A. ABSTRACT TERMS OF LAW

1. Theoretical ius gentium

§ 182

In an earlier section (supra, § 176) in the last chapter attention was called to what has been termed the ‘practical’ sense of the phrase ius gentium? In late republican times we meet a new, purely abstract, meaning of ius gen­tium, to designate the norms of a moral and legal type which were thought to apply to all peoples by virtue of naturalis ratio (natural reason)? At a later date it became customary for the jurists to include within this phrase such institutions as delivery (traditio), occupation of property and informal manumission of slaves? The basis for such inclusion was the supposition that the institutions were common to all, or practically all (Mediterranean) peoples.

3. For contrasting spheres of law, such as ius commune-ius singulare (general and par­ticular law), ius divinum-ius humaaum (divine and human law), ius publicum-iusprivatum (public and private law), see these words in DS, RE, NNDI, and Berger, ED, with further reff. For fidcs(trust), seethe refT. in Kaser, Rom. Privatrecht ] 200 n.15.

1. So characterized byJolowicz. see Jolowicz-Nicholas, Introduction 104.

2. Krüger, Geschichte 43-46; Koschcmbahr-Lyskcwski, ‘Naturalis ratio en droit classique romain', Studi Bortfame II467-98; Kaser, Altrom. Ius 87.

3. Chiazzcsc, Int reduzierte 131 f.

4. Cf. Pentice, SZ 20 (1899) 127, 138 f.; Weiss, s.v. Ius gentium, RE 10 (1919) 1218 f.

For the whole picture, however, it is necessary to turn to the philosophical attributes of the phrase.

Cicero, De officiis III.5.23

Nor in fact is it only true by nature (natura ), that is, by the ius gentium, but even by the laws (leges) of peoples, by which the government of the individual states is supported, that it is established with one accord that it is not permitted to injure another for the sake of one's own advantage....

Cicero, De officiis III. 17.69

Although I note that on account of the corruption of morals, (this fraud) is not nutrally wrong nor prohibited by statute or ius civile, yet it is frowned upon by the law of natural things (naturae lege). For there is a tie - which though 1 have often spoken of it, yet needs to be mentioned more often - between man and man which is of the broadest extent, closer between those of the same race (gens), closer still between those of the same state (civitas). Therefore our ancestors chose to understand that the ius gentium was one thing, the ius civile was quite another; that which is (ius) civile is not necessarily (ius) gentium, but that which is (ius) gentium ought to be (ius) civile.

Cf. also Cic. de inv. 2.22.67 (set forth supra, § 150).

Gaius, Libro l institutionum (D. 1.1.9)

All peoples who are governed by statutes and customs make use partly of law which is peculiar to themselves and partly of such as is common to all mankind. Whatever law any people has established for itself is peculiar to the particular state and is called ius civile, being the law of that particular state. But that which natural reason has established for all mankind, that is maintained equally by all and is called ius gentium, being the law which all races (gentes) use.

Gaius, Institutionum commentarius III. 154

Similarly, if the goods of any one of the partners shall have been sold publicly or privately, the partnership is dissolved. But this partnership, too, of which w speak, is one that is contracted by mere consent: it is of the ius gentium and accordingly it exists among all men by natural reason.

Cf.

The term ius gentium first appears in Cicero, who uses it in several senses. He speaks of it as a branch of the law distinct from the purely Roman part. In another sense he refers to a body of rules which are thought to exist every­where. From this universal nature Cicero considers that ius gentium is ‘natural’.’ Gaius seems to adopt this view not taking into account the wide

5. Buckland, Text-Book 53 f.

differences that existed between the actual systems of positive taw. He rather emphasized that the 'natural reason’ which all men had in common would lead to similar institutions among all peoples, a view that stemmed from popular philosophical thought of the time.* To this extent jus gentium approached ius naturale, a topic to which we shall return.

Most scholars sharply differentiate between the 'practical' and the ’theoretical’ senses of the term, the latter being considered a later develop­ment.^{[1305] [1306] [1307] [1308] However, some years ago Lombardi sought to show, in extended studies, that the theoretical usage preceded the practical; indeed, that the latter scarcely existed as a separate connotation.· This view of Lombardi has failed to gain approval.* De Martino pointed out that in classical times the foreigner had access to the institutions of the ius gentium; but after the constitutio Antoniniana the exclusiveness of the law ceased to be of signif­icance, and the new concept of ius gentium, influenced by Hellenistic modes of thought, then came to the fore.[1309]}

2. Aequitas - bonum et aequum

| 183 In contrast to the apparently Greek philosophical basis of the theo­retical sense of ius gentium, almost all are agreed that the abstract notions of aequitas were indigenous to Rome. Indeed, one of the most recent studies surveys the discussions of earlier scholars at some length before arriving at the same conclusion.¹ However, the identification of aequitas with ’equity* would be somewhat misleading, for although Roman law possessed doctrines and practices which might be analogized to the equity of the Anglo-American law, these are not necessarily included within the concept of aequitas.¹ Nor taking equity in an ethical sense is it correct to say that this was the primary sense of aequitas to the Romans? It is true that aequitas is sometimes tied up with Greek epieikeia (equity) and with Roman bonum et aequum (the good and the fair), but neither legal or non-legal writers considered the equitable aspect of aequitas predominant, and formulated no precise analysis of it.*

Cicero, Topica XXIII.90

But when right and wrong are discussed all the topics of aequitas are collected.

On this passage, see Riposati, Studi Biondi II445-65. Cf. also Cic. part, or. 37.129-30.

Cicero, Topica II.9

But a definition is employed with reference to the whole matter under dis­cussion to unfold the matter in question as if it had been (previously) myster­ious: the formula of such an argument is as follows: ius civile is aequitas estab­lished among those who are of the same state for the purpose of insuring each one his own; the knowledge of this aequitas is useful, therefore the knowledge of the ius civile is useful.

Cicero, Topica VII.31

... Species (accordingly) are those classes into which genus is divided without any one being omitted; as if one divided ius into lex, mos, aequitas.

Cf. also Cic. Top. 5.28, set forth supra, § 68.

Cicero, De ojficiis III. 16.67

M. Marius Gratidianus had sold to G. Sergius Grata some buildings which he had bought from him himself a few years before. The buildings were charged with an easement, but Marius did not say anything about this in the sale. The matter was brought to trial. Crassus was counsel for Grata. Antonius defended Grati­dianus. Crassus relied on ius: 'the vendor ought to make good for whatever defect he, with knowledge thereof, had not disclosed’; Antonius relied on aequitas: 'since that defect could not have been unknown to Sergius, who had formerly sold the house, it was not necessary that it should be disclosed, nor could one be deceived who was aware under what liability that which he bought was placed'.

Marcellus, Libro III digestorum (D. 4.1.7 pr.)

Divus Antoninus rescripted to Marcus Avitus, the praetor, on the question of

4. See, in particular, Pringshcim, ‘Aequitas und bona fidcs’, Conferenm 183, 193-200 [= Abfwugungen 1 154, 159-64]; Kipp.s.K Aequitas, HE 1 (1894) 598-600, relieving one who had lost property through absence, in the following opinion: ‘Although nothing should be lightly changed from the formal (practice).

Beseler, SZ 45 (1925) 453, takes [Although - therefore] as interpolated; Pringsheim, Acta Cong. Roma 1129 n. 19, considers it genuine, an instance of aequitas supplementing ius. See also Mayer-Maly, 'Aequitas evidens’, Festgabe von Lublow 339-52.

Ulpianus, Libra I opinionum (D. 2.14.52.3)

An heir agreed with some persons who threatened him with the claim that the testament of their father was inofficious, that a specified amount should be received by them (complainants) as long as he lived: it was urged that this pact be treated as a perpetual obligation. It was rescripted that neither by ius nor by aequitas could such a demand be admitted.

Beseler, Albertario and Rotondi hold that the last sentence is inter­polated, see Index Interp. Supp I 31; contra Pringsheim and Frese, reff. in Cong. Roma 1 129 n.20.

Ulpianus, De officio praetoris tutelaris (Fr. Vat. 198)

But should children alone, or grandchildren also, be taken into consideration (as an excuse from guardianship)?... I hold, moreover, that the same just reason (aequitas) exists with regard to the grandchildren, who succeed in the place of children, as exists with regard to children.

Cicero sometimes takes aequitas to mean the whole sphere of the law, which is then divided into natural law and positive law. Elsewhere he sees aequitas as a source of the ius civile. But perhaps most often in Cicero, aequitas is a sphere apart from ius; aequitas becomes the equivalent of ius- titia (justice) and its principles are not legal except insofar as made so by formal legal enactment, e.g., by lex, senatus consultum, etc? Among the jurists, also, aequitas and ius were contrasted? Riccobono stated that aequi­tas was identified with common experience, empirical practical wisdom.

5. Krüger, Geschichte 135-37. Cf. generally, Zamboni, ‘L’acquitas in Cicerone’, AG 170 (1966) 167-203, and Ciulei, Liquid chez Qceron (1972), particularly 32-43.

6. Krüger, Geschichte 137 L; Voigt, Jus naturale 1 35-39, 380-90.

§ 183 separated from life, aequitas entered to re-establish the equilibrium. The corrective function of aequitas was performed by constitutional organs, such as the praetor or the emperor under the guidance of jurists? Aequitas is thus the sphere within which the law may be developed, or as Prtngsheim put it, ‘Aequitas is a measure of the criticism of the law and a basis of interpretation.... Aequitas provides the bridge between the law of the past and the law of the future.’· Aequitas was the elaboration of the law and is primarily to be discerned in the activity of the magistrates, particularly that of the praetor.’

Of the three senses in which aequitas is employed in legal texts, according to Kipp,^{[1310] [1311] [1312] [1313] [1314] [1315] aequitas as the standard of criticism of the law has been stressed,11 and aequitas as one of the norms for supplementing the law has been dis­cussed. There remains the notion of aequitas as the principle of interpreta­tion of the law, a topic to be considered infra, $ 189. Ciulei has collected the references to this aspect of the subject in Cicero.11}

Papinianus, Libro VIII quaestionum (D. 47.12.10)

It is queried whether an action for violation of sepulchre is available to a compulsory heir (heres necessarius) when he has not yet interposed respecting the property (of the deceased); I answered he could avail himself of this action, which was framed in bonum et aequum (equal indemnification and!or property damages).

Formula, Actio iniuriarum (Lenel, EP 399, Tit. XXXV § 190, based on D. 47.10.17.2 [Ulp. 57 ad ed.J)

Whereas Aulus Agerius has been struck with a fist in the face, on which matter there is suit, for as much of his property as appears to thejudges (recuperatores) Numerius Negidius is to be condemned as indemnification and/or damages (bonum aequum) to Aulus Agerius on this account, for such amount, provided it does not exceed... sesterces, let the judges condemn Numerius Negidius to Aulus Agerius, if it does not appear, absolve.

Cicero, Part it tones oratoriae XXVIII. 100

... For all discussions which are concerned with the ius civile or with the fair

and the good (aequum et bonum) belong to that type in which it is queried what sort of thing is that which w propose to mention; which question, primarily, is one resting in aequitas or in ius.

Cf. Cic. Brut. 38.143, 39.145.

Auctor, Rhetorioa ad Herennium 11.13.20

... Law (ius) reposes in the just and the good (aequum et bonum), which is seen to relate to the truth and the common interest....

Ulpianus, Libro I institutionum (D. 1.1.1 pr.)

He who wishes to study la w must first know whence the name ius derives. Now. it is so called from iustitia; for. as Celsus nicely defines, ius is the art of the good and the fair (ars boni et aequi).

The phrase bonum et aequum in an abstract sense of The good and the fair* appears as early as Plautus?^J Among the jurists of the republic and early Principate it regularly is used, as Pringsheim showed, in a technical sense, in the field of procedure.^u In the so-called penal actions, such as those for injuries (actio iniuriarum), the bench of judges was instructed to award whatever they believed would fairly indemnify the plaintiff. To Cicero, and to later jurists influenced by philosophical formulations of the law, bonum et aequum has the sense of equity or justice, in a vague abstract connotation.'⁴ According to Riccobono, the phrase aequum et bonum con­stitutes a new source of law, employed in the administration of justice, first by the peregrine praetor and then extended into the reforms of the ius civile in the urban praetor’s court. The definition of Celsus, he says, reveals the profound changes which the Roman law had undergone during the previous four centuries.¹⁶ However, in disagreement with some other scholars, Riccobono is unwilling to rest this development upon the influence of Greek thought; aequitas and bonum et aequum are Roman in origin as well as internal development.¹¹

13. Plaut. Cure. 64; Most. 682; Pera. 399.

14. Pringsheim, ’Bonum et aequum*, SZ 52 (1932)78,85 ff. [ « dMondtotgen 1173,177-96]; Beretta, ‘Condemnatio in bonum aequum*, Stadt Solaxzi 264-89; Kaser, Festschrift Schulz 11 21,42 f.

15. See Ciulci, op. at., supra, n.5. 7-19.

16. Riccobono, BIDR 53/54 (1948) 5, 37-52. Cf. also Carcatcrra, htstUia 54 if., 76 ff.; however, at p. 78 n.79, citing a number of authorities who disagree with Riccobono*s view that, at the time of Had rian, aequitas (aequum et bonum) was the essence and content of the Roman legal system.

17. Riccobono, op. dt., 53-58.

3. Aequitas and ius natural#

§ 184 Pomponws, Libra IX ex variis leaionibus (D. 50,17,206)

It is just (aequum) by the law of nature (lex naturae) that no one, by the com­mission of a wrong, can be enriched at the expense of another.

Paulus, Libra XIV ad Sabinum (D. 1.1.11)

The word ius (law) is used in many meanings; in the first place, ius is said to be that which is [aZwjxJ fair and good (aequum et bonum), that is, the ius natu­ral#....

Albertario, Rend. Lombardo 57 (1924) 180 nJ, for the interpolation; accord, Pringsheim, Conferenze Pandette 190 n.2 [ = Abhandlungen 1157 n,15(2)].

Ulpianus, Libro XII ad Sabinum (D. 38.16.1.4)

When a son ceases to be an heir (heres suus). all the grandsons and grand­daughters (of the deceased testator) born to him who were under the power (of the deceased) will succeed to his share; this results from natural justice (natura- Hs aequitas)

Beselcr, SZ 45(1925) 454, considers [this - justice] interpolated.

Ulpianus, Libro I institutionum (D. 1.1.3)

Ius naturale (natural law) is that which all animals have been taught by nature; this law is not peculiar to the human species, it is common to all animals which are produced on land or sea, and to birds of the air as well. From it comes the union of man and woman called by us matrimony, and thence the procreation and rearing of children; we find, in fact, that the rest of the animals, even wild beasts, are acquainted with this law.

Interpolations pro and con, see Index Interp. I 2, Supp. I 1.

There is a long tradition among Romanists of a relation between the prin­ciples of aequitas (bonum et aequum) and the concept of natural law (ius naturale).¹ In a thorough survey of all occurrences of the terms natura, naturalis and naturaliter in legal and non-lcgal sources, Maschi concluded that the predominant meaning of natura was 'natural reality’, of both persons and things? Ius naturale and natura thus indicate the reality which lies beyond the law, but which is taken into consideration by the law. The ius naturale represents the factual reality which constitutes the basis of the legal system. In the light of the definition by Paul, Maschi noted that a legal norm ^{[1316] [1317] which was created in accord with the necessities of social li ving would always correspond to aequum etbonum. lusnaturaleaimsattherealizationofaequi- tas as far as this corresponds to the realities of life (aequitas naturalis). 1 Many Romanists, however, consider the phrase aequitas naturalis to be a post- classical or Justinianian addition to the writings of the classical jurists.4 In a critical study of Maschi’s monograph, it was pointed out that only Gaius and the school jurists took a naturalistic view of the law; this may have influenced classical ideas on natural cognate relationship, natural possession and natural obligation, but no further?}

Levy, in 1949, presented an entirely different picture of natural law among the Roman jurists? They cannot have looked upon it as an order of higher or even of equal status to the other strata of the law, such as the ius civile, ius honorarium, or even the ius gentium. The idea of ius naturale had a very minor place in the jurists' treatment of the law; Levy suggests that this is characteristic of lawyers living in an era of relative peace? Gaudemet reaches somewhat similar views in his survey of ius naturale? ButMaschi sought to rebut Levy’s views? In the decade that followed there were many and diverse studies on the topic of ius naturale. Voggensperger observed a distinction between a theoretical and a practical ius naturale.¹⁰ According to Burdese, natural law was thought to be an order which could or ought to serve as the inspiration for positive Law." For the classical jurists, natural law was not a superior system but the totality of institutions of the positive law which found their justification in the nature of the thing; in another source it was identified with the ius gentium, thought of as the positive law of every organized society. There are several other scholars who have stressed the connection ofthe ius naturale with the theoretical ius gentium. Buckland early recognized that ius naturale, to the jurists, was sometimes an ideal, sometimes the basis of all law?¹ It was not too significant a concept, for institutions ascribed to it could also be ascribed to the ius gentium. But while the ius gentium steadily superseded the ius civile, it was its supposed univer-

3. Maschi, op. at., 211 if.

4. RcfT. and discussion by De Villa, St. Sassaresi 16 (1938) 125-60.

5. Kuipers, Naturu und ius naturale (Diss. 1953), cf. also Kaser, R&m. Prtvatrecht I 204. f.

6. Levy, 'Natural Law in Roman Thought', SDfil 15 (1949) 1, 6-23 [= Sduifien I 3, 6-19].

7. Levy, Sdtriften I 18 f.

8. Gaudemet, A/RIDA 1 (1953) 445-67.

9. Maschi, Studi Koschaker 11 425-37.

10. Voggensperger, Per Begriff des Ius naturale im r&mischen Recht (= Basler Studien, 33 (1952)].

11. Burdese, '11 concetto di ius naturale nel pensiero della giurisprudenza dassica’, RISC 7 (1954)407-21.

12. Buckland, Text-Book 54 f.

sality that brought this about, and hence it tied in with the ius naturale. Today, the relation between ius gentium and ius naturale is stressed by many.¹’

In the 1960s there have been two studies that deserve mention, among others. Nocera observed that in the classical epoch the term naturalis was limited to the three areas noted above, namely: cognate relationship, posses­sion and obligation; that there was no Greek influence, for ius naturale was as originally Roman as ius gentium; and that it was to the jurists of the 3rd century of our era that we owe a genuine formulation of the natural law.¹* The inaugural speech of Waldstein at the University of Salzburg, in 1966, was devoted to the pre-positive law elements of the Roman legal system.‘’There are five situations in the Roman context which reach beyond the positive law: (1) where the nature of the thing (natura rerum) determines the deci­sion; (2) where the structure of the juristic form, as in the nature of contract, is crucial; (3) where the principles of the law, as Schulz termed them, such as tradition, freedom, authority, are determinative; (4) in a number of concrete situations, such as the prohibition of theft or the defense of self-help, which are ascribed to natural law; and (5) where reference is made to aequitas, aequum et bonum, iustum and iustitia. There are, accord­ingly, in the long evolution of the Roman law, a number of different types of pre-positive law elements to be considered, of which modern continental legal systems are the inheritors.“

4. Ius civile - ius gentium - ius naturale

§ 185 Paulus, Libra XXXIII ad edictum (D. 18.1.34.1)

A sale can legally be made of all the property which one has or possesses or may acquire. There can be no sale of those things which by nature or the ius gentium or the customs of a state have been removed from commerce.

Perozzi, Mitteis, Bonfante consider [by nature] interpolated; contra Longo, Goudy. Reff. in Index Interp. 1312.

Ulpianus, Libro I institutionum (D. 1.1.1.2-4)

...Private law is tripartite; for it has been derived from the rules of the (ius)

13. Burdese, s.v. Ius natural«, NNDJ 9 (1957) 383, 385; Dulckrit-Schwarz, Rechtsgexhichte 139 f.

|4. Nocera, Ius naturale nella espericraa gmruiioa romana (1962), particularly 79-124. CL review by De Dominids, turn 14 (1963) 376-81; a much less appreciative review by Kaser, SZ81 (1964) 495-96.

15. Waldstein, 'Vorpositive Qrdnungsdemente im Rdmiscben Recht’, Osterr. Z Uffent. R. 17(1967) 1-26.

16. Waldstein, op. di., 23 ff.

naturale, gentium or civile. (3) Ius naturale is that which all animals have been taught by nature;...(set forth supra, $184)... (4 ) Ius gentium is that which is used by human races. It is easy to understand that it falls short off ius) naturale, for the latter is common to all animals, the former to men alone amongst them­selves.

For conjectured interpolations, see Index Interp. 12 and Supp 11.

Ulpianus, Libro I institutionum (D. 1.1.4)

Manumissions, also, are within the ius gentium. Moreover, manumission is release from hand (manu). [r hat is, the gift ofliberty]. For as long as one is in ser­vitude, he is subject to manus and potestas, manumitted, he is freed from potes­tas. This matter had its origin in the iusgentium, because by ius naturale all were bom free, nor was manumission known since servitude was unknown. But after slavery appeared by the ius gentium, the relief of manumission followed. And though we were called by the one natural name, men. there began to be three types in the ius gentium: free men, and, contrasted to them, slaves, and thirdly, the class of freedmen, that is, those who had ceased to be slaves.

In addition to the possible gloss [that is -liberty] noted by Wlassak, SZ28 (1907) 4 n.2, the whole close of the passage [This matter - slaves] is held interpolated by Perozzi and Albertario. Contra Lend, in Bruns-Lenel, Geschichte 332 n.l.

Ulpianus, Libro I institutionum (D. 1.1.6 pr.)

Ius civile is that which is not wholly apart from (ius) naturale or (ius) gentium, nor subordinate to it throughout. Accordingly, when we add or subtract some­thing from the ius commune (common law), we establish our own law, that is, the ius civile.

Perozzi would exclude [naturale or], while, Gradenwitz would exdude [or gentium]. [Accordingly - ius civile] is interpolated according to Pringsheim. Reff. in Index Interp. I 1, Supp I 1.

Tryphoninus, Libro VII disputationum (D. 12.6.64)

If a master of a slave paid to him after his manumission what he had owed to him when he was his master, he cannot sue the freedman for the return of it, even though he (erroneously) believed he was liable under the action, inasmuch as he paid in recognition of a natural debt. For liberty is a matter of the ius naturale, and domination (over men) has been introduced by the ius gentium, so the question of liability or no liability in a suit by condictio (claim for restitution or damages) is to be considered from the point of view of natural law.

The whole interpolated according to Perozzi, Mitteis, Albertario, Siber, Stella Maranca, Bonfante, Kriiger; contra Lenel, Goudy, Kniep. See Index Interp. 1188, Supp 1186.

Some passages in the Digest present the trichotomy ius civile-ius gentium-ius naturale. Earlier scholars accepted the classification without question, and Goudy held it to be but another instance of the widespread fondness for the number three in the Roman law;' in fact, Goudy observed that elsewhere Ulpian identified ius naturale with ius gentium? Perozzi, how­ever, claimed that not even Ulpian recognized the trichotomy, for it was post-classical writers who converted the dichotomy ius civile-ius gentium into a threefold division? In spite of Longo's attempt to re-establish the trichotomy, first, on the ground that the threefold division in the Institutes of Justinian (In. 1.1.4) differs sufficiently from that in the Digest to indicate that both rely on the original sources of Ulpian and Florentinus, and second, that the idea of ius gentium was not a concept relevant to the post-classical period? Most scholars agree with Perozzi? Those who, like Villey, hold that the jurists borrowed the abstract terminology from the Greek philosophers, date the trichotomy in the classical period? whereas those, like Levy, who believe the idea of natural law was of little interest to the jurists, ascribe the three-fold division to a later period ? Some, like Kaser, are willing to admit classical usage of the trichotomy by the school jurists and those of the latest period therein, like Ulpian?

In spite of the fact that the attention paid by the Roman jurists to the concept of ius naturale may have been minimal, modern commentary on the subject is quite extensive; reference to further studies, however, must be limited to bibliographical notices?