V. IUS jNATURALE, IUS GENTIUM

Gaius begins his Institutes with these words:

Every people that is governed by statutes and customs applies partly its own peculiar law and partly law which is common to all mankind.

For the law which each people establishes for itself is peculiar to it and is called ius civile as being the special law of that state (civitas); but the law which natural reason establishes among all mankind is observed equally by every people and is called ius gentium as being the law applied by all nations (gentes). And so the Roman people applies partly its own peculiar law and partly that which is common to all mankind.

Aristotle had made substantially the same distinction—between man-made law, which is peculiar to one state, and natural law, which is universal. The one has no intrinsic moral value and derives its validity from its adoption by the state (the rule of the road would be a modern example), while the other is universally valid, whether it is adopted or not. The one, it has been said, is right because it is law, the other is law because it is right. This idea, which is older than Aristotle, of natural law as an ideal and universally valid set of precepts, deriving from the principle of order which is manifest in the physical universe and which is represented in man by his reason, became a philosophical and rhetorical commonplace, particularly among the Stoics, who preached the doctrine of a ‘life according to nature’. In surviving Roman literature it appears first—and frequently—in Cicero, who treats it, as Gaius also does in the passage quoted above, as synonymous with ius gentium. In this sense the two terms represent two aspects of the same idea. The term ius naturale looks to the origin of this law in natural reason (which Cicero identifies with divine reason), and the term ius gentium to its universal application.

Gaius expresses this compendiously when he says that ‘the law which natural reason establishes among all mankind is observed equally by every people’. To our way of thinking there is here an illogicality. Ius naturale is law which ought to be observed by all mankind, whereas ius gentium is law which is in fact observed by all mankind; and one cannot logically proceed either from the fact that a rule is observed to the proposition that it ought to be observed, or vice versa. The Romans, however, never made this clear distinction between positive law (i.e. law which is actually applied) and law as it ought to be. And similarly they never developed what may be called the revolutionary aspect of natural law as a higher law capable of invalidating the positive law.^{^[20]} Only in one respect did the jurists occasionally draw a distinction between ius naturale and ius gentium. For they adhered to the Stoic teaching (against that of Aristotle) that man was by nature free and that slavery was therefore contrary to the natural law; but clearly it was an institution of the ius gentium. But this is simply recorded as a fact. The jurists were not social reformers.

A quite different definition of ius naturale, attributed to Ulpian, deserves mention only because it appears prominently near the beginning of both Justinian’s Institutes and the Digest, and therefore had a considerable, and distorting, influence on subsequent thought. ‘Natural law’, the text declares, ‘is that which nature has taught all animals. For it is not peculiar to the human race but belongs to all animals. From this law comes the union of male and female, which we call marriage, and the begetting and education of children. For we see that all other animals are likewise governed by a knowledge of this law.’ This idea, which seems to derive from the Pythagoreans, confuses the promptings of instinct with the precepts of law. It is the same confusion which sometimes results in English from the use of the word ‘law’ not only in the lawyer’s sense, as in ‘the law of contract’, but also in the natural scientist’s sense, as in ‘the law of gravity’.

The former is a statement of what in given circumstances ought to happen, the latter a statement of what in given circumstances does happen, or to be precise, of what, as far as we can tell, will happen. The former is a rule of conduct, the latter a prediction. The confusion is plain in the illustration given in the text. Roman marriage, little regulated by law though it was,¹ was not simply the union of male and female. The function of the law of marriage was, and is, to regulate the instinct which man shares with all animals.^{^[21]}^{^[22]}

Neither the term ius naturale nor the term ius gentium occurs in legal literature until Gaius,^{^[23]} two centuries after Cicero. Too little, however, of the juristic writings of these two centuries survives^{^[24]} for us to be able to determine whether this silence is significant. Certainly the jurists, as men of culture and education, must have been acquainted with current philosophical ideas, and yet, severely practical as they were in their attitude to law, they may well in their writings have ignored the philosopher’s ius naturale or ius gentium as mere speculation. Even where—in Gaius and the great jurists of the late classical period—the idea of ‘nature’ or ‘natural reason’ does appear, it is either, as in the passages quoted above, purely ornamental, or else it bears a meaning which varies according to the context but has little connexion with the philosophical idea. In common language we ourselves use ‘nature’ in a similarly imprecise way.

But imprecise though it was, ‘nature’ provided a device of some importance for the interpretation and classification of the law. The ‘nature’ of a thing or legal institution was commonly its intrinsic character, and the jurists sought to derive their rules from this character. It is the nature of some animals to be wild, and therefore we can only own them so long as we have physical control of them; it is the nature of the sea to be open to all and therefore it is not susceptible of private ownership, and so forth. In a similar way it was held that certain methods of acquiring ownership were natural, or derived from natural law or natural reason, because they seemed to follow inevitably from the facts involved.

If, for example, I wish to make you owner of a thing, the ‘natural’ way of doing so is to hand it over to you. Or if a house is built with my materials on your land, it follows from the nature of this merger, or so the jurists thought, that the whole must belong to you. (Such methods of acquisition, being natural, were of course held to be universal and therefore to be of the ius gentium.) In other contexts ‘nature’ or ‘natural reason’ is equivalent to ‘justice’, or ‘common sense’, or ‘good order’. And still other meanings can be found.

We have seen that the term ius naturale looks to the supposed origin or basis of a rule or institution, while the term ius gentium looks to its universal application. But the statement that a given institution is universal is of no practical significance for the lawyer. It has been called ‘a piece of superficial comparative jurisprudence’—superficial because it can be true, if it is true at all, only in a very loose sense. The contract of sale (emptio venditio), for example, like most contracts, is of the ius gentium, but it is universal only in the sense that other systems have institutions which serve the same purpose. The Roman jurist did not suppose that the detailed rules of the Greek contract of sale were the same as those of emptio venditio.

Ius gentium had a second sense, however, which was of considerable practical importance. In this sense it was that part of Roman law which was applied both to citizens and to peregrines. Ancient law was in principle ‘personal’: the law by which a man lived depended not on where he was, but on who he was—on his nationality. Roman law applied to Roman citizens, Athenian law to Athenian citizens. Such a principle presents obvious problems. What law was to be applied to a foreigner living within the Roman jurisdiction? One solution would have been to apply his own law, and to some extent this was done, particularly in the field of family law and succession.

But what law was to govern his relations with Roman citizens or with peregrines of other nationalities? To apply the principle of personality here would have called for a set of rules of what we call ‘conflict of laws’ to determine which system should apply in each individual case. What in fact emerged was something quite different—a body of law, Roman in character but without the formality and technicality of the old ius civile, which could be applied to citizen and non-citizen alike. How this law grew up remains a matter of conjecture. Its main features were already fixed in the last century b.c., and our knowledge of the period before then is very slight. The Peregrine Praetor, whose province it was to administer just such a law, must have played a large part, as also perhaps did the provincial governors, who were faced with the same problem, but we lack the evidence to go farther than this. Moreover, as we know it, this body of law applied not only to transactions involving peregrines, but even to transactions wholly between citizens. If therefore it originated in the Edict of the Peregrine Praetor, it had in some way been ‘received’ into the province of the Urban Praetor. And there must have been some ‘reception’ in the reverse direction also. For in the law as we know it a few institutions which were part of the old, strictly Roman, ius civile were nevertheless applicable also to peregrines, notably the contract of stipulatio¹in all but one of its forms. But here again we lack the evidence to tell how this development occurred. Nor, as we have seen, can we know how early the term ius gentium was applied to this body of law, or what influence the philosophical idea had upon its development. All that is certain is that in Gaius the term is used both in the philosophical or theoretical sense discussed above and in this practical sense, and that in either sense it embraces the greater part of the law outside the law of persons and the law of succession.

Without it the Roman law would never have held the place in history that it does, and yet we know next to nothing of its origin or growth.

The two senses of ius gentium are often indistinguishable. Most of the ius gentium in the practical sense is informal and simple and therefore ‘universal’. But while all institutions of the ius

¹ See below, p. 193.

gentium in the theoretical sense were necessarily part of the ius gentium in the practical sense, the converse was not always so. The stipulatio, already mentioned, makes this plain. It existed in no system except the Roman, but it was open to citizens and peregrines alike.

The distinction emerges also in the use of the term ius civile. Like our term ‘common law’, ius civile derives its meaning from its context. By contrast with ius gentium in the theoretical sense it denotes the law peculiar to a particular state; by contrast with ius gentium in the practical sense it denotes that part of Roman law which is confined to Roman citizens. In the first sense stipulatio is of the ius civile, in the second it is not. There is, moreover, a third sense of ius civile which must be borne in mind. By contrast with ius honorarium it denotes—and it is principally in this sense that we shall use it¹—that part of Roman law which derives from lex and interpretatio.

¹ See above, p. 26, n. 1.

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Source: Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p.. 1976

V. IUS jNATURALE, IUS GENTIUM

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