the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[1]
The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the jus gentium, or the law inculcated among all peoples by natural reason or common needs.
The supposed origin of the jus gentium was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome's jus civile. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the jus civile. So this edict became the chief source of the jus gentium so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the jus gentium came to be regarded as consisting of universal rules of law which all peoples might naturally follow.
- ↑ The jurisconsults whose opinions were authoritative flourished in the second and third centuries. The great five were Gaius, Julian, Papinian, Ulpian, Paulus. Inasmuch as these jurisconsults of the Empire were members of the Imperial (or, later, Praetorian) Auditory, they were judges in a court of last resort, and their "responsa" were decisions of actual cases. They subsequently "digested" them in their books. See Munroe Smith, "Problems of Roman Legal History," Columbia Law Review, 1904, p. 538.
