Again, if it manifest itself as the expression of an actual legal instinct, opinio necessitatis, so-called « Cf. Savigny, Rationality of custom." 'System,' i. $29. pp. 174, 89. See also D. 1, 3, 14 and 15. c Mkby. ss. & See Austin, 92, 95, 97; Holl. pp. 51-2. e 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 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), 2.2 DOCTRINE or communis doctorum opinio, and PRACTICE or usus fori-judge-made Law"-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 rerum perpetuo similiter iudicatarum auctoritatem vim legis obtinere debere.-D. 1, 3, 38. 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 A rule of law is repealed by statute or custom; the older must give way when conflicting with a later decision.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 non solum suffragio legislatoris," sed etiam tacito a 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. 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 a State, as well as the legal relations of the State as a body politic, constitute PUBLIC Law. To the latter belong Constitutional Law, Civil Procedure, and Criminal Law.“ eCf. Holland, pp. 272-4. But 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 ad singulorum utilitatem; sunt enim quaedam made to Reference may also be Bluntschli, 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. 2 national Law, 96-7. Civil Procedure A lex is either 'rogated,' that is, introduced; or 'abrogated,' d 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 the former lex is altered. under the head of Private Law. 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. I, I).al 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. constituit, id apud omnes populos peraeque cus- Ex hoc iure gentium omnes paene contractus. 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.3 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 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. 2 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.", 11 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, 8q. * CL. §§ 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. : 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.3 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; . . . which is also called ius honorarium. |