Roman jurisprudence was finally incorporated in Justinian’s _Digest_,
which opens with a statement of the most general principles, even those
which would have hung in the air but for the Roman genius of logical and
practical application to the concrete instance. “Jus est ars boni et
aequi”--it is better to leave these words untranslated, such is the wealth
of significance and connotation which they have acquired. “Justitia est
constans et perpetua voluntas jus suum cuique tribuendi. Juris praecepta
sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.
Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque
injusti scientia.”
The first pregnant phrase is from the older jurist Celsus; the longer
passage is by the later Ulpian, and may be taken as an expansion of the
first. Both the one and the other expressed the most advanced and
philosophic ethics of the ancient world. They are both in the first
chapter of the _Digest_, wherein they become enactments. An extract from
Paulus follows: “_Jus_ has different meanings; that which is always
_aequum ac bonum_ is called _jus_, to wit, the _jus naturale_: _jus_ also
means the _jus civile_, that which is expedient (_utile_) for all or most
in any state. And in our state we have also the praetorian _jus_.” This
passage indicates the course of the development of the Roman law: the
fundamental and ceaselessly growing core of specifically Roman law, the
_jus civile_; its continual equitable application and enlargement, which
was the praetor’s contribution; and the constant application of the
_aequum ac bonum_, observed perhaps in legal rules common to many peoples,
but more surely existing in the high reasoning of jurists instructed in
the best ethics and philosophy of the ancient world, and learned and
practised in the law.
Now notice some of the still general, but distinctly legal, rather than
ethical, rules collected in the _Digest_: The laws cannot provide
specifically for every case that may arise; but when their intent is
plain, he who is adjudicating a cause should proceed _ad similia_, and
thus declare the law in the case.[348] Here is stated the general and
important formative principle, that new cases should be decided
consistently and _eleganter_, which means logically and in accordance with
established rules. Yet legal solecisms will exist, perhaps in a statute or
in some rule of law evoked by a special exigency. Their application is
not to be extended. For them the rule is: “What has been accepted _contra
rationem juris_, is not to be drawn out (_producendum_) to its
consequences,”[349] or again: “What was introduced not by principle, but
at first through error, does not obtain in like cases.”[350]
Public-domain text, read in full here on John Shaqi.
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