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ROMAN CIVIL PROCEDURE. UNIT 11. Two phases of the procedure. ROMAN CIVIL PROCDURE 1. phase - to frame the issue to be tried - to appoint a judex or judices PROCTOR – formula, set of instructions
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ROMAN CIVIL PROCEDURE UNIT 11
Twophasesofthe procedure ROMAN CIVIL PROCDURE 1. phase - to frametheissue to betried - to appoint a judexorjudices PROCTOR – formula, set ofinstructions PROCEDURAL CONTRACT – partiesabidebythejudgement (itisbinding on theparties) 2. phase IN JURE (beforethemagistrate) IN JUDICIO (beforethetrier/triers, judex/judices)
SUMMONS • In the classical law 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 of the state, the praetor, charged with administering justice. The magistrate determined whether the litigants should be allowed to proceed and, if so, what form their action should take • 2. In judicio, before a judge, a private individual who did not have to be a lawyer. This stage was the trial itself
PRAETOR • An elected magistrate • Commander of an army • Provincial governor
THE EDICT • The magistrate needed a scheme for determiningwhichclaimswouldbeallowed to proceed • He maintained a long list announcinghisintentionsandexpectationsregardingthelawsuits he wouldallow • This list, theedict, containedindividualentriesdescribingtheactionswhich he waswilling to grant • Ifthelitigant’scircumstancesdidnotmatchanyoftheentries, he mightpersuadethe magistrate to invent a newclaimandallowit to gobefore a judge • Ifthe magistrate accepted, he mightevenincorporatethenewclaimintheedict for future cases
JUDGE • Thejudgedidnotholdoffice but wasappointed for servicein a single case, andselectedpersonallybythepartiesifpossible • He had no specialqualificationsotherthanhiswealth • A privateindividualwhoconductedthetrialwithoutguidancefromthestate • In thelaterempirehe wasanofficial
CONSEQUENCES • A layjudgeneededdetailedwritteninstructions at theoutset • Hisconductofthetrialandhisjudgementwasof no enduringimportance to thelegal system
INSTRUCTIONS • Thefinalexpressionofthelawin a givencasewasthe set ofinstructionsthatthe magistrate gave to thejudge (preparedbythe PROCTOR) • Theparties’ pleadings, containingtheirallegations • Theallegations had to satisfytherequirementsofthelaw as determinedbythe magistrate, theycameintothejudge’shandsin a formthatpermittedreliefunderthelaw • The single most importantiteminthelawsuit, far more importantthanthejudgement • Thecoreofthedispute: what a party had to show inorder 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 • “BlossiusCeladusshallbethejudge. Ifitappearsthat C. MarciusSaturninusought to give 18,000 sesterces to C. SulpiciusCinnamus, whichisthematterindispute, C. BlossiusCeladus, thejudge, shallcondemn C. MarciusSaturninus for 18,000 sestercesinfavourof c. SulpiciusCinnamus; otherwise he shallabsolve”
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
PRINCIPLES OF PROCEDURE • 1. Theprincipleofparty representation • 2. Theprincipleofpublicity: publicparticipationacts as a restraintofabusesof procedure • 3. Theprincipleoforality, closelyrelated to theprincipleofimmediacy
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 • 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
Which expression is missing? • ___________ is a person asking for a solution through any kind of proceeding, because the other person violeted its rights. 2. Any form of various written forms by which the praetors of ancient Rome referred cases to judges for hearing and adjucation was called _____________. 3. The person whose special function was to administer justice was called ___________ or ____________ in Roman law. 4. A private person appointed in Roman law to hear and determin a case was called __________ , a judge in Roman law.
KEY • PLAINTIFF is a personasking for a solutionthroughanykindofproceeding, becausetheotherpersonvioleteditsrights. 2. Anyformofvariouswrittenformsbywhichthepraetorsofancient Rome referredcases to judges for hearingandadjucationwascalled FORMULA. 3. Thepersonwhosespecialfunctionwas to administerjusticewascalled PRAETOR or MAGISTRATE in Roman law. 4. A privatepersonappointedin Roman law to hearanddetermin a casewascalled JUDEX , a judgein Roman law.
