![handle is hein.journals/intjsemi5 and id is 1 raw text is: International Journal for the Semiotics of Law V/13 [19921
FURTHER THOUGHTS ON INSTITUTIONAL FACTS
by
NEIL MACCORMICK
University of Edinburgh
It is a real compliment to have one's work exposed to such sear-
ching criticism as that offered in the most recent issue of this jour-
nal.' It is easy to bask in the glory of the compliment, but harder to
reply to the criticisms, coming as they do from a variety of quarters.
(I shall do so by reference to authors' names; all attributions without
explicit citation are to the essays in the last issue of this journal.)
In attempting a compendious reply, let me start from Geoffrey
Samuel's reflections on the historic and contemporary significance of
Gaius' Institutiones and the famous division of private law into
persons, things and actions to be found there. I shall try to relate
this to some points made by Anna Pintore, Bernard Jackson, and oth-
ers. I agree with Samuel that the Gaian tripartition marks the en-
try of institutional facts on to the juristic stage. I do not think,
however, that we are confined to the original three in elaborating
an account of legal institutions for the present day. But I do agree
with Samuel in wishing to stress the significance of the fact that it
is in legal dogmatics (doctrine, academic legal writing) that we ini-
tially find this kind of systematisation. In the hands of Gaius (and
whoever, if anyone, was his source of inspiration), we glimpse for
the first time the process of rational reconstruction of law taking
place before our eyes.
The raw material that a text book writer or dogmatician like
Gaius had to work on consisted no doubt of a series of fragments of
Twelve Tables Law, Statutes, Magisterial Edicts, earlier commen-
taries, pieces of imperial legislation, and other materials rather
disparate in kind. By structuring an account of the law round such or-
ganising concepts as persons, things and actions', Gaius (or his un-
1 International Journal for the Semiotics of Law | Revue Internationale de
Semiotique Juridique IV no.12 [1991].](ViewImageLocal?handle=hein.journals/intjsemi5&div=1&collection=&method=preview&ext=.png&size=3)
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