Constitutional laws. Greek philosophers had, however, formulated a theory of
a Law of Nature which was morally, above the laws actually enforced. In
later stages of Roman Law, Roman jurists also, saturated with Greek notions
of an ethically superior law of Nature, said that the institution of slavery,
which gave the owner of a slave theoretically absolute powers of life and
death over the slave, just like the powers of a pater-familias over his
children, was contrary to jus naturale although it was recognised by just
gentium, the laws of then civilised world. Aristotle, in his analysis of forms of
Government, had emphasized the importance of the Constitution of a State
as a test or determinant of sovereign power in the State. And, Roman jurists,
had indirectly cleared the path for the rise of modern legalism and
constitutionalism by rescuing law itself from the clutches of a superstitious
reverence for customs, surrounded with ceremonial and ritualistic
observances and cumbersome justice defeating formalism, through fiction and
equity, and forged a secular and scientific weapon of socio-economic
transformation. All this was very useful in preparing for an age in which
secular law could displace religion as the ‘‘control of controls’’ (see Julius
Stone’s ‘‘Province and Function of Law,’’ 1961 Edn. pp. 754, 767).
531. Romans not only clarified basic notions but developed a whole
armoury of new forms in which law could be declared or made, Lex,
Plebiscitum, Magistratuum Edicta, Senatusconsulta, Responsa Prudentium,
Principum Placita. The last mentioned consisted of orders of Roman
Emperors which were of various kinds, some of general application to cases of
particular kinds and others for particular individual cases: Edicta, Decreta,
Mandata, Rescripta. They had the ‘‘force of law’’ or ‘‘Lex’’ which could be
roughly equated with our statutory law. ‘‘Decreta’’ were issued as decisions
on individual disputes, in exercise of the Emperor’s power ‘‘under’’ the
authority of ‘‘Lex de Imperio’’, although ‘‘in the classical period it was firmly
established that what the Emperior ordained had the force of law’’ (See R.W.
league on Roman Law, Edn. 1961 p. 32). The point to note is that even in the
embryonic stages of Government through legislation lawmaking and decision
of individual cases are found distinctly separate.
532. After the break-up of the Roman Empire, there were attempts in
medieval Europe, both by the Church and the Kings, to develop spiritual and
temporal means for checking wrong and oppression. Quests for the superior
or a sovereign power and its theoretical justifications by both ecclesiastical
and lay thinkers were parts of an attempt to meet this need. The claims of
those who, as vicars of God on earth, sought to meddle with mundane and
temporal affairs and acquire even political power and influence were, after a
struggle for power, which took different forms in different countries, finally
defeated by European Kings with the aid of their subjects. Indeed, these
Kings tries to snatch, and, not without success, to wear spiritual crowns
which the role of ‘‘defenders of the faith’’ carried with them so as to surround
themselves with auras of divinity.
533. The theory of a legally sovereign unquestionable authority of the
King, based on physical might and victory in battle, appears to have been
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