Ius gentium

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As Ius Gentium , Latin for "right of nations" in were Roman law the provisions referred that dealing with foreign or strangers, the peregrini regulated. This definition, which can be traced back to Hugo Grotius , was originally based on a more general meaning, that of "law that was the same for all peoples."

Demarcation

In contrast, there was the ius civile . As domestic law , it applied to members of the empire , i.e. persons who held Roman citizenship . The ius civile can thus be understood as a “civil order” that has increasingly been regulated by leges since the republic . Next to it was the customary law that was linked to the mos maiorum from time immemorial . The ius gentium, on the other hand, was shaped exclusively by customary and editorial law . If regulations and institutions document the general practices of the Mediterranean area, they could be recorded as ius gentium , for example the slave regulations . The abstract pair of terms ius civile / ius gentium is traced back to Cicero ; the legal categories were not based on a legally systematic development.

A delimitation of the ius gentium from the natural law referred to as ius naturale is possible via the views of the church teacher Aurelius Augustine and the written testimonies of the Roman legal scholar Ulpian . According to Augustine, the ius gentium should be understood as the right of all rational beings. These rational beings can come to this right through the right use of their reason. According to Ulpian, natural law belongs not only to the human race, but to all living beings. This includes marriage and family , as the connection between man and woman and raising children are equally typical processes in the animal kingdom.

The standardization of the ius gentium was also based on practical and factual reasons: foreigners and foreigners who did not speak the Latin language, or only inadequately, were often overwhelmed by the strictness of the Roman formalities of the usual legal transactions (obligations) and the implementation of the resulting claims in the process . Something different only applied to contracts that could be concluded informally, namely the consensual and real contract types . However, there were restrictions, because strangers could only conclude such contracts if the legal relationships concerned property rights between living people. Verbal or litteral contracts were “strictly formal” and were not used with strangers. In intercourse with them they were replaced by faithful principles ( bona fides ). Again something else applied to the matters of inheritance and property law; these areas of law were regulated exclusively for Roman citizens. Strangers could not acquire property by manipulation or in iure cessio . The Romans originally referred to ius civile intersecting from ius gentium as ius quiritium .

Loss of meaning

The juxtaposition of the legal strata of ius civile, ius honorarium and ius gentium was practically overcome at the end of the third century by Diocletian law . It has been abolished since Justinian . Senate consuls increasingly gained the upper hand . These differentiate less and less according to criteria of civil or alien law. The emerging imperial constitutions also lost their importance in the late phase of late antiquity .

Current usage

In current legal usage, the term ius gentium stands for those principles and norms in private and public law that are common to the legal systems of all peoples and were therefore already referred to by Cicero and the lawyers who followed him as the “right of all people” or international law . Due to its linguistic meaning , the term ius gentium is also used as a synonym for international law , even if this primarily regulates international relations. In contrast, ius civile is nowadays referred to as the civil law of a certain country, which mainly exists as a codified positive law in the form of national laws .

literature

  • Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 24, 26, 30, 48.
  • Heinrich Honsell : Römisches Recht, 5th edition, Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 20.
  • Max Kaser : Roman private law . 2nd edition, CH Beck, Munich / Würzburg 1971, ISBN 3-406-01406-2 , § 50, pp. 202-205.
  • Max Kaser: Ius gentium , Böhlau Cologne, Weimar, Vienna 1993, ISBN 3-412-05893-9 .
  • Hans Josef Wieling : The justification of slave status according to ius gentium and ius civile , in: Corpus of Roman legal sources for ancient slavery (CRRS) , ed. by Johannes Michael Rainer, Tiziana Chiusi, Steiner Stuttgart 1999, ISBN 3-515-07488-0 .
  • Fritz Sturm : Ius gentium. Imperialist whitewash of Roman jurists , in: Römische Jurisprudenz - Dogmatics, Tradition, Reception. Festschrift for Detlef Liebs on his 75th birthday, ed. by Karlheinz Muscheler , Duncker & Humblot, Berlin (=  Freiburger Rechtsgeschichtliche Abhandlungen. New series , volume 63), pp. 663–669.

See also

Individual evidence

  1. ↑ a b Compare Uwe Wesel : History of Law. From the early forms to the present . 3rd, revised and expanded edition, Beck, Munich 2006, ISBN 3-406-47543-4 , p. 202.
  2. ↑ So already in the research of the 19th and early 20th century with Moritz Voigt : The doctrine of jus naturale, aequum et bonum and ius gentium of the Romans (1856), volume 2, pp. 62 ff. And 69 ff .; Ludwig Mitteis: Imperial law and popular law in the eastern provinces of the Roman Empire . Leipzig 1891, reprint Hildesheim 1963, p. 116 f .; Moriz Wlassak : Roman Process Laws, Volume 2, Leipzig 1889-1891, pp. 93-182.
  3. ↑ Florentinus in Digest 1,5,4,1.
  4. ^ Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , p. 48.
  5. ↑ Max Kaser : Roman legal sources and applied legal method. In: Research on Roman Law. Volume 36.Böhlau Verlag, Vienna / Cologne / Graz 1986, ISBN 3-205-05001-0 , p. 90 f.
  6. ↑ Ulpian in Digest 1.1.1.2: Ulpian refers here to the fact that private law consists of three parts, the ius naturale , the ius gentium and the ius civile .
  7. ↑ The old ius civile was almost exclusively shaped by the formal business, which the late classics Papinian referred to as Actusgendimi (cf. insofar: D. 50,16,77) and Ulpian as Negotia civilia .
  8. ↑ a b c Ludwig Mitteis : Roman private law up to the time of Diocletian. 1: Basic concepts and doctrine of legal persons . Leipzig 1908 (Scientia Verlag, Aalen 1994), § 4 ( Jus civile and Jus gentium ), pp. 62-72.
  9. ^ Herbert Hausmaninger, Walter Selb: Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher), ISBN 3-205-07171-9 , p. 48.
  10. ^ Fritz Sturm : Ius gentium. Imperialist whitewash of Roman jurists , in: Römische Jurisprudenz - Dogmatics, Tradition, Reception. Festschrift for Detlef Liebs on his 75th birthday, ed. by Karlheinz Muscheler , Duncker & Humblot, Berlin (=  Freiburger Rechtsgeschichtliche Abhandlungen. New series , vol. 63), pp. 663–669.
  11. ↑ Ludwig Mitteis: Imperial Law and People's Law in the Eastern Provinces of the Roman Empire . Leipzig 1891, reprint Hildesheim 1963, p. 120.