Article by George Long, M.A., Fellow of Trinity College
on pp 655-659 of
William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
JUS. "All people," says Gaius (Gaius, i.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, all Law (jus) is distributed into two parts, Jus Gentium and Jus Civile, and the whole body of law peculiar to any state is its Jus Civile (Cic. de Orat. i.44). The Roman law, therefore, which is peculiar to the Roman state, is its Jus Civile, sometimes called Jus Civile Romanorum, but more frequently designated by the term Jus Civile only, by which is meant the Jus Civile of the Romans.
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 (i.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 the acquisition of property, which was not regulated by Roman law, on the naturalis ratio and on the naturale jus indifferently, thus making naturalis ratio and naturale jus equivalent (ii.65, 66, 69, 73, 79). He founds Cognatio on Naturalis Ratio, as being common to all mankind, and Agnatio on Civilis Ratio, as being purely a Roman institution (i.158). In two passages in the Digest (1. tit.8) he calls same thing Naturale Jus in s2 and Jus Gentium in s3, 5 (compare Gaius, iii.132). The Naturale Jus and the Jus Gentium are therefore identical (Savigny, System, &c., vol. i p113). Cicero (de Off. iii.5) opposes Natura to Leges, and makes Leges equivalent to Jus Civile. In the Partitiones (c. 37) he also divides Jus into Natura and Lex.
There is a threefold division of Jus made by Ulpian and others, which is as follows: Jus Civile; Jus Gentium, or that which is common to all mankind; and Jus Naturale which is common to man and beasts. The foundation of this division seems to have been a theory of the progress of mankind from what is commonly termed a state of nature, first to a state of society, and then to a condition of independent states. This division had, however, no practical application, and must be viewed merely as a curious theory. Absurd as it appears at first sight, this theory is capable of a reasonable explanation, and Savigny shows that it is not meant to say that beasts have law, but only the matter of law; 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, Instit. i. ¡± 9, note a). In the Institutes the two divisions are confounded (i. tit.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 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 s11) the Jus Naturale is explained to be the same as Jus Gentium, and the Jus Naturale is said to be coeval with the human race. Notwithstanding this confusion in the Institutes, there is no doubt that the two-fold division of Gaius was that which prevailed in Roman jurisprudence (Savigny, System, &c. vol. 1 p413). This two-fold division appears clearly in Cicero, who says that the old Romans separated the Jus Civile from the Jus Gentium; and he adds that the Jus Civile (of any state) is not therefore Jus Gentium, but that what is Jus Gentium ought to be Jus Civile (de Off. iii.17).
Those rules which regulated the declaration of war and the conduct of war are comprehended under the term Jus Feciale. Some modern writers give to the term a wider signification; and others limit it more closely. Osenbrueggen (De Jure Belli et Pacis Romanorum, p20 Lips. 1836) defines the Jus Feciale to be that which prescribed the formulae, solemnities and ceremonial observed in the declaring, carrying on, and terminating a war, and in the matter of treaties. The Romans often used the expression Jus Gentium in a sense which nearly corresponds to the modern phrase Law of Nations, or, as some call it, International Law (Livy, ii.14, vi.1, quod legatus in Gallos, ad quos missus erat, contra jus gentium pugnasset; xxxviii.48; Sallust. Jug. 22). The term Jus Belli (Cic. de Leg. ii.14) is used in the same sense.
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 in its origin was the general law of Peregrini, according to which the Romans determined the legal relations among Peregrini, a class of persons to whom the Jus Civile was not applicable. Consequently, the foundation of the Jus was foreign law, modified by the Romans according to their own notions, so as to be capable of general application. This is one side of the original Jus Gentium. The other is that Law which owed its origin to the more enlarged views of the nature of law among the Roman people, and was the development of the national character. The two notions, however, are closely connected, for the law of Peregrini was that which first presented the Romans with the notion of the Jus Gentium, and it was formed into a body of Law, independent of the Jus Civile, and not interfering with it. But the general Law of Peregrini also obtained among the Romans, as Law, and not considered merely with reference to their intercourse with Peregrini. "The Law of Peregrini and Roman Law, disencumbered of all peculiarity of individual nations, are the two sides of the same notion, which the Romans express by the term Jus Gentium." (Puchta, Instit. i. ¡± 84.) The Jus Gentium was chiefly introduced by the Edictum, ¡X as the Law of Peregrini by the Edict of the Praetor Peregrinus and the Edicta Provincialia, and as Law for the Romans by the Edictum of the Praetor Urbanus.
The Jus Civile of the Romans is divisible into two parts, Jus Civile in the narrower sense, and Jus Pontificium or Sacrum, or the law of religion. This opposition is sometimes expressed by the words Jus and Fas (Fas et jura sinunt, Virg. Georg. i.269); and the law of things not pertaining to religion and of things pertaining to it, are also respectively opposed to one another by the terms Res Juris Humani et Divini (Instit.2 tit.1). [DOMINIUM.] Thus the Pontifices Maximi, P. Crassus, and T. Coruncanius, are said to have given Responsa de omnibus divinis et humanis rebus (Cic. de Orat. iii.33).
The Law of Religion, or the Jus Pontificium, was under the control of the Pontifices, who in fact originally had the control of the whole mass of the law, and it was only after the separation of the Jus Civile in its wider sense into the two parts of the Jus Civile, in its narrower sense, and the Jus Pontificium, that each part had its proper and peculiar limits. But after this separation was fully made the Auctoritas Pontificum had the same operation and effect with respect to the Law of Religion that the Auctoritas Prudentium had on the Jus Civile (Cic. de Leg. ii.19, 20). Still even after the separation there was a mutual 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 Orat. iii.33, Brut. 42; ADOPTIO.) Again, Jus Pontificium, in its wider sense, as the law of religion, had its subdivisions, as into Jus Augurum, Pontificum, &c. (Cic. de Senect. 11).
"Law," says Gaius (i.2), meaning the Roman civil law (jura), "is composed of leges, plebiscita, senatus-consulta, 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) are "leges (which include plebiscita), senatus-consulta, res judicatae, jurisperitorum auctoritas, edicta magistratuum, mos, aequitas." A consideration of the different epochs at which these writers lived, will account for part of the discrepancy; but the addition of Mos in Cicero's enumeration is important.
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 Gentium is founded on the internal character of the two kinds, and the extent of their application.
Lex and Mos are sometimes opposed to one another, as parts component of the Jus Civile, but different in their origin. Horace (Carm. iv.5) speaks of "Mos et Lex:" Juvenal (viii.50) opposes "Juris odos et legum aenigmata:" Jus Civile is opposed to Leges (Cic. de Orat. i.43), to Lex (de Off. iii.17), and to Senatus-consultum (Gaius, ii.197). As then opposed to Leges, Jus Civile appears to be equivalent to Mos. In fact the opposition between Lex and Mos follows the analogy of that between jus scriptum and non scriptum. "When there are no scriptae leges we must follow that which has been introduced by mores and consuetudo. ¡X Immemorial (inveterata) consuetudo is properly observed as a lex (pro lege), and this is the jus which is said to be 'moribus constitutum.' " (Julian, Dig. 1. tit.3 s32). Thus immemorial usage was the foundation of the "jus Moribus constitutum" (see the article INFAMIA as to the origin of Infamia). The ultimate origin of custom is the common consciousness of the people among whom it exists: the evidence of it is usage, repeated and continued use: it is law when recognized by a competent authority. There is a passage of Ulpian (Dig. 1. tit.3 s34) in which he distinctly speaks of confirming a consuetudo in a judicium, which can have no other meaning than that its force as law depended on a decision in a judicium. And the meaning is clear, whether we read contradicto or contradicta in the passage just referred to.
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. Instit. Orat. v.10). Thus Ulpian (Dig. 1. tit.6 s8) says that the Jus Patriae Potestatis is moribus receptum. But mos contained matters relating to religion as well as to the ordinary affairs of life; and therefore we may also view Mos and Lex, when opposed, as component parts of the Jus Civile in its wider sense, but not as making up the whole of it. Mores in the sense of immorality, that which positive morality disapproves of, must not be confounded with jus founded on mores: the former is mali mores in respect of which there was often a jus moribus constitutum. Thus in the matter of the dos there was a retentio in respect of the mores graviores or majores, which was adultery (Ulp. Frag. tit.6).
The terms Jus Scriptum and Non Scriptum, as explained in the Institutes (i. tit.2), comprehended the whole of the Jus Civile; for it was all either Scriptum or Non Scriptum, whatever other divisions there might be (Ulp. Dig. 1. tit.1 s6). Jus Scriptum comprehended every thing except that "quod usus approbavit." This division of Jus Scriptum and Non Scriptum does not appear in Gaius. It was borrowed from the Greek writers, and seems to have little or no practical application among the Romans. 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, p2), "Those laws that I call leges scriptae (he should have used the expression jus scriptum, though Cicero uses the expression Lex Scripta) 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.
Jus was also divided into Publicum and Privatum by the Roman jurists (Dig. 1. tit.1 s1). Publicum Jus is defined to be that which relates to the Status Rei Romanae, or to the Romans as a State; Privatum Jus is defined to be that which relates "ad singulorum utilitatem". The Publicum Jus is further said by Ulpian (Dig. 1 tit.1 s1) "in sacris, in sacerdotibus, in magistratibus consistere." According to this view, it comprehends the Law of Religion and all the rest of the Jus Civile, which is not Privatum: and the matter which is comprehended in Jus Privatum is that which is contained in the Institutes of Gaius and Justinian. The elementary treatise of Gaius does not mention this division, and it is limited to the Jus Privatum. 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. The Roman term Jus Publicum also comprehended Criminal Law and Criminal Procedure, and Procedure in Civil Actions. It is said by Papinian (Dig. 28. tit.1 s3) that the Testamentifactio belonged to Publicum Jus. Now the Testamentifactio was included in Commercium, and only Roman citizens and Latini had Commercium. This is an instance of the application of the term Publicum Jus. All Jus is in a sense Publicum, and all Jus is in a sense Privatum; but the Roman Publicum Jus directly concerned the constitution of the state and the functions of the government and administration; the Privatum Jus directly concerned the interests of individuals. The opposition between these two things is clear, and as well marked as the nature of such things will allow. If the terms be found fault with, the meaning of the terms admits of a defence.
The expression Populus Romanus Quirites has given rise to much discussion. Becker (Handb. der Romischen Alterthumer, vol. ii p24) 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. Accordingly Quirites is equivalent to Cives (Sueton. Caes. 70; Plut. Caes. 51; Liv. xlv.37). It does not seem easy to explain the difference between Civitas Romana and the Jus Quiritium, yet so much seems clear that Civitas Romana was a term large enough to comprehend all who were Cives in any sense. But the Jus Quiritium in its later sense seems to be the pure Privatum Jus as opposed to the Publicum Jus, and thus it differs from Jus Civile viewed as the whole Roman law, or as opposed to the law of other people. He who claimed a thing exclusively as his own claimed it to be his ex Jure Quiritium (Gaius, ii.40 &c.). Accordingly we find the expressions Dominus and Dominium Ex Jure Quiritium, as contrasted with In bonis [DOMINIUM]. Such part of the Roman law, in its widest sense, as related to buying, selling, letting, hiring, and such obligations as were not founded on the Jus Civile, were considered to belong to the Jus Gentium (Dig. 1. tit.1 s5), that is, the Jus Naturale (Gaius, ii.65). Accordingly when ownership could be acquired by tradition, occupation, or in any other way, not specially provided for by the Jus Civile, such ownership was acquired by the Jus Gentium. When the Jus Civile prescribed certain forms by which ownership was to be transferred, there was no ownership Jure Civili or Jure Quiritium, but there was that interest which was called In bonis. It is not said by Gaius (ii.40, &c.) that the In bonis arose by virtue of the Jus Gentium, and it may perhaps be concluded that he did not so view it; for in another passage (ii.65), he speaks of alienation or change of ownership being effected either by the Jus Naturale, as in the case of tradition, or by the Jus Civile, as in the case of mancipatio, in jure cessio, and usucapion. In this passage he is speaking of alienation, which is completely effected by tradition, so that there is a legal change of ownership recognized by Roman law; not by Roman law, specially as such, but by Roman law as adopting or derived from the Jus Gentium. In the other case (ii.40) there is no ownership either as recognized by Roman law as such, or by Roman law as adopting the Jus Gentium: the In bonis is merely recognized by the Praetorian Law, to which division it therefore belongs. So far as the equity of the praetor may be said to be based on the Jus Gentium, so far may the In bonis be said to be founded on it also. Properly speaking, the Jus Gentium was only received as Roman law, when it did not contradict the Jus Civile; that is, it could only have its full effect as the Jus Gentium when it was not contradicted or limited by the Jus Civile. When it was so contradicted or limited, the praetor could only give it a partial effect, but in so doing, it is obvious that he was endeavouring to nullify the Jus Civile and so to make the Jus Gentium as extensive in its operation, as it would have been but for the limitation of the Jus Civile. The bounds that were placed to this power of the praetor were not very definite. Still he generally fashioned his Jus Praetorium after the analogy of the Jus Civile, and though he made it of no effect as against his Jus Praetorium, he maintained its form and left it to its full operation, except so far as he necessarily limited its operation by his own Jus Praetorium.
Jus used absolutely is defined to be "ars boni et aequi" (Dig. 1. tit.1 s1), which is an absurd definition. What it really is, may be collected from the above enumeration of its parts or divisions. Its general signification is Law, and in this sense it is opposed to Lex or a Law. Lex, however, as already shown, is sometimes used generally for Law, as in the instance from Cicero where it is opposed to Natura. Lex therefore in this general sense comprehends leges and all the other parts of the Jus Civile. In its special sense of a Law, it is included in Jus. Jus is also used in the plural number (jura) apparently in the sense of the component parts of Jus, as in Gaius (i.2), where he says "Constant autem jura ex legibus," &c.; and in another passage (i.158), where he says with reference to the Agnationis Jus or Law of Agnatio, and the Cognationis Jus or Law of Cognatio, "civilis ratio civilia quidem jura corrumpere potest." Indeed in this passage Agnationis Jus and Cognationis Jus are two of the Jura or parts of Jus, which with other Jura make up the whole of Jus. Again (Gaius, ii.62), that provision of the Lex Julia de Adulteriis, which forbade the alienation of the Fundus Dotalis, is referred to thus ¡X "quod quidem jus," "which rule of law" or "which law" ¡X it being a law comprehended in another law, which contained this and many other provisions. Thus though Lex in its strict sense of a Law is different from Jus in its large sense, and though Jus, in its narrower sense, is perhaps never used for a Lex, still Jus, in this its narrower sense, is used to express a rule of law. Thus Gaius (i.47) speaks of the jura or legal provisions comprised in the Lex Aelia Sentia; and of jura as based on the Responsa Prudentium ("responsa prudentium sunt sententiae et opiniones eorum quibus permissum est jura condere," Gaius, i.7; JURISCONSULTI).
Jus has also the meaning of a faculty or legal right. Thus Gaius says, "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 parental power is called a "Jus proprium civium Romanorum." The meaning of law generally, and of a legal right, are applied to Jus by Cicero in the same sentence: "I, a man ignorant of law (imperitus juris), seek to maintain my right (meum jus) by the Interdict" (Pro Caecina, c11). 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 various 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 used by the Roman Jurists, is somewhat peculiar, and open to objection. [SERVITUS.]
The potestas which a Roman father had over his children and a husband over his wife in manu, being a jus or legal right, there hence arose the distinction of persons into those who are sui and those who are alieni juris. All the rights of such persons severally are represented by the phrase "Jus Personarum," or that division of the whole matter of Jus which treats of the condition of persons as members of a Familia. [FAMILIA.]
This leads to the mention of another division of the matter of law which appears among the Roman Jurists, namely, the Law of Persons; the Law of Things, which is expressed by the phrase "jus quod ad res pertinet;" and the Law of Actions, "jus quod ad actiones pertinet." (Gaius, i.8). 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, to express which he does not use a phraseology analogous to that of "Jus Personarum;" but he says he will treat De Rebus. [INSTITUTIONES.]
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. Thus it is a justum (legal) matrimonium, if there is connubium between the two parties to the marriage. The word Justum has many varieties of meaning, which may generally be derived, without much difficulty, from the meanings of Jus: as justa servitus, justum concilium, justum iter, justus exercitus, justa causa.
Jus is opposed to Judicium, and a thing was said to be done in jure or in judicio, according as it was done before the magistratus or before a judex. [JUDICIUM.] Thus all matters of legal question were said to be done "aut ad populum, aut in jure, aut ad judicem." (Plaut. Menaech. iv.2.18). Jus, in the sense of the place "in quo jus redditur" (Dig. 1. tit.1 s11), is only an application of the name of what is done to the place in which it is done. The expression Jus Dicere is explained under Jurisdictio.
The foregoing explanation of Jus may not be entirely free from error, nor would it be easy to make it so, as will appear from comparing the views of various modern writers.