Cautelary jurisprudence is
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
made in a precautionary way prior to or outside of the normal
legislative enactment. It meant empirical, practical legal efforts aimed at solving individual cases, as distinguished from regular
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
which sought to establish abstract rules under which individual cases would fall.
[Tuori, Kaius. ''Ancient Roman Lawyers and Modern Legal Ideals: Studies on the Impact of Contemporary Concerns in the Interpretation of Ancient Roman Legal History'' Vittorio Klostermann: 2007 ; p. 42] Its first proponent was
Quintus Mucius Scaevola Pontifex
Quintus Mucius Scaevola "Pontifex" (140–82 BC) was a politician of the Roman Republic and an important early authority on Roman law. He is credited with founding the study of law as a systematic discipline. He was elected Pontifex Maximus ( ...
, who thus gave his name to the Roman designation for this kind of law, the ''
cautio muciana''.
Cautelary law is a tentative "procedure" used by
lawyers
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor, ...
. Initially, in
Ancient Rome
In modern historiography, ancient Rome refers to Roman civilisation from the founding of the city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th century AD. It encompasses the Roman Kingdom (753–509 B ...
, the idea of
inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
as being subject to conditions was not in practice. With ''cautio muciana'' it gave those who are to inherit a legacy, the ''
legatee
A legatee, in the law of wills, is any individual or organization bequeathed any portion of a testator
A testator () is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person ...
s'', a "negative authority" over something which otherwise would not have occurred until the death of the owner of the legacy, the ''
legator''. It thus also makes it possible for the legator to gain promises from legatees.
The legatee provides a ''
stipulatio
''Stipulatio'' was the basic form of contract in Roman law. It was made in the format of question and answer.
Capacity
In order for a contract to be valid, parties must have capacity: both ''intellectus'' ("understanding") and '' voluntas'' ("wi ...
'' or ''cautio'', promising something in return for a legacy. Thus, for example, it may be stipulated in the negative, "I agree that I can have full and exclusive use of, and live in the house, so long as I am not married."
The ''cautio muciana'' is one of a long list of legal devices invented used by the Romans to address practical situations without changes of general principles.
Cautelary jurisprudence nowadays is associated with
inheritance law
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officially ...
and the administration of
trusts
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settl ...
. The various inventions by lawyers of these new, arrangements, or forms of law, are often enacted outside of nation or state legislature, but with agreement amongst other lawyers and/or
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
s. Often, many years later, such arrangements are fully enacted as a 'catching up' exercise by the legislature.
See also
*
Rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
*
Rule According to Higher Law
Notes
{{DEFAULTSORT:Cautelary Jurisprudence
Roman law
Jurisprudence