§ 14. CHAPTER II. ROMAN LAW AS THE LAW OF THE WORLD. (THE EMPIRE.) §14. Fus Civile and Fus Gentium. JUS CIVILE was the law of a city, the law, that is, which obtained among cives, its application being confined to the citizens of the Roman community. It was destined to be replaced by a different kind of 'civil' law, a civil law enlarged into a jus gentium, or general law for all mankind. The local law of Rome had already adopted a number of juristic acts which were all characterized by formlessness, ease of application, and free adaptability (§ 13). The Romans themselves had not failed to observe that their law already contained two distinct ingredients, one of which operated by virtue of its form and was derived from their old jus civile (the civil law, in the strictest sense of the term), while the other was free from formal elements, and owed its adoption and validity as law to the contact between the commerce of Rome and that of the world at large. The former bound none but Roman citizens to whose mutual dealings alone it applied, and the latter was binding on, and applicable to, the peregrini as well. The former kind of law, which was specifically Roman, the civil law of the old type, was now called jus civile in the special and narrower sense of the term, the 'jus proprium civium Romanorum'. The jus gentium, on the other hand, came to be regarded as a universal law of all mankind, common to all nations, because resting on the nature of things and the general § 14. sense of equity which obtains among all men, the 'jus gentium quod apud omnes gentes peraeque custoditur,' a sort of natural law, exacting recognition everywhere by virtue of its inherent reasonableness. It would, however, be erroneous to suppose that the Romans attempted to introduce a code of nature such as the philosophers had devised. The jus gentium was and never had been anything else but a portion of positive Roman law which commercial usage and other sources of law, more especially the praetorian edict (§ 15), had clothed in a concrete form. Nor again must it be imagined that the Romans simply transferred a portion of foreign (Hellenic) law bodily into their own system. In the few quite exceptional cases where they did so (as e. g. in the case of hypotheca), they never failed to impress their institutions with a national Roman character. The antithesis between jus civile and jus gentium was merely the outward expression of the growing consciousness that Roman law, in absorbing the element of greater freedom, was commencing to discard its national peculiarities and transform itself from the special local law of a city into a general law for the civilized world. The jus gentium was that part of the private law of Rome which in its fundamental conceptions was in accordance with the private law of other nations, more especially with that of the Greeks which would naturally predominate along the sea-board of the Mediterranean. In other words, jus gentium was that portion of the positive law of Rome which appeared to the Romans themselves as a kind of 'ratio scripta,' a law which obtains among all nations and is common to all mankind. The value of the division of Roman law into jus civile and jus gentium was not merely theoretical, but also eminently practical. The law which now governed the intercourse of foreigners-Greeks, Phoenicians, Jews-in Rome was, of course, Roman law, but it was Roman jus gentium, and the Roman jus civile, in the narrower sense of the term, was confined on principle to the mutual dealings between Roman citizens (cp. § 33). The jus gentium was thus, at the same time, the Roman law for foreigners, i. e. the law which governed the transactions of the peregrini. And it was but natural § 14. that such should be the case, since it had been shaped under the influence of foreign intercourse, and had received definite form for the first time in the edict of the praeter peregrinus. There is a moment in the history of every nation when the claims of a natural sense of justice assert themselves and revolt against the hard and fast austerities of ancient traditional forms. The Romans had now arrived at this stage. The jus gentium was in its nature the equitable law whose growth and expansion, in opposition to the jus strictum of ancient tradition, proceeds henceforward with ever increasing volume. The whole tendency of the history of Roman law pointed to the suppression of the jus strictum by this new equitable law, and to the consequent destruction of the ancient jus civile by the jus gentium. But it must not be imagined that the development was a very sudden one. Such a course would have been entirely alien to the legal instinct of the Romans. The jus gentium did not come down like a hurricane and sweep away the jus civile. The slow and gradual elaboration of a system of equity alongside the older and stricter law, was rather the work of a patient and uninterrupted development extending over a period of more than five hundred years. When, in the natural course of things, the vitality that once filled the forms of the jus civile had passed from them, leaving them but hollow relics of a bygone age, then, but not till then, were they finally discarded. Slowly, cautiously, and, as it were, bit by bit, portions of a freer and more equitable law were worked out and tested, first one, then another, and finally incorporated in the organism of Roman law. The reform of Roman law was the result of a vast series of small changes of detail. And it was only by painstaking care of this description, by scorning all appeals to vague general principles of equity, that the Romans, aided by that keen sense of form, moderation, and legality, which with them was hereditary, could succeed in reducing the jus aequum to a body of principles lucidly conceived, minutely elaborated, and carefully weighed in all their details. By such a method alone could Roman law, while its contents were freely developing over so vast a field, preserve intact throughout that artistic power which moulds and subdues its materials, and erects them into a firm harmonious structure. It is this power which has made Roman law, and more § 14. especially Roman private law, what it is: a model for all times to come such as has never since been equalled. In working out the jus gentium, i. e. those rules of natural equity which regulate the dealings between man and man, and in reducing these rules to a system of marvellous transparency and lucidity, which carries irresistible conviction by its form as well as its matter to the mind of every observer-in doing this, Roman law has performed its mission in the world's history. And it was this achievement, successfully accomplished for all times to come, that not only fitted Roman law for becoming the general law of the Roman empire, but also endowed it with the power, when once it had emerged from the oblivion of centuries, to conquer the modern world. There were three agencies whose influence in working simultaneously and successively at this identical task, viz. the developing and importing of the jus gentium, was decisive of the ultimate result. These were the praetorian edict, Roman scientific jurisprudence, and imperial legislation. CICERO de offic. III. 17: Societas enim est, latissime quae pateat hominum inter homines, interior eorum qui ejusdem gentis sunt, propior eorum qui ejusdem civitatis. Itaque majores aliud jus gentium, aliud jus civile esse voluerunt: quod civile, non idem continuo gentium, quod autem gentium, idem civile esse debet. GAJ. Inst. I. § 1: Omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum jure In the last sentence Cicero is not criticising the jus civile and conveying an opinion that it ought to accommodate itself to the jus gentium. He is simply expressing the fact that that only can be jus gentium which actually obtains everywhere in the separate systems of positive municipal law, more particularly in Roman municipal law, or jus civile, in this sense of the term. Jus civile is not necessarily jus gentium, i. e. it does not necessarily obtain everywhere, but jus gentium is necessarily jus civile, because law which obtains everywhere must necessarily obtain with us, failing which it would not be jus gentium, or law which obtains everywhere. Jus civile is here used, not in the narrower sense of the specifically Roman law, but in the sense of municipal law, and is therefore used for Roman law simply. What is not law among the Romans, can obviously not be regarded as obtaining 'apud omnes gentes. In this, the wider sense of the term, jus civile includes jus gentium within its limits, and jus gentium is thus not opposed to, but forms a portion of, Roman law.-In Verr. I. 13 Cicero calls the jus gentium 'communia jura,'' common law.' § 14. 76 THE INSTITUTES utuntur: nam quod quisque populus ipse sibi jus constituit, id ipsius proprium est vocaturque jus civile, quasi jus proprium civitatis ; quod vero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur. Populus itaque Romanus partim suo proprio, partim communi omnium hominum jure utitur. 15. The Praetorian Edict. § 15. In the year 367 B.C. the judicial functions were separated from the consular power, and a special officer, the praetor urbanus, was appointed to administer justice in the city. Subsequently (about 242 B.C.) the increase of commerce necessitated the appointment of a second praetor, the praetor peregrinus, to whom all disputes were assigned where one or both of the parties were peregrini. The jurisdiction of the praetor urbanus was henceforth confined to matters in dispute between Roman citizens themselves. During his year of office, the praetor, like the consuls before him, was invested with the ancient judicial power of the king'. That is to say, in administering justice he was authorized to give full play to his imperium or sovereign judicial discretion, being limited-in point of form, and as against Roman cives only-by the letter of the leges or popular enactments, and by such customs as ancient tradition had endowed with the force of law (supra, p. 55). In modern times the judge is subordinate to the law. His sole business, in dispensing justice, is to apply the law. But the praetor, officiating in his court, was his own master; he was the supreme judicial authority. As a magistrate he represented, within the limits of his official powers, the sovereign populus Romanus. His administration of justice, therefore, was not merely an application 1 The word 'praetor' means literally a general, and is a title of honour ac corded to the consuls in the first centuries of the Republic (Mommsen, Röm. Staatsrecht, vol. ii. 3rd ed. p. 74ff.). The praetor was really a third consul who was specially entrusted, not with the military command, but with the administration of justice. This is the reason why, in point of rank (and in the number of his lictors), he was inferior to the consul, though, on principle, his power was consular (Mommsen, ib. P. 193 ff.). |