Page:The Mediaeval Mind Vol 2.djvu/246

234 The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea naturalis ratio was in the air, and the thought of common elements of law and justice which naturalis ratio inter omnes homines constituit, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the jus gentium became identical with jus naturale, which Ulpian imagined as taught by nature to all animals; the jus gentium, however, belonged to men alone.

Thus rules which were conceived as those of the jus gentium came to represent the principles of rational law, and impressed themselves upon the development of the jus civile. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a jus naturale and a jus gentium became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of aequitas, which is the principle of progressive and discriminating legal justice. Law itself (jus) was