Next, the _responsa_ or _auctoritas jurisprudentium_, by which were
intended the judicial decisions and the authority of the legal writings of
the famous jurisconsults. Imperial rescripts recognized these _responsa_
as authoritative for the Roman courts; and some of the emperors embodied
portions of them in formally promulgated collections, thereby giving them
the force of law. Justinian’s _Digest_ is the great example of this method
of codification.[346] One need scarcely add that the authoritative
writings and _responsa_ of the jurisconsults extended and applied the _jus
gentium_, that is to say, the rules and principles of the best-considered
jurisprudence, freed so far as might be from the formal peculiarities of
the _jus civile_ strictly speaking. And the same was true of the
praetorian edict. The Roman law also gave legal effect to _inveterata
consuetudo_, the law which is sanctioned by custom: “for since the laws
bind us because established by the decision of the people, those unwritten
customs which the people have approved are binding.”[347]
Simply naming the sources of Roman law indicates the ways in which it
grew, and the part taken by the jurisconsults in its development as a
universal and elastic system. It was due to their labours that legal
principles were logically carried out through the mass of enactments and
decisions; that is, it was due to their large consideration of the body of
existing law, that each novel decision--each case of first
impression--should be a true legal deduction, and not a solecism; and that
even the new enactments should not create discordant law. And it was due
to their labours that as rules of law were called forth, they were stated
clearly and in terms of well-nigh universal applicability.
The Laws of the Twelve Tables showed the action of legal intelligence and
the result of much experience. They sanctioned a large contractual
freedom, if within strict forms; they stated broadly the right of
testamentary disposition. Many of their provisions, which commonly were
but authoritative recognitions, were expressions of basic legal
principles, the application of which might be extended to meet the needs
of advancing civic life. And through the enlargement of this fundamental
collection of law, or deviating from it in accordance with principles
which it implicitly embodied, the jurists of the Republic and the first
centuries of the Empire formed and developed a body of private and public
law from which the jurisprudence of Europe and America has never even
sought to free itself.
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