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Ius

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Ius/Jus (Latin "law", "justice", "right") in ancient Roman law, has two principal meanings (cf Fench "droit," German "recht," English "right"), plus several minor meanings:

1. "Law" in the abstract.
A) ... as distinguished from any specific enactment, the domain of learning, or any personified factor in human history/conduct/social development. Often contrasted with lex or leges, which are the laws. Ius is the law in its broadest sense or its ideal state, above and unaffected by the contingent decrees that the state happens to enact, the leges -- hence the distinction between the English terms “justice” and “legislation.” This division persisted into various regimes not only of civil law regime, and even in the law of the United States, as in the Fourteenth Amendment of the United States Constitution, which distinguishes “due process of law” (singular, as in ius) from “equal protection of the laws” (plural, as in leges).
B) ... the law taken as a system, an aggregate, a whole -- "the sum total of a number of individual laws taken together."
C) ... some one particular system or body of particular laws ; as in the phrases "jus civile," "jus gentium," "jus prœtorium."
2. "A right."
A) a power, privilege, faculty, or demand inherent in one person and incident upon another
B) a capacity residing in one person of controlling, with the assent and assistance of the state, the actions of another -- as in the expressions "jus in rem," "jus accrescendi," "jus possessionis."
3. An action. Bract, fol. 3. Or, rather, those proceedings in the Roman action which were conducted before the prœtor.
4. Power or authority. Sui juris In one's own power; independent. Inst. 1, 8, pr.; Bract, fol. 3. Alieni juris, under another's power. Inst. 1, 8, pr.
5. The profession (ars) or practice of the law. Jus ponitur pro ipsa arte. Bract fol. 2b.
6. A court or judicial tribunal, (locus in quo redditur jus.) Id. fol. 3.

[edit] "Objective" v. "Subjective" Jus

Contemporary continental jurists of the civil law have sought to avoid this ambiguity by calling its first signification "objective" and the second "subjective." Thus Mackeldey (Rom. Law, § 2) says: "The laws of the first kind [compulsory or positive laws] form law [jus] in its objective sense, [jus est norma agendi - law is a rule of conduct.] [By contrast,] The possibility resulting from law in this sense to do or require another to do is law in its subjective sense, [jus est facultas agendi, law is a license to act.] The voluntary action of man in conformity with the precepts of law is called 'justice,' [justitia.]"

[edit] Compounds

  • ius abutendi: The right to abuse. By this phrase is understood the right to do exactly as one likes with property, or having full dominion over property. 3 Touiller, no. 8C. One of the attributes of dominium, or ownership, usually conceived of as the right or power to consume a thing owned, if capable of being consumed. It may illustrate the sense of dominium corresponding to liberty in the sense of immunity from interference by others under the law, as opposed to a power or right. (112)
  • ius civile: In Roman law, the laws resulting from statutes and decrees governing the citizenry, as elaborated by the commentators of Roman law. According to the distinction employed by Gaius, the ius civile is the law applied only to Roman citizens; foreigners or between Romans and foreigners were governed by the ius gentium.
  • Jus abstinendi - The right of renunciation ; the right of an heir, under the Roman law, to renounce or decline the inheritance, as, for example, where his acceptance, in consequence of the necessity of paying the debts, would make it a burden to him. See Mackeld. Rom. Law, § 733.
  • jus accrescendi - The right of survivorship. The right of the survivor or survivors of two or more joint tenants to the tenancy or estate, upon the death of one or more of the Joint tenants.
  • Jus accrescendi inter mercatores, pro benefio commercii, locum non habet. The right of survivorship has no place between merchants, for the benefit of commerce. Co. Litt. 182(1 ; 2 Story, Eq. Jur. | 1207; Broom, Max. 455. There is no survivorship in cases of partnership, in contrast to joint-tenancy. Story, Partn. § 00.
  • Jus accrescendi praefertur oneribus - The right of survivorship is preferred to incumbrances. Co. Litt. 185o. Hence no dower or courtesy can be claimed out of a joint estate. 1 Steph. Comm. 316.
  • Jus accrescendi praefertur ultima voluntati. The right of survivorship is preferred to the last will. Co. Litt 1856. A devise of one's share of a joint estate, by will, is no severance of the jointure; for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other) is already vested. 2 Bl. Comm. 18(i; 3 Steph. Comm. 316.

Jus ad rem - a term of the civil law, meaning "a right to a thing:" that is, a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.

The disposition of contemporary civil law jurists is to use the term just ad rem as descriptive of a right without possession, and jus in re as descriptive of a right accompanied by possession. Or. in a somewhat wider sense, the former denotes an inchoate or incomplete right to a thing; the latter, a complete and perfect right to a thing. See The Carlos F. Roses, 177 U.S. 655; The Young Mechanic, 30 Fed. Cas. 873.
In canon law. A right to a thing. An inchoate and imperfect right, such as is gained by nomination and institution; as distinguished from jus in re, or complete and full right, such as is acquired by corporal possession. 2 Bl. Comm. 312.
  • Jus Aelianum: A body of laws drawn up by Sextus Aelius, and consisting of three parts, wherein were explained, respectively: (1) The laws of the Twelve Tables; (2) the interpretation of and decisions upon such laws; and (3) the forms of procedure. In date, it was subsequent to the Ius Flavianum.
  • Jus Albinatus: In old French law. The droit d'aubaine in France, whereby the king, at an alien's death, was entitled to all his property, unless he had peculiar exemption. Repealed by the French laws In June, 1791. cf:
  • Albanagium -- in old French law. The state of alienage; of being a foreigner or alien.
  • Albanus -- in old French law. A stranger, alien, or foreigner.
  • Albinatus -- in old French law. The state or condition of an alien or foreigner.
  • Jus anglorum. The laws and customs of the West Saxons, in the time of the Heptarchy, by which the people were for a long time governed, and which were preferred before all others. Wharton.
  • Jus aquaeductus: In the civil law, the name of a servitude which gives to the owner of land the right to bring down water through or from the land of another.
  • Jus Banci. In old English law, the right of bench - the right or privilege of having an elevated and separate seat of judgement, anciently allowed only to the king's judges, who hence were said to administer high justice, (summmam administrant justitiam.) Blount.
  • Jus belli. The law of war - the law of nations as applied to a state of war, defining in particular the rights and duties of the belligerent powers themselves, and of neutral nations.
    The right of war; that which may be done without injustice with regard to an enemy. Grotius de Jure Belli, lib. 1. c. 1. section 3.
  • Jus civile: Civil law. The system of law peculiar to one state or people. Inst 1, 2, 1. Particularly, in Roman law, the civil law of the Roman people, as distinguished from the jus gentium. The term is also applied to the body of law called, emphatically, the "civil law."
The jus civile and the jus gentium are distinguished in this way. All people ruled by statutes and customs use a law partly peculiar to themselves, partly сошшоп to all men. The law each people has settled for itself is peculiar to the state itself, and is called jus civile, as being peculiar to that very state. The law, again, that natural reason has settled among all men—the law that is guarded among all peoples quite alike—is called the jus gentium, and all nations use it as if law. The Roman people, therefore, use a law that is partly peculiar to itself, partly common to all men. Hunter, Rom. Law, 38.\
But this is not the only, or even the general, use of the words. What the Roman jurists had chiefly in view, when they spoke of jus civile, was not local as opposed to cosmopolitan law, but the old law of the city as contrasted with the newer law introduced by the praetor, (jus prœtorium, jus honorarium.) Largely, no doubt, the jus gentium corresponds with the jus honorarium: but the correspondence is not perfect. Id. 39.
  • Jus civile est quod sibi populus oonstituit. The civil law is what a people establishes for itself. Inst. 1, 2, 1; Jackson v. Jackson, 1 Johns. (N.Y.) 424, 426.
  • Ius civitatus: The right of citizenship; the freedom of the city of Rome. It differs from jus quiritium, which comprehended all the privileges of a free native of Rome. The difference is much the same as between "denization" and "naturalization". Wharton.
  • Jus cloacae. In the civil law, the right of swerage or drainage. An easement consisting in the right of having a swer, or conducint surface water, through the house or over the ground of one's neighbor. Macheld. Rom. Law, Section 317.
  • Ius commune. In the civil law, Common right; the common and natural rule of right, as opposed to jus singulare. Mackeld. Rom. Law, Section 196.
In English law: the common law, answering to the Saxon folcright, 1. Bl. Comm. 67.
  • Jus constitui oportet in his quae ut plurimum accidunt non quae ex inopinato. Laws ought to be made with a view to those cases which happen most frequently, and not to those which heppen most frequently, and not to those which are of rare or accidental occurrence. Dig. 1, 3, 3; Broom, Max. 43.
  • Jus coronae. In English law. The right of the crown, or to the crown; the right of succession to the throne. 1 Bl. Comm. 191; 2 Steph. Comm. 434.
  • Jus dare. To give or to make the law; the frunction and prerogative of the legilsative department.
  • Jus deliberandi. In the civil law. The right of deliberating. A term granted by the proper officer at the request of him who is called to the inheritance, (the heir,) within which he has the right to investigate its condition and to consider whether he will accept or reject it. Mackeld. Rom. Law, § 742; Civ. Code La. art. 1028.
  • Jus descendit, et non terra. A right descends, not the land. Co. Litt, 345.
  • Jus devolutum. The right of the church of presenting a minister to a vacant parish, in case the patron shall neglect to exercise his right within the time limited by law.
  • Jus dicere. To declare the law; to say what the law is. The province of a court or judge. 2 Eden, 29; 3 P. Wins. 485.
  • Jus disponendi. The right of disposing (of a thing owned). One of the attributes of dominium, or ownership. An expression used either generally to signify the right of alienation, as when we speak of depriving a married woman of the jus disponendi over her separate estate, or specially in the law relating to sales of goods, where it is often a question whether the vendor of goods has the intention of reserving to himself the jus disponendi; i. e., of preventing the ownership from passing to the purchaser, notwithstanding that he (the vendor) has parted with the possession of the goods. For authority, see Sweet.
  • Jus dividendi. The right of disposing of realty by will. Du Cange.
  • Jus duplicatum. A double right; the right of possession united with the right of property; otherwise called "droit-droit." 2 Bl. Comm. 199.
  • Jus est norma recti; et quicquid est contra normam recti est injuria. Law is a rule of right; and whatever is contrary to the rule of right is an injury. 3 Bulst. 313.
  • Jus et fraus numquam cohabitant. Right and fraud never dwell together. 10 Coke, 45a. Applied to the title of a statute. Id. ; Best, Ev. p. 250, Section 205.
  • Jus et injuria non oritur. A right does (or can) not rise out of a wrong. Broom, Max. 738. note; 4 Bing. 639.
  • Jus Falcani. In old English law. The right of mowing or cutting. Fleta, lib. 4, c. 27, § 1.
  • Jus feciale. In Roman law. The law of arms, or of heralds. A rudimentary species of international law founded on the rights and religious ceremonies of different peoples.
  • Jus fiduciarium. In the civil law, a right in trust; as distinguished from jus legitimum, a legal right. 2 Bl. Comm. 328.
  • Jus Flavianum. In old Roman law, a body of laws drawn up by Cneius Flavius, a clerk of Appius Claudius, from the materials to which he had access. It was a popularization of the laws. Mackeld. Rom. Law §39.
  • Jus fluminum. In the civil law, the right to the use of rivers. Loce. de Jure Mar. lib. 1, c, 6.
  • Jus fodiendi. In the civil and old English law, a right of digging on another's land. Inst. 2, 3, 2; Bract. fol. 222.
  • Ius fruendi. Another attribute of dominium, or ownership: the right or power to reap fruits or profits, as by harvesting crops or taking rents from the property.

Ius gentium. In early Roman law, the law followed by all peoples, closely akin to the ius naturale. From this universal sense, used more specifically to describe the international law that governed Rome’s relationship with other states. Following the works of Gaius, the term was employed more narrowly to represent the law that applied among, foreigners, and among Romans and foreigners. Foreigners, and the legal relations of Romans with them, were governed by the ius gentium.

Ius naturae. Literally, “the law of nature.” In Roman law, a near synonym for ius naturale -- a law that is supported by natural reason, and so a law that is, or ought to be, respected by the laws of all nations. Thus, the ius naturae was said to support the ius gentium in its universal sense. However, even this relationship is not always congruent: famously, in the introduction to Justinian’s Institutes, slavery is forbidden by nature but allowed by the ius gentium. Even so, there was the general sense, seized on increasingly from Roman writings throughout the Renaissance and early modern age, that civil law was to reflect the obligations of natural law, especially when natural law required freedom.

Ius naturale: as the Roman jurist Ulpian said, “that which nature taught all animals.” For most writings of classical Roman law, synonymous with ius naturae. From the writings of Paul, however, the term ius naturale acquired the sense of an ideal of law, quod semper est bonum et aequum -- that which is always fair and just. This sense is followed in the Thomist conceptions of natural law, or lex naturalis. (39)

Ius possidendi. One of the attributes of dominium, or ownership: the right or power to possess the property.

Ius prohibendi. An attributes of dominium, or ownership: the right or power to prohibit others from using the property, whether by possession alone or by growing or harvesting crops or using or taking rents from the property.

Ius strictum. "the strict law" -- A very rare term in the materials of classical Roman law; really a Byzantine term, occurring in Justinian’s Institutes in reference to the strict actions of the law, primarily describing the rigid limitations of the forms of action available under the law, particularly the older laws. Often used by later commentators to distinguish it from the moderating influence of the praetors, or judges who expanded the law through actions ex fide bona, or what we would now call equity.

Ius utendi. Another of the attributes of dominium, or ownership: One who has dominium has the right or power to use the property, particularly by residing there.

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