ROMAN CIVIL PROCEDURE

ROMAN CIVIL PROCEDURE UNIT 11

Preview • Summons • Formulary procedure • Stages in the civil procedure • Praetor • Edict • Formula • Procedural contract • Trial

SUMMONS • In the classical law a summons for a lawsuit was performed privately: a person would find his opponent or his opponent’s representative and bring him before the magistrate

THE FORMULARY PROCEDURE • Forms of action were described precisely, which gave the law continuity • In an individual case, the forms could be altered and assembled in different ways to create a specific statement of issues • This altering and assembling of forms was performed by a judicial magistrate

STAGES IN THE CIVIL PROCEDURE • 1. In jure, before a magistrate, the praetor, charged with administering justice. The magistrate determined whether the litigants should be allowed to proceed and, what form their action should take • 2. In judicio, before a judge, a private individual who need not have been a lawyer - trial

PRAETOR • An elected magistrate • Commander of an army • Provincial governor

THE EDICT • The magistrate needed a scheme for determining which claims would be allowed to proceed • A long list containing the lawsuits to be allowed • The edict - individual entries describing actions that could be granted

The Edict • If the litigant’s circumstances did not match any of the entries, he might persuade the magistrate to invent a new claim and allow it to go before a judge • If the magistrate accepted, he might incorporate the new claim in the edict for future cases

JUDGE • The judge did not hold office but was appointed for service in a single case, and selected personally by the parties • He had no special qualifications other than his wealth • A private individual who conducted the trial without guidance from the state

CONSEQUENCES • A lay judge needed detailed written instructions at the outset • His conduct of the trial and his judgement was of no enduring importance to the legal system

INSTRUCTIONS • The final expression of the law in a given case was the set of instructions that the magistrate gave to the judge • The parties’ pleadings, containing their allegations

INSTRUCTIONS • The allegations had to satisfy the requirements of the law as determined by the magistrate, they came into the judge’s hands in a form that permitted relief under the law

Instructions • The single most important item in the lawsuit, far more important than the judgement • The core of the dispute: what a party had to show in order to win

FORMULAE • The instructions – prepared according to formulae, composed of “specially prepared phrases” • Each formula – divided into parts, and each part had a particular function • Very few actual formulas survived

A FORMULA FOUND NEAR POMPEII, 1ST CENTURY AD • “Blossius Celadus shall be the judge. If it appears that C. Marcius Saturninus ought to give 18,000 sesterces to C.Sulpicius Cinnamus, which is the matter in dispute, C. Blossius Celadus, the judge, shall condemn C. Marcius Saturninus for 18,000 sesterces in favour of c. Sulpicius Cinnamus; otherwise he shall absolve”

Procedural contract • The parties undertook to abide by the judge’s decision and the judgement was binding

THE TRIAL • The trial took place in the forum, an open space used at first as the market place but later used chiefly for judicial proceedings

Trial • Speeches with introduction of evidence, speeches followed by evidence, or a speech for the plaintiff, a speech for the defendant, then evidence on each side, then speeches by way of summing up; or evidence followed by speeches on each side

PRINCIPLES OF PROCEDURE • 1. The principle of party representation • 2. The principle of publicity: public participation acts as a restraint of abuses of procedure • 3. The principle of orality, closely related to the principle of immediacy

THE PRINCIPLE OF IMMEDIACY • Preserves the integrity of a judgement by ensuring that arguments and evidence are put to the judge in the most direct manner possible • One-day rule: pleading, proof, argument and judgement must take place on the same day, the judgment being given before sunset

THE PRINCIPLE OF IMMEDIACY • If judgement cannot be given before sunset, the case must begin anew on another day, with at least some of the events of the previous session being repeated • A judge should have a vivid picture of the case in mind and thereby be less liable to make a mistake

Summary • In jure • In judicio, or apud judicem

In jure • Purpose: to frame the issues to be tried, • To appoint a judex; • hearing to decide whether the action should be allowed to the plaintiff • Formula • Procedural contract

In judicio • Trial • Speeches • Evidence • Forum • Principles of party representation, publicity, orality, immediacy

Legal terms • Person asking relief against another person in civil proceedings: • plaintiff, claimant • Person who is sued in a civil action: defendant • The written, preliminary settlements of the matters at issue in a dispute that are exchanged between the parties before the trial: • pleadings

Legal terms • Try • to hear civil or criminal trial; voditi sudski postupak • Trial • The hearing of a civil or criminal case before a court of competent juridiction. Trials must, with rare exceptions, be held in public; suđenje • Hearing • Any appearance of a case before a court, including trial; ročište, saslušanje, rasprava

Legal terms • Undertake • To promise to do something; obvezati se • Abide by • If you abide by a law, agreement, or decision, you do what it says you should do; respect • Bind • To make someone obey a rule o keep a promise (bound; binding)

Legal terms • Arbitrator • A person not concerned with a dispute who is chosen by both sides to try to settle it; izabrani sudac • arbitration; arbitrate

Put the verbs in brackets into appropriate forms • Since the days of the Law of the Twelve Tables, developed during the early Republic, the Roman legal system _________(characterize, passive) by a formalism that _______(last) for more than 1.000 years.

Put the verbs in brackets into appropriate forms • Early Roman law _______(draw, passive) from custom and statutes, but later during the times of the empire, the emperors ______(assert) their authority as the ultimate source of law.

Put the verbs in brackets into appropriate forms • Their edicts, judgments, administrative instructions, and responses to petitions _____(collect, passive) with the comments of legal scholars."What _____(please) the emperor has the force of law." As the law and scholarly commentaries on it ______(expand), the need _____(grow) to codify and to regularize conflicting opinions.

Key • Since the days of the Law of the Twelve Tables, developed during the early republic, the Roman legal system was characterized by a formalism that lasted for more than 1.000 years. • Early Roman law was drawn from custom and statutes, but later during the times of the empire, the emperors asserted their authority as the ultimate source of law.

Key • Their edicts, judgments, administrative instructions, and responses to petitions were all collected with the comments of legal scholars."What pleases the emperor has the force of law." As the law and scholarly commentaries on it expanded, the need grew to codify and to regularize conflicting opinions.

Supply the missing words: consequences, fairness, flexibility, form, principles, procedures witnesses • The basis for Roman law was the idea that the exact____, not the intention, of words or of actions produced legal____. Romans recognized that there are _____ to actions and words, but not to intentions. Roman civil law allowed great _____in adopting new ideas or extending legal ____in the complex environment of the Empire. Without replacing older laws, the Romans developed alternative ____that allowed greater ______.

action, flexible, invalid, property, testament • For example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his____, the magistrate would grant them an ____ to have the will declared ____ as an "irresponsible____." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by ____adaptation.

Code, collectively, emperor, publish, ruled • It was not until much later in the 6th century AD that the ____Justinian I, who ____ over the Byzantine Empire in the east, began to ____a comprehensive ____ of laws, ____known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.

Key • The basis for Roman law was the idea that the exact form, not the intention, of words or of actions produced legal consequences. Romans recognized that there are witnesses to actions and words, but not to intentions. Roman civil law allowed great flexibility in adopting new ideas or extending legal principles in the complex environment of the empire. Without replacing older laws, the Romans developed alternative procedures that allowed greater fairness.

Key • For example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his property, the magistrate would grant them an action to have the will declared invalid as an "irresponsible testament." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by flexible adaptation.

Key • It was not until much later in the 6th century AD that the emperor Justinian I, who ruled over the Byzantine Empire in the east, began to publish a comprehensive code of laws, collectively known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.

ROMAN CIVIL PROCEDURE