Cautelary jurisprudence
Encyclopedia
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.. 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 legatee
s, a "negative authority" over something which otherwise would not have occurred until the death of the owner of the legacy, thelegator. 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 judge
s. Often, many years later, such arrangements are fully enacted as a 'catching up' exercise by the legislature.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
made in a precautionary way prior to or outside of the normal legislative enactment
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
. It meant empirical, practical legal efforts aimed at solving individual cases, as distinguished from regular jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
which sought to establish abstract rules under which individual cases would fall.. Its first proponent was Quintus Mucius Scaevola Pontifex
Quintus Mucius Scaevola Pontifex
Quintus Mucius Scaevola Pontifex , the son of Publius Mucius Scaevola 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...
, 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
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
, the idea of inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
as being subject to conditions was not in practice. With cautio muciana it gave those who are to inherit a legacy, the legatee
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 and "devisees" took land under will. Brooker v....
s, a "negative authority" over something which otherwise would not have occurred until the death of the owner of the legacy, thelegator. It thus also makes it possible for the legator to gain promises from legatees.
The legatee provides a stipulatio
Stipulatio
Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was to some extent disputed, as can be seen below.-Capacity:...
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 judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s. Often, many years later, such arrangements are fully enacted as a 'catching up' exercise by the legislature.