8 Roscoe Pound 



Corpus Iuris Ciitilis, as legislation of the emperor Justinian, was 

 supposed to be binding statute law, and was properly to be des- 

 ignated lex. In this belief, jurists were engaged in interpreting 

 and commenting upon the authoritative text, so as to fit it to 

 the conditions of the modern world. As the reception of Roman 

 law proceeded, the law in continental Europe was made up of 

 the Corpus Juris with its modern gloss, — which, together with 

 the legislation of contemporary sovereigns, was regarded as en- 

 acted law, — and the customary law of the various peoples, as it 

 had developed prior to the revival or reception of the Roman 

 law. Hence Gratian (about 1150), instead of drawing upon the 

 classical definitions of ius, turns to the formulas of Isidorus His- 

 palensis, already quoted, and tells us, substantially in the latter's 

 very words, that all ins consists of enactments and customs \ that 

 lex is a written enactment ; and that custom is a certain kind of 

 ins which is taken for lex when enacted law is wanting. 1 For 

 him, too, enacted law was the normal type, and customary law 

 a mere makeshift to which men resorted for want of enactment 

 in order to prevent failure of justice. During this period Eng- 

 lish judges were constructing the common law of England by 

 developing a judge-made customary law through interpretation 

 and analogical extension of writs and precedents. English law 

 was ius, not lex, although the powerful central authority behind 

 it gave it the strength of imperative law and obscured the ethical 

 and logical element, usually so prominent in non-legislative sys- 

 tems. But the title Dc Legibits et Consuetudinibus, borne both 

 by Glanvill's treatise and by Bracton's, makes it evident that the 

 continental ideas as to the nature of law were taken for granted. 

 Indeed, Glanvill (about 1189) feels compelled to consider 

 whether England has laws in view of the circunistance that the 

 rules administered by the king's judges are not enacted. 2 The 

 beginning of the movement back to the classical theory of law is 

 to be seen in the next century, w r hen St. Thomas Aquinas (1225 

 or 1227-74) formulates a theory which, in one way or another, 

 has been felt in jurisprudence until very recent times. The Ger- 



J CC. 2-5, Dist. 1. 



' 2 Preface (Beale's ed.), pp. xx'viii-xxix. 



256 



