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The Roman Jurist Gaius and Social Thought - Leonard P. Liggio, Literature of Liberty, July/September 1979, vol. 2, No. 3 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Roman Jurist Gaius and Social Thought

Donald R. Kelley

  • University of Rochester

“Gaius Noster: Substructures of Western Social Thought.” American Historical Review 84 (June 1979): 619–648.

The second-century A.D. Roman jurist Gaius has exercised continuous, if often subterranean, influence in the development of the social sciences and of social concepts that transcend legal terminology. Although until the nineteenth century Gaius' Institutes of Civil Law was available only in the sixth-century summary provided in the Institutes of the Emperor Justinian, his method of analysis and approach to law nevertheless was followed by many important figures of medieval and modern history. This situation is in a way paradoxical, since Gaius himself is a neglected figure who has not been studied directly very much. “Gaianism” became a dominant archetype of social analysis. “Though by intent a method of teaching law, his book suggested an epistemology,” a paradigm to scientifically study society and culture.

In his attempt to codify Roman law, Gaius proceeded according to a threefold method. First, he considered persons (including degree of “liberty,” kinship, citizenship, and other social status); next objects; and, finally, the relations between persons and objects, i.e., actions. This tripartite classificatory scheme of persons, things, and actions to some extent reflects the influence of Greek philosophy, particularly the systematizing tendencies of Aristotle. In his stress upon beginning with the human world, however, Gaius displays the Roman tendency to avoid metaphysical abstractions divorced from practical considerations. The various uses to which Gaianism was put form “a historical and conceptual sort of palimpsest.”

Justinian's summary of Gaius' work altered its emphasis somewhat. (A similar transformation of Gaianism is apparent in each later epoch). Justinian placed greater importance on the power of the state than did Gaius, as one might expect from a Byzantine emperor. Justinian preserved the tripartite system of organization, however, and it is through his Institutes that the medieval jurists became acquainted with Gaius.

Both the twelfth-century commentators on Roman law at the University of Bologna and the thirteenth-century Glassators adhered to the methodological essentials of the Gaian tripartite scheme. Some of them, such as Baldus, the noted pupil of Bartolus, pointed out that the precepts of Roman law were not always true to historical reality.

In the sixteenth century, a revolution took place in legal studies. Some jurists favored a rationalizing method, proceeding in an almost geometric fashion. Others, influenced by the dialectic of Ramus and by humanism, wished to substitute rhetorical for logical principles of organization. Another school favored a more historical approach, wishing to supplement Roman law by feudal and other historical materials. Among the most important in the latter category were the jurists François Connan and Hugues Doneau. The attack upon the universal validity of Roman law was even more marked in the work of Jean Bodin, who argued that the sovereign was not bound by Roman precedent. Nevertheless, all of these writers display Gaian ways of thinking in their work.

The split between rationalist and historically descriptive methods in the study of law widened in the eighteenth century. Leibniz was perhaps the most ardent rationalist of the period, but the work of the great reviver of natural law, Hugo Grotius, shows that the Gaian tradition was still strong during this period.

The rise of the German Historical School of Law, whose greatest figure was Karl Marx's teacher, Friedrich von Savigny, represented a return to the humanistic preoccupations of Gaianism. Its stress upon particular legal institutions and historical detail as opposed to abstract generalizations did not at all mean that Gaius' tripartite scheme of classification was abandoned. On the contrary, it remained extremely influential, principally through the dominant position of legal studies in nineteenth-century education. Gaian categories played an important role in the rise of sociology, since the founders of the discipline were indebted to Savigny, who used the Gaian plan in his studies of Roman law.