Here we have a striking example of a legal transplant being a legal transformation. If what we have in the Institutes accurately represents views expressed in Roman legal elementary texts, then these texts themselves do not represent much of Roman thinking as seen in philosophers. But now the texts appear in a prominent place right at the beginning of legal education in very different Byzantium. The law, in so far as we can talk here of law, has not changed, but society has, drastically. Any meaning of the texts has now a very different impact. The frailties of Justinian’s account of natural law and ius gentium are readily observable, and rapidly - very rapidly -- gave rise to interpretation. At the basic level, natural law in these subsequent writings is given two meanings: the improper one, we are told, is instinct, the proper one is law common to human beings: thenius gentiumhas two senses, one is natural law common to all humans, the other is international law in the modern sense. A striking feature comes to be that God and philosophy are mentioned in the discussion, and international law is given an important place. But, I wish to jump centuries ahead, to Scotland in theth century, omitting all the intervening lucubrations with one exception which I now quote:. Here we have already the classic statement of natural law as it was widely understood in the Age of Reason in the th century. It is entirely independent of Justinian, and is free of the confusion and contradictions of theInstitutes. Natural law, it is claimed, is found everywhere among This universal agreement would not occur if nature did not give some argument and reason, which any individual can immediately understand for himself without otherwise being instructed by anyone -- this we call natural law.26 26 Lequel consentement universel n’est faict que nature n'en donne quelque argument et raison, laquelle un chascun peut soubdain par soy comprendre sans aultrement estre instruict de personne -- laquelle nous appellons droict naturel: La Vie très horrifique du Grand Gargantua, Père de Pantagruel, Chapter 10. The translation is mine.
RkJQdWJsaXNoZXIy MjYyNDk=