The most difficult problem of Roman law was to adjust itself as an intelligent master to the varied codes and customs of the lands that Roman arms or diplomacy had won. Many of these states were older than Rome; what they had lost in military courage they made up in proud traditions and a jealous fondness for their peculiar ways. Rome met the situation ably. A praetor peregrinus was appointed at first for the foreigners in Rome, then for Italy, then for the provinces; and power was given him to make some viable union between Roman and local law. The annual edicts of this praetor and the provincial governors and aediles gradually created the ius gentium by which the Empire was ruled.
This “Law of the Nations” was not an international law—not a body of commitments accepted by the generality of states as governing their interrelations. In a sense not much more tenuous than today there was in antiquity an international law, insofar as certain common customs were honored in peace and war—the mutual safeguarding of international merchants and diplomats, the granting of truce for the burial of the dead, abstention from the use of poisoned arrows, etc. The jurists of Rome, by a patriotic fiction, described the ius gentium as law common to all nations. But they were too modest about Rome’s part in it. Actually it was local law adapted to Roman sovereignty, and designed to govern the peoples of Italy and the provinces without giving them Roman citizenship and the other rights of the ius civile.
By a corresponding fiction the philosophers attempted to identify the Law of the Nations with the “Law of Nature.” The Stoics defined the latter as a moral code implanted in man by “natural reason.” Nature, they held, was a system of reason, a logic and order in all things; this order, spontaneously developing in society, and coming to consciousness in man, was natural law. Cicero phrased the fancy in a famous passage:
True law is right reason in agreement with nature, world-wide in scope, unchanging, everlasting. . . . We may not oppose or alter that law, we cannot abolish it, we cannot be freed from its obligations by any legislature, and we need not look outside ourselves for an expounder of it. This law does not differ for Rome and for Athens, for the present and for the future; … it is and will be valid for all nations and all times. … He who disobeys it denies himself and his own nature.47
It was a perfect statement of an ideal that grew in force as Stoicism reached the throne in the Antonines. Ulpian developed it into the far-reaching principle that class distinctions and privileges are accidental and artificial; and from this it was but a step to the Christian conception of all men as fundamentally equal. But when Gaius defined the ius gentium as simply “the law which natural reason has established among all mankind,”48 he was mistaking Roman arms for Divine Providence. Roman law was the logic and economy of force; the great codes of ius civile and ius gentium were the rules by which a wise conqueror gave order, regularity, and time’s sanctity to a sovereignty based upon the legions’ strength. They were natural, but only in the sense that it is natural for the strong to use and abuse the weak.
Nevertheless, there is something noble in this imposing architecture of government called Roman law. Since the victor must rule, it is a boon that the rules of his mastery should be clearly expressed; in this sense law is the consistency of power. It was natural that the Romans should create the greatest system of law in history: they loved order and had the means to enforce it; upon the chaos of a hundred diverse nations they laid an imperfect but sublime authority and peace. Other states had had laws, and legislators like Hammurabi and Solon had issued small bodies of humane legislation; but no people had yet achieved that immense co-ordination, unification, and codification which occupied the highest legal minds of Rome from the Scaevolas to Justinian.
The flexibility of the ius gentium facilitated the transmission of Roman law to medieval and modern states. It was a happy accident that while the chaos of barbarian invasion was mutilating the legal heritage in the West, the Code, Digest, and Institutes of Justinian were collected and formulated in Constantinople, in the comparative security and continuity of the Empire in the East. Through those labors, and a hundred lesser channels, and the silent tenacity of useful ways, Roman law entered into the canon law of the medieval Church, inspired the thinkers of the Renaissance, and became the basic law of Italy, Spain, France, Germany, Hungary, Bohemia, Poland, even—within the British Empire—of Scotland, Quebec, Ceylon, and South Africa. English law itself, the only legal edifice of comparable scope, took its rules of equity, admiralty, guardianship, and bequests from Roman canon law. Greek science and philosophy, Judeo-Greek Christianity, Greco-Roman democracy, Roman law—these are our supreme inheritance from the ancient world.
I This chapter will be of no use to lawyers, and of no interest to others.
II Cf. French droit and loi, German Recht and Gesetz.
III The mortgagor was in law bound (nexus) to the mortgagee; but the obscure term nexum was apparently applied to any solemnly sworn obligation.