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.'" 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. t.o1 a Cf. § 24. Ct. § 30: 34-36; Maine, Austin, Lectt. A. L. pp. 61, sqq.; Holl. pp. 53-4. с Cels. Ius est ars boni et aequi.—l. 1 pr., h. iure, aequitas spectanda est.-D. 50, 17, 90.2 1 Law is the science of what is right and fair. In everything indeed, but in Law very especially, regard must be had to Equity. 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. a Naturalia negotia, § 19. concerned have arranged nothing otherwise, by its supplementing their imperfectly declared will (voluntatis interpretatio). This is called DISPOSITIVE Law." But there are, besides, other institutions which plainly limit individual will, and exclude every private disposition of a contrary tendency: absolute legal rules, * Cf. Cod. 1, 14, PEREMPTORY Law (ius publicum). 5. Papinian. Ius publicum privatorum pactis mutari non potest.-D. 2, 14, 38.1 : Gai. Contra iuris civilis regulas pacta conventa rata non habentur.-1. 28 pr. eod.2 Paulus: Ex pactis conventis Ex pactis conventis . . . alia ad voluntatem, . . . alia ad ius pertinent, . . . in quibus non semper voluntas contrahentium servatur.-D. 23, 4, 12, 1. The rules of law of the latter kind are, as to their content, either imperative or prohibitive; the prohibitive laws, again, according to their operation (sanctio legis), are leges perfectae,' 'imperfectae,' 'minus quam Cf. § 129, lex perfectae.' Cincia de donis et muneribus; § 182, 1. Furia testamentaria. Modest. Legis virtus haec est: imperare, vetare, permittere, punire.—D. 1, 3, 7.* Inst. ii. I, 10: Legum eas partes, quibus poenas constituimus adversus eos, qui contra leges fecerint, sanctiones vocamus." Ulp.: [Perfecta lex est, quae vetat aliquid 1 The Public Law cannot be varied by the agreements of private persons. 2 Agreements concluded against the rules of the ius civile are not upheld. 3 Amongst the bargains that are concluded, some relate to what lies in the will [of the parties], others to what is governed by Law, in which the will of the contracting parties is not always observed. 4 In a statute resides the power to command, to forbid, to permit and to punish. 5 Those parts of statutes in which we have established penalties for the transgressors thereof we call 'sanctions.' fieri, et si factum sit, rescindit. Imperfecta lex § 5. KNOWLEDGE AND INTERPRETATION OF LAW.“ a Cf. Blackstone, i. pp. 5962, 87, 899. (Steph. i. pp. 71, 8qq.); Austin, The source of our knowledge of Customary Law is actual legal usage; that of Statute Law, written pp. 648, 877. matter. Markby, ss. 7277; Clark, pp. 1. Like all speech, whether written or by word of 230, 399. mouth, statutes also, as the expression of a thought, require explanation if they are to be understood. This is interpretatio in the wider sense. It is, in other words, that mental operation by which one apprehends the meaning of statutes, and accordingly, the will of the legislator expressed in them; their content and scope of application, or 'vis et potestas, voluntas legis.' For the sources of Roman Law, especially of what is called the Corpus Iuris,' interpretation acquires a further special meaning in so far as, in particular, is imposed upon the interpretatio the task of first eliciting general maxims of law from the decision of actual cases. To the systematic art of interpretation is given the name HERMENEUInterpretation itself is grounded upon the TICS. 1 [A 'perfect' statute is that which forbids a thing being done, and if it be done, sets it aside. An 'imperfect' statute is that which forbids a thing being done, and if it be done, neither sets it aside nor attaches any penalty to him that infringes the statute.] A 'less than perfect' statute is that which forbids a thing being done, and if it be done, does not set it aside, but attaches a penalty to him that has infringed the statute. C |