Институционната и пандектната система на гражданското право в техния правноисторически контекст
The institutional and pandect systems of civil law in their historical and legal context

Summary/Abstract: The present research article explores the Institutional and Pandect systems of civil law in their historical and legal context. Not only it provides thorough analysis of their origin and subsequent development with an emphasis upon any differences between them, but also points out the reasons for the aforementioned established differences. Arguments are presented in support of the view that both systems are closely interrelated. Regardless of any structural differences and peculiarities existing between them in the grouping and arrangement of the civil-law matter by sections and institutes, the Institutional and the Pandect systems of civil law should not be regarded as legal antipodes. On the contrary, it is argued that they are intertwined with one another so that the Pandect system, together with the Institutional system that predates it with centuries, ultimately share common roots in the didactic system of Gaius. The genesis of the Pandect systems of civil law reveals that it absorbed different legal traditions. While the separation of obligations and property goes back to the Roman-law distinction between real rights and obligations (iura in rem and iura ad rem), the treatment of family law and the law of succession as separate units within the Pandect system owes its origin to the influence of the School of Modern natural law, followed by the Historical school of Law. Until then, family law and the law of succession had been already present, as subordinate units, within the broad meaning accorded to the notion of res under the Gaius and Justinianʼs Institutes. The concept of res, in that context, was a wide one, whereby it not only included res corporales, i.e. property law in its strict sense of right of ownership, but also res incorporales, i.e. iura in re aliena, law of succession and law of obligations (i.e. all property rights in the system of patrimonial law). Over time the division of res into res corporales and res incorporales became less significant and the concept of res lost that structure-defining and system-shaping role that it enjoyed for the ancient Institutional system. At the turn of the 19th century the pandectist textbooks dealt with the concept of res in its narrow sense, referring to a specific, tangible object, whereas the meaning of the notion of res incorporales has been reduced to intangible property rights. The article also takes a critical stance upon the main objection held against the Pandect system – that its internal structure lacks a uniform underlying systematic principle: while the distinction between the law of obligations and the law of property is based on the different legal effects of their respective rules (relative rights, i.e. rights enforceable inter partes ↔ absolute rights, i.e. rights enforceable against everyone), the rules that can be found in family law and the law of succession refer to specific areas of social reality, regardless of their legal effects.

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