A Nezv School of Jurists 5 



has prevailed; now one and now the other name has come to be 

 used for the whole. The classical period of Roman law was 

 marked by juristic rather than by legislative activity, and the 

 classical period of the modern Roman law was similarly char- 

 acterized. Hence the predominance of ins and its equivalents 

 in the languages of continental Europe. On the other hand, in 

 England, where a strong central authority took the administra- 

 tion of justice in hand from an early period, and the executive 

 legislation of the royal writs created- a vigorous system which 

 attained fixity before juristic speculation was sufficiently ad- 

 vanced to exert an influence, law, a word of the second type, 

 became the general term, and right never acquired more than 

 an ethical signification. A similar double series is to be observed 

 in the formulas in which jurists have expressed their concep- 

 tions of law. The two sets of words of which ins and lex re- 

 spectively are the types represent two ideas between which defi- 

 nitions of law have oscillated according to the circumstances of 

 legal systems and the agencies through which their rules have 

 been expressed for the time being. 



The first attempts at a formula which have come to us from a 

 Roman jurist or philosopher are to be found in the writings of 

 Cicero. Cicero lived in a transition period, that of the ius gen- 

 tium, after the strict, formal law set down in the Twelve Tables 

 had been modified profoundly by the praetor's edict, but before 

 the period of the great jurisconsults. A period of enacted law 

 had come to an end ; one of juristic speculation was beginning. 

 His formulas, accordingly, savor of each. His essay De Legibus, 

 purporting to contain the discourse of a jurisconsult asked to 

 expound his views of the ius ciuilc, 1 is in name a dialogue on the 

 rules of law, and he defines not ius, but lex. Yet he does not 

 use lex in the stricter sense of a statute or enacted rule, as in 

 Capito's well-known formula in the next generation, 2 but gives 

 it the wider meaning of law. His formulas are doubtless drawn 

 from or modeled upon Greek originals. Nevertheless, it is note- 



1 De Legibus, I, 4. 



2 "A lex is a general command of the people or of the fi/ebs, upon question 

 by the magistrate." Aldus Ge/lius, X, 20, 2. 



253 



