Cautelary Law
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Cautelary jurisprudence is
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...
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, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...
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 Cautelary law is a tentative "procedure" used by
lawyers A lawyer is a person who is qualified to offer advice about the law, draft legal documents, or represent individuals in legal matters. The exact nature of a lawyer's work varies depending on the legal jurisdiction and the legal system, as wel ...
. Initially, in
Ancient Rome In modern historiography, ancient Rome is the Roman people, Roman civilisation from the founding of Rome, founding of the Italian city of Rome in the 8th century BC to the Fall of the Western Roman Empire, collapse of the Western Roman Em ...
, the idea of
inheritance 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. Offi ...
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's estate. Usage Depending upon local custom, legatees may be called "devisees". Traditionally, "legatees" took personal property under will a ...
s'', a "negative authority" over something which otherwise would not have occurred until the death of the owner of the legacy, the '' legator''. The legatee provides a ''
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 '':wikt:intellectus, intellectus'' ("understanding") and '':wikt:volun ...
'' 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." 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. Offici ...
and the administration of
trusts A trust is a legal relationship in which the owner of property, or any transferable right, gives it to another to manage and use solely for the benefit of a designated person. In the English common law, the party who entrusts the property is k ...
. 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 wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...
s.


See also

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Rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
*
Rule According to Higher Law The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule accordin ...


Notes

{{DEFAULTSORT:Cautelary Jurisprudence Roman law Jurisprudence