Fundamental Concepts and Distinctions

Fas and ius

During the earliest phase of Roman history^[41] social life was governed by a body of customary norms, the mores maiorum or 'the ways of our forefathers', which the Romans had inherited from their ancestors.

Behaviour that caused no harm to others was regarded as conforming with ius, the man-made norms of social conduct governing human relations.

But in the archaic period the two spheres of ius and fas largely overlapped. The link between the two concepts is evident from the fact that for a very long period the interpretation and application of the norms of ius was in the hands of the priesthood. Their connection is manifested also by the fact that, during the regal era, the king performed functions pertaining to both human and divine law. Every important act of a Roman citizen, whether of a public or a private nature, assumed a religious character and its validity was made to depend upon the determination of the divine will. Even after the Romans began to distinguish between divine and human law, in the later archaic period, the connection between ius and fas continued to exercise an influence on Roman legal thinking and practice. Thus, both legislative acts and private agreements usually began with some reference to the gods and ritual continued to play an important part in legal transactions.

Moreover, the term ius, besides its purely descriptive function, was always perceived as embodying a strong normative element reflecting the relationship between law and justice (iustitia).

But the Romans interpreted the term ius in more than one way, depending upon the context in which the term was used or the legal relationship it referred to. Sometimes it was used to denote a specific public or private right or power granted to an individual by law for the pursuance of a legally recognised interest.^[49] Ius also indicated the personal

legal status of a person, as in the phrases persona sui iuris (a person in charge of his own affairs), and persona alieni iuris (a person under the power of another). Moreover, in procedural language the term ius denoted the place where a Roman magistrate performed his judicial functions.^[50] In a similar way, the word iniuria was capable of several interpretations, depending upon the nature of the violation of ius it was used to describe. In general, any act that was done contrary to ius (contra ius) was called iniuria.

Ius and lex

Ius, as defined above, was distinguished from lex (plural leges). The latter term refers to a law enacted by a competent legislative organ in accordance with a prescribed procedure. In the archaic and pre-classical periods the term leges was used to denote statutes enacted by the Roman popular assemblies.^[52] In the classical and post-classical periods the term leges referred to laws originating from a number of sources, such as decrees of the senate and imperial constitutions. Sometimes the term leges was used to signify the entire body of posited law, irrespective of its sources.

A lex, which by definition pertained to a specific type of legal relationship, drew upon ius but was not identified with it. The normative principles of ius, under which the question of lawfulness or unlawfulness was decided, were not reducible to the body of formally enacted laws. These principles were perceived of as pre-existing and transcending the enacted law, which merely prescribed how ius was to be implemented under certain circumstances. Unlawfulness was defined primarily in relation to ius, for an unlawful act was taken to encroach upon the principles of ius which informed the particular legislative enactment under which the act was subsumed. From this viewpoint, the word iniuria signified any infringement of the law as an act done 'contra ius'. Furthermore, the application of a lex was typically strict ('dura lex sed lex'), for an act or dispute was dealt with according to the letter of the law, without reference to the circumstances of the individual case. Thus, under the system of legis actiones (actions based on the law) of early law, a person suing another had to make his claim strictly according to the formula prescribed by the statute he was relying upon.

In the post-classical era the term ius came to denote the entire body of law based on the works of the leading jurists of the classical period. Lex, on the other hand, signified the law contained in the enactments of the emperors, the principal source of law of this period.

Ius non scriptum, ius scriptum

The Romans distinguished between two general categories of ius, or law in a broad sense, unwritten law (ius non scriptum) and written law (ius scriptum). In the category of unwritten law belonged the customary law of the archaic period. Custom (consuetudo) was a source of norms which derived their binding force from the tacit consent of the people and their long-standing practice within the community.^[55] As was noted earlier, during the Monarchy and the early years of the Republic there appears to have been no written law in Rome. Knowledge of law was handed down as a tradition (mos maiorum) in the patrician families. But as legal relations grew more complicated and the population increased in size, the role of custom as the main source of social regulation began to diminish. The existing customary norms, often uncertain and difficult to prove, could no longer provide the certainty and security which a complex system of social and economic relations required.

In the category of written law (ius scriptum) fell the statutes (leges), the resolutions of the plebeian assembly (plebiscita), the decrees of the senate (senatus consulta) and the edicts of those magistrates who possessed the ius edicendi (the right of issuing binding ordinances). To these were in later times added the imperial constitutions (constitutiones principum) and the written answers of those jurists whose opinions on questions of law had been recognised as authoritative (responsa prudentium)?^2. The publication of the laws of the Twelve Tables, in the middle of the fifth century BC, marks the starting-point in the development of written law.^[59]

Ius civile, ius gentium

The term ius civile denoted, in a broad sense, the law which governed a political community and prescribed the rights and obligations of its members.^[60] [61]lang=EN-US> Thus, with respect to the Roman state, ius civile signified the entire body of Roman law, irrespective of its sources. This understanding of the term was associated with the principle of the 'personality of the laws' - a principle widely recognised in antiquity. According to this principle, it was nationality rather than place of residence that determined a person's legal status. A person lived under the law of the state or political community to which he belonged. In this respect, the Roman ius civile (also known as ius Quiritium) was the law that applied only to Roman citizens (cives Romani), and the term ius civitatis was used to denote the legal rights to which only Roman citizens were entitled.^[62] The Romans drew a distinction between two categories of such rights: public rights (publica iura) and private rights (privata iura). The former category included, for example, the right of voting in a popular assembly (ius suffragii), the right of standing for public office (ius honorum) and the right of appealing from a magistrate to the people's assembly against sentences involving death or the loss of personal freedom or citizenship (ius provocationis). In the category of private rights fell the right of contracting a regular Roman marriage (ius connubii), the right of acquiring, owning and transferring property according to law (ius commercii) and the right of making or inheriting under a Roman will (ius testamenti factio). A person entitled to all the rights of the citizenship was referred to as civis optimo iure. But not all Roman citizens were cives optimo iure (for example, Roman women did not enjoy the ius suffragii and the ius honorum). The primary rights of the citizens entailed a number of derivative rights or privileges. For example the ius itineris, i.e. the right of a person to go through another person's property, was a secondary right with respect to ius commercii. The ius intercessionis, i.e. the right of the higher magistrates to veto official acts of other magistrates, was a secondary or derivative right with respect to the ius honorum^a

From an early period, communities affiliated with Rome were granted limited rights under the Roman ius civile. The members of these communities occupied an intermediate position between Roman citizens and foreigners. Thus, what was referred to as Latin law (ius Latinum or ius Latii) applied to certain groups who enjoyed some of the rights of Roman citizenship. These groups included the inhabitants of communities in Latium, colonies founded by Romans and members of other Latin states (coloniae Latinae), as well as certain categories of freedmen. The term peregrinus, on the other hand, was used to denote any free person who was not a citizen of Rome.^[63] [64] Initially foreigners (peregrini) living in Rome had no rights under Roman law.

From an early period the Romans came to realise that certain institutions of their own ius civile could also be found in the legal systems of other nations. As contracts of sale, service and loan, for example, were recognised by many systems, it was assumed that the principles governing these were everywhere in force in the same way. These institutions which Roman law had in common with other legal systems were thought of by the Romans as belonging to the law of nations (ius gentium) in a broad sense. But this understanding of the ius gentium was of little practical value for the Roman lawyer, for the specific rules relating to the operation of such generally recognised institutions differed considerably from one legal system to another. Related with the above understanding of ius gentium, as the legal principles observed by all nations, was the development of a body of law which was of particular importance to the Roman lawyer. As the number of foreigners living in Rome continued to increase, especially after the third century BC, the need arose for formulating rules to regulate legal transactions involving foreigners living in Roman territory. What emerged as a response to this need was a distinct body of law which, although thoroughly Roman in origin and content, lacked the rigidity and complexity of the Roman ius civile. Thus, by contrast with ius civile as the law that applied exclusively to Roman citizens, the term ius gentium, in a narrow, practical sense, came to signify that part of Roman law governing relations between citizens and foreigners and between foreigners belonging to different states. This body of law was built upon the edicts of the praetor peregrinus, the special magistrate appointed to deal with legal disputes involving foreigners and, to a lesser degree, upon the edicts of provincial governors.^[65] Dealing with disputes involving people of diverse nationalities and customs would have been difficult without appealing to generally recognised and understood principles. Thus, what characterised ius gentium was its simplicity and adaptability and its emphasis upon general principle rather than form. For that reason not only foreigners but also Roman citizens often relied on it as a means of resolving legal disputes. Moreover, elements of the ius gentium entered the edict of the praetor urbanus (the magistrate in charge of the administration of the ius civile') and, through it, the domain of ius proprium Romanorum (i.e. the domestic Roman law). But not all legal institutions associated with the Roman ius gentium belonged to the 'law of nations' in a broad sense, for certain institutions open to both citizens and foreigners alike had no place in any other system except the Roman. For example, the form of verbal contract known as stipulatio, although not found outside Roman law, was available to both citizens and foreigners alike.^[66]

Ius naturale

The second century AD jurist Gaius defines ius gentium as 'the rules prescribed by natural reason for all which are observed by all nations alike'.^[67] And in the Institutes of Justinian is stated that 'the laws of nature, which all nations observe alike, being established by divine providence, remain ever fixed and immutable'.^[68] These statements may be taken to suggest that, in the eyes of Roman jurists, ius gentium was associated with the philosophical ideal of natural law (ius naturale, ius naturae), understood as a set of precepts valid everywhere in the world. But this connection has been far from clear, as no generally accepted definition of ius naturale can be found in the sources, and the meaning of the term appears to vaiy depending upon the point of view from which it is contemplated.

Cicero and other Roman thinkers embraced the idea of the Stoic philosophy that the world is permeated and governed by a universal soul, a divine reason, whose dictates constitute an 'eternal law' (lex aeterna). This eternal law is reflected in the law of nature (ius naturale). The law of nature, as the embodiment of divine reason, is everlasting, immutable and universal, knowing no limitations by people, place or time, and transcending the laws of any particular state or political community.^[69] It is engrafted in the souls of all human beings, directing them by a kind of innate apprehension, since they all participate in the universal rationality.^[70] This universal ability to reason and the fact that the law of nature is applicable everywhere resulted in the Stoic emphasis on equality and the unity of humanity, and the ideal of a world state governed by one system of law based on reason. The Stoics viewed natural law as the source of fundamental ethical principles governing human conduct and human relations and as furnishing the standards to which the institutions of positive law should conform. But ius gentium and ius naturale, in the sense the philosophers understood it, did not necessarily concur. For example, whereas under natural law all people were bom free, slavery was widely recognised in antiquity as an institution of the law of nations.^[71] The obvious problem here is that ius naturale alludes to law which ought to be observed, whereas ius gentium refers to law that was actually in force among nations. Considering this, the most one can say is that, from a philosopher's point of view, the universal recognition of a legal institution or principle as part of the law of nations might be taken to imply that such an institution or principle has its origin in natural reason.^[72]

Now, the philosophers' conception of ius naturale had no direct effect on Roman law, for the Roman lawyers were practical and down-to-earth in their attitude, preferring to deal with legal problems on a case by case basis instead of attempting to construct general philosophical theories of law.^[73] Although they were aware of the distinction between positive law and law as it ought to be, they took little interest in linking philosophical speculation with everyday disputes and mundane practices, or in questioning the validity of positive law on the grounds that it conflicted with a higher law. This does not mean, however, that the concept of natura was of no significance to them. But for the Roman lawyers its content was defined not so much by reference to divine reason, or God's plan for the universe, but by reference to the qualities of things worldly, to states of affairs and modes of thought and action that were commonly accepted as reflecting the realities of everyday life.^[74] From their viewpoint, working out the appropriate course of action, or arriving at an acceptable legal solution, presupposed reasonable familiarity with the nature of things on the ground (natura rerum), including human nature (natura hominum), and with the ordinary expectations that social and legal relations entailed. Hence the Roman lawyers spoke of the nature of an obligation (natura obligationis), the nature of a contract (natura contractus), etc. The term natura hominum or natura humana, in particular, referred to the physical and mental qualities and the psychological characteristics and attitudes common to all human beings. In this respect, the postulates of nature emanated not from metaphysical speculation, but from the findings of common sense and the need for order in human relations.^[75] This understanding of natura was of great importance to the Roman lawyers, for legal rules were constructed, interpreted and applied by reference to the nature of the things or legal relationships with which the rules were concerned. Thus, in the eyes of the Roman lawyers, it was 'natural' that certain things found in the open should belong to the person who found them;^[76] or that a structure built on a person's land with materials belonging to another should belong to the owner of the land.^[77] It was the nature of certain things, such as the open sea or the air, that precluded their being subject to private ownership;^[78] and one could not legally own animals that are wild by nature unless he was able to exercise physical control over them.^[79]

Did the philosophers' conception of ius naturals have any influence on Roman legal thought? Our evidence suggests that the Roman jurists, as members of the educated higher classes of society, were familiar with Greek philosophy and the ideas of natural law and natural justice. And although they did not view ius naturals as a juristic category, nor did they regard it as capable of invalidating positive law, by recognising it as a source of universally applicable principles they were doing something more than simply conveying their philosophical views: they were calling attention to the important relationship between legal rules and ethical principles - between positive law and justice as it relates to ius in a broad normative sense.^[80] The impact of ius naturals, as a philosophical idea, can be traced not so much in specific legal doctrine or in the technical aspects of the law but, rather, in the general spirit and method of Roman jurisprudence, as reflected in the legal literature of the classical period. The philosophers' conception of ius naturals, despite its lack of a precise definition, came to play a part in the working out by the classical jurists of the principles of justice in the light of which the rules of positive law should be interpreted and applied. The jurists sought to express these principles in the form of general maxims capable of guiding the application of law in different situations. Principles such as equity (often referred to in the texts as naturalis aequitas), good faith {bona fides), humanity {humanitas') and others were now perceived as stemming from an all­embracing ethical and logical scheme.^[81] These principles, which in earlier times were attributed only an instrumental value, came to be regarded as universal principles transcending and qualifying the norms of positive law. Furthermore, the Stoic notion of the unity of humanity under natural law, as an element of the ideological foundation upon which the political theory of the empire was built, played a part in the process towards the universalisation of Roman law. Notwithstanding the fact that the Pax Romana was established by conquest and the use of violent means (contrary to Stoic principles), Rome as a world empire governed by one system of law moved Stoic universalism from the plane of philosophical speculation to that of political reality.^[82] [83] [84]

Ius civile, ius honorarium

color=black face="Times New Roman">By reference to the sources of law, the term ius civile was used to denote that part of Roman law which was derived from statutory enactments (leges and plebiscita), the resolutions of the senate (senatus consulta), the interpretations of the jurists (responsa prudentium, interpretatio prudentium) and imperial enactments (constitutiones principis). Ius civile, in this sense, was distinguished from the ius honorarium, i.e. the law derived from the edicts of the magistrates, especially the praetors (ius praetorium). According to Roman jurists, the role of the ius honorarium was to assist, correct and supplement the ius civile^

Ius publicum, ius privatum

With respect to the scope and range of the law, Roman lawyers drew a distinction between public law (ius publicum) and private law (ius privatum)^ Public law was concerned with the administration of the affairs of the state and the interests of the Roman people as a whole.^[85] Roman jurists associated public law with what is now known as ius cogens, i.e. law that cannot be changed by agreement between private individuals.^[86] To the category of ius publicum belonged, for example, the law governing the functions of magistrates and other state organs. Sometimes the law regulating relations between private citizens was associated with ius publicum, when a general public interest concurred with a private one. Private law, on the other hand, was concerned with the interests of private citizens (their legal status, property, transactions between them etc.).^[87] Roman jurists adopted a division of private law into three parts: the law of persons, the law of property and the law of actions.^[88] It was private law that Roman jurists were primarily interested in, and it was in the sphere of private law that their contribution to the development of Roman law for the most part lay.^[89]

In connection with the distinction between public and private law judicial proceedings were divided into iudicia publica and iudicia privata. The former were concerned, in particular, with wrongful acts affecting the interests of the community as a whole (crimina publica), such as treason, murder, embezzlement of public funds and abuse of power by state officials. But Roman criminal law was narrower in scope than modern-day criminal law, for many wrongdoings which are today treated as criminal offences, such as theft and damage to property, were regarded, under Roman law, as affecting the interests of the individual alone. These wrongdoings were referred to as delicta privata and fell in the sphere of private law. In contrast with the iudicia publica, the object of the iudicia privata was the resolution of private disputes between individuals, such as disputes relating to property rights, the fulfilment of contractual obligations or the question of compensation for personal harm. While the state had no direct interest in the outcome of these disputes, it guaranteed the stability of social and commercial life by supplying the organs and procedures required for their resolution.^[90]

Ius commune, ius singulare

Roman law recognised a distinction between ius commune, i.e. the law that applied to all Roman citizens indiscriminately, and ius singulare, i.e. the law applying to a specific category of persons, things or transactions. The term privilegium was used to denote a legal enactment concerning a specific person or case and creating an exception from a generally applicable rule. The Law of the Twelve Tables included a provision which prohibited the introduction of special rules for the purpose of granting privileges or imposing restrictions to particular persons.^[91]

Interpretatio

The word interpretatio signified the intellectual process through which the true meaning of a legal rule, term or institution was brought to light. As has been noted, the first interpreters of the law were the pontiffs. In the second century BC the first secular jurists (iurisprudentes or iurisconsulti) appeared on the scene. The activities of these jurists consisted in giving advice or opinions on questions of law to magistrates, judges and litigating parties, drafting legal documents and assisting litigants on points of procedure. The earlier jurists occupied themselves with practical questions of law arising from given situations and did not attempt to develop a systematic approach to law or a theoretical analysis of its concepts. Their chief concern was with the letter of the law and its technical application in individual cases. But in the later pre-classical period, under the influence of Greek rhetoric and philosophical logic, the jurists began to apply in the interpretation of the law the dialectical method for purposes of definition and classification. This was a form of logical analysis that both distinguished between the various concepts and, at the same time, subsumed concepts sharing the same essential characteristics under common heads. By applying the dialectical method the jurists were able to systematise legal knowledge and to explain the nature of the various legal institutions through general organising concepts.^[92] The later jurists did not confine themselves, like their predecessors, to the discussion of isolated cases, but sought to bring to light the logical connections between their institutions as parts of an all-embracing logical system. They arrived at the contents of the law by means of deduction from extant sources, but also by intuitive insight into the nature of legal problems, although that insight was prepared by a close study of legal decisions and juristic responses of the past. From this knowledge they drew general principles and then applied them to the case at hand. In interpreting legal rules the jurists sometimes gave a rule a broader meaning and sometimes a narrower one depending upon the nature and function of the relevant rule and the legislator's intention. They also utilised, although to a limited degree, the method of interpretation by analogy. This allowed them to apply a legal rule to cases that fell outside the scope of the rule, provided that these cases were in some important respects similar to that which the rule was intended to cover. Moreover, in the work of interpretation the jurists relied upon general ethical principles, such as equity {aequitas), good faith {bona fides), legitimate interest {utilitas) and, in later ages, humanity {humanitas), to ensure that the law was interpreted and applied in a way that accorded with common values and expectations.^[93] Although the Roman jurists did not develop a comprehensive theory of interpretation, some principles of juristic interpretation can be found in various parts of Justinian's Digest. Many of these principles emphasise the importance of the purpose and spirit of the statute.^[94] Principles of interpretation relating to legal acts (both unilateral and bilateral) proceed from the assumption that priority should be given to the parties' real intentions {voluntas) over the words or form in which a legal act had been expressed {verba).^[95]

Aequitas

In juristic literature the notion of aequitas is associated with justice or fairness, as the substance of ius, or law in a broad normative sense.^[96] It is also linked with the notion of lex naturae, the command of an inner voice through which speaks the ratio of the natura rerum immanent in things (hence it is often referred to as aequitas naturalis and as being connected with naturalis ratio). Recourse to aequitas permitted the infusion of moral values into the law and, as such, it constituted an effort to go beyond the formal sources of law and to reach for a higher, enduring, normative plane. When the existing norms of positive law became inadequate to meet the social and economic needs of the times the notion of aequitas was relied upon to make the necessary corrections. In this respect, aequitas is compared and contrasted with the law in force (leges or ius in a descriptive sense).^[97] In the eyes of the Roman jurists aequitas coexisted with positive law, amending, and supplementing it, but was not viewed as an independent source of law.^[98] It postulated the interpretation of the law in terms of its purpose, the interpretation of a legal act by reference to the real intention of the parties or, more generally, an interpretation that would produce a fair result.^{New Roman",serif;color:black'>[99]} The incorporation of principles of equity into the law through the praetorian edict and the interpretations of the jurists enabled the Romans to break free from the rigid formalism of the old ius civile and to develop a system of law that could meet the needs of a constantly changing society. After the Christianisation of the empire in the fourth century AD the notion of aequitas was considered in the light of Christian ethical principles. This new approach to the meaning of aequitas is reflected in the Justinianic codification, where aequitas is linked with notions such as piety (pietas), affection (caritas), humanity (humanitas), kindness (benignitas) and clemency (dementia).

Bona fides

The concept of good faith (bona fides) was of Roman origin and, initially, it appears to have been linked with the notion of fas, or divine law. In the sphere of private law bona fides was understood in two ways:

(i)    From an objective point of view, bona fides was associated with the general expectation that persons should behave honestly and fairly in legal transactions.^[100] Acting dishonestly was considered to be contra bonam fidem.

(ii)   From a subjective point of view, bona fides pertained to a person's belief that what he was doing was just and lawful and did not violate another person's legitimate interest.^[101]

A number of general rules based upon the concept of bona fides are included in the sources (e.g. 'bona fides requires that what has been agreed upon must be done',^[102] 'bona fides demands equity in contracts').^[103] The concept of bona fides was particularly important in the field of the law of contracts, because for certain types of contract to be valid the requirement of bona fides had to be met at both the conclusion and the execution of the contractual obligation.

Utilitas

The term utilitas was used to denote the idea of a social or common interest (utilitas publica or communis). A number of legal rules were regarded as having been established utilitas causa, i.e. either for the good of the community as a whole, or for the good of certain groups or categories of persons (e.g. minors, lunatics, absent persons). The term utilitas privatorum was used to signify the personal interests of private individuals.

Humanitas

Humanitas, as an ethical principle based on the idea of benevolence towards others, played a part in the development of Roman law during the later classical and post-classical periods. The principle of humanitas, which had its origin in Greek philosophical ethics, postulated that human beings should be valued and respected as such, irrespective of their social or economic status. Like aequitas, humanitas was a general guiding principle pertaining to both the interpretation of the law and judicial decision­making. After the Christianisation of the empire in the fourth century AD, the idea of humanitas was regarded as particularly important in the fields of criminal law, family law and the law of succession. In the post-classical period imperial constitutions often included references to the notion of humanitas.

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