The word Ius had a variety of meanings in Roman Law. It could refer, for example, to "a place where justice is dispensed" (e.g. in ius vocatio), or "strict law" as distinct from equity, or "a right deriving from a rule" (e.g. ius conubii, the right to contract a marriage under the Civil Law), or "general man-made law as opposed to fas, i.e. lae declared by divine authority". It came to have two particularly important meanings: The rules of law (its objective sense) and the rights conferred by those rules on a person in a particular situation (its subjective sense).
- Ius and Aequitas
In the classical period aequitas (= fairness, justice) was the term often used in reference to the Praetorian interpretation and application of the law.
- The Precepts of Law (Ius)
These are enumerated in the Institutes as "to live honourably, not to hurt one another, to give each man his due." Justice is defined as "the constant and perpetual wish to give each man his due."
- Ius Publicum and Ius Privatum
+ Ius Publicum
Public Law is explained in the Institutes as "that which looks to the standing of the affairs of Rome" It was that of the Roman Law which was concerned with the relation of the individual to the State and included:
. Criminal Law.
. Constitutional Law.
. Ecclesiastical Law.
. Administrative Law.
+ Ius Privatum
Private Law is explained in the Institutes as "that which looks to the advantage of individuals." It was that part of the Roman Law which was concerned with the relationship of individuals to one another and included:
. The Law of family relationships.
. The Law of obligations.
. The Law of succession.
. The Law of property.
Note: The Institutes are concerned almost exclusively with Private Law.
- Ius Naturale
+ Its meaning
"Ius naturale is what nature has taught all living things" (The Institutes). This was essentially a philosophical concept. As applied to the Law it suggested that there were rules of universal application derived from the common nature of all peoples and that these rules ought to be observed by all mankind. Paul, the jurist, speaks, for example, of leases as "suggested by nature itself and to be found in the law of all nations". Ius naturale came to be considered as an ideal to which the should seek to conform.
- Ius Gentium
+ Its meaning
The term Ius Gentium (= law of peoples) had two important meanings:
. That law which, being of universal application (as was ius naturale) was in general use among civilised peoples.
. That part of Roman Law which was originally applicable to relationships between Roman citizens and foreigners living within its jurisdiction and which was used subsequently to govern the relationships of citizens inter se.
+ Its development and characteristics
Ius gentium probably originated in the rules and administrative procedures formulated and used by the Praetor Peregrinus in the regulation of commercial transactions between Roman citizens and non-citizens. From its beginnings as a type of Law Merchant it developed into a general body of substantive law possessing the important characteristics of convenience and universality. A significant and vital development was the creation of a system of procedure involving the use of formulae which was less rigid and more convenient than the very formal system of procedure involving the use of formulae which was less rigid and more convenient than the very formal system of legis actiones. Lex Aebutia (c. 120 B.C.) allowed the Praetor Urbanus to use this system in cases governed by Ius Civile. Hence principles of Ius Gentium were introduced directly into the system of jurisdiction for which the Praetor Urbanus was responsible. At a later date the term Ius Gentium shed its meaning of a body of law confined to commercial transactions; its scope was widened so as to take in rules of general application, and the meaning of the term developed into that given at above. It eventually superseded Ius Civile.
Of Ius Gentium Vinogradoff writes, "It arose by the side of the national Ius Civile as a body of rules suggested by fairness, common sense, knowledge of the world and some acquaintance with foreign law. The magistrates who were entrusted with jurisdiction in these cases based their decisions and the prospective rules of their Edicts on general considerations of equity and utility (ex bono et aequo)".
- Ius Civile
+ Its meaning
"The law each people has settled for itself is peculiar to the State itself, and is called Ius civile as being peculiar to that very State" (The Institutes). The term came to be used in a number of ways:
. As indicating the law of a particular state.
. As referring to the law of Rome.
. As referring to that part of Roman Law available only to citizens, e.g. quiritary ownership.
. As indicating a comparison with Ius Gentium or Ius Militare (the law as applied to soldiers) or Ius Honorarium.
. As referring to that part of Roman Law based on ancient customs and statutes, particularly the XII Tables.
. As referring to the entire corpus of Roman Law.
The meaning of the phrase depends on its context.
+ Its features
The ancient Ius Civile was characterised by rigidity, an excessive formalism and principles rooted in an agricultural community based on family and clan organisation. As Rome expanded, as commercial contacts with foreigners increased, the simplicities and formalities of Ius Civile proved unsuited to new conditions and it was superseded in time by Ius Gentium, in which formalities played a relatively unimportant role.
- Ius Honorarium
+ Its meaning
Ius Honorarium referred to the body of law issuing from the Edicts of the Magistrates, in particular those of the Praetors and Curule Aediles. The Edicts of the Praetors enabled them to introduce and enforce legal principles and forms which had no basis in statute. Praetorian interdicts, the exceptio, restitutio in integrum were examples of the renovation and expansion which formed the particular contribution of Ius Honorarium to Roman Law.
- Ius non scriptum and Ius scriptum
+ Ius scriptum
Ius scriptum (written law) included that part of the law which was put into written form on being enacted. At the time of Justinian the Ius scriptum comprised leges, plebiscita, edicta magistratuum, senatusconsulta, responsa prudentium, constitutiones principum.
+ Ius non scriptum
Ius non scriptum (unwritten law) was considered to be that which had arisen out of custom or usage.
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Source:
Roman Law, L. B. Curzon, pages 14 - 17.
