Gaius (lawyer)

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Gaius was a Roman lawyer . He lived around the middle of the 2nd century. He is best known as the author of the textbook Institutiones .


Little is known of Gaius' life, not even his full name. From his work it can be concluded that he worked in the reigns of the emperors Hadrian , Antoninus Pius , Mark Aurel and Commodus . His works were thus written between 130 and 180, at a time when the Roman Empire was in its prime and its government was most successful. Essentially, it is believed that Gaius lived in a provincial town, which is why we have no contemporary notes on his life or work. Theodor Mommsen's attempt to locate Gaius in the Greek-influenced eastern half of the empire, specifically in the Troad, was highly controversial .

Gaius was considered an outsider of classical jurisprudence . As a law teacher, he worked without the imperial legitimation to be able to answer legal and legal inquiries on behalf of the emperor, thus without ius respondendi . Since he did not take up case- related problem discussions, his colleagues did not consider him quotable . After his death, his writings were recognized as of such great authority that the emperors Theodosius II and Valentinian III. In their citation law from 426, together with Papinian , Ulpian , Modestinus and Iulius Paulus , appointed him to one of the five lawyers whose opinion should be followed by judicial officers in decisive cases. The work of these jurists became the most important sources for Roman law .


In addition to the Institutiones (instructions, instructions), which are a complete compilation of the elements of Roman law, Gaius was the author of, among other things, comments on the edicts of the judicial officers, the Twelve Tables and the Lex Papia Poppaea . His legal historical interest in the early days of Roman law is evident, and this is one of the reasons why his work on the history of the early institutions is extremely valuable. In the disputes between the two schools of law, the Sabinians and Proculians , he was generally on the side of the tradition-conscious Sabinians, whose founder Gaius Ateius Capito is said to have been and whose life we have information about through Tacitus ' annals . Gaius defended strict adherence to old rules and opposed the proculian approaches, which had advocated a restrictive and possibly also extensive interpretation of the law in order to be able to generate a higher general binding force in the judgment. His achievements in the fields of abstract dogmatics and systematic procedures are significant for posterity . We find many quotations from his work in the digests of Justinian , which thus acquired a permanent place in the Roman legal system. A comparison of the institutions of Justinian with those of Gaius shows that the entire methodology and arrangement of the later work follows that of the earlier one, and that many passages even correspond literally. Presumably in the three centuries between Gaius and Justinian, the institutions of the former were the common textbook for all students of Roman law. In Justinian's Digest, Gaius' works are represented with 535 fragments. The res cottidianae and the res aurea (seven books) are presumed to be revised versions of the institutiones .

The work was lost to modern scholars until, in 1816, Barthold Georg Niebuhr discovered a manuscript in the Verona Abbey Library that contained some of the works of Saint Jerome written over earlier texts that turned out to be the lost writings of Gaius. The greater part of this palimpsest has been deciphered and the text is now almost complete. The discovery has shed a lot of light on parts of Roman legal history that were previously mostly in the dark. Much of the historical information that comes from Gaius is missing in Justinian's compilation, and in particular the description of the old procedural rules. Early survivors can be tracked in these regulations, providing valuable clues to comparative legal research in explaining odd procedural regulations from other early systems.

Another fact that makes the writings of Gaius more interesting for historical research than the Justinians is that Gaius lived in a time when processes were being driven by the system of formulas . Formulas were the formal dispute programs of the parties, which the praetor translated from substantive law into procedural practice on the basis of official instructions, before he submitted them to the judge for decision. Gaius was concerned with the praetor's freedom of design with regard to the legal and factual issues that were relevant to the decision and the formal aspects. Without the knowledge of the conditions of the formulas provided by Gaius , it would be impossible to trace the interesting question of how the old legal and rigid rules changed to praetorical jurisdiction and were brought into conformity with the ideas and needs of a developing society. From the evidence of Gaius it is clear that this result was not achieved through an independent judicial administration, as in England before the Judicature Act , a system that differs from that of ordinary courts, but through a manipulation of the formulas . In Justinian's time the work was done and the formula system had disappeared.

The Institutiones des Gaius are divided into three subject areas ( personae , res , actiones - persons, things, possibilities of action) and consist of four books: the first deals with people and the differences in status they have before the law; the second deals with things and the ways in which rights can be acquired in them, including the right of wills; the third, about succession without a will and obligations; the fourth deals with the process and procedural rules.

The influence of the Institutiones des Gaius can still be demonstrated today. They have not only been revised and incorporated into the Corpus Iuris Civilis , but also shape the structure of modern codifications as an institutional system , from the French Civil Code to the Austrian General Civil Code (ABGB) and the Italian Codice civile to the General Part of the Civil Code (BGB ).


  • Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 45.
  • Detlef Liebs : Gaius. In: Klaus Sallmann (ed.): The literature of upheaval. From Roman to Christian literature, AD 117 to 284 (= Handbook of Ancient Latin Literature , Volume 4). CH Beck, Munich 1997, ISBN 3-406-39020-X , pp. 188-195
  • Hein LW Nelson: Tradition, Structure and Style of Gai Institutiones. Brill, Leiden 1981, ISBN 978-3-428-07274-3
  • Cristina Vano: "Il nostro autentico Gaio". Strategy della scuola storica alle origini della romanistica moderna. Editoriale Scientifica, Napoli 2000, ISBN 88-87293-76-7

Web links

Individual evidence

  1. Franz Peter Bremer: The legal teachers and legal schools in the Roman Empire , published by I. Guttentag, Berlin 1868, p. 71 ff. (77 f.); while Friedrich Bluhme and Eduard Böcking speculated about the evidential value of Mommsen's conjectures, they simply denied Adolf August Friedrich Rudorff and Philipp Eduard Huschke .
  2. a b c Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 45.
  3. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 382 f.