. 3. " Deo auctore," Constitutionprefacing the Digest 626 DonaldR. Kelley

consonantiam)the confusedmass ofancient jurisprudence and legislation,and, indeed,just at this point he made the famous proprietaryclaim that his manual was largelybased on thework of "our Gaius" (praecipueex commentariis Gaii nostri.. )." Through this Byzantine vehicle and, secondarily, throughthe Digestthe formand substanceof Gaianism was transmittedto modernEuro- pean culture. The Institutesof Justinian began withthe same premiseas the Institutesof Gaius: "All ofour law is relatedeither to personsor to thingsor to actions." Justinianthen explained the reason forthat order-"it is of littlepurpose to knowthe law ifwe do not knowthe personsfor whom the law was made."20 Accordingly,Book i is a topicaldiscussion of the title,"De personis," including analyses of the levels and limitationsof personal liberty,especially in termsof paternaland maritalpower (thepatria potestas of the fatherand the potestasde manuof husband and wife).Books ii and iii continued"De rebus" and were devoted to particularproblems of possession and property,ex- change and inheritance,except for those thingsdesignated as public, common to all, or unpossessable because of their ecclesiasticalcharacter (res sacrae).Finally, Book iv treated"De actionibus"-logicallyand interlockingly divided into personal and real things-and concluded withjudicial proce- dure and criminalactions. This Byzantineeffort at remodelingdiffers in two fundamentalrespects fromthe Gaian original.One differenceis the considerableemphasis placed upon public law, illustratedabove all in the notorious,post-Gaian text from Ulpian, "What pleases the princehas the forceof law" (Quodprincipi placuit legishabet vigorem).2' This emphasis,of course, arose fromJustinian's determi- nationto exalt,if not to deify,his imperialauthority above all previouslyrec- ognizedsources of law, includingjuristic responses (responsa prudentum); but it did not directlyaffect the social categoriesencompassed by privatelaw. The otherdifference is thatJustinian, drawing on laterclassical jurisprudence and rhetoricalhyperbole, made largerphilosophical claims for the scienceof law, even claiming for it the status of true wisdom (divinarumac humanarumnotitia, the equivalentof the Ciceronianformulation of sapientia).But his hyperbole onlyserved to enhancethe attractions of Gaianism.22 There is no denyingthat -fromthis point most of the words of the Roman legal canon are those of Justinian(or ratherhis paraphraseof many generationsof jurists), but in many respectsthe assumptionsand conceptualbase continueto be thoseof "our Gaius." In any case, in this somewhatdisguised form Gaianism was passed on to the West and preservedfor the nextphase of its posthumous career. 19 "Imperatoriammaiestatem, " Constitutionprefacing the Institutes.And, in general,see L. Wenger,Die Quellendes ramischen 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 closelyrelated to, and in some waysdependent on, thatof the Institutes,and it was much more severelycriticized in later centuries.Because of its pedagogical and "methodical" purpose and because of its broaderimpact, the Instituteshas been chosen forexamination here. Gaius Noster 627

The thirdlevel of the Gaian palimpsest,historically ter scriptus, began during the twelfth-centuryrevival of Roman law and the establishmentof professional facultiesof law at the Universityof Bologna and elsewhere.23At this stage the problemof decipheringbecomes increasinglycomplicated by the intrusionof other intellectualforces, including canon and feudal law and Aristotelianphilosophy in its scholasticform. Henceforth, the Gaian tradition was enmeshedin glosses, commentaries,questions, opinions, and-though strictlyforbidden by Justinian himself-more or less distorting"interpretations."24As Gaius' work was lost, so Gaianism became increasingly difficultto perceive. Nevertheless,the basic principleswere preserved, and certainlyno alterna- tives were suggested.The most authoritativeof glosses,that by Accursius, remainsmostly grammatical corrections, small quibbles, and largejustifica- tions. 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 whatof those who are not so ruled?" The answer was not difficult:"I respondthat these are uncivilizedmen."25 This simplified versionof the disputatio in utramquepartem Accursius also applied to thebroader question whetherGaius' threefolddivision might be false (hoc videturesse falsum),and again he resolvedthe difficulty, in thiscase by arguingfor a more than merelyliteral view of "things" and "actions." There was also a ten- dency,illustrated by Petrusde Bellapertica,to replace"action" by the more sophisticatedconcept of "obligation,"which arose froman agreement(obli- gatio nascensex contractu)and was guaranteedby natural law.26 But despitesuch rationalizingtendencies the Gaian systemwas not seriouslyquestioned. Followingthe Glossatorsfrom the late thirteenthcentury, the still more philosophicallyminded Commentators began to divergemore basically from Gaian principles.Concerning the same law "Omnes populi," forexample, Baldus had a differentanswer to the problemwhether "all people" were indeed ruledas Gaius had asserted."I respondthat not all are," said Baldus, "formany cities have theirown statutesby whichthey are ruled."27Although technicallythe emperorwas stillthe onlysource of law, the rightof people to make theirown law (jus propriumor jus proprissirmum)could be justifiedin legal 23 For general orientationon the Roman legal tradition,see Paul Koschaker,Europa und das romische Recht(3d ed., Berlin,1958). And, forbibliography, see Franz Wieacker,Privatrechtsgeschichte derNeuzeit (2d 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 Lawyers: Forms of HistoricalConsciousness in Medieval Jurisprudence,"Medievalia et IHumanistica,new. ser., 5 (1974): 25-29. 24 M. Fuhrman, "Interpretatio," in SympoticaFranz Wieacker(G6ttingen, 1970), 80-1i10; F. Pringelsheim, "Justinian'sProhibition of Commentariesto the Digest," in his GesammelteAbhandlungen, 2 (Heidelberg, ig61): 86-io6; and V. Piano Mortari,"II Problemadell'interpretatio nei commentatori,"Annali di storiadel 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 Institutionumcommentarii (Lyon, 1536), iii. And, in general, see C. Karsten, Die Lehrevon Vertragebei den italienischenjuristen des Mittelalters(Rostock, 1882). 27 Baldus, SuperDigesto veteri(Venice, I535), f. 26. In general, see L'Opera di Baldo, per curadell'UJniversita di Perugia nel V centenariodella mortedel grandegiureconsulto (Perugia, 1901 ); and, in particular, see J. Tarducci's essay in ibid.,409-66; NorbertHorn, Aequitasin denLehren des Baldus (Cologne, 1968);and, forthe classic work, C. N. S. Woolf, Bartolus of Sassoferrato(Cambridge, 1913). 628 DonaldR. Kelley terms,Baldus argued; fordid not the imperialrule againsta people making "illicit statutes"imply that theycould make licit ones? In this way Baldus, followinghis masterBartolus and otherItalian jurists,built up the case for the legitimacyof city-statesand otherpolitical units that were independent of imperialjurisdiction and so, presumably,of Roman forms.For somejurists, ofcourse, there was an answerto thisproblem, too: suchpost-Roman statutes and customsshould be includedin thejus gentium. Gaius' famousstatement about the legal "conditionof men" likewisere- ceived expanding interpretation-and"interpretations," as Accursius remindedhis students,implied correction. In the firstplace thetopic "De statu hominum"was an invitationto somejurists to philosophizeabout thehuman conditionin general,about the naturalas well as thesocial stateof that "most worthyof creatures" (dignissimacreaturarum), as Alberigode Rosate called man. But the main themewas the historicalchange thathad occurredsince thetime of Gaius, thedifference between the ancient and the"modern state of men" (statusmodernus hominum). "In moderntimes" (secundummoderna tempora), observedAlberigo, "there are variousstates of men that are nottreated under the title"of Gaius. "And, because the stateof men is in constantmotion and neverat rest," he proposedto bringthe discussionup to date by treatinga varietyof more recent questions, including those of the Jews and Saracens and differentsorts of Christians(real and supposed)-laymen and clerics.28In fact,the general problemthat absorbed most of the energiesof European juristswas how to accommodatetheir own experienceand institutions,feudal as wellas ecclesiastical,to Roman formsand rulesor, in otherwords, how to transform,as Justinianhad transformed,the jus antiquuminto a ususmodernus. In thiseffort jurists increasingly turned to extra-Romanexperience, but they did so in orthodoxterms of custom(consuetudo) and thejus gentium,based (as Gaius had said) on "natural reason." Anothermajor force that acted to transformGaianism was the intrusion,or ratherre-intrusion, of Aristotelian philosophy. Attempts to findor to impose logical species, especiallythe use of the famous"four causes," again illus- tratesthe infiltrationof naturalismand metaphysicsinto jurisprudence and social thought.Accursius had accepted Gaius' demand forthe studyof the "originof law," thoughhe interpreted"necessary" as "useful"and justifiedit simply on groundsof logic and propriety-thatit provideda way of in- troducingbasic elements(principia) and that it agreed withthe methodof a lawyer(advocatus), which was to startwith his exordium.For commentators like Baldus, however,concern for origins and sourceswas translatedinto the systemof Aristotle's efficient, material, formal, and finalcauses; and, indeed, thisprocedure was associated withthe growingclaims of scholasticjurispru- dence to be a rational "science" because it was universaland treated its materialin termsof cause and effect(per causas).29The long-rangeimplica- ' Alberigo,In primamFF [Digesti] Veter.part. (Venice, 1585),f. 44v. 29 See R. Weigand,Die NaturrechtslehrederLegisten und Dekretisten von Irnerius bis Accursius und von Gratian bis JoihannesTeutonicus (Munich, 1967);and my "Vera Philosophia:The PhilosophicalSignificance of Renais- sance Jurisprudence," 274. Gaius Noster 629

tionsof these tendencieswere momentous;they continued to informprofes- sional jurisprudencedown to Savigny'stime and after.Yet Gaianism was modifiedrather than replaced; anotherlevel was added to the multilayered Gaian text.

SERIOUS CRITICISM AND TRANSFORMATION of the Gaian paradigmbegan in the sixteenthcentury. The firstcondition of this mutation was the riseof humanisticjurisprudence, beginning in fifteenth-centuryliterary circles and then infiltratingthe academic and professionalstudy of law.30From the second quarter of the centurydeepening historicalperspectives and expanding geographicalhorizons encouraged by humanismled certainjurists to begin the task of "reforming"the Roman systemof jurisprudence fixed by Gaius, codifiedby Justinian,and canonized by the medievalGlossators. The "reformers"wanted to fulfillthe famousCiceronian ideal of "reducinglaw to an art" (jus inartem redigendo)-or, better, Justinian's ideal ofelevating it to a science,a concept that was vital and a prime rubricof Romanistjurispru- dence. Pursuedby elaborateviolations of Justinian's strictures against "interpretation,"the task was justifiedin the name of that abstractreason con- tained in the law (rectaratio; ratiojuris) as well as a novel concern for "method," whichwas a dominantforce in the intellectuallife of the sixteenth century.The meninvolved in thisenterprise were the founders of that modern schoolof jurisprudence that Savigny designated "the systematists" (die Syste- matiker)and thatrepresents a latter-dayGaianism-the last,or perhapsnext- to-last,layer of the Gaian palimpsest.3" Underlyingthis traditionwas anothermovement for "reform" associated withhumanism, namely the attemptto improveand to re-orderdialectic by bringingit intocontact with, or evensubmerging it in, rhetoric.32This aim of variouspedagogical reformers, including Rudolf Agricola and PetrusRamus, was carriedover by like-mindedjurists into their own fieldof study, which, of course,had otherlonger-standing ties with rhetoric in technicalways. In 1520, building on Agricola's work, Claudius Cantiuncula published his Topica legaliain an effortto finda betterarrangement for the major "commonplaces"

300n the historicalimplications of "legal humanism,"see D. Maffei,Gli Inizi dell'umanesimogiuridico (Milan, i156); and my Foundationsof Modern Historical Scholarship (New York, 1970). For the philosophical implications,see Hans Troje, GraecaLeguntur (Cologne, 1971), whichis usefulfor orientation, new insights, and bibliographyif not forall of itsjudgments. 31 Savigny,Das Rechtdes Besitzes (7th ed., Vienna, 1865),10. For the classic and stillindispensable work on this tradition,see R. Stintzingand E. Landsberg, Geschichteder deutschenRechtswissenschaft, 4 vols. (Munich, 1880-1910). 32 See, in general,Neal Gilbert,Renaissance Concepts of Method (New York, 1956); and WalterOng, Ramus, Method,and the Decay of Dialogue (Cambridge, 1958). On law in particular,there has been an upsurgeof work lately;see, forexample, Hans Troje, "Wissenschaftund Systemin derJurisprudenzdes i6.Jahrhunderts, " in J. Bluihdornand J. Ritter,eds., Philosophieund Rechtswissenschaft (Frankfurt, i969), 63-88; Aldo Mazza- cane, Scienza,logica, e ideologianella giurisprudenza tedesca del sec.XVI (Milan, 1971); F. Carpintero," 'Mos italicus,' 'mos gallicus,' y el humanismoracionalista," lus Commune,6 (1977): 108-71; C. Vasoli, "La Dialetticaumanistica e la metodologiagiuridica nel secolo XVI, " in La Formazionestorica del diritto moderna in Europa,i (Florence,1977): 237-79;and A. Giuliani,"The Influenceof Rhetoric on the Law ofEvidence and Pleading," JfuridicalReview ( I962), 2 16-5 1. 630 DonaldR. Kelley of law (locorumdivisio).33 This work was pursued furtherin the Methodica dialecticisratio by Johann Apel, who illustratedhis topicalreform with a series of diagramsshowing the logic of social, especiallyas contrastedto natural, structureand process.Among German jurists like Johann Frey and Nicolaus Vigeliusthe influenceof Ramus was particularlystrong, partly because they hoped with his help to restorejurisprudence to a more centralposition in general learningand, throughits association with oratory,to enhance its social utility.As Freysuggested in his schematicprescription for an "idea of the good and completejurisconsult," the finishedproduct, a paradigm of practical and theoreticalknowledge, would be the "political man" (homo politicus).34But mostof all, raisingtheir sights from pedagogy to philosophy, these jurists wanted to fashionthe Roman legal traditioninto an orderly system;for "order," wroteChristopher Ehem, anotherof theselegal reformers, "is the soul of things themselves" (ordinemesse animamipsarum rerum).35 Althoughnot generallyappreciated or even admitted,the movementsto reformdialectic and jurisprudencecontinued to have recourseto old tradi- tions of naturalismand scholasticism,despite a lot of careless anti-Aris- totelianrhetoric. Johann Oldendorp, in anothertreatise on "legal topics," used Aristoteliancategories to organizehis materiaand exemplaand the idea of the four causes to interpret"actions" in particular.36Even more system- atically,Vigelius, who indeed set out to reorganizein such dialecticalterms the whole Institutesof Justinian (resolutioInstitutionum Imp. Jfustiniani),relied upon Aristotle.37Similar attitudesare evidentin contemporarytheories of "interpretation,"which, despite Justinian's prohibition, had becomea recognized part of law.38The "order" soughtby criticalmethodologists like Jean Coras and Pietro Gammaro was a natural order, which they contrasted sharplywith civil law. The latterwas founded"not on nature,"as Coras observed,"but only on opinionand the authorityof legislators."39This social authoritymight suffice for law as an "art," but a science needed to judge "throughcauses"-precisely whatthe new theoriesof interpretation proposed to accomplish.A rationalmethod, or methodicalrationale (methodica ratio), as

33 Cantiuncula listedtwenty-five places or means of makingdistinctions; see his Topicalegalis, printed withJohann Apel, Methodicadialecticis ratio ad iurisprudentiam(Basel, I545). 3 Nicholas Reusner,ed., XEIPAr QIA siveCynosura iuris, 2 (Speier, 1588),no 32: Freigius,"Idea boniet perfectiiuris consulti " (fold-outdiagram in the appendix).Also see Mazzacane, Scienza, logica,e ideologia. 3 Ehem, De principisiuris libri septem(Basel, I556), i. 36 Oldendorp, Actionumforensium progymnasmata in septemclasses distincta(Lyon, 1566), f. 3v. Also see his Topica legalis (Lyon, 1555). On Johann Oldendorp, see E. Wolf, GrosseRechtsdenker der deutschenGeistesge- schichte(2d ed., Tubingen, 1951), 134-75; and Guido Kisch, Erasmus und die Jurisprudenzseiner Zeit (Basel, 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 iuriscivilis libri III (Basel, 1620). Also see his Methodusuniversi iuris civilis absolutissima (Lyon, 1591). 38 See V. Piano Mortari, Ricercasulla teoriadell'interpretazione del dirittonel sec. XVI (Milan, 1956). Also see H. Schurpf, "Ratio interpretandi," in Stintzing and Landsberg, Geschich/eder deutschen Rechtswissenschaft, i: 107I. 3' Coras, De iurecivile in artemredigendo, in Tractatusuniversi iuris, i (Venice, 1584): 59; and Gammaro, De extensionibus,in ibid., I8: 247. On Coras, see A. Fell, "The Classical Four Causes in the Renaissance Artof Law" (Ph. D. dissertation,Columbia University,1974). Gajus Noster 631

Oldendorp put it, "requires that the interpreterof law have recourseto the law of nature."40 Yet thiswidespread search for system-"methodus," "schemata," "ratio," and "partitiones" are among the operativeterms-by no means implied abandoningthe human and positiveaspects ofjurisprudence. The juristhad to judge fact as well as law; he had to find authoritiesas well as devise arguments.The dual aim ofjurisprudence, according to Conrad Lagus, was to answerboth thehistorical and the philosophicalquestions: Philosophy, he explained,was no doubt "the firstpart oflaw, thatis, thetruth and reasonof law insofaras the human mind can attain them"; but no less essentialwas "the second part" (that is, history),"the bare narrationof facts. . . to show the formsof law observedby Roman legislationin particularcases."'41 Pre- cisely in this sense of "history"could law be analyzed in termsof persons, things,and actions.In thepreface to his standardanthology of legal treatises on method,Nicolas Reusner providedthe aphorismthat best expressesthe enduringimportance of the Gaian scheme: "Bonus Institutionalista,"he stated,"bonus Jurista."42 The continuingand cumulativecritique of the Roman canon was an internationalenterprise; but the major effortsof revisionwere begun in France,especially by disciplesof Andrea Alciato at theUniversity of Bourges. Alciato was the founderof humanisticjurisprudence, of the mosgallicus as it was later called, althoughhe personallylacked any particularsystematic interests.The most notable of his followers-FrancoisConnan, Eguinaire Baron, Francois le Douaren, and Hugues Doneau-were deeplyindebted to the humanistmovement; but each made a practiceof also introducingmod- ern materialsand ideas, not only feudallaw, whichwas regularlytaught at Bourges,but a varietyof historicalissues, such as the influenceof Celtic and Frankishinstitutions. Each ofthem also contributedmassively to thecriticism ofthe Roman legal canon, and none hesitatedto breakwith Roman formsin theirattempts to realize the ideal of law as "true philosophy." Connan's masterwork, published posthumously in 1557, was called Com- mentarieson CivilLaw; but its generalpurpose was actuallyto shiftemphasis away fromcivil law and to discuss instead such topics as obligationand propertyin termsof the law of nations,as Gaius had definedit. For Connan thejus gentinumwas equivalentto the "formof a people" (ormapopuli), and it was, logicallyif not chronologically,"prior to civillaw." As a consequence,he tendedto examineconventional topics of civil law in the contextnot onlyof naturallaw, identifiedwith the "firstlaw ofnations" (iushoc gentium prirmum), but also of European, oftencomparative, history. He also gave large and continuingroles to customin theprogress of legal institutionsand tojurists in rationalizingthese customs."Custom interpretslaw," he wrote,and "judgments confirmcustom" (consuetudolegum interpretatur; res judicatae consuetudinem

40Oldendorp, Iuris naturalis gentium et civilis Eloraywy5 (Antwerp, 1539), sig. Aiii. " Lagus, Methodusiuris utriusque traditio (Lyon, 1566),3. 42 Reusner,XEIPArPrIA siveCynosura iuris, 1: 13. 632 Donald R. Kelley confirmat).43Law was, of course, grounded in nature, but the firstlaws (priscae 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 system of 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 pro- duced a series of commentaries on all parts of civil law according to a unique and self-consciouslycomparative method that he termed commentariabipertita, by which he "accommodated civil law to French customs and legislation" (accommodatahujus tituli ad moresGalliarum et leges regias).45 He "accommodated" both the Institutesof Gaius and the Digest of Justinian, in part simply by translation. He explained, for example, 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 position (quia statusfoeminarum deterior in multiscausis). There were also the problems of foreigners and naturalization (aulbains, ou etrangers,et lettresde naturalite);and, in fact, Baron composed a monograph on succession among foreigners.46Other difficulties,such as the antiquated Roman paternal power (patriapotestas), likewise led him to depart from Roman convention, though without rejecting the entire Roman frameworkof jurisprudence. 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 formulation that emphasized the systematic-pedagogical (ars do- cendi)as well as the humanistic-philological (sermonisproprietas) aspects of the

43 Connan, Commentariorumiuris civilis 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 quadro delle scienzestoriche (Florence, 1966), 52 1-31. The same formula appears in Lagus' Methodusiuris utriusquetraditio, 42, from the Digest, I. 3. 37. " Connan, (ommentariorumLuris civilis libri X, ff. 32v, i6. 45 Baron, Opera omnia, ed. F. Baudouin (Paris, 1562), Commentarii,passim, and Instititiontinicivilitim ab 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.47For Le Douaren legal educationought to beginwith the Institutesand, despitethe humanistprejudice against scholasticism,ought to include the works of Bartolus, Baldus, and the best of the philosophical commentators.Like his friendConnan, Le Douaren was devotedto theideal of "true philosophy,"and he declared that "thereis nothingeither divine or human that the jurisconsultdoes not treatand that is not relevantto civil science." He wroteextensively on both canon law and, under the civilian headingof "custom," feudallaw; and he denied thatRoman law had in any sense been "received" into France. Nevertheless,civil law continuedto pro- vide the termsand frameworkof his legal philosophy.In his discussionof the problemsof legal system,he leaned perhaps more towardthe naturalistic interpretation,making an analogy to mathematicsin particular,since he believedthat "the elementsof law, thegrounds of its maximsand basic issues are as points,lines, surfaces, etc., are to geometry.'48Such was thebasis ofLe Douaren's various"methodical" discussions (methodica enarratio, methodica part- itio,and tractatio,as he characterizedhis interpretationsof the Roman canon). Of all of the work of 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 Commentarieson Civil Law markedthe introductionof the French school into Germany,and for Savigny'sdisciple R. Stintzing,the greatauthority in the field,Doneau was "the creatorof modernjurisprudence. "49 At Bourgesand laterat the Univer- sitiesof Altdorf and Heidelberg,Doneau carriedon the workof transforming Romano-Byzantinelaw intoa universalsystem in accordancewith the ideal of law as "true philosophy,"as an expressionof "rightreason."50 Like many othercontemporary "anti-Tribonianists," Doneau was much disturbedby the stateof the Codeand especiallyof the Digestof Justinian, although it was the form,or ratherthe formlessness,instead of the substance (the post- classical interpolations,or "Tribonianisms")that he wantedto correct.The Institutes,on the otherhand, he continuedto admire,especially the tripartite classification;and, in fact,much of his work of "reformation"consisted of tryingto gathertogether and to arrangethe scatteredand sometimescon- tradictorymaterial on persons,things, and actions into an intelligibleand symmetricalsystem. For Doneau each of these headings had three sub- headings: (i) divine and human, with the latter divided into public and private; (2) obligations,which followedthe discussionof rightsand which were grouped under "things"; and (3) formsof procedureto obtain rights, whichappeared under "actions." Doneau's work,like that of his elder colleagues, shows the strongimprint of formalphilosophy, including the 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,Hugo Donellus in 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 significancefor French systematizing and codifyingefforts, see A.-J.Arnaud, Les Originesdoctrinales du Codecivil franSais (Paris,1969), 12 1. 634 DonaldR. Kelley Aristoteliancauses, and at least a touchof Ramist,or Ramoid, method;but in generalthe Commentariesremains within the Gaian tradition. In the generationafter Doneau the risingtide of "vernacularhumanism" broughtthis traditioninto contact with the tangled question of customary law. In France two close colleagueswho studiedat Bourges,Etienne Pasquier and AntoineLoisel, tookJustinian's Institutes as the modeland guide fortheir effortsto bringsome systemto vernacularlaw. Pasquier foundparallels to the 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 workwith a shorthistory of Roman sys- tematizingfrom the timeof Scaevola.5' Pasquier argued that law was more closelyallied to rhetoricthan to philosophyand that,because of thejurist's relianceon memoryand humanjudgment, his artwas calledjuris prudentia instead ofjuris scientia.Like his Latinate colleagues,Pasquier operated in the domain of thejus gentium,which he equated simplywith "human law" (droit humain). His Interpretationof the Institutesof Justinian(unpublished until the nineteenthcentury) started out as a translationbut ended up as a comparative studyof Roman and French legal institutions,following the Gaian pattern verymuch in the style of Baron's work. Pasquier, however,was generally hostileto civil law, deplored its tyrannicaland rigidtendencies, and was at pains to pointout contrastswith French customs. With respect to thefirst di- vision,for example, all French"persons" werefree (libres etfranches) except in a fewantiquated provincial coutumiers. In mostways Loisel agreed withand, indeed,consulted Pasquier on these matters,and was more insistenton the differingstatus of French "persons," arguingthat the primarydivision was between nobleand roturier(itself divided into bourgeoisand vilain), since all men were or could become free by baptism. Loisel's CustomaryInstitutes, again followingthe Gaian patternbut composed of native proverbs,literary ex- pressionsof folkwisdom, and maximsof customarylaw, movedeven further fromRomanism toward some sortof nationalsystem."2 There were otherefforts at system-buildingin the sixteenthcentury, but theseworks, like the celebratedRepublic of Jean Bodin,tended to be concerned withpolitical rather than social or legal thought.One instructiveexception, abused when not neglected,is the curiousconstruction fashioned by Bodin's rival,Pierre Gregoire of Toulouse. For Gr6goire"method" was an "imitation ofnature," and in his own grandioseRepublic he triedto assemblea man-centered cosmology to emulate the natural cosmos.53 Gr6goire,like Bodin, denied the universalityof the Roman traditionand, specifically,French subjection to it; but on the fundamentalpoint, the natureof the commonwealth,he had a verydifferent emphasis. The centerof his politicalcosmos was occupied not

Pasquier, LInterpretationdes Institutesde Justinian,avec la conferencede chaque paragraphe aux ordonnances royaux,arrestz de Parlementet coustumesgenerales de la France,ed. M. le duc Pasquier (Paris, 1847),9, 45. 52 Loisel,Institutes coustumiers, ed. M. Reulos (Paris, 1935). 5 Gregoire,De republicalibri sex et viginzti (Frankfurt, x609), lo: 54, 13: 12, 21. And see thediscussion by C. Collot, LEcole doctrinalede droitpublic de Pont-a-Mousson(Paris, 1965). 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 other systematiceffort, his Syntagmajurisuniversi, a book treating "all law, divine, human, and natural," according to a "new method.""" The novelty of 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 shiftfrom a normativelegal doctrine to a descriptiveinterpretation of society and culture. Other endeavors, apart from the 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 effort may 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 fromtheory to practice (usus) as the best means of access to legal wisdom. For him the true source of law lay in particular judgments (resJudicatae is 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 intru- sions 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 their authoritybut only on the basis of their rationality" (pro ratione).56In this way, though in few others, 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.

64 Gregoire,Syntagma iuris universi (Colg ne, 1623).Also see his De iurisarte, methodo, etpraeceptis (Lyon, 1580). 6rAyrault,Rerum ab omniantiquitate iudiciarum Pandectae, i (Geneva, 1677): 84. On Digest,42. 1 ("Res judicatae"), also see Ulrich Zasius, Operaomnia, 3 (Lyon, I550): col. 360. There is no modernstudy on Ayrault. " Charles de Grassaille,Regalium Franciae libri duo (Paris, 1545),45. 636 DonaldR. Kelley

AT THIS POINT THE GAIAN PALIMPSEST seems to be exhausted: betweenthe historicaland empiricalassaults on the one hand and the effortsof rational- izationon the other,academic jurisprudence could hardlyretain its conventional form;it moved,in a sense, fromthe letterto the spirit of Roman jurisprudence.In general,the seventeenthcentury was suffusednot onlywith 1'espritde systemebut also with1'esprit de geometrie,and thesecombined with the enthusiasmfor the "new science"of Galileo and Descartesto ensurethat legal 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.57 This cast of mind is a deflection fromGaianism. The resurgenceand prominenceof the idea of "nature" was used in theexplanation and legitimationof human categories, social as wellas legal (that is, descriptiveas well as normative).Indeed, the "state ofnature" tendedto takeover the function both of the moral basis ofsocial behaviorand of the historicalinterpretation of civilization.Thus, the significanceof "convention,"so essentialto Gaius and other Romanists,was subordinatedor distorted.Moreover, the principleof authority-and withit the forceof custom, prescription,tradition, and even "interpretation"in a usual sense- tendedto be overshadowedby the claims of universalreason. The resultwas that the "law" seemed in manyways to be dehumanized:man himself-his will, his history,his culturalindividuality as well as his irrationalityand perhaps sinfulness-was increasinglylost to view. GottfriedWilhelm Leibniz, who publishedhis own "new method"of j uris- prudence in I667, providesthe most extremeexample of legal rationalism (jurisprudentiarationalis). Although thoroughly grounded in legal scholarship and attached to the "reformed"dialectic associated with Ramus, Leibniz turnedto mathematics,specifically to Euclid, forhis modelof rationality.He rejectedthe threefolddivision of Gaius because, as so many others had pointedout, "actions derivefrom both persons and things." Most fundamental to his objectionwas the apparentlyrandom empiricismof conventional jurisprudence."Its method,"he remarked,"was takenfrom the inmost parts not of law but of fact" (haec Methodusnon ex Juris sed Facti visceribussumpta), "forpersons and thingsare termsof fact,as power,obligation, and the like are termsof law."58The confusionand irrationalityinherent in such an approach was too absurd fora modernconception of law: "Who would not laugh at such a new Euclid?" For Leibniz, however,jurisprudence, along withother humanistic studies, was subordinatedto metaphysics,ultimately

"Still fundamental,in addition to Stintzingand Landsberg,Geschichte der deutschen Rechtswissenshaft, is Otto Gierke,Das deutscheGenossenschaftsrecht, therelevant part of which has been translatedby ErnestBarker as NaturalLaw andthe Theory of Society, 1500-1800 (Boston,1957); but, in general, the subject of natural law is too peripheraland too voluminousto allow bibliographicalcomment here. 58 Leibniz,Nova methodusdiscendae docendaeque iurisprudentiae (Frankfurt, 1667), in SamtlicheSchriften und Briefe, 6, pt. i (Berlin, 1971): 298. On Leibniz in general, see K. Dickerhof,Leibniz' Bedeutungfur die Gesetzgebungseiner Zeit (Freiburg,1941), and F. Sturm,Das romischeRecht in derSicht von Gottfried Wilhelm Leibniz(G8ttingen, 1968). Gaius Noster 637 to mathematics;and his positionrepresents a pole ratherthan a school of thoughtin the range of legal and social doctrines. The major figurein the re-emergenceof natural law was Hugo Grotius, thoughhe, too, was steepedin humanisticand legal erudition.His main legal workswere devotedto thatanarchic arena of internationalrelations, which itselfseemed to representa pre-or extra-legal"state ofnature." Like Leibniz a generationlater, Grotius had a basic contemptfor unclassifiable particulars. "For the principlesof thelaw ofnature," he wrotein theprolegomena to the Law of Warand Peace, "since theyare always the same, can easilybe brought into a systematicform; but the elementsof positivelaw, since theyoften undergochange and are differentin differentplaces, are outsidethe domain of systematictreatment, just as othernotions of particular things are. "59 In a youthfulwork on prizesand bootyhe tookthe same viewand, reasoningfrom a set ofgeneral rules and law, affectedan even moredeliberately mathematical plan. Yet thisrenewed emphasis on natureand reasonis by no means thewhole storyof social and legal thoughtin theage ofreason. The iusnaturale was, after all, an essentialpart of the Roman legal tradition;and, as Richard Zouche remindedhis seventeenth-centurycontemporaries, Gaius himselfhad explained thatthe basis of the law of nationswas that "natural reasonamong men" (naturalisratio inter omnes homines)."0 Indeed, the continuingassociation of the 'usgentium and thejus naturalepermitted the legal traditionto maintainits human groundings.Grotius, for example, was not only a jusnaturalistand "fatherof internationallaw" but also, as GiambattistaVico latercalled him, the "jurisconsultof the human race."'" Like Vico, Grotius neitherforgot historynor despised tradition.He persistedin citingancient "authorities," includingnot only the Bible, jurists, and scholasticphilosophers but also literaryand especiallyhistorical writers, who providedjudgments as well as illustrations.Grotius's intentions were, perhaps, less rationalizingthan uni- versalizing;for his primaryfield of operationswas indeed "positive law,'" specificallythe kind of "voluntaryhuman law" (jus humanumvoluntarium) definedas thelaw ofnations (jus gentium, exclusive of thejus civile as positedby Gaius). Universallaw, accordingto Grotius,arises not onlyfrom nature and fromdivine ordinance but also fromcustom or tacit consent-that is, from humanwill. "And the Law of Nationsis provedin the same manneras the unwrittenCivil Law," he wrote,"namely, by longusage and thetestimony of its professors;for this law, as Dio Chrysostomsays, is 'the inventionof time and experience,'and here the great historiansare of the greatestservice to

59Grotius,De iurebelli ac pacislibri tres, trans. W. Knight(London, 1922), prolegomena,22, and De itre praedaecommentarius, trans. G. Williamsand Q. Zeydel (Oxford,1950), 7. 8 Zouche, Iuriset iudiciifecialis (i65o), ed. T. Holland (Washington,i9i i), i. Also see J. W. Textor, Synopsisi'uris gentium, ed. L. von Bar (Washington,1 9 16), 2. "1See Dario Faucci, "Vico and Grotius:Jurisconsults of Mankind," in G. Tagliacozzo and H. White, eds., GiambattistaVico: An InternationalSymposium (Baltimore, 1969), 61-76; L. Rosa, "Grozio frail giusna- turalismoscolastico e il giusnaturalismomoderno," in MiscellaneaAdriano Gazzana, 2 (Milan, ig6o); Wolf, GrosseRechtsdenker derdeutschen Geistesgeschicte; and Fasso, Storiadellafilosofia del diritto. 638 DonaldR. Kelley use."62 In theseways Grotiusmanaged to retainat least indirectcontact with the old Roman tradition. In France at the veryheight of the enthusiasmfor Cartesianism and that "geometricspirit" sensed and to some degree resistedby Blaise Pascal, the persistenceof Gaianism is apparent in a sublimated form.The clearest example, as well as the greatestmonument of jurisprudence before Robert Pothier,is thework of Pascal's friend,Jean Domat, whosegreat system began to appear in I695. Although Domat's Civil Laws . .. were arranged . .. in Their NaturalOrder (an excellentillustration of the cravingto reduceconvention or historyto nature),they remained,in effect,a rationalizingcommentary on Roman experience.And, thoughhe affectedto seek out fundamental(natural, perhapsprehistorical) principles, Domat foundtheir human expression in the usual textsof civil law. He gave precedenceto the naturalover the civil state,but he continuedto conceptualizewithin the Roman paradigm,keeping the rubricsof persons,things, and actions. Conventionand not nature,for example,led him to definepersons in termsof "liberty" (or thelack thereof), citizenship(or the exclusion therefrom,as in foreignor exiled status), and fatherhood(or subjectionthereto).63 The generalimpression is of rationality, or the rhetoricof rationalism,imposed on the old Roman categories.Even Domat's ultimategoal, famouslydefined as the "spiritof the laws," was a morerationalized version of the old juristic aim ofgetting at thetrue meaning. Montesquieu's L'Espritdes lois of I 748is, of course,the workthat made this phrase and concept universallyfamous, although the connectionwith the earlierlegal traditionwas effectivelyobscured by the authorhimself, whose claims to originalityhave neverbeen disputed and seldom even examined. "My ideas are new," wroteMontesquieu, "and thereforeI have been obliged, to findnew words,or give new acceptationsto old terms,in orderto convey my meaning."64To pointout the relationof Montesquieu's systemto the old Roman tradition,which he had surveyedhistorically in his Grandeurand Decadenceof the Romans ( 734),is notto denyits novelty or conceptualforce. His basic concernwas not withantecedent "laws of nature" but ratherwith the old law of nations and civil laws; and, if he construedhis subject in an extraordinarilywide-ranging fashion, he followedthe lead of Baron, Bodin, and othersin adopting a comparativeapproach, in takinguniversal history and the law of (all) nationsas his field,and in emphasizingclimate, geogra- phy, and culturaltradit'ion. In more specificways, too, he retainedcontact with Roman formsas well as withthe textsand modernscholarship of civil law, and the book has withsome justice been regardedas a "new De Legibus." As Le Douaren and otherswho commentedconsecutively on the Corpusjuris

62 Grotius,De iurebelli ac pacis,xiv. 63 Domat, Les Loix civilesdans leur ordre naturel, (Paris, 1835).On Domat, see R. F. Voeltzel, ean Domat (1625-1696) (Paris, 1936),Io7; and, mostrecently, G. Tarello, ed., Materialiper una stor a dellacultuira giridca, 2 (Florence, 1972): 127-57. 6 Montesquieu,L'Esprit des lots (Paris, 1748),preface. On theproblem of the work'sstructure, see Franz Neumann's introductionto the English translation,The Spiritof the Laws, trans. T. Nugent (New York, 1949),and, morerecently, Mark Waddicor,Montesquieu and the Philosophy ofNatural Law (The Hague, 1970); S. Goyard-Fabre,Philosophie du droitde Montesquieu(Paris, 1973);and Tarello, Materialiper una storia, vol. 1. Gajus Noster 639

began with a definitionof the law, its species, and its sources (quidjus, de divisionejuris, and undejus), so Montesquieu began withgeneral definitions, continuedwith the species of constitutions(corresponding to democratic, aristocratic,and monarchicalsources of law) and thenlikewise proceeded to the law of persons (libertyand servitude)and of things(commerce), family, and succession.Montesquieu also ended up witha discussionof feudallaw (correspondingto the Librifeudorum, which modern jurists had acceptedas a continuationof "Roman law"). AlthoughMontesquieu's book may have been "withouta mother" (prolemsine matrem creatam was its motto),it did have a kind of conceptual godfather:the "spiritual consanguinity"of the basic Roman paradigm. The Spiritof theLaws can be read as a set of variations, howeverremote and figurative,on Gaian and Justinianianthemes. As Cartesianismdid not entirelyefface the old Roman canon in France, Naturrechtdid not excludethe study of positive law or evenend thetradition of Gaianism in Germany.Most representativeof jusnaturalism in Germanywas the encyclopedicwork of Johann Gottlieb Heineccius, though he belongedas wellto thecontinuing enterprise of humanistic scholarship and lookedback in particularto Le Douaren. Like Le Douaren, Heineccius workedalong both philologicaland philosophicallines. His historicalsurveys of civil and Ger- manic law and his variousinvestigations into crucial topics of modern critical jurisprudence-includingJustinian's prohibition against "4interpretation, " the ignoranceof Greek (thatis, the "specious dictum,"Graecum est, non potest legi), the "anti-Tribonianistsect," and biographicalsketches of Cujas and other jurists-exemplifyhis philologicalanalysis.65 The second line of endeavor consistsof a series of commentaries-"Elements,"he called them in Eu- clidean style-not onlyof philosophyin generalbut also of naturallaw, the law of nations,and especiallycivil law, fromthe Twelve Tables down to his own day. The Gaian traditionis representedby his Syntagmaof 17I8, a systematictreatise "according to the orderof the Institutes,"but also making use of Oldendorp and othermodern scholars.66 In general,his firstconcern was withthe human condition(de statuhominis), and he expresslyrepudiated Thomas Hobbes's naturalistictendency to deriveall law fromcontractual agreement.For Heineccius the mainstreamof wisdom,though it certainly originatedin Greek philosophy,was that "knowledgeof thingsdivine and human" (the title of anotherof his dissertations)identified with jurisprudence.67In a numberof ways Heineccius-like Grotius,Domat, and others- providesa link betweenenthusiasm for natural law and older traditionsof positivescholarship-and also, not accidentally,between the old jurisprudence and newerviews of how to go about studyingsociety. The importanceof the Roman experiencein the thoughtof the Enlighten- mentis mostconspicuous in thehistorical works of Montesquieu and Edward

65 Heineccius,Opera omnia, 4 vols. (Geneva, 1744),3: 17,21, 171,203. On Heineccius,see Stintzingand Landsberg,Geschichte der deutschen Rechtswissenschaft, 3. 179-97. 66 Heineccius, AntiquitatemRomanarum iurisprudentiam illustrantium syntagma secundum ordinem Institutionum Justinianidigestum, in Operaomnia, 4. Also see Operaomnia, i: 191. 67 Heineccius,"De iurisprudentiadivinarum humanarumque rerum notitia," in Operaomnia, 3: 374-89. 640 DonaldR. Kelley

Gibbon, but it was not only decadence and declinethat fascinatedscholars. The positiveforce of 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, offereda comparativeanalysis of French customary law withinthe framework of Justinian'sInstitutes.68 And Damiano Romano,in the fashionof Bodin almosttwo centuriesearlier, offered a treatise"on the truelaw of natureand of nations"that was organizedaccording to universalhistory and drewupon the scholarlywork of Francois Hotman, Cujas, Doneau, Le Douaren, and many other,especially Protestant, jurists of the sixteenthand seventeenth centuries.69Other examplesof adherenceto older scholarlytraditions can be foundamong jurists who ostensiblybelonged to the naturalschool but who were repelledby the naturalisticexcesses of Hobbes, Samuel von Pufendorf, ChristianThomasius, and Wolf.This repugnancewas especiallyclear in the continuingefforts to improveinternational law, the rootsof which went back directlyto Gaius via Grotius.Gaian notionsalso continuedto informencyclo- pedic enterprises; forinstance, Joachim Daries' Institutionsof Universal Jurispru- dence,somewhat like Gregoire de Toulouse's Republic,proposed to describethe natureof man, society,and public and privatelaw in a "systematic,""methodical," and "scientific"fashion, yet again followingthe old Roman forms.70 But the clearestexpression of Gaian influenceduring the age ofEnlighten- ment was surelythe effortto codifypositive law, which came to maturity during the next centuryand, indeed, became a central political issue in Savigny'stime. Once again the centerof attentionwas France, where the codificationmovement had arisenin the sixteenthcentury in connectionwith the work of Charles Dumoulin and other"systematic" jurists already dis- cussed. What was requiredfor such an enterpriseto succeed, accordingto A. -J.Arnaud, a recenthistorian of the movement, was the"juridical rationalism" and "modernphilosophy" of the age ofDescartes, especially the work of Domat and his eighteenth-centurysuccessors, including Montesquieu but evenmore Pothier and Henri Daguesseau, who weremore directly significant forthe Napoleonic Code.7' Yet, as Arnaud himselfhas shown,the "order" achieved by modernphilosophy retained much of its Roman composition, especiallythe tripartiteGaian scheme,which carried over into the French civilcode. The "philosophic"ideal of the rationalizingjurists, of course, was itselfa centralfeature of the Roman legacy.Antoine Terrasson was, perhaps, "the firsthistorian of law reallyconcerned with the philosophyof law"; but

688De Boutaric,Les Institutesde Justinienconferes avec le droitfrancais (Toulouse, 1738). In general,see Klaus Luig, "Institutionen-Lehrbucherdes nationalenRechts im 17. und i8. Jahrhunderts,"Ius Com- mune,3 (1970): 64-97. 89 Romano, Del verodiritto della natura e dellegenti (Naples, 1757). 70 Daries, Institutionesiurisprudentiae universalis in quibusomnia iuris naturae socialis et gentiumcapta in usum auditoriisui methodicascientifica explanantur (3d ed., Jena, 1748). 71 Arnaud, Les originesdoctrinales du Codecivil francayis, 27, passim;and Ph. Sagnac, La Legislationcivile de la revolutionfrancaise (Paris, 1898),5 1. Gaius Noster 641

Terrasson's historyis specificallyof Roman law as an embodimentof this philosophy.And, when he wrote,"Philosophy is the truesource of jurisprudence," he was thinkingof Ulpian, notof Descartes or Leibniz." In any case, what was reallyrequired to achieve a code in France was not a conceptual effort;it was a revolution.

PARALLELING THESE RATIONALIZING TENDENCIES in theeighteenth century were various and increasinglyobvious survivalsof older humanistictraditions. Indeed, this resurgenceof historicaland literaryerudition divided the En- lightenmentfrom the earlier"age ofreason." Despite attacksby naturalizing philosopherson "authority"(and, by inference,on history),positive legal and literaryscholarship continued to flourishamong a varietyof unfashionable erudits,who refusedto allow the new philosophyto cast everythingin doubt. NeitherDescartes's skepticismnor Galileo's scorn forhistorians ("memory experts") could stem the flowof antiquariansocial, legal, and institutional history.In GermanyHermann Conring, Heineccius, and Leibniz (!), in the NetherlandsPerizonius and Grotius,in FranceJacques Godefroy,Terrasson, and Montesquieu,in Italy Giovanni Gravina 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 otherhistorians of the Enlighten- mentbut also of Niebuhrand Savigny,however original and ground-break- ing,would have been impossible.Indeed, Savigny'sfamous manifesto of the HistoricalSchool, "The Vocation of Our Age forLegislation and Jurispru- dence" (1814), maybe regardedas a celebrationof the monumentalefforts of this (philosophically)tenuous tradition of scholarship as wellas an assault on naturalismand its attendantfallacies.74 Under cover of these tendencies, Gaianism could maintaina certainprecarious existence even outsideof nar- row professionalcircles. In fact,resistance to a physical,or metaphysical,approach to the studyof humanitylong antedated the rise of the nineteenth-century historical schools. The firstgreat nemesis of radical naturalism was GiambattistaVico, whowas at thesame timea leadingchampion of Roman jurisprudence. Vico waged his campaignnot onlyagainst the currentCartesian form of naturalism but also against its earlierphilosophical manifestations. For him a true"science" of humanityhad to accommodatenot onlynature but also convention,not only reason but also authority(and unreason), not only determinism(necessitas naturae)but also the freeand creativewills of men. As Le Douaren, Lagus,

72 Terrasson,Histoire de la jurisprudence romaine (Paris, 1750),1 01 73 In additionto Stintzingand Landsberg,Geschichte der deutschen Rechtswissenschaft, volume three, there are variousspecialized studies. For two notableones, see C. Chisalberti,Gian VincenzoGravina, giurista e storico (Milan, 1962); and K. Kossert,Hermann Conrings rechtsgeschzichtliches Verdienst (Cologne, 1939). 74 See, forexample, Savigny, Das Rechtdes Besitzes. For otherworks by and about Savigny,see notes8o- 8i, below. 642 DonaldR. Kelley

Grotius,and manyothers had said, humanscience had to combinehistorical- philological with philosophicalinvestigations. And according to Vico the model forsuch a science was neitherGreek philosophynor rhetoric,which had unfortunatelyremained conceptually separate, but instead that charac- teristicRoman kind of "wisdom" (sapientia)that was jurisprudence-or, rather,the modernexpression of this"civil doctrine"born of humanism and best expressed by Grotius.75In the contextof Vico's epistemology,itself derivedfrom or, at least, analogous to civil law, the "new jurisprudence" combinedthe study of the cultural productsof human will, the "certain," withthe studyof the productsof God's will,or nature,which was the "true." It had to combine, in other words, an understandingof "authority,"or history,with a search for"reason," or the divineideal, in just the same way thatphilosophical jurists proceeded. Such was the argumentof Vico's treatise, UniversalLaw, whichwas indeed the firstversion of the New Science-the bottomlevel of an intellectualpalimpsest hardly less complex than Gaius' own. Vico was one of the great transformersas well as championsof jurisprudence. His method-indeed, his obsession-to reformulateeverything into historicalterms meant he could not directlytake overthe staticGaian triad. Yet Vico himselfwas notoriouslya trichotomizer;and his own neotrinitarian structuresdisplayed certain analogies with those of Gaius. On the level of epistemology,or psychology,the Vichian classes were nosse,velle, and posse; and theymight be renderedrespectively as self-consciousness(perhaps self- possessionor self-control),vitality (or the urgeto liveand to relateto others), and activity(or desire to act and to achieve). In the course of the historical process these threebasic facultiesof human nature were transformedinto what can be consideredas social, beyond a mere individual,consciousness (mens),rationality (ratio), and awarenessof divinity(Deus). In the sphereof civil society,another homologous triad, the institutionalcategories, again wereproduced by historicaldevelopment: dominium, which can be understood as controlof things,the basis of civilpossession, or property;libertas, in social termsthe legal order, the rule of law; and tutela,active controlover and directionof societyon behalfof its values and goals-that is, government.76 It will not do to make too close an identificationbetween the Vichianand the Gaian systems.For one thingVico was inordinatelyproud of the "geomet- ric" designof his "new science," and increasinglythe Romanoid structure was lost in the successiveand increasinglysublimated versions of the system. But both the UniversalLaw and the New Sciencecontained a commondenomi- nator:both systemsretained, on the one hand, a primarycategory of personality (that is, the subject of rightsand obligations) and, on the other,a secondarycategory of natural reality(that is, objective"otherness," which representedthe fieldfor acquisition-both natural and civil possession). In

76 For a fullertreatment of the place ofrhetoric, see my"Vico's Road: FromPhilology toJurisprudence and Back," in G. Tagliacozzo and D. Verene,eds., GiambattistaVico's Science of Humanity (Baltimore, 1976), 15-29. 76 Vico, De universijuris uno principio etfine uno, ed. F. Nicolini(Bari, 1936). Gaius Noster 643 both systemsactions were definedin terms of these two classes. These remarkshardly begin to revealVico's relationsto thelegal tradition,not only to the ancientsources but to the scholarshipof Domat, Grotius,the French "systematists,"and othercommentators of the precedingtwo centuries;they may, however,serve to suggestsome of his importanceas a link between jurisprudenceand a modernphilosophy of societyand culture-anotherway in whicha traditionallegal sciencecould becomethe pointof departure for a modernsocial science. In variousways Vico anticipated,even if he had no directimpact on, the new view ofjurisprudence that began to appear in the late eighteenthcentury-the HistoricalSchool of Law, whichbecame morefully defined, and in some wayseven dominant,in the wake of the Napoleonic wars. The pointof departureof this school was a historicallyminded-whether conservative, na- tionalistic,or "romantic"-rejectionof theoriesof naturallaw or, at least, a reformulationof them. Its home territorywas, ofcourse, Germany, where the wars of liberationwere directed not onlyagainst Napoleonic domination but also against Bonapartistand Jacobin ideology."To simplifya verycomplex matter,the assault on rationalismand jusnaturalism(and, related to this attack,the emergenceof the HistoricalSchool) took its strengthfrom three interrelatedtraditions. First, the continuingefforts of antiquarianresearch intothe nationalas well as the classical past followedthe workof Heineccius and earlierhistorians and ultimatelystemmed from the philologicalachieve- mentsof Renaissance humanism.Second, again relatedto sixteenth-century concernswith practical matters, "cameralistic science" (whateverits politics and goals) acted as a solventupon grand theoriesof natural law, whether olderrationalist schemes or neweridealistic constructs, such as thatof Kant. Third, most immediateand mostemotional was oppositionto that concrete embodiment(or, at least, symbol) of oppressiveand arbitrarysystems, the Napoleonic Code (and, to some extent,its earlier Prussian and Austrian counterparts).These were the groundson which the HistorischeRechtsschule was establishedin the early nineteenthcentury. The man mostoften regarded as thefounder of this school-Altervater, Marx called him, and Naturmensch-wasGustav Hugo, whose attitudesstemmed quite directlyfrom the traditionof classical humanism.Among other works, he publisheda new editionof the famous fragments of Ulpian (firstpublished by Cujas and referredto by both Montesquieuand Vico) and a translationof Gibbon's forty-fourthchapter surveying the historyof Roman law, likewise based on humanistscholarship; he also wrotevoluminously on and taught legal history.He began publishinghis systematicand historicalworks in 1789, takingas his special target"dogmatic" jusnaturalism and settingin its place his own realisticsort of naturallaw.78 His systemwas foundedon a "juristic

" Like Gaius himself,the HistorischeRechtsschule has spawneda literaturetoo voluminousto mentionand a longconcatenation of journals startingwith those of Savigny and Hugo and endingwith the Zeitschrijfder Savigny-StiftungfurRechtsgeschichte. See, forexample, Georges Gurvitch, L'Idee du droitsocial (Paris, 1932). 78 Hugo, Lehrbuchdes Naturrechts als einePhilosophie des positiven Rechts, which was part of his Lehrbucheines civilistischesCursus, which began to appear in 1789. 644 DonaldR. Kelley anthropology,"in whichhe consideredthe animal characteristicsof persons (derMensch als Tier)and wenton to considerlaw as "natural" in the sense not of rationalitybut of a defacto growth. In one sense, Hugo recapitulatedthe methodof Gaius, who likewiseaccepted without question the "reality" of past Roman experience,thereby giving "authority" to history,and thenrational- ized it throughdialectical argument. Not surprisingly,Hugo was, like Gaius, open to charges of being arbitraryand authoritarian;and, as conventional Romanismcame under firefrom rationalists like Leibniz, so the Historical School was attackedby idealists-especially Hegelians, the most famousof whomwas the youngMarx. Althoughhe recognizedthat Hugo representeda "reaction against the frivolousspirit of the eighteenthcentury," Marx ob- jected to the irrationalityof the alternative.About Hugo's historicalmethod Marx observed,"Everything serves him as an authority,every authority serves him as an argument"; and about the true principlesof justice he concluded that Hugo "desecrates themin the eyes of reason in orderafter- wards to make them honorable in the eyes of history."79So Hugo seemed even to justifyslavery; and, in general,Marx reduced Hugo's philosophyof law to the propositionthat "the sole juridical featureof man is his animal nature." Savigny,Marx's teacher,who firstjoined and thensuperseded Hugo in the leadershipof the HistoricalSchool, regardedthis attack, of which he was only an indirecttarget, as unfairand obtuse. Throughouthis lifeSavigny rejected the charge that his view supportedthe "tyrannyof the past" (Herrschaftder Vergangenheit),and he argued that the basis of his thoughtwas not authority but realistichuman perspective.His viewswere expressed first in his youthful yet magisterial treatise on possession, Das Rechtdes Besitzes (1803).8 Here Savignydecisively contributed to a discussionthat had been goingon forcenturies,a discussionthat had indeed begun withGaius and thatincluded other jurists,especially Le Douaren, Doneau, and Pothier.The controllingassump- tionof this book was thatpractical questions of law had to be settledin terms of Roman law understoodnot onlysystematically but also historically-that is, in termsof a processthat included not only ancient forms but also medieval interpretationsand modern (heutige)transformations. Savigny later followed this methodin his treatiseon the law of obligationsand, above all, in his Systemof Modern Roman Law; presumably,he also maintainedthe same stance in his teaching and in his career as ministerof justice forthe reformof Prussian law. Savignywas involved,of course, in othercontemporary con- troversies,most notablythat betweenthe "idealists" (especiallythe Hege- lians) and the "realists," with whom he was identified;but the extentto whichhis ideas can be understoodin termsof the longer legal traditionas well as the more immediatecontext of German philosophyis surprising.

71 Marx, "Das philosophischeManifesto der historischenRechtsschule," in Marx-Engels Gesamlausgabe, i, pt. i (Berlin, I927): 25I-59. Also see H. Jaeger,"Marx et Savigny,"Archives de Philosophiedu droit, I2 (1967): 65-89; and J. Bliuhdorn,"Naturrechtskritik und 'Philosophiedes positivenRechts,' " Tidschriftvoor Rechtseschiedenis, 45 (1974): 3-17. 80 Savigny,Das Rechtdes Besitzes,124, and A. Rudorif'saddition, 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 of Gaius, 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 pre- vious half-century.Arguing that law, like language, was the product of a 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 1814 and the foundingof his journal, Zeitschriftfurgeschichtliche Rechtswissenschaft,in the followingyear. The premise ofthis journal, 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.

IRONICALLY, GAIUS APPEARED 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 achieve- ments. In a sense this culmination of a long process of "historicizing" (Histo- rizierung,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 reputation today rests largely on 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, Sav- igny's Systemof Modern Roman Law was the principal monument of the Histori- cal 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 masterworkrepresents not only the culmination of the Historical School but also a kind of historically oriented summaof the legal

81Savigny, Vom Beruf unserer Zeitfur Gesetzgebung und Rechtswissenschaft (Heidelberg, 1814), published with Thibaut's articleand othermaterial in J. Stern,Thibaut und Savigny (Darmstadt, 1959). On the problemof codification,see J. Vanderlinden,La Conceptdu codeen Europe occidentale du XXIIIe au XIXe siecle(Brussels, 1967); G. Tarello, Le Ideologiedella codificazionenel secoloXVIII (Genoa, 1971); W. Ebel, Geschichteder Gesetzgebungin Deutschland (2d ed., Gottingen,1958); S. Gagn6r,Studien zur IdeengeschichtederGesetzgebung (Stockholm,1960); and Koschaker,Europa und das romischeRecht. 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 from more ancient Roman legal wisdom. Another was the distinction between 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- quired " right.As Savigny described the basic conditiohominum, "Man stands in 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 their nature 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 (Rechtsverhalt- nisse), 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).84Then, in Gaian fashion, he took up the law of things, actions, and their various derivatives and interactions. Roman- tic 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 heutigenro5mischen 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's influence,though restricted in the long run to the intellectual sphere (his struggleagainst modernjusnaturalism was defeatedwith the adoptionof the German civilcode in I900), was profoundand in manyways pervasive,illustrating again the humanistcommonplace that Rome, although it had collapsed as a political structure,continued its dominancethrough linguistic,literary, and especiallylegal channels. Gibbon opened his forty- fourthchapter with the observationthat "the public reason of the Romans has been silentlyor studiouslytransfused into the domesticinstitutions of Europe . . . ," but even deeper and more enduring has been the effectupon legal,historical, and social thought.Before Savigny this Roman influencewas most conspicuouslyevident in the workof Montesquieuand Vico, who had also strivento recapturethe essenceof the tradition and giveit modernform; afterhim, it was evidentin the workof many others,not only disciplesbut also criticslike Rudolfvon Jhering, whose magisterial Spirit of Roman Law was devoted to the same purpose. To illustratethis purpose, both Vico and Jheringquoted the famouslines of Vergil, Remember,0 Romans,you keep universal rule over nations In theseways: by maintaining peace through law, Bydoingjustice to the lowly, by bringing down the haughty.. 8.

This prophecymight be takenas the epitaphof Savignyand his school-not onlyin theirefforts to reformand to regulatesociety but also in theirimpact on modernsocial thoughtin general.

THE ACHIEVEMENT OF THE HISTORICAL SCHOOL had repercussionsfar beyond thelegal scholarshipof Savigny, Johann Eichhorn, and theirdisciples and the parallel historicalwritings of 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 inter- disciplinarymatrix created by thesecomplementary and overlapping"historical schools" emergedone phase ofa new disciplinecalled sociology.One of thefirst historians (and in thiscountry a founder)of that discipline pointed to the HistoricalSchool of Law, especiallyto the Savigny-Thibautcontroversy, as seminalfor the growthof sociology.86A more concreteillustration 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,"were directly linked with the civiliantradition.87 Other particular instancescould be added-including, perhaps, the systematicwork of Max Weber and, certainly,his sociologyof law. 85 Vico, Dirittouniversale, 214; and Rudolfvon Jhering,Der Geistdes r8mischenRechts auf den Stufen seiner Entwicklung,i (Berlin, 1852): 306. 86 AlbionSmall, Originsof Sociology (Chicago, 1924),37-62. 87 See myarticle, "The Metaphysicsof Law: An Essay on theVery Young Marx," AHR, 83 (1978): 350- 67, which is a continuationof the presentdiscussion. 648 DonaldR. Kelley

A centralremaining question is the significanceof the old Roman and Gaian paradigmfor modern social thought,especially in its systematicsocio- logical forms.Although to providean answermoves the discussionfrom the historicaldimension to transhistoricalspeculation, the questionat least provides a logical terminusad quemfor this discussionof the afterlifeof Roman formsand ofGaianism in particular.To concludewith a retrospectiveglance at thistradition, it seemsclear that the first, and perhapsthe most fundamental, continuinginfluence was pedagogical. Civil law was a major vehicleof secular highereducation in European universitiesfrom the thirteenthto the nineteenthcentury (as it had been in Gaius' time),and theInstitutes (first in a Gaian, then in a Justinianian,and finallyin a nationalform for various Eu- ropean states) constitutedone of the basic textbooksof Westerncivilization, arguablythe singlemost influential introduction to social thought.Certainly, the overwhelmingmajority of social thinkersprior to Savignywere juridically trained.Secondly, Roman civillaw was an almostinexhaustible source of as- sumptions,insights, terminology, methods, formulas, and conceptsfor sys- tematicthinking about social structureand process; and even forthose who, like Marx, reacted against it, the importanceof civil law in negativeways was considerable.Finally, through its ideals, systematicform, and practical intentions,Roman j urisprudencefurnished a " scientific" and "philosophical" model forthe understandingof human society.The specificrelationships betweenthe old legal traditionand the new fieldsof humanstudy, including economics,sociology, and anthropology,for the mostpart stillawait investi- gation. In assessingthe significanceof civil law in Westernsocial thought,let us, in conclusion,return to theoriginal epistemological basis ofthe Gaian tradition. The ancientdualism of natureand conventionimplied a distinctionbetween the natural and the social or historicalcondition of man; and Gaius' sub- jective and "personal" startingpoint gave priorityto the latter,in contrast bothto theintimidating political philosophy of Aristotelianism and to modern naturalism.Jurisprudence could not extricateitself from the conventional, howevermuch it reached towardthe natural: as "true philosophy,"it was incorrigiblyman-centered, value-laden, and action-oriented.It had to view the human conditionnot as a naturalprocess or a logical constructbut as a human epic or drama that focusedon the conflictof willsand the means of resolvingthem within the overall communal pattern. Ultimately, perhaps, the natural and the conventional-reason and custom, the "spirit of law," and the realityof society-mightbe reconcilable;but men cannotjudge, act, and live "ultimately,"though they can talk about doing so. Of this human yet global approach to "science," the symboland in some contingent(and "conventional")sense the startingpoint is "our Gaius."