The institutional system is a scholarly system of general private law that comes from Roman legal antiquity . Private law is divided into two major areas, “personal law” ( personae ) and “property law” ( res ). Personal law in the ancient sense includes "today's" personal and family law , property law (in the sense of property law) includes property law in the "modern" sense, inheritance law and the law of obligations .
Critics of the designation as "system" object that both the Institutiones Gai of the high-class jurist Gaius and the Institutiones Iustiniani of Emperor Justinian I were, at best, systematically assessed. They point out that Roman law was always case law according to its basic type and that this remained until the end of late antiquity . It was only the pundit science of the 19th century that reacted to the changed needs of society and made the necessary adjustments to the law received , which ultimately led to a systematization of legal thought. Max Kaser sees a considerable need for correction for current research.
The "system" thus originally goes back to Gaius, whose legal work dates back to the 2nd century . He had developed the institutions for his teaching, which is why a school textbook was created. Its purpose was to adapt the private law that had been collected up to that point to the requirements of the teaching of the time and to structure the legal material. He divided the material according to logical principles, which is why he received great recognition and led to Justinian taking over the system of institutions in late antiquity. It can be found in the Justinian institutions. The institutions themselves became part of the later so-called Corpus Iuris Civilis . This draft was followed primarily by the great modern codifications of the French Civil Code of 1804 and the Austrian General Civil Code of 1811.
The specialty and advantage of the institutional system is the broad technical term. In the Gaianian understanding, the res include physical and non-physical things, i.e. legal objects. For this reason, property rights such as aggregates, inheritance , usufruct and bonds are also included.
- See Hans Hermann Seiler : History and the present in civil law. Fundamentals of Property Law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, pp. 229-295 (230).
- Pandektenwissenschaft developed on the basis of the digests as a system that deviated from the institutional system and divided the subject matter of civil law into five parts.
- Max Kaser : Roman legal sources and applied legal method. in: Research on Roman Law. Volume 36. Verlag Böhlau, Vienna, Cologne, Graz, 1986. ISBN 3-205-05001-0 . P. 155 ff.
- On the advantages of the institutional system, see for example Theo Mayer-Maly : Die Lebenskraft des ABGB. In: Österreichische Notariats-Zeitung. (NZ). 1986, p. 265 ff (267 f).
- See Hans Josef Wieling : Property Law , 5th edition, Berlin 2007, I § 1 I 1,2.