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5 Int'l J. Semiotics L. 3 (1992)

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].