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Updated: May 23, 2025
The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. Both these examples will be examined presently.
A body of law bearing a very close and very instructive resemblance to our case-law in those particulars which I have noticed, was known to the Romans under the name of the Responsa Prudentum, the "answers of the learned in the law." As with us, all legal language adjusted itself to the assumption that the text of the old Code remained unchanged. There was the express rule.
GEORGE HERBERT, some time Orator of the University of Cambridge, now exposed to public Light." London, 1652. This volume consists of 1. In the second and subsequent impressions of this volume is added, "A Preface to the Christian Reader," consisting of six paragraphs, by Mr. Oley. 2. "Jacula Prudentum; or Outlandish Proverbs, Sentences, &c., selected by Mr. George Herbert."
In law Augustus trenched less on the independent thought of the jurists, but at the same time was better able to put forth his prerogative when occasion was really needed. His method of accrediting the Responsa Prudentum, by permitting only those who had his authorisation to exercise that profession, was an able stroke of policy.
The "Futawa Alumgeeree" consequently resembles the Pandects of Justinian in being a systematical arrangement of selections from juridical authorities compiled by Imperial authority; but differs from it in this, that the selections are made exclusively from the "responsa prudentum," and a few legal treatises, whereas Justinian's digest combined with those excerpts from judicial decisions, prætorian edicts, &c.
In comparing the Roman Responsa Prudentum with their nearest English counterpart, it must be carefully borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the bench, but the bar.
It is highly esteemed throughout Islam, and is quoted even by the doctors of Mecca as the Futawa-i-hind, or the Indian responsa prudentum. It was compiled by the orders of the Emperor Aurungzebe. Mr.
Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperour gave Authority to interpret the Law, and to give answer to such as in matter of Law demanded their advice; which Answers, the Judges in giving Judgement were obliged by the Constitutions of the Emperour to observe; And should be like the Reports of Cases Judged, if other Judges be by the Law of England bound to observe them.
The work from which it is taken is a collection of legal opinions, which had in their day the force of judicial decisions of something equivalent to the "responsa prudentum" of Roman jurisprudence. Each is expounded on its own merits; and all the special doctrines involved in it are laid down.
The "futwa," therefore, seems to correspond not so much with our English "decisions" or "precedents" as with the "responsa prudentum," that fertile source of doctrines in the Roman law.
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