Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

JUS. JUS. C,57
Tlhis opposition is sometimes expressed by the whom it exists: the evidence of it is usage, rewords Jus and Fas (Fas et jsran sinunt, Virg. peated and continued use: it is law when recogGceog. i. 269); and the law of things not pertain- nized by a competent authority. There is a pas.
ing to religion and of things pertaining to it, are sage of Ulpian (Dig. 1. tit. 3. s. 34) in which he
also respectively opposed to one another by the distinctly speaks of confirming a consuetudo in a
terms Res Juris Humani et Divini. (Instit. 2. judicium, which can have no other meaning than
tit. 1.) [DoeINIrUMs.] Thus the Pontifices Max- that its force as law depended on a decision in a
imi, P. Crassus, and T. Coruncanius, are said to judicium. And the meaning is clear, whether we
have given Responsa de omnibus divinis et hu- read contradicto or contradicts in the passage just
nianis rebus. (Cic. dc Orat. iii. 33.) referred to.
The Law of Religion, or the Jus Pontificium, The Roman writers indeed frequently refer to a
was under the control of the Pontifices, who in fact large part of their law as founded on Mores or on
originally had the control of the whole mass of the the Mos M[ajorum and not on Leges. (Quintil. Instit.
law, and it was only after the separation of the Jus Orat. v. 10.) Thus Ulpian (Dig. 1. tit. 6. s. 8)
Civile in its wider sense into the two parts of the says that the Jus Patriae Potestatis is moribus
Jus Civile, in its narrower sense, and the Jus Ponti- receptum. But onos contained matters relating to
ficium, that each part had its proper and peculiar religion as well as to the ordinary affairs of life;
limits. But after this separation was fully made and therefore we may also view Mos and Lex, when
the Auctoritas Pontificum had the same operation opposed, as component parts of the Jus Civile in
and effect with respect to the Law of Religion that its wider sense, but not as making up the whole of
the Auctoritas Prudentium had on the Jus Civile. it. Mores in the sense of immorality, that which
(Cic. de Leg. ii. 19, 20.) Still even after the sepa- positive morality disapproves of, must not be conration there was a mutual relation between these founded with jus founded on mores: the former is
two branches of law; for instance, an Adrogatio mali mores in respect of which there was often a
was not valid by the Jus Civile unless it was jus moribus constitutum. Thus in the matter of
valid by the Jus Pontificium. (Cic. de Orat. iii. the dos there was a retentio in respect of the mores
33, Brut. 42; ADOPTIO.) Again, Jus Pontifi- graviores or majores, which was adultery. (Ulp.
cium, in its wider sense, as the law of religion, had Frag. tit. 6.)
its subdivisions, as into Jus Augurum, Pontificum, The terms Jus: Scriptum and Non Scriptum, as ex&c. (Cic. de Se2ect. 11.) plained in the Institutes (i. tit. 2), comprehended
" Law," says Gaius (i. 2), meaning the Roman the whole of the Jus Civile; for it was all
civil law (jura), "is composed of leges, plebiscita, either Scriptum or Non Scriptum, whatever other
senatus-consulta, constitutiones Principum, the divisions there might be. (Ulp. Dig. 1. tit. 1. s. 6.)
Idicta of those who have the.lus Edicendi, and Jus Scriptum comprehended every thing except that
the Responsa Prudentium." This is a division of " quod usus approbavit." This division of Jus
law merely according to its formal origin. The Scriptum and Non Scriptlum does not appear
divisions enumerated by Cicero (Top. 5) are " leges in Gaius. It was borrowed from the Greek writers,
(which include plebiscita), senatus-consulta, res and seems to have little or no practical application
judicatae, jurisperitorum anctoritas, edicta magis. among the Romans. The sense in which Written
tratulum, mos, aeqmlitas." A consideration of the and Unwritten law has been used by English writers
different epochs at which these writers lived, will is hardly the same as the Roman sense. Hale
account for part of the discrepancy; but the addi- says (Hist. of the Cbmmon Law, p. 2), " Those laws
tioi of Mos in Cicero's enumeration is important. that I call leges scriptae (he should have used the
Jus Civile is opposed to the Jus Praetorium or expression jus script2?n, though Cicero uses the
Honorarium [EDICTUM]; and the opposition expression Lex Scripta) are such as are originally
consists in the opposition of the means or form by reduced into writing before they are enacted."
which the two severally obtained an existence; Hale applies his definition only to statutes or acts of
whereas the opposition of Jus Civile and Gentium parliament; but it is equally applicable to any rules
is founded on the internal character of the two which are promulgated in writing and have the
kinds, and the extent of their application. force of law or of a law, by virtue of authority
Lex and Mos are sometimes opposed to one an- delegated to those who make such rules.
other, as parts component of the Jus Civile, but Jus was also divided into pablicum and Privadifferent in their origin. Horace (Carse. iv. 5) tum by the Roman jurists (Dig. 1. tit. 1. s. 1.)
speaks of" Mos et Lex:" Juvenal (viii. 50) opposes Publicum Jus is defined to be that which relates
"Juris nodes et legum aenigmata:" Jus Civile to the Status Rei Romolae, or to the Romans as a
is opposed to Leges (Cic. de Orat. i. 43), to Lex State; Privatum Jlls is defined to be that which
(de Of: iii. 17), and to Senatus-consultum (Gaius, relates "ad singulorum utilitatem." The Publi.
ii. 197). As then opposed to Leges, Jus Civile cum Jus is furthersaid byUlpian (Dig. l.tit. 1. s. 1)
appears to be equivalent to Mos. In fact the op- "in sacris, in.cerdotibus, in magistratibus conposition between Lex and Mos follows the analogy sistere." According to this view, it comprehends
of that between jus scriptum and non scriptum. the. Law of Religion and all the rest of the Jus
"Wbhen there are no scriptae leges we must follow Civile, which is not Privatum: and the matter
that which has been introduced by mores and con- which is comprehended in Jts Privatum is that
suetudo. - Immemorial (inveterata) consuetudo is which is contained in the Institutes of Gaius and
properly observed as a lex (pro lege), and this is Justinian. The elementary treatise of Gaius does
the jus which is said to be' moribus constitutum.' " not mention this division, and it is limited to the
(Julian, Dig. 1. tit. 3. s. 32.) Thus immemorial Jus Privatum. Justinian, in his Institutes, after
usage was the foundation of the " jus Moribus making this division of Jus into Publicum and
constitutum." (See the article INsFAeIA as to the Privatum, says, "we must therefore treat of Jus
origin of Infamia.) The ultimate origin of custom Privatum," from which it appears that he did not
is the common consciousness of the people among contemplate treating of Jus Publicum, though the
U U