LEX.—So far we have dealt solely with those words which belong to the class of jus, namely, those which possess a double signification, ethical and legal. We proceed now to the consideration of the second class, represented by lex. And first of lex itself. The following are its various uses given in what is probably the historical order of their establishment.
1. Proposals, terms, conditions, offers made by one party and accepted by another.[[494]] Thus, ea lege ut,[[495]] on condition that; dicta tibi est lex,[[495]] you know the conditions; his legibus,[[495]] on these conditions. So legis pacis[[495]] are the terms and conditions of peace: pax data Philippo in has leges est.[[495]] Similarly in law, leges locationis are the terms and conditions agreed upon between lender and borrower. So we have the legal expressions lex mancipii, lex commissoria, and others.
2. A statute enacted by the populus Romanus in the comitia centuriata on the proposal of a magistrate. This would seem to be a specialised application of lex in the first-mentioned sense. Such a statute is conceived rather as an agreement than as a command. It is a proposal made by the consuls and accepted by the Roman people. It is therefore lex, even as a proposal of peace made and accepted between the victor and the vanquished is lex. “Lex,” says Justinian, “est quod populus Romanus senatorio magistratu interrogante, veluti consule, constituebat.”[[496]]
3. Any statute howsoever made—whether by way of authoritative imposition, or by way of agreement with a self-governing people.
4. Any rule of action imposed or observed, e.g. lex loquendi, lex sermonis. This is simply an analogical extension similar to that which is familiar in respect of the corresponding terms in modern languages, law, loi, gesetz.
5. Law in the abstract sense. Lex, so used, cannot be regarded as classical Latin, although in certain instances, as in Cicero’s references to lex naturae, we find what seems a very close approximation to it. In medieval Latin, however, the abstract signification is quite common, as in the phrases lex Romana, lex terrae, lex communis, lex et consuetudo.[[497]] Lex has become equivalent to jus in its legal applications. This use is still retained in certain technical expressions of private international law, such as lex fori, lex domicilii, and others.
It is possible that we have here an explanation of the very curious fact that so celebrated and important a word as jus failed to maintain itself in the Romance languages. Of the two terms jus and lex, bequeathed to later times by the Latin language, one was accepted (loi = lex) and the other rejected and supplanted by a modern substitute (droit, diritto). Why was this? May it not have been owing to that post-classical use of lex in the abstract sense, whereby it became synonymous and co-extensive with jus? If lex Romana was jus civile, why should the growing languages of modern Europe cumber themselves with both terms? The survivor of the two rivals was lex. At a later stage the natural evolution of thought and speech conferred juridical uses on the ethical terms droit and diritto and the ancient duality of legal nomenclature was restored.
6. Judgment. This, like the last and like the three following uses, is a medieval addition to the meanings of lex. We have already seen the transition from law to judgment in the case of jus, δίκη, and θέμις. Legem facere is to obey or fulfil the requirements of a judgment. Legem vadiare, the English wager of law, is to give security for such obedience and fulfilment.[[498]]
7. The penalty, proof, or other matter imposed or required by a judgment: lex ignea, the ordeal of fire; lex duelli, trial by battle.[[499]]
8. Legal rights, regarded collectively as constituting a man’s legal standing or status. Legem amittere (in English, to lose one’s law) was in early English law an event analogous to the capitis deminutio and infamia of the Romans. It was a loss of legal status, a partial deprivation of legal rights and capacities.[[500]]