ABSTRACT
MOMMSEN ha s pointed ou t quite emphaticall y tha t amon g th e Romans "usuall y an d especiall y i n the languag e o f th e law books/' i.e . one may say technically, the phrase ius publicum did not mean law that concern s the people, bu t law that i s posited by the commune ; tha t ius publicum in this sense is that whic h the older legal language called lex publico-; that ius publicum therefor e is not Staatsrecht,1 but law posited by the state. Thi s remark of Mommsen's i s born e ou t by the sources . I n my Beitrage zur Tkeorie der Rechtsquellen,2I hav e shown that ius publicum is very seldom use d in the sense of Staatsrecht and never, a s is usually believed, i n the sense of compulsor y law , bu t regularly i n the sense of law that i s posited by the state. I n the writings of Cicero and of the jurists of the age of the Republic, ius publicum is the leges and the plebiscita; in the writings of the jurists of the Empire, i t comprises i n addition the senatusconsulta, the praetorian edict, an d the law of the imperia l constitutions . Whereve r a given precep t i s referred t o by the jurist s a s belongin g t o ius publicum, it is based, as can be shown, upon a lex, a plebiscitum, a senatusconsultum, on a provision contained i n the edict or in a constitution.
