from philosophy into Roman juristic speculation.

eat of the Roman Jurists were of Stoic tendencies.

The great

They

gave the characteristic doctrines of the Stoic philosophy a juristic application as well as a clearness and precision which had been wholly lacking in the days of Cicero.

ero.20 And

so the universal law of the philosophers became the speculative jus naturale of the Roman jurists, a body of ideal principles supposed to he characterized by universal applicability to all men, among all peoples, and in all ages, and by their correspondence with an innate conviction of right.21 This transition from Stoic philosophy to juristic

speculation was made easier by the existence at Rome of the

Jus gentium, an important body of case law which had been growing up in the praetorian edict, for more than two centuries before the Christian era. Originally the jus gentium had been the practical outcome of the necessity that pressed

20 See Laferriére, L'influence da stoicisme sur la coctrine des juris consultes romains, In Mémoires de l'académie des sciences moral et politiques (1860), Vol. X, pp. 579-685.

21 Voigt, Das jus naturale, Vol. 7, sec. 59.

22 On the jus gentium, see Bryce, Studies, pp. 570-575; Clark, Practical Jurisprudence, pp. 350-363; Cuq, Institutions juridiques Ces Fomains, Vol. I, pp. 487-491; Karlowa, Römische Rechtsgeschichte, Vol. I, rp. 451-458; Mitteis, Romisches Privatrecht, pp. 62-72; Moyle, Institutos, pp. 2643; Muirheag, Law of Rome, pp. 225 ff.; Nettleship, in Journal of Philogy (1885), Vol. XII, pp. 169-181; Phillipson, Int. Law and Custom, Vol. I, chap. 3; Poste, Gai Institutiones PP. 1-4; Sohm, Institutes, pp. 64 ff.; Voigt, Das jas naturale, Vol. I, secs. 13-15, 79-88, 98, and passim; Westlake, Collected Papers, pp. 18-21.

upon the Romans to provide rules of law for the settlement of dispates between Roman citizens and aliens and between aliens and aliens. Some of its principles were influenced by usages prevailing among other peoples, particularly among the Greeks, but for the most part it was pure Roman law mitigated by the praetor's idea of what was equitable and just. Long before the notion of natural law was borrowed from the philosophers the jus gentium had attained a high stage of development, and had commenced to influence the old law of Rome and the administration of Roman courts in the provinces.

While the eaict of the alien praetor made its liberal principles law for aliens, its precepts were gradually transferred to regulate the mutual intercourse of citizens by means of the city praetor's edict and the writings of the jurists. Because of its equitable character, compared with the stricter rules of the jus civile, the jus gentium came to be regarded as a kind of universal law for all mankind, a law established by natural reason among all men. Thus according to Gaius:

The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are obserged by all nations alike, and are called jus gentium.

of.

23 Galus, Institutes I,1 (Poste's transl.) Justinian's Institutes itutes, 1,2,2,; Digest, 1,1,1,4; I,1,5; I,1,9.

This did not alter the character of the jus gentium as a part It was simply

of the positive and private law of Rome.

assumed that because of its inherent reasonableness it must be in accord in its fundamental conceptions with the positive and private law of other peoples.

It was easy for jurists, in the course of this progressive liberalization of the Roman Law, to see a relationship between the working system with which they were familiar and 24 the theoretical law of nature of the philosophers. What could be more natural than that the latter should furnish the ideal foundation for the former. The substance of the jus gentium, when actually applied in practice, was thought to harmonize in greater part with the precepts of natural justice. It is easy to see how its theory would tend to coalesce with that of the jus naturale, once the latter had found it way from Greek philosophy into the minus of Roman lawyers. The jus naturale came to represent the ideal, what ought to be established; the jus gentium represented the real, what was universally established. The principles of the

24 On the relation between jus naturale and jus gentium, see Bryce, Studies, pp. 575-586; Carlyle, ed. Pol. Theory, Vol. I, pp. 36-54, 71-77; Danning, Political Theory, Ancient and Mediaeval, pp. 126-129; Nettleship, in Journal of Philogy (1885), Vol. XIII, pp. 179-101; Phillipson, Int. Law and Castor, Vol. I, chap. 3: Pollock, in J.S.C.L. (1900) N.S., Vol. II, p. 420; Ritchie, Natural Rights, p. 36; Voigt, Das jus naturale, Vol. I, secs. 42, 89-96, and passim; Walker, History, p. 15, and passim.