logo

The Ius Gentium of the Roman Law

By: Anavitarte, E. J.*

The ius gentium or "law of nations", is the body of legal institutions that the Romans considered common to all human societies, and therefore applicable to any free person.

This legal body was opposed to the ius civile (-is), which was exclusive to Roman society, so during the preclassic period it would only apply to foreigners from the city of Rome, although during the classic period these divisions became more flexible, and could be applied to any free person. Its isolated nature of the ius civile meant that its main source was the ius honorarium praetorio.

The Romans─who understood the unusual nature of their law─considered as part of the ius gentium the norms applicable in all civilized societies, such as barter or sale, as opposed to those exclusive to apply to the Roman people.

Definition of Ius Gentium

The ius gentium has two characteristics through which it can be defined, both of which share the same legal connotation, but with a different focus depending on the context: (a) first, as part of the Roman judicial criteria, it was the applicable law to any person, as opposed to those that were only applicable to citizens.

Ius Gentium: law applicable to any free man, whether Roman or foreign, and ruled by equity.

[1]

And on the other hand (b) from a perspective, not judicial but legal, it constituted the right that the Romans considered present in any society, that is, the regulations that they had not created by themselves, such as marriage, property, trading, or slavery.

Quae quidem potestas iuris gentium est: Nam apud omnes peraeque gentes animadvertere [...]

(Whoever wants to know the meaning of the law of nations, should look at what is applied in all towns)

Gaius [2]
(Translation from the author*)

Thus, the ius gentium constituted for the Romans, all the universal legal manifestations, both of subjective law and of objective law.

[1]: Ius gentium | Glossary of Roman Law.

[2]: Gaius | Institutions: Lib. 1, Para. 48.

Characteristics of the Ius Gentium

The ius gentium has three main characteristics that differentiate it from the ius civile, as one of the main bodies of law that the Romans had: (a) first, that its scope of action was universal, that is, that it did not distinguish between persons which could be applied.

  • Universal
  • Irregular
  • Customary

Hence, it has been par excellence the law applicable to foreigners, pilgrims, latinii, socii or federatii in Roman territory. Although strictly speaking it was applicable to any human being who was free, and in any society; hence the name "law of nations".

Second (b) This law did not have a defined and uniform regulation, as if it had the civil law─ius civile─and was limited to the specific cases in which it should be applied, and to the opinion that the praetor had of what is fair or not.

That is to say, it was irregular and extremely variable, but this helped to lay the foundations for a large ius honorarium. [¶]

And (c) it was customary, although it was not exactly like the custom of the mores maiorum, but more given to the unnamed relationships that exist between peoples, such as the sale, concubinage, or legitimate defense, which are not so much custom legal, but if they are governed by the social consensus of what is due.

The ius gentium broadly describes everything that was not part of the ius civile, but was still considered law created by human beings, as opposed to divine law (fas). At first this concept was synonymous with ius naturalis, as both were considered: behaviors inherent to man, however it would end up having a more "foreign" connotation than human.

Thus, the ius gentium represented the legal figures that the Romans recognized from other nations (Gaius). And during the post-classical period, it would be an integral part of Roman law, even replacing many legal figures arising from the ius civilis, as in the case of mutuum.

Its main function was to create a legal bridge between Romans and foreigners, which would allow: (a) to create enforceable obligations, but (b) at a differentiated level, and with the military expansion of the empire, it regulated many local affairs in the provinces. Already in the decline of the empire it would become similar to the concept of ius commune, due to the rise of non-Roman peoples who existed in foederatus (pseudo-vassalage) relationships.

Ius Gentium and Ius Civile

At the procedural level, the main existing division in Roman law would be that of ius gentium and ius civile, that is, that of those rights that could be applied to Roman citizens─ius civile─or those that applied to foreigners─jus gentium.

This difference was very relevant, especially during pre-classical law, between the 5th century BC. C. to I d. C., when Rome consolidated its political power along the Mediterranean, and therefore, there was still a difference between the Romans and other peoples, such as Greeks, Carthaginians, Egyptians, Iberians or Gauls.

But after the Punic Wars─conquest of Carthage─the Illyrian and Macedonian Wars─conquest of Greece─the annexation of Egypt after the Roman Civil War, and the military expansion towards the Iberian Peninsula and Gaul, it became less and less necessary to distinguish between Romans and foreigners.

Especially after the Antoninian Constitution (212 AD), which granted Roman citizenship to all the inhabitants of the territory.

Ius Gentium and Ius Naturale

The relationship between the ius gentium and the ius naturale is usually ambiguous, since in both cases one speaks of own rights that pre-exist the positive legal system, and that we could call as a whole 'of natural law', this being the main characteristic that they share.

And even, there is no practical judicial use of the ius naturale, so many figures that could seem from the ius naturale such as the ius postliminii are part of the ius gentium ; the ius naturale being a distinction made by the Roman jurisconsults.

That said, it could be said that the ius naturale are all behaviors that are subject to legal regulation, which obey the animal instincts that any human possesses, such as killing to defend themselves, fleeing from captivity, or generating affective bonds; while the ius gentium corresponds to the right that is created among any group of human beings, not by instinct, but by social reality.

Ius Gentium and Ius Honorarium

The ius gentium and the ius honorarium correspond to two different aspects of the law, thus, while the ius gentium of the subject on which the norms are applied, the ius honorarium corresponds to the subject that creates the norms.

But it must be studied within the framework of a common historical phenomenon─hence its importance─which occurred during pre-classical law, in which multiple new and non-existent legal figures emerged in archaic Roman law, as a result of the enormous influence of the other peoples of Mediterranean Europe, called Hellenization of Roman law.

Thus, for example, the sale or the stipulations, which were previously replaced by the mancipatio or the sponsio, would end up gaining greater legal relevance, to the point that many of them became common at the end of the Lower Empire.

This was mainly due to two phenomena: (a) the law of the twelve tables on the one hand; and (b) the work of the pilgrim praetor on the other, who, through the ius honorarium, would introduce these new figures that were part of the ius gentium.

History of the Ius Gentium

Its evolution can be grouped into three moments: (a) first as an exclusive right for non-Romans, then (b) as a supplementary right to the right of Roman citizens, and finally (c) as a right of the dominated peoples for the empire.

The increase in foreigners in Rome, and the impossibility of maintaining a census of citizens as population density increased, led to the evolution of this situation.

His status as a foreigner would make the Romans not consider the rights emanating from the elections as ius gentium, so it would always remain a praetorian, casuistic and jurisprudential right. But unlike mere social customs (mores maiorum) this would be written.

Roman Law

Table of Contents

  1. Definition
  2. Characteristics
  3. Scope
    1. Civil law
    2. Natural law
    3. Ius honorarium
  4. History

This post is an official translation from the original work made by the author, we hope you liked it. If you have any question in which we can help you, or a subject that you want we research over and post it on our website, please write to us and we will respond as soon as possible.

When you are using this content for your articles, essays and bibliographies, remember to cite it as follows:

Anavitarte, E. J. (2017, November). The Ius Gentium of the Roman Law. Academia Lab. https://academia-lab.com/2017/11/27/the-ius-gentium-of-the-roman-law/