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ROMAN LAW_ SOURCES OF LAW (1)
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ROMAN LAW_ SOURCES OF LAW (1)
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ROMAN LAW: SOURCES OF LAWJ 1.1.2
Justinian decides to give a brief and simple outline of Roman law in order to not overwhelm law
students
J 1.1.3
Everyone is entiteled to what they are due - that is justice. - ANS-WHY DOES JUSTINIAN
CREATE HIS INSTITUTE AS A SOURCE OF LAW?
Solely Justinian brings out the public and private law categories.
According to Justinian law can be divided into public and private law.
Private law can be split into natural law, law of nations and civil law.
Public Law - consists of constitutional law, criminal law and administrative law - ANS-PUBLIC
AND PRIVATE LAW
LAW OF NATURE - law common to all animals not exclusive to humanity e.g. union of male and
female - marriage
CIVIL LAW - what the state applies to its own members, takes its name from the state is derives
from e.g. Roman Civil Law for Rome/ Quirites Law
LAW OF NATIONS - laws observed by all people irrespective of which state you belong to
where nations have agreed upon certain things e.g. sales, loans, hiring,
Law is partly written and unwritten - consists of statutes, plebiscites, enactments of Emperors
and edicts of magistrates - ANS-PRIVATE LAW DIVISIONS ACCORDING TO JUSTINIAN
G1.1, J 1.2.1
Both Justinian and Gaius discuss the twofold division of law - ius gentium and ius naturale -
ANS-TWO FOLD DIVISION
J 1.2.pr
Justinian also mentions a threefold division, commenting also on natural law. Which he
describes. He also suggests private law derives from these sources.
Man made law is unique to one state and is only legitimised in the jurisdiction of that state
whereas natural law is universal. Philosophical genesis it comes from the 'principle of order'. -
ANS-THREEFOLD DIVISION
It is confusing as he starts with a three-fold division yet adopts Gaius principles which are in the
framework of a twofold division.
For Gaius ius gentium and ius naturale are the same. Nature has instilled law into all nations.
, HOWEVER SLAVERY - ANS-WHAT IS A LIMITATION OF JUSTINIAN USING THE
THREEFOLD DIVISION?
One example in which jurists drew a distinction was examining slavery. The law of nature
dictates that all men be free, but the law of nations permitted slavery to be practised (all
nations).
Another distinction that could be made is that natural law is what ought to be obsered by
mankind and law of nations is what is observed by mankind.
However natural law as a description was used very ornamentally - see again slavery. -
ANS-IUS NATURALE V IUS GENTIUM
Nature of a thing is its character, jurists sought to derive rules from this e.g. occupatio of wild
animals.
Furthermore, methods of acquiring ownership are natural as they inevitably follow on from the
facts. - ANS-WHY IS IUS NATURALE STILL IMPORTANT FOR THE CLASSIFICATION OF
LAW?
G 1.1
Gaius saw natural law as synonymous with the law of nations. Law of nations derived from
natural law and was a universal application of natural law. - ANS-HOW DOES GAIUS TREAT
NATURAL LAW?
It is a body of law that emerged to deal with cases/ circumstances between citizens and
peregrines.
It therefore gave the Peregrine Praetor greater influence.
Allowing for greater commerce and relations between foreigners as the law also accounts for
their needs despite not being a citizen. - ANS-WHY IS IUS GENTIUM IMPORTANT AS A BODY
OF LAW?
LEGES (Statutes)
PLEBISCITES (Ordiances of the Plebeians)
SENATUCONSULTA (Senate Decrees)
CONSTITUTIONES PRINCIPIS (Emperor's Decrees)
EDICTA
JURISTIC INTERPRETATION - ANS-WHAT ARE THE DIFFERENT SOURCES OF LAW?
J 1.2.3
Justinian makes reference to written law citing examples of statutes, ordiances, edicts and
decrees, as well as answers of the learned which he refers to jurisitc interpretation. -
ANS-WRITTEN LAW
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