A New School of Jurists 7 



second century, not of the sixth. The ideas of an age when 

 Roman law was known as a body of enactments are well illus- 

 trated by the definitions in the treatise on the etymology of words 

 of Isidorus Hispalensis (ob. 636). He says: "Fas is divine law 

 (lex), ins is human law. Lex is a written enactment. Custom 

 is usage approved by time or unwritten law (lex) .... 

 Usage, moreover, is a certain kind of law (lex) instituted by 

 observance, which is held for enactment (lex) when enacted law 

 is wanting." 1 In other words, enacted law is the normal type, 

 customary law is a makeshift, to which men resort when the 

 former fails them. 2 This view is even more apparent in the 

 writings of the period prior to the rise of the school at Bologna. 

 Although the classical formulas as to ius are repeated, they have 

 become empty. Lex is the living word, and enactment is ob- 

 viously felt to be the true law. For example, in the Expositio 

 Terminorum, appended to the eleventh-century Petri Excep- 

 tiones Legum Romanorum, after Celsus's well-known formula, 

 we come upon this: "Law (lex) is right (ius) enacted by wise 

 princes." 3 Also in the related Libellus de Uerbis Legalibus : 

 "But all law (ius) consists of statutes and customs. Statute 

 (lex) is the enactment of princes written for the common good; 

 custom is unwritten enactment (lex)." 4 The absence of any 

 real line between ius and lex, so far as the former has more than 

 an ethical meaning, is noteworthy. 



In tracing the growth of the conception of law from the re- 

 vival of legal studies at Bologna in the twelfth century to the 

 time of Grotius, we must bear in mind that the theories of the 

 time "implied the acceptance of three great authorities, which 

 might be interpreted or applied, but were not to be questioned, — 

 the authority of the Bible, of Aristotle, and of Justinian." 5 The 



1 Brans, Fontes Juris Romani Antiqui, II, 83. 



2 This was evidently an important point to insist upon in the period of the 

 Leges Barbarorum. Thus in a capitulary of 793 ( Capit. Pippin. Res;. It. , 23) 

 we read: "Where law (lex:) is wanting, let custom prevail, and let no custom 

 be put over the taw.'''' 



3 Compare this with Gaius, I, 2: " Constant autem iura . . . ex legibus," 

 etc. 



4 Fitting, Juristische Schriften desfruheren Mitlelalters, 164, 181. 

 5 Ritchie, Natural Rights, 7. 



255 



