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constituit, id apud omnes populos peraeque cus-
toditur vocaturque ius gentium, quasi quo iure
omnes gentes utuntur. Populus itaque Romanus
partim suo proprio, partim communi omnium
hominum iure utitur (=1. 9, D. h. t., § 1, I.
h. t. I, 2).1

Ex hoc iure gentium omnes paene contractus.
introducti sunt, ut emptio venditio, locatio con-
ductio, societas, depositum, mutuum et alii in-
numerabiles.-§ 2, i. fi. I. h. t.*

Ulp. Ius civile est quod neque in totum a naturali vel gentium recedit nec per omnia ei servit itaque cum aliquid addimus vel detrahimus iuri communi, ius proprium i.e. civile efficimus.-1. 6 pr., D. h. t.

Law,' p. 52.

The expression ius naturale is used with different meanings. At one time by it is meant the ‘ius gentium;'" a Cf. Anet. at another, and as a rule, the Law based upon the rational and moral nature of man, and upon universal ethical principles, conflicting, it may be, in certain points with the positive 'ius civile' and 'ius gentium ;' occasionally also-as taking the form of a philosophical

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1 All peoples which are governed by laws and customs make use partly of their own, partly of Law common to all men: for the Law which each people has formed for itself is peculiar to that State, and is called Civil Law, as the Law peculiar to the State itself; but the Law which natural reason has formed amongst all men is observed in like manner amongst all peoples, and is called the Law of Nations, as the Law employed by all nations. The Roman people, accordingly, use not only their own but also the Law common to all men.

2 From this Law of Nations have almost all contracts been derived, e.g., Purchase and Sale, Hiring, Partnership, Deposit, Loan, and many others.

* The Civil Law is that which neither departs entirely from the Law of Nature or of Nations, nor is subject to it in all particulars. Therefore, when we add anything to the common Law or subtract aught from it, we make proper, that is, civil Law.

abstraction-Law rooted in the animal nature of man,

a Cf. Inst. i. 2, and therefore common to all living beings.",

II and 32;

Dig. 1, 5, 4; 43,

16, 1, 27; 48,

20, 7 pr.; 50,

17, 32 and 206. See also Austin,

Lect. 32.

b Cf. Inst. i. 1, 4,
2 pr., and
Maine, Anct.
Law,' pp. 52,
sq.

© Cf. §§ 7, 8.

d Austin, Lect. 33; Maine,

Anet. Law,' pp. 25, 28, 67-72; Mkby. ss. 120, sqq.

Ulp. Privatum ius tripertitum est: collectum etenim est ex naturalibus praeceptis, aut gentium, aut civilibus.-Ius naturale est, quod natura omnia animalia docuit : nam ius istud non humani generis proprium, sed omnium animalium . . . commune est. Hinc descendit maris atque feminae conjunctio, quam nos matrimonium appellamus, hinc liberorum procreatio, hinc educatio.1. 1, §§ 2, 3, h. t.1

Paul. Ius pluribus modibus dicitur: uno modo, cum id, quod semper aequum ac bonum est, ius dicitur, ut est ius naturale.-1. 11 pr. eod.*

Ius praetorium s. honorarium, in distinction from 'ius civile,' is the sum of the legal maxims put forth by the Praetors in the Edict.c

Papinian. Ius civile est, quod ex legibus plebiscitis, senatusconsultis, decretis principum, auctoritate prudentium venit. Ius praetorium est quod praetores introduxerunt; honorarium dicitur.-1. 7 pr., § 1, h. t.'

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quod et

The ambiguous expression aequitas (Equity)" desig

1 Private Law is threefold; for it is gathered from precepts of Nature, of [all] Nations, and of the [particular] State.— Natural Law is that Law which Nature has taught all living beings this Law is not one peculiar to the human race, but it is common to all living beings. From it comes the union of man and wife which we call 'marriage;' from it the begetting of children, from it their training.

2 The word ius is used in manifold senses, one sense being when that which is always right and equitable is called ius; for instance, ius naturale.

3 The Civil Law is that which has come of statutes, decrees of the People, decrees of the Senate, decrees of the Emperors, the authority of those learned in the Law. Praetorian Law is that which the Praetors have introduced; called ius honorarium.

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which is also

nates, in general, Law constantly accommodated to the actual circumstances, and so, the ideal Law.

First, in legal application aequitas' is to be found by regard being had to the particularity of the case in question, whereby the rigid rule of Law is brought into harmony with its natural sentiment. Hence it

is said, 'Summum ius summa iniuria.'

Secondly, the demands of aequitas' will have found more or less recognition in positive law, so that the contrast of stringent and equitable law (ius strictum, aequum) finds place in it.-Ius strictum is Law based upon abstract inference from positive, simple and rigid legal rules, described by the phrases iuris subtilitas, scrupulositas'-the formal law, unexceptional and absolute; whilst the more liberal and more flexible ius aequum endeavours to satisfy the requirements of higher material justice by constant reference to the special, actual elements of the concrete relation and case, as well as to the actual will and the proper legal intention of the persons: id quod actum est. From this result 'bonae fidei negotia, actiones,' as distinct from those 'stricti iuris.'a

Thirdly, in contrast with ius (civile) as positive law, which by means of some one law-source has already become established, we have Equity regarded as that which answers to the present advanced national ideas of Law, still in an inchoate state; a process of lawmaking which was in Rome furthered by the Praetorian Edict and by Jurisprudence, and was brought into recognition as positive law by legal decisions. This form of Equity is by no means to be regarded as a mere subjective, indefinite feeling.

Cels. Ius est ars boni et aequi.—l. 1 pr., h. Paul. In omnibus quidem, maxime tamen iure, aequitas spectanda est.-D. 50, 17, 90.2

1 Law is the science of what is right and fair.

a Cf. § 24.

Cf. § 30: 34-36; Maine,

Austin, Lectt.

A. L. pp. 61,
sqq.; Holl. pp.

t.o1 53-4-
in Cf. sup. Dig.

In everything indeed, but in Law very especially, regard must be had to Equity.

с

I, I, II pr.

Cf. ib. l. 12,

§3.

beg., priority

as between

pledgees (§102), cases of beneţicium competentiae (§ 139). • Cf. §8, s. constitutiones principum.

Cels. Bonus iudex varie ex personis causisque constituet.-D. 6, 1, 38.1

Tryph. Bona fides, quae in contractibus exigitur, aequitatem summam desiderat.-D. 16, 3, 31 pr.

Imp. Constant. Inter aequitatem iusque interpositam interpretationem nobis solis et oportet et licet inspicere.-C. 1, 14, 1."

In contrast with ius commune, the general Law equally applicable to all persons and relations, or normal Law, by ius singulare is meant―

First, special, for the most part favourable, Law availing for certain classes of persons (e.g., milites, minores, mulieres); of things (eg., fundus dotalis, property of a Ward, res furtivae); and of legal relations,' which in the subjective sense is called privilegium.

Gell. x. 20, 4: Non sunt generalia iussa, . sed de singulis concepta; quocirca privilegia vocari debent, quia veteres priva dixerunt, quae nos singula dicimus.*

Cic. p. dom. 17, 43: Vetant XII tabulae leges privatis hominibus irrogari: id est enim privilegium.'

Ulp. Iura non in singulas personas, sed generaliter constituuntur.-D. 1, 3, 8.o

1 An approved judge will have to decide differently, as taking into account respective persons and causes.

2 The good faith which is required in contracts aims at the highest equity.

We alone are empowered and called upon to take into consideration the solution of any doubt between Equity and Law.

4 They are not general commands . . . but are framed about individuals; hence ought to be called privilegia, because the things which we speak of as 'individual' the ancients spoke of as 'private.'

The Twelve Tables forbid the imposition of statutes upon particular persons; for that is a privilegium.

6 Iura are established, not for individual persons, but for general application.

Modest.: Privilegia quaedam causae sunt, quaedam personae.-D. 50, 17, 196.1

Secondly, the anomalous rules of Law which depart from the unity and sequence of the 'ius commune,' and have arisen from considerations of utilitas (with respect to the practical demands of legal intercourse), often also of aequitas' (e.g., favore libertatis) for certain cases, and in Roman Law, by the auctoritas prudentium. And so of something it may be said that 'iure singulari, benigne, utilitatis causa receptum, constitutum est.'"

• For examples, see Dig. 12, I.

Paul. Ius singulare est, quod contra tenorem 15; 41, 2, 1, 5; rationis propter aliquam utilitatem auctoritate constituentium introductum est.—D. 1, 3, 16.2

Iul. Multa iure civili contra rationem disputandi pro utilitate communi recepta esse, innumerabilibus rebus probari potest.—D. 9, 2, 51, 2.3

Paul. Quod contra rationem iuris receptum est, non est producendum ad consequentias—.*

Iul. In his, quae contra rationem iuris constituta sunt, non possumus sequi regulam iuris. -D. 1, 3, 14 sq.

The greatest part of Law leaves to the individual full freedom to make his legal dispositions and to direct his legal relations according to his own judgment, and therefore only comes into application when those

1 Some privilegia go with a case, others with a person. Singular law is that which has been introduced by the authority of the framers, against the tenor of reason, for some utility.

That many things have been accepted in the ius civile against logical argument for the sake of general utility, can be attested by innumerable cases.

No conclusion can be drawn from that which has been accepted contrary to legal principle.

That which has been established against legal principle cannot be followed as a rule of law.

ib. 40, 1: 44. I, 41, 3: 40, 4, 2, 15-16.

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