II
Cicero quoted as a saying familiar in his time, Sum-
mum jus summa injuria. Through oversubtle and even
fraudulent construction of law, he said, much wrong
was committed (De officiis I. X. 33). Indeed, in De
legibus, Cicero goes so far as to say that it is only “the
crowd's definition of law” which identifies law with
written decrees in which the people issue commands
and prohibitions as they please (I. vi. 19). Law for
Cicero is the voice of reason and of nature; action
according to virtue is action according to the law; an
enactment which commands an injustice is not truly
a law. The most foolish notion of all, he says, is the
belief that everything in the customs or laws of nations
is just. “For Justice is one; it binds all human society,
and is based on one Law, which is right reason applied
to command and prohibition. Whoever knows not this
Law, whether it has been recorded in writing anywhere
or not, is without Justice” (De legibus I. xv. 42).
Cicero obviously was influenced by the teachings of
Plato and the Stoics, in which the dichotomy between
written and unwritten law stands out prominently.
Institutionally, however, Roman law seems to have had
a development which did not lean on Greek prece-
dents. The praetor, Roman chief magistrate, readily
developed aequitas as the jus honorarium. Since his
power was supreme, the praetor found no obstacle in
his way. Without annulling the jus civile the praetor
introduced principles which allowed equitable
defences or remedies. Praetorian law took a specially
productive turn in the form of equity when, in the
third century B.C., a praetor peregrinus was named to
exercise jurisdiction in cases involving foreigners, who
were attracted by Rome's commercial activity. The
praetor peregrinus introduced principles and rules more
liberal than those found in the jus civile. The equitable
principles which the praetor peregrinus substituted for
the
rigor juris influenced the
praetor urbanus to make
available to Roman citizens principles which could not
be the exclusive privilege of foreigners. The principles
were those which, the praetors believed, were the bases
on which the law could be built—and in this respect
their action was influenced by Greek philosophical
ideas. For the leading jurisconsults were closely associ-
ated with Greek philosophy, especially with Stoicism,
and it was they who came to see in the
jus gentium,
the law common to nations, an expression of the Stoic
law of nature; and it was precisely through equity that
the
jus gentium and the law of nature touched and
blended. It was, Sir Henry Maine observed, the
level-
ling tendency of the
jus gentium that became the
characteristic of the praetorian system of equity
(Maine, Ch. III). Principles such as
aequitas, aequum
et bonum, and
bona fides became prominent in Roman
jurisprudence (Allen, pp. 377, 381). There were, of
course, those who objected to this development; e.g.,
Quintilian, in the first century A.D., argued that if the
court “is always to be spending its time turning statutes
inside out to discover what is just and what is equitable
... well, then there might as well be no statutes at
all.” In A.D. 125, Hadrian, to end the powers of the
praetor, asked Julian to edit the praetorian edicts and
put them in final form, and when this was accom-
plished, further alterations were prohibited.
