shows how the universal applicability of ius naturale merely constituted to Roman lawyers something to be exploited whenever it was found to be expedient (as with lawyers and politicians of other epochs).29 And hence the idea that all men, as well as all sources of law, necessarily were bound to correspond to the rules of ius naturale, is an idea alien to original Roman legal thought and law, as well as its practical application.30 It appears to have served the function of an ideal for the legislator rather than a binding law. During the post-classical era, Roman jurists began to accord concepts such as ius naturale the status of applicable law,31 but only when ius civile allowed such inclusions, for instance, by reference to aequitas, which in the main was considered to be a principle allowing the Roman judiciary to develop and mitigate the rules of ius civile (through interpretation). Aequitas is thus not a principle to be confused with the autonomous principles of ius naturale.32 Even thoughaequitas and ius naturale at face value appear to be identical principles of law, Roman jurists considered themselves to be bound by aequitas (Cicero, Marcellus, Ulpianus, Papinianus, Pomponius, and Paulus).33 It is uncertain whether or not they considered themselves to be accordingly bound by the principles of ius naturale.34 In other words, Roman legal theory allowed ius naturale to be introduced into positive law only when p a r t v i i , c h a p t e r 1 570 29 See, e.g., Robinson, Sources, pp. 26-27; Hattenhauer, Europäische Rechtsgeschichte, §256; Rüthers, Rechtstheorie, pp. 247-268. Cf. Schiller, Roman Law: Mechanisms of Development, pp. 560 and 569-584. - A brief account of the material impact that the study of logic and rhetoric had on the Roman lawyers’ way of thinking and argumentation. 30 Wieacker, Römische Rechtsgeschichte, pp. 642-644. 31 Schiller,Roman Law:Mechanisms of Development, p.548;Wieacker,Römische Rechtsgeschichte, p. 643. 32 Schiller, Roman Law:Mechanisms of Development, pp. 551-558. However, it is also argued that aequitas is distinguished from the positive law, but “… realized either by interpreting the existing law or by supplementing it where an exact legal provision is missing.” See Encyclopedic Dictionary of Roman Law, Berger, ed., Aequitas. 33 Schiller, Roman Law: Mechanisms of Development, pp. 551-556. However,Wieacker, Römische Rechtsgeschichte, p. 507. 34 Schiller, Roman Law: Mechanisms of Development, pp. 556-558.
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