JUS
JUS (in early Latin
jous, from Sanscrit
ju, to join, and of the same root as
jubere, in early Latin
joubere) has the
following legal senses: 1, law, or a system of law; 2, the place of
declaring the law; 3, power or authority; 4, right to do a thing; 5, what is
right or lawful =
justum; 6, in the plural,
rules of law, legal decisions, and so legal authority (Nettleship,
Contributions to Latin Lexicography, s. v.; cf. Muirhead,
Roman Law, sect, 7).
Jus, in its general signification, is law, and in this sense it includes all
law, whether made by
[p. 1.1041]statute or otherwise; but
in a narrower sense it is, opposed to lex, which is a special written
enactment,--strictly, a transaction entered into between the magistratus and
the populus (Nettleship,
Contributions, etc., who thinks that
the usages of lex are in favour of deriving it from
ligare, to bind). Lex is sometimes used for law of any kind.
Thus Cicero (
de Off. 3.5.23) opposes natura to leges, where
he explains natura by the term jus gentium, and makes Leges equivalent to
Jus Civile (see below). In the Partitiones (100.37), he divides Jus into
natura and lex; lex, in this sense, comprehending leges and all the other
parts of the Jus Civile. In its special sense of a written enactment, lex is
included in jus ; but jus or jura, as distinguished from lex, may mean
“the special provisions, lex the whole enactment containing them;
or jura are special rules or provisions, lex a comprehensive written
enactment; or jura may mean the general rules on which leges are
subsequently framed” (Nettleship, s. v. Jus). So the provision of
the Lex Julia de adulteriis, which forbade the alienation of the fundus
dotalis, is thus referred to by Gaius (2.62), “quod quidem jus,”
“which rule of law” or “which law” --it being a
law comprehended in another law which contained this provision. Gaius again
(1.47) speaks of the jura or legal provisions contained in the Lex Aelia
Sentia. Thus, though lex, in its strict sense of a written enactment, is
opposed to jus, and though jus is perhaps never used for a lex, still jus,
or rather jura, may be used to express rules of law contained in a lex or a
part of a lex. Jura, in the sense of rules of law, is of frequent
occurrence, and is combined with the following verbs: describere, dicere,
dare, ponere, reddere, petere (Nettleship,
l.c.).
For instance, Gaius speaks of jura as built up or established by the
Responsa Prudentium ( “responsa prudentium sunt sententiae et
opiniones eorum quibus permissum est jura condere,” 1.7). Jus is
specially used to signify law as contained in the writings of the Jurists.
Jus is sometimes opposed to judicium, a thing being said to be done in jure
or in judicio, according as it was done before a magistratus or before a
judex. [
JUDICIUM] Thus all
matters of legal concern were said to be done “aut ad populum, aut in
jure, aut ad judicem” (Plaut.
Menaech. 4.2, 18).
The expression jus dicere is explained under
JURISDICTIO Jus, in the sense of the place “in
quo jus redditur” (
Dig. 1,
1,
11), is only an
application of the name of what is done to the place in which it is done.
Jus was not only the general law of the state, but also the law which a
superior, such as the head of a family, was entitled to administer to those
subordinate to him. So persons are divided into those who are sui
juris,--that is, independent persons; and those who are alieni juris--that
is, subject to the law or rule of another. Hence jus signified that which
binds, in the sense of power, authority, and from this sense came to mean a
right to do a thing. Accordingly, Gaius says (4.3): “It is an actio in
rem when we claim a corporeal thing as our own, or claim some jus as our
own, such as a jus utendi, eundi, agendi.” The meaning of a law
generally, and of a legal right, are applied to jus by Cicero in the same
sentence: “I, a man ignorant of the law (
imperitus
juris), seek to maintain my right (
meum
jus) by the Interdict” (
pro
Caecin. 11.32). As the several rules of law, which are often
comprised in one lex, or which make up the whole body of Jus (Law), may be
called Jura with reference to their object; so the several legal rights
which are severally called jus, with reference to some particular subject,
may be collectively called jura. Thus we find the phrase jura parentis to
express all the rights that flow from the fact of legal paternity. The
phrase jura praediorum, which is equivalent to servitutes, is explained
under
SERVITUS
Jus sometimes means the entire property of a deceased person (
“successio in jus demortui” --“in omne jus”
--“heredes juris successores sunt” ).
Jus is also used to signify the bond or tie of relationship (
Dig. 1,
1,
12:
“Nonnunquam jus pro necessitudine accipimus, veluti est jus
cognationis vel affinitatis” ).
The adjective justum often occurs in the Latin writers, in the sense of that
which is consistent with Jus or Law, or is not contrary to law, and
especially of that which is in accordance with jus civile as opposed to jus
gentium. Thus it is justae nuptiae, marriage according to jus civile, if
there is conubium between the two parties to the marriage. Jus, in its
general sense of law, is opposed to fas; jus being law made by human
authority, fas (from
fari) what is declared by
divine authority,--the will of the Gods. (Muirhead,
op.
cit. sect. 7.) The knowledge and determination of what was fas or
nefas belonged to the pontifices, except that matters concerning
international intercourse were regulated by the fetiales. But the
distinction between fas and nefas, or between pium and impium, on the one
side, and between justum and injustum on the other, was not clearly marked
till the office of praetor was instituted; and so, till this time, the
pontifices were the chief interpreters of jus as well as of fas. (Danz,
Lehrbuch, &c., § 36.) Still, even after
the separation of jus pontificium or sacrum from jus civile, there was a
relation between these two branches of law: for instance, an adrogatio was
not valid by the jus civile unless it was valid by the jus pontificium
(
Cic. de Or. 3.3. 3,
136 ;
Brut. 42, 156;
ADOPTIO), the pontifices having the supervision of privata as
well as publica sacra. Again, as it was for the pontifices to determine
whether a res was sacra, sancta, religiosa, or profana, so the law relating
to res divini, as opposed to humani juris (Inst. 2.1), was derived from jus
sacrum, and continued to be partly under its sanction (
Macr. 3.3;--
Dig. 39,
3,
17.3; 11, 8, 5.1).
Those rules of fas which regulated the declaration of war, the conduct of
war, and the making of treaties, are comprehended under the term Jus
Fetiale. This jus prescribed the formalities which were observed by the
Italian nations in their international intercourse (
jure
gentium agere). It derived its name from the fact that it was
under the supervision of the fetiales, a class of priests who acted as the
envoys of the state (
publici nuntii populi
Romani--oratores) in making a formal demand for satisfaction
from other states (
clarigatio de rebus
repetendis), and in declaring war in case of refusal (Danz,
§ 36). The Romans sometimes used the expression jus gentium in a
sense which nearly corresponds to the modern phrase Law of Nations, or, as
it is more frequently called, International Law.
[p. 1.1042]（
Liv. 2.14;
6.1,
“quod legatus in Gallos, ad quos missus erat, contra jus gentium
pugnasset ;” 38.48; Sall.
Jug. 22; cf.
Tac. Ann. 1.42--fas gentium.) The term jus
belli (
Cic. de Legg. 2.1. 4）
is used in a similar sense.
The conduct of a Roman was regulated by boni mores as well as by jus and fas.
Loyalty and obedience on the part of the dependent members of a family to
their head (
obsequium et reverentia),
moderation in the use of their power on the part of superiors (
clementia), chastity (
pudicitia), and the observance of good faith in dealing with
others (
bona fides), were among the duties
attributed to this source. As Mr. Muirhead (
Roman Law, sect.
8) remarks, “The constant reference in the pages of both the lay and
professional writers to infamia, ignominia, turpitudo, improbitas, as
imposing disqualifications, shows how much store continued to be set,
theoretically at least, on integrity of character.” (See Voigt,
Zwölf Taf. 1.15.) The rules prescribed by boni
mores were partly included in the sphere of jus, and partly lay outside it.
Mores is also used in the sense of immorality (
mali
mores); that which positive morality disapproves of. Thus, in the
matter of the dos, there was a retentio in respect of the mores graviores or
majores, i. e. in cases of adultery (Ulp.
Fragm. tit. 6).
[
DOS]
The law of Rome was originally a body of customary law; and though it came in
course of time to be based on statute, custom was still regarded as one of
its original sources. This is the jus which is said to be moribus
constitutum--not to be confounded with boni mores. The ultimate foundation
of customary law was considered to be the common consciousness of the people
of following a custom in obedience to a rule of law: the evidence of this
consciousness is usage--repeated and continued use--“longa,
inveterata, diuturna, antiquitus probata et servata tenaciter
consuetudo” (
Dig. 1,
3,
32). Lex, statute, and mos (custom) are
sometimes opposed to one another, as component parts of the jus civile, but
different in their origin. Horace (
Hor. Carm.
4.5) speaks of “mos et lex.” The actio injuriarum is
said by Paulus (5.4, 6) to have been introduced “aut lege aut more aut
mixto jure.” The Roman writers indeed frequently refer to a large
part of their law as founded on mores, or on the mos majorum, and not on
Leges (Quintil.
Inst. Orat. 5.10). Thus Ulpian (
Dig. 1,
6,
8) says that the jus patriae potestatis is moribus receptum.
The Jus Civile or civil law of Rome was divided into publicum and privatum by
the Roman jurists (
Dig. 1,
1,
1.2; Inst. 1.1, 4). Publicum jus is
defined to be that which relates to the status rei Romanae, or the Romans as
a state; privatum jus is that which relates “ad singulorum
utilitatem,” that is, to the interests of private individuals. The
publicum jus is further said by Ulpian (
l.c.）
“in sacris, in sacerdotibus, in magistratibus consistere.”
(Cf.
Cic. de Or. 1.4. 6,
201, “publica quoque jura, quae sunt propria civitatis atque
imperii.” ) According to this view, it comprehends the law of
religion and constitutional law, and in fact all the rest of the jus civile
which is not jus privatum; the latter comprehending the law of status and
family law, the law of property and the law of civil procedure, which is the
subject of the Institutes of Gaius and Justinian. The elementary treatise of
Gaius does not mention this division. Justinian, in his Institutes, after
making this division of jus into publicum and privatum, says, “We must
therefore treat of jus privatum,” from which it appears that he
did not contemplate treating of Jus Publicum, though the last title of the
fourth book is “de judiciis publicis,” concerning criminal
trials, which properly belong to the Jus Publicum.
The law of Rome appears to have been called in early times Jus Quiritium. The
expression “populus Romanus, quirites,” has given rise to much
discussion. Becker (
Handb. 2.24) concludes that Romani and
quirites are so far opposed that Romani is the historical and political name
viewed with respect to foreign states, and quirites the political name as
viewed with reference to Rome. According to Mommsen, the distinction between
Romani and quirites (literally, lance-bearers) is that “where the
locality was meant to be referred to ‘quirites’ was never used, but always Rome and Romans (urbs Roma,
populus, civis, ager Romanus), because the term quiris had as little of
a local meaning as civis or miles. For the same reasons these
designations could not be combined: they did not say civis quiris,
because both denoted, though from different points of view, the same
conception in law. On the other hand, the solemn announcement of the
funeral of a burgess ran in the words, ‘this
warrior has been consigned to death ’ (
ollus
quiris leto datus); and in like manner the party aggrieved
employed the word in calling the burgesses to aid him (
quiritare): the king addressed the assembled
community by this name; and when he sat in judgment, he spake according
to the law of the warrior freemen (
ex jure
quiritium) quite similar to the later
ex jure
civili. The phrase ‘populus
Romanus, quirites’ thus means the community and the individual
burgesses” (Mommsen's
Hist. of Rome, Dickson's
transl., ed. 1867, 1.78). Accordingly jus quiritium was equivalent to jus
civium, jus civile. Jus quiritium may also mean the entire rights of a Roman
citizen, being equivalent to civitas (Gaius, 1.32 c, 33, 35). Jus quiritium
is frequently used in connexion with ownership in the expressions dominus,
dominium ex jure quiritium; that is, ownership according to the law of the
quirites, or jus civile. A lance was the symbol of such ownership. Quiritary
ownership was contrasted with ownership in bonis, which was praetorian
ownership. [
DOMINIUM]
“All people,” says Gaius (1.1), “who are governed by leges
and mores use partly their own law (jus), partly the law (jus) that is
common to all mankind; for the law (jus) which a state establishes for
itself is peculiar to such state, and is called jus civile, as the
peculiar law (jus) of that state. But the law (jus) which natural reason
(naturalis ratio) has established among all mankind is equally observed
by all people, and is called jus gentium, as being that law (jus) which
all nations follow. The Roman populus therefore follows partly its own
peculiar law (suum proprium jus), partly the common law (commune jus) of
all mankind.”
According to this view, Roman law (jus) is distributed into two parts, jus
gentium and jus civile, and the whole body of law peculiar to any
[p. 1.1043]state is its jus civile (
Cic. de Orat. 1.44.197). As we see in
the Institutes, this was only a division of jus privatum; the Roman private
law, therefore, which is peculiar to the Roman state, is its jus civium, or
jus civile, that part of Roman law which might also be the law of other
communities, was the jus gentium.
The jus gentium is here viewed by Gaius as springing out of the naturalis
ratio common to all mankind, which is still more clearly expressed in
another passage (1.189), where he uses the expression “omnium
civitatium jus” as equivalent to the jus gentium, and as founded
on the naturalis ratio. In other passages he founds modes of acquisition of
property, which are not peculiarly Roman in character, on naturalis ratio,
and in other places he derives such acquisitions from naturale jus, the
naturale jus being the product of naturalis ratio (cf. 2.65, 66, 69, 73,
79). He founds cognatio, blood relationship, on naturalis ratio, and agnatio
on civilis ratio, as being. a purely Roman institution (1.158). In two
passages in the Digest (
1.8) he calls the same
thing naturale jus in § 2, and jus gentium in § 3, 5
(compare Gaius, 3.132). The naturale jus and the jus gentium are therefore
treated by Gaius as identical (Savigny,
System, u. s. w.
1.113). Thus Gaius considers jus gentium, as being the law of natural
reason, to be older than the jus civile, which is law peculiar to a
particular state (
Dig. 41,
1,
1, pr.; cf. Inst. 2.1, Il).
But other Roman jurists distinguished jus naturale, the law taught by nature,
and so common to men at all times and in all places, from the jus gentium or
gentile law of positive enactment.
There were, in fact, legal institutions, especially the important institution
of slavery, which could not be reconciled with the identification of jus
naturale and jus gentium (cf. Inst. 1.3, 2: “Servitus autem est
constitutio juris gentium, qua quis dominio alieno
contra naturam subjicitur” ).
Ulpian makes the threefold division of jus--jus civile, jus gentium, jus
naturale; but his conception of jus naturale is one which was apparently
peculiar to this jurist, though it is unfortunately adopted by Justinian in
his Institutes (Inst. 1.2, pr.). “Jus naturale,” according to
Ulpian, “est, quod natura omnia animalia docuit. Nam jus istud non
humani generis proprium est, sed omnium animalium, quae in caelo, quae
in terra, quae in mari nascuntur. Hinc descendit maris atque feminae
conjugatio, quam nos matrimonium appellamus, hinc liberorum procreatio
et educatio: videmus etenim cetera quoque animalia istius juris peritia
censeri.” The foundation of this conception seems to have been a
theory of the progress of mankind from what is termed a state of nature,
first to a state of society and then to a condition of independent states.
This definition had, however, no practical application, and must be viewed
merely as a curious theory. Absurd as it appears at first sight, it is
capable, according to Savigny, of a reasonable explanation, who shows that
Ulpian does not mean to say that beasts have law, but only that they have
the matter from which law springs; that is, some of those natural relations
on which legal relations are founded exist among beasts as well as men. Such
natural relations are those by which the species is propagated. (See also
Puchta's remarks,
Inst. 1.9, note a.) In the Institutes the
two divisions are confounded (1, 2, de jure naturali, gentium, et civili);
for the explanation of jus naturale is first taken from the threefold
division of Ulpian, and then the jus gentium and jus civile are explained
according to the twofold division of Gaius already quoted, so that we have
in the same section the jus naturale explained in the sense of Ulpian, and
the jus gentium explained in the sense of Gaius, as derived from the
naturalis ratio. Further, in the second book (tit. 1, 11) the jus naturale
is explained to be the same as the jus gentium, and the jus naturale is said
to be coeval with the human race.
The origin of the opposition between jus gentium and jus civile was not a
speculative notion, nor did it originate with the jurists, though they gave
it a theoretical form. The jus gentium appears to have been in its origin a
body of rules which the praetor recognised as governing the relations of
aliens at Rome with one another and with Roman citizens, the jus civile
being only applicable to cives. It is probable that till some time after the
enactment of the Twelve Tables, aliens were incapable of entering into any
transaction which could be legally enforced, but the growth of commerce and
the settlement of foreigners at Rome during the fifth and sixth centuries
occasioned the establishment of a special law, distinguished from the jus
civium by its informal and equitable character, treating all freemen as on
an equality without consideration of political status. This new law, the jus
gentium, was perhaps at first confined to transactions in which aliens were
interested, but it soon came to be applied also to the relations of cives;
and accordingly Roman private law was composed of two parts, the jus civile
or law of cives exclusively, and the jus gentium, the general law of free
persons. Jus gentium, then, was law in positive force among the Romans,
devoid of national peculiarities by reason of its origin, and so having much
in common with law elsewhere, though not, as one might suppose from the
language of Gaius, the law actually prevailing in all communities.
The jus gentium was chiefly introduced by the Edictum--as the law of
peregrini by the Edict of the Praetor peregrinus and the Edicta
Provincialia, and as the general law of Rome by the Edictum of the Praetor
urbanus, and by means of leges and responsa prudentium. The conception of
the jus naturale was a philosophical one derived from Greece. The preference
which the jurists showed to the jus gentium over the jus civile was partly
due to the fact that they conceived it to be more in harmony with the law
taught to man by an indwelling natural reason (naturalis ratio). Thus the
tendency of the jus gentium to supersede the jus civile, instead of existing
alongside of it as a parallel institution, was partly due to the influence
of the prudentes, the effect of this change being to deprive Roman law to a
great extent of its distinctively Roman character.
(For the origin and nature of the jus gentium, see Voigt,
Das Jus Naturale, &c.; Muirhead,
Roman
Law, § 42 ; Nettleship in
Journ. of Philol.
[p. 1.1044]13.169 ff.;
Contributions to Latin
Lexicography, s. v.)
Jus Civile is opposed to the jus praetorium or honorarium [
EDICTUM]; and the opposition
consists in the opposition of the means or form by which the two severally
obtained an existence; whereas the opposition of jus civile and jus gentium
is founded on the internal character of the two kinds, and the extent of
their application.
The terms jus scriptum and non scriptum, as explained in the Institutes
(1.2), comprehended the whole of the private law of Rome (
Dig. 1,
1,
6).
Jus scriptum signified all law embodied in writing, whatever its source
might be, and so in the later history of Roman law comprehended all except
customary law (quod usus comprobavit). The sense in which written and
unwritten law has been used by English writers is hardly the same as the
Roman sense. Hale says (
Hist. of the Common Law, p. 2):
“Those laws that I call leges scriptae are such as are originally
reduced into writing before they are enacted.” Hale applies his
definition only to statutes or acts of Parliament; but it is equally
applicable to any rules which are promulgated in writing, and have the force
of law or of a law, by virtue of authority delegated to those who make such
rules. The division of jus scriptum and jus non scriptum does not appear in
Gaius, custom not being mentioned by him as a source of law, but he
enumerates the other sources of law which are included by Justinian under
the head of jus scriptum.
“ Law,” says Gaius (1.2), meaning the Roman private law (jura),
“is composed of leges, plebiscita, senatusconsulta, constitutiones
principum, the edicta of those who have the jus edicendi, and the
responsa prudentium.”
This is a division of law merely according to its formal origin. The
divisions enumerated by Cicero (
Top. 5, 28) are “leges
(which include plebiscita), senatusconsulta, res judicatae,
jurisperitorum auctoritas, edicta magistratuum, mos, aequitas.”
The subject-matter of private law is distributed by Gaius, and Justinian in
the Institutes, under the heads of the Law of Persons (Jus Personarum); the
Law of Things, which is expressed by the phrase “jus quod ad res
pertinet;” and the Law of Actions, “quod ad actiones
pertinet.” In his first book Gaius treats of the Law of Persons
in the sense explained in the article INSTITUTIONES; in the fourth he treats of the Law of Actions; and
accordingly the second and third contain the Law of Things--that is, the law
of property. [
INSTITUTIONES]
[
G.L] [
E.A.W]
