Roman Law
12/4/2007
Outline

 

 

 

IUS, IUSTITIA, IUS NATURALE, IUS GENTIUM

 

D.1.1.1pr–1: “A law student at the outset of his studies ought first to know the derivation of the word ius. Its derivation is from iustitia. For in terms of Celsus’s elegant definition, the law is the art of goodness and fairness (ius est ars aequi et boni).”

D.50.17.202 (Javolenus): “Every definition in civil law is dangerous; for it is rare for the possibility not to exist of its being overthrown.”

D.1.1.10.pr–2 (Ulpian): Iustitia est constans et perpetua voluntas ius suum cuique tribuendi. 1. Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. 2. Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.

Cicero, De legibus “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law.

princeps legibus solutus, D.1.3.31 (Ulpian, bk. 13 on the lex Julia et Papia): “The emperor is not bound by statutes. And though the empress is not freed from statutes, the emperors, nonetheless, give her the same privileges as they have themselves.”

Lex de imperio Vespasiani “(7): And that by whatever laws or plebiscites it has been recoreded that the deified Augustus or Tiberius <Julius Caesar Augustus> and <Tiberius> Claudius <Caesar Augustus Germanicus> were not bound, from these laws and plebiscites Emperor Ceasar Vespasian shall be exempt; and whatsoever things it was proper for the defied Augustus or Tiberius <Juluius Ceasar Augustus> or <Tiberius> Caludius <Ceasar Augustus Germanicus> to do in accordance with any law or proposed law, it shall be lawful for Emperor Caesar Vespasian Augustus to do all these things.”

G.1.1 (=D.1.1.9): “All peoples who are governed under laws and customs observe in part their own special law and in part a law common to all men. Now that law which each nation has set up as a law unto itself is special to that particular civitas and is called ius civile, as being proper to the particular civil society (civitas). By contrast, that law which natural reason has established among all human beings is among all observed in equal measure and is called ius gentium, as being the law which all nations observe.”

D.1.1.3 (Ulpian): “Jus naturale is that which nature has taught to all animals; for it is not a law specific to mankind but is common to all animals—land animals, sea animals, and the birds as well. Out of this comes the union of man and woman which we call marriage, and the procreation children, and their rearing. So we can see that the other animals, wild beasts included, are rightly understood to be acquainted with this law. 4. Jus gentium is that which all human peoples observe. That it it not co-extensive with natural law can be grasped easily, since this latter is common to all animals whereas ius gentium is common only to human beings among themselves.”

G.3.194 (p. II.A.68): “The fact that the statute enacts that in such case there is manifest theft causes some writers to say that theft may be manifest by statute or in fact: by statute in the case we are now discussing, in fact in the circumstances previously described. But the truth is that manifest theft means manifest in fact; for statute can no mmore turn a thief who is not manifest into a manifest thief than it can turn into a thief one who is not a thief at all, or into an adulterer or homicide one who neither the one nor the other. What statute can do is simply this: it can make a man liable to a penalty as if he committed theft, adultery, or manslaughter, though he has committed none of these crimes.”

J.I.3.1.9: “the praetor, following natural equity, gives possession to [emancipated children] of the deceased merely as children, exactly as if they had been in his power at the time of his death, and this whether they are alone or whether they are sui heredes as well.” JI.3.1.11: “Adoptive [children] are not so well off as natural children in respect of rights of succession; for by the indulgence of the praetor the latter retain their rank as children even after emancipation, although they lose it by the civil law; while the former, if emancipated, are not assisted even by the praetor. And there is nothing wrong in their being thus differently treated, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title, and natural descendants, though on emancipation they cease to be family heirs, cannot cease to be children or grandchildren; whereas on the other hand adoptive children are regarded as strangers after emancipation ... .”

JI.3.1.15–16: “By the ancient law, which favoured the descent through males,, those grandchildren only were called as sui heredes and preferred to agnates, who were related to the grandfather in this way ... . But the Emperors would not allow so unnatural a wrong to endure without sufficient correction ... .” Later on he refers to “those had in their favour the provisions of the ancient law as well as natural right ... .”

GI. 3.25: “[T]hese inequities of the law [that an emancipated did not inherit with a child sui iuris] of the law have been amended by the Praetor’s Edict.”

GI.1.158: “By capitis deminutio the tie of agnation is ended, but that of cognation is unaffected, because considerations of civil law can destroy civil but not natural rights.”

D.38.10.10.4 (Paul): “There is the same difference between agnates and cognate relatives as there is between a genus and its species; for a person who is an agnate is also a cognate, but a cognate is not also an agnate same way; for the one expression [derives from] civil and the other from natural law.”

D.38.8.2 (?Gaius): “The proconsul, urged by natural equity, promises bonorum possessio to all cognate relatives called by reason of ties of blood to an estate, even though they fail at civil law.”  [Interpolationn of the phrase “natural equity” is strongly suspected.]

 

 

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