The recognition of these simple modes of contracting obligations, and
perhaps the knowledge that certain rules of law obtained among many
peoples, fostered the conception of common or natural justice, which human
reason was supposed to inculcate everywhere. Such a conception could not
fail to spring up in the minds of Roman jurists who were educated in
Stoical philosophy, the ethics of which had much to say of a common human
nature. Indeed the idea _naturalis ratio_ was in the air, and the thought
of common elements of law and justice which _naturalis ratio inter omnes
homines constituit_, lay so close at hand that it were perhaps a mistake
to try to trace it to any single source. Practically the _jus gentium_
became identical with _jus naturale_, which Ulpian imagined as taught by
nature to all animals; the _jus gentium_, however, belonged to men
alone.[344]
Thus rules which were conceived as those of the _jus gentium_ came to
represent the principles of rational law, and impressed themselves upon
the development of the _jus civile_. They informed the whole growth and
application of Roman law with a breadth of legal reason. And conceptions
of a _jus naturale_ and a _jus gentium_ became cognate legal fictions, by
the aid of which praetor and jurisconsult might justify the validity of
informal modes of contract. In their application, judge and jurist learned
how and when to disregard the formal requirements of the older and
stricter Roman law, and found a way to the recognition of what was just
and convenient. These fictions agreed with the supposed nature and demands
of _aequitas_, which is the principle of progressive and discriminating
legal justice. Law itself (_jus_) was identical with _aequitas_ conceived
(after Celsus’s famous phrase) as the _ars boni et aequi_.
The Roman law proper, the _jus civile_, had multifarious sources. First
the _leges_, enacted by the people; then the _plebiscita_, sanctioned by
the Plebs; the _senatus consulta_, passed by the Senate; the
_constitutiones_ and _rescripta[345] principum_, ordained by the Emperor.
Excepting the _rescripta_, these (to cover them with a modern expression)
were statutory. They were laws announced at a specific time to meet some
definite exigency. Under the Empire, the _constitutiones principum_ became
the most important, and then practically the only kind of legal enactment.
Two or three other sources of Roman law remain for mention: first, the
_edicta_ of those judicial magistrates, especially the praetors, who had
the authority to issue them. In his edict the praetor announced what he
held to be the law and how he would apply it. The edict of each successive
praetor was a renewal and expansion or modification of that of his
predecessor. Papinian calls this source of law the “_jus praetorium_,
which the praetors have introduced to aid, supplement, or correct the _jus
civile_ for the sake of public utility.”
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account