not easily distinguishable from religious and moral precepts. It is only at a later
stage of development of a legal system that the distinction between legal, moral,
and religious precepts can be made.
Arguably, such a sharp distinction presupposes a separation between church and state, a
separation which has gradually grown in the Western world since the late Middle Ages. But
note that this separation has not been accepted in a number of non-Western countries,
particularly those that aim to follow Islamic law.Ius Civile and Ius Gentium The tribal nature of classical Roman law is reflected
in the fact that the Romans used different laws for mutual relations between
members of the tribe (ius civile) and relations between tribe members and
foreigners or between foreigners among each other (ius gentium).
For instance,ius civilewould govern a conflict between two Roman citizens about the use
of a piece of land, while the same conflict would be governed byius gentiumif one or two
foreigners were involved.
The distinction betweenius civileandius gentiumonly became important in what is called
the “classical period” of Roman law, from the 3rd century BC onwards. Although theius
civilewas originally meant for use within the tribe, its scope of application was gradually
broadened to include all Roman citizens, a group which grew larger and larger in the course
of years.1.2.2 Codification
Customary law starts as unwritten law, but this does not preclude that it is written
down at some stage. The Romanius civile, for instance, was written down in 451BC
on what is called theTwelve Tables. The reason was that, if there was any doubt,
customary law could be interpreted by thepontiffs, officials who came from the cast
ofpatricians, the societal upper class. Theplebeians, the lower social class,
objected to this practice because they feared that the pontiffs might use their
power to interpret the law to the advantage of the patricians. If customary law
were written down and published, its contents could be inspected by anyone who
could read.
This is another example of why the certainty of law is important: it makes it more difficult
for rules which govern society to be manipulated to the advantage of a few.
If customary law is written down, the law is described as having beencodified.
All codified laws are written law and in this sense resemble law that was created by
means of legislation. Still, there is a difference: law that was codified already
existed before the codification, while law that was created through legislation did
not exist before it was written down.
1 Foundations 7