Definition
Latin: "to give the law" or "to make the law." Jus dare refers to the lawmaking function — the power and prerogative of a legislature to create, enact, or establish law. It stands in deliberate contrast to jus dicere, the judicial function of declaring or applying existing law. The distinction captures the classical division between legislative and judicial power: the legislature gives law; the court speaks it.
Common Confusion
Jus dare is routinely paired with — and sometimes confused against — jus dicere. The two terms are a matched set, not interchangeable. Jus dare is the creative act of making law; jus dicere is the interpretive act of declaring what the law is. The confusion matters because the boundary between the two has been contested across centuries of jurisprudence. When a court announces a rule that appears nowhere in prior statute or precedent, critics charge it has crossed from jus dicere into jus dare — a charge with significant constitutional weight in separation-of-powers debates. Historical sources often invoke both terms together precisely to reinforce the boundary; encountering one in a primary source almost always signals the other is nearby.
Why It Matters in Research
Jus dare appears in historical sources primarily as a conceptual marker, not a technical term of art with procedural consequences. Researchers encounter it most often in:
Separation-of-powers arguments. Treatise writers, advocates, and early jurists used jus dare to frame challenges to judicial overreach or to defend legislative supremacy. When a historical brief or opinion invokes jus dare, the author is almost certainly arguing that a court has exceeded its proper function.
Civil law commentary. Burrill places jus dare in the context of the legislative civil law — the province of sovereign power to establish the legal order for a state, district, or community. Researchers working in civil law jurisdictions or early American sources drawing on Roman law traditions will find this usage more prominent than in common law materials.
Keyword and search traps. Because jus dare appears almost exclusively as part of the jus dare / jus dicere pairing, searching for one without the other in a historical corpus risks missing the argumentative context. The terms function as a dyad; treat them that way in corpus searches.
Absence in modern sources. Jus dare does not appear as a live term in modern American legal practice. Its function has been absorbed into constitutional doctrine — separation of powers, non-delegation, judicial activism debates — without the Latin label. Researchers tracing the intellectual lineage of those doctrines backward will find jus dare in the 18th and 19th century sources where the vocabulary had not yet been translated into modern constitutional idiom.
Historical Dictionary Support
The four source dictionaries agree on the core definition with only minor variation in phrasing. Black's (both editions) offers a terse, functional definition: "to give or to make the law; the function and prerogative of the legislative department." Rapalje & Lawrence adds the explicit contrast — "as distinguished from that of the judge, which is to declare the law — jus dicere" — making the pairing structural rather than incidental. Burrill extends slightly into civil law context, connecting jus dare to the sovereign legislative power of a state over its community, and cites 3 P. Wms. 485 (Peere Williams's Reports), suggesting the term appeared in English chancery practice as well as theoretical jurisprudence.
What the historical dictionaries do not supply: any developed treatment of where the line between jus dare and jus dicere actually falls in contested cases. The definitions describe the distinction but do not adjudicate it. That gap is precisely why the terms appear so often in polemical rather than doctrinal legal writing — they name the boundary without resolving it.
Black's 2nd edition cross-references JUS FECIALE at the end of the entry, connecting jus dare to the Roman law of nations (fecial law governing treaties and international relations). This cross-reference is unexplained in the entry itself and may mislead researchers; the connection is likely a typographical or organizational artifact rather than a substantive link between the concepts.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Separation of Powers; Judicial Power and Its Limits; Civil Law Tradition in American Jurisprudence