generibus ac pro utilitatum praesentium rationibus mutari atque flecti neque uno statu consistere.' Inst. i. 2, 11 Sed naturalia quidem iura, divina providentia constituta, semper firma atque immutabilia permanent: ea vero, quae ipsa sibi quaeque civitas constituit, saepe mutari solent vel tacito consensu populi vel alia postea lege lata.* STATUTES are the precepts of law declared and made known by the legislative power in the State, and on that account generally binding. The operation of a statute can only commence from the moment of its being made known,-from its publication or promulgation; and it does not extend to earlier cases-that is, to juristic acts perfected under the authority of the earlier law-nor to legal relations already established (acquired rights), unless either the statute attributes to itself retrospective power, or the latter is required by its special nature, its object, or the higher idea of Law, and therefore is to be taken as having been intended a Cf. §7,s.lex-by the legislator." For ex post facto laws, sce Blackstone, 'Commentaries,' i. p. 46 (Stephen, i. p. 27); Austin, pp. 502-3 (Student's edn. p. 241). Imp. Theod. Leges et constitutiones futuris certum est dare formam negotiis, non ad facta praeterita revocari: nisi nominatim etiam de praeterito tempore et adhuc pendentibus negotiis cautum sit.-C. 1, 14, 7.3 For you are surely not ignorant that the advantages and remedies of laws are changed and modified according to the customs of the time and to the kinds of States, as well as to reasons of present utilities, and do not remain in one condition. Laws of nature, appointed by divine ordinance, always remain stable and unchangeable; but such as an individual State has established are wont often to change either by tacit consent of the people, or by the subsequent publication of another law. 3 It is beyond doubt that leges and constitutions only lay down the form of the law for future acts, but cannot be applied to past events, unless something is therein expressly provided concerning past time or matters that are still pending. CUSTOM is not a source, but-like publication of a statute-phenomenal and originative form of Customary Law, although actual usage will contribute much to the establishment and further development of the Law." a Cf. Puchta, 'Cursus der i. p. 23. (9th Iulian. Inveterata consuetudo pro lege non Institutionen, immerito custoditur et hoc est ius, quod dicitur edn.). moribus constitutum. Nam cum ipsae leges nulla alia ex causa nos teneant, quam quod iudicio populi receptae sunt, merito et ea, quae sine ullo scripto populus probavit, tenebunt omnes: quid interest, suffragio populus voluntatem suam declaret, an rebus ipsis et factis ?-D. 1, 3, 32, 1.1 A customary law is to be acknowledged only if the custom is an established one, evidently by continuity of acts in the Law. Hermogenian.: . . . ea quae longa consuetudine comprobata sunt ac per annos plurimos observata, veluti tacita civium conventio, non minus quam ea, quae scripta sunt iura, servantur.-1. 35 eod.' Ulp. Cum de consuetudine civitatis vel provinciae confidere quis videtur, primum quidem illud explorandum arbitror, an etiam contradicto aliquando iudicio consuetudo firmata sit.-1. 34 eod.❜ 1 An immemorial custom is rightly observed as a lex, and this is the so-called Customary Law. For since the leges themselves are binding upon us for no other reason than because they have been accepted by the will of the people, that also which the people has approved without any written confirmation must rightly be binding upon all: for what difference does it make whether the people declare its will by vote, or by the very matter and act? That which has been approved by a long-standing custom and has been in force during the course of many years must, as the silent consent of the citizens, be observed just as much as the written Law. Taking con 3 When a person ostensibly appeals to the custom of the tradicto as city or province, it must, in my opinion, first be ascertained absolute, with whether it has been actually matter of dispute,' and the custom Clark, cit. p. confirmed by a decision. 217. Again, if it manifest itself as the expression of an actual legal instinct, opinio necessitatis, so-called a Cf. Savigny, Rationality of custom." 'System,' i. $29. pp. 174, 89. See also D. 1, 3, 14 and 15. c Mkby. ss. 101-3; Holl. p. 52. d See Austin, Savigny, i. § 20; 92, 95, 97; Holl. pp. 51-2. For the responsa prudentium, see § 8. See also 1. 37. Celsus Quod non ratione introductum, sed errore primum deinde consuetudine obtentum est, in aliis similibus non obtinet.-1. 39 eod." 1 Imp. Constant.: Consuetudinis ususque longaevi non vilis auctoritas est, verum non usque adeo sui valitura momento, ut aut rationem vincat aut legem.-C. 8, 52 (53), 2.3 DOCTRINE or communis doctorum opinio, and PRACTICE or usus fori-judge-made Lawd-form no source of Law, although worked out, it may be, and developed both by the scientific treatment and application of positive law; but Doctrine, and Practice likewise, often is seen to transmit Customary Law, which becomes known through the legal conviction of jurists as representing the national instinct for Law, and as those in whom is concentrated the knowledge of the actual Law.' Callistratus: Imperator noster Severus rescripsit, in ambiguitatibus, quae ex legibus proficiscuntur, consuetudinem aut rerum perpetuo similiter iudicatarum auctoritatem vim legis obtinere debere.-D. 1, 3, 38.3 Imp. Iustinian. : . . . non exemplis sed legibus iudicandum est.-C. 7, 45, 13.* That which is not introduced upon a reasonable ground, but originally by mistake, and then by custom has been upheld, does not hold good in other like cases. 2 No mean regard attaches to custom and the usage of many years, but its authority must not be stretched so far as that it prevail against a reasonable ground of law or a statute. 3 Our Emperor Severus has ordained, where doubts arise upon statutes, that custom, or the authority of legal decisions which have been uninterruptedly repeated in similar cases, ought to have the force of lex. 4 Judgment must be given, not according to examples, but according to leges. A rule of law is repealed by statute or custom; the older must give way when conflicting with a later decision. Rectissime etiam illud receptum est, ut leges a non solum suffragio legislatoris," sed etiam tacito Iul.: populi? The repeal of what has hitherto been a legal decision may be either complete or partial. Ulp. Lex aut rogatur i.e. fertur; aut abrogatur i.e. prior lex tollitur; aut derogatur i.e. pars primae legis tollitur; aut subrogatur i.e. adicitur aliquid primae legis; aut obrogatur i.e. mutatur aliquid ex prima lege.-Fgm. 3.3 § 4. BRANCHES OF LAW. b 20, 4. Every individual has not merely a personality of his own, but is daily subject to political ties with others. The sum of the rules which govern the legal relations of individuals as such is PRIVATE Law; those institu- Infra, Gell. x. tions which concern the position and the relations of individuals to one another as members of State, as well as the legal relations of the State as a body politic, constitute PUBLIC Law. To the latter belong Constitu- pp. 272-4. But tional Law, Civil Procedure, and Criminal Law." c Cf. Holland, sce Austin, i. p. 416 (Student's with Lect. 44; Ulp. Huius studii duae sunt positiones: pub- edn. pp. 195-6) licum et privatum. Publicum ius est, quod ad Markby, ss. 292, statum rei Romanae spectat, privatum, quod may also be ad singulorum utilitatem; sunt enim quaedam made to 899. Reference Bluntschli, national Law, 1 Quite rightly is it an accepted doctrine that leges are re- 59 (Engl. Tr.); pealed, not only by the declaration of the legislator, but also in and, for Interconsequence of the silent consent of the whole community, by to Holl, pp. reason of their disuse. 96-7. "A lex is either' rogated,' that is, introduced; or 'abrogated,' Cf. inf. ad fin. that is, the former lex is repealed; or 'derogated,' that is, part is by English of the former lex is repealed; or 'subrogated,' that is, something jurists ranged is added to the former lex; or 'obrogated,' that is, some portion of Private Law. of the former lex is altered. a under the head a Cf. Inst. i. 1, 4. § 8. publice utilia, quaedam privatim. Publicum ius in sacris, in sacerdotibus, in magistratibus consistit.-1. 1, § 2, D. h. t. (= de J. et J. 1, 1).«1 b Ius scriptum in the Roman sense is the Law declared by one of those organs of the State which are authorised to create Law, and which is made known in the form of writing. Ius non scriptum is the Law which springs up by usage, and is founded upon and evidenced partly by Custom, as immediately based upon the national Inst. i. 2. 3; feeling as to Law, and partly by the application imparted to it by the jurists; and is developed by way of interpretation of the written Law (auctoritas prudentium)." Dig. 1, 3, 32, 1, and 1. 35. d § 7. Cf. Stephen, 'Com mentaries,' Introd. s. 3; Austin, Lect. 56.7. The Roman jurists distinguish two constituents of 28; Holl. pp. Law, called by them ius civile and ius gentium. The one is Law rigidly national, confined to the legal relations of Roman citizens; the other, Law free from any national peculiarity, which is common to cultivated nations and applicable to all persons, because based on the one hand upon ‘naturalis ratio,' or the sense of Law which resides uniformly in all men; on the other, upon positive, universally recognised, practical necessity, whether social or economical. This ultimately quite displaced the old ius civile proprium Romanorum: • Cf. §§ 7-9: and Austin, Lect. 31. Gai. i. § 1: Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur: nam quod quisque populus ipse sibi ius constituit, id ipsius proprium est vocaturque ius civile, quasi ius proprium civitatis; quod vero naturalis ratio inter omnes homines 1 The study of Law falls into two parts, into that of Public and that of Private Law. Public Law is that which relates to the institutions of the Roman Empire; Private Law that which concerns the convenience of individuals; for there are institutions which derive their advantage from public, and those which derive it from private considerations. Public Law relates to religion, the priests and the magistrates. |