Cautelary jurisprudence

Cautelary jurisprudence is law 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 which sought to establish abstract rules under which individual cases would fall.[1] Its first proponent was Quintus Mucius Scaevola Pontifex, 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. Initially, in Ancient Rome, the idea of inheritance as being subject to conditions was not in practice. With cautio muciana it gave those who are to inherit a legacy, the legatees, 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 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 and the administration of trusts. 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 judges. Often, many years later, such arrangements are fully enacted as a 'catching up' exercise by the legislature.

See also

Notes

  1. ^ 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 ISBN 3-465-04034-1 ISBN 9783465040347; p. 42
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