RSK 5

studied for centuries right in the first week of all law studies. Secondly, as I have indicated, the nonsense of the texts has always been known, but their authority has continued. Thirdly, as I want now to indicate, the texts on natural law and ius gentium have always been mistranslated. To show the mistranslation I will give only one example, but with references to others. A standard translation, that of J.A.C. Thomas34 of J. .., begins: “Civil law and the law of nations, however, are distinguished in this way.” Other modern translations are to the same effect.35 But this is to mistake completely the point of Ius autem civile vel gentium ita dividitur. The precise positioning of autem, “but” is ignored, the disjunctive uel is mistranslated as the conjunctive “and”, and the singular dividitur is replaced by the plural “are distinguished”. The purpose in the Institutes of this part of §1 after the principiumis to separate ius naturale from law, fromius civile and ius gentium. “But law, whether civil or of nations, is divided thus.” Despite the principium with its nod towards philosophy, natural law in Justinian’s Institutes .. is not to be seen as law. Yet the mistranslation or, better, misunderstanding seems to be remarkably early. If the Theophili Paraphrasis is properly regarded, as seems to be the case, as an expanded paraphrase, then it occurs even there. Th. Par. ... begins: Hereius naturale, as law, is put on the same footing as law as ius gentiumandius civile. It will be noticed, too, that on this basis, theParaphrasis  We said above, legal rules are either natural, or of peoples, or of a state. Since therefore there was talk of the definition of natural law and of examples of it, it is necessary that we speak also of the law of peoples... 36 34 The Institutes of Justinian(Cape Town, 1975), p.4. 35 See, for example, Peter Birks & Grant McLeod, Justinian’s Institutes (Ithaca, N.Y., 1987), p. 37; J.E. Spruit et al., Corpus Iuris Civilis, Tekst en Vertaling, 1 (Zutphen, 1993), p. 12; Okko Behrends et al., Corpus Iuris Civilis, Text und Übersetzung, 1, Institutionen(Heidelberg, 1997), p. 3. 36 My translation.

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