Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.99
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What was the exact point of contact between the old Jus Gentium and the Law of Nature? I think that they touch and blend through AEquitas, or Equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, Equity In examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. It has generally been supposed that AEquitas is the equivalent of the Greek [Greek Words], i. e. the principle of equal or proportionate distribution. The equal division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice; there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with such difficulty by the deepest thinkers. Yet in tracing the history of this association, it certainly does not seem to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy It is remarkable too that the "equality" of laws on which the Greek democracies prided themselves --that equality which, in the beautiful drinking song of Callistratus, Harmodius and Aristogiton are said to have given to Athens-had little in common with the "equity" of the Romans. The first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the applicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. The first excluded a despot. the last included foreigners, and for some purposes slaves. On the whole, I should be disposed to look in another direction for the germ of the Roman "Equity." The Latin word "aequus" carries with it more distinctly than the Greek "[Greek Words]" the sense of leveling. Now its leveling tendency was exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pure Quiritarian law recognized a multitude of arbitrary distinctions between classes of men and kinds of property; the Jus Gentium, generalized from a comparison of various customs, neglected the Quiritarian divisions. The old Roman law established, for example, a fundamental difference between "Agnatic" and "Cognatic" relationship, that is, between the Family considered as based upon common subjection to patriarchal authority and the Family considered (in conformity with modern ideas) as united through the mere fact of a common descent. This distinction disappears in the "law common to all nations," as also does the difference between the archaic forms of property, Things "Mancipi" and Things "nec Mancipi." The neglect of demarcations and boundaries seems to me, therefore, the feature of the Jus Gentium which was depicted in AEquitas. I imagine that the word was at first a mere description of that constant leveling or removal of irregularities which went on wherever the raetorian system was applied to the cases of foreign litigants. Probably no color of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive Roman mind.