At Rome, almost all suits between citizens were raised initially in the court of the urban praetor, an annually elected magistrate. The Praetor's Edict listed those causes of action that he was willing to accept during his term of office, as well as the general procedure to be followed in his court; already by the late Republic, the contents of the Edict varied little from year to year. If, in a given case, the plaintiff stated an acceptable cause of action, the praetor assigned a judge (iudex), or in some cases
On defining classical law, see Wieacker 1961 (f 704) 161-86.
See esp. Koschaker 1966 (f 664).
5 On substantive law, see esp. Kaser 1971-5 (f 662) 1—ri; on procedure, Kaser 1966 (f 661). The best general account in English is Buckland 1966 (f 646).
4 It is described at length in Kaser 1966 (f 661) 107-538; see also Pugliese 1963 (f 680). The following account is necessarily inexact because of its brevity. The only surviving ancient description is Gai. Imt. tv. Formulary procedure is based on the Urban Praetor's Edict, reconstructed by Lenel 1927 (в 110); for the Edict's state in the early Empire, see Kaser 1984 (f 663) 65-73, 102-8. See also ch. 12 above, pp. 398-401.
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multiple judges, to hear the case; the iudex was usually a layman acceptable as an arbiter to both sides.
In order to instruct the iudex on handling the case, the praetor embodied the cause of action, together with any legally acceptable defences from the defendant, in a brief statement called the formula. This formula officially appointed the iudex, named the parties to the suit, specified the legal issue between them, and ordered the iudex to decide the case.[1154] In the second stage of the trial, the iudex heard argument from rhetorically skilled advocates on either side of the case; on the basis of this argument he returned a verdict that accorded with the formula. Although in practice the formulary procedure was complex and deviations from this simplified model were frequent, private trials under formulary procedure were in principle always highly arbitrational; as a rule the verdict of the iudex could be neither reviewed nor appealed.
The formula, which tied together the two stages of a typical trial, gives formulary procedure its name. This procedural system, introduced by urban praetors probably in the third century B.C., gradually supplanted the older and more formalistic legis actio system, until by the late Republic private litigation was normally initiated through formulary procedure.
The principal participants in the Roman judicial system (praetor, iudex, and advocates) normally had no special competence in law. The juristic movement began outside the judicial system. During the third century B.C., self-styled legal experts {iurisconsulti or iurisperiti) undertook to assist laymen with the drafting of legal instruments or with the procedural intricacies of trials. However, the juristic movement did not obtain real influence and intellectual strength until the first century в.с., when jurists like Q. Mucius Scaevola (cos. 95) and Ser. Sulpicius Rufus (cos. 5 2) began to study legal norms on a far more intensive, 'scientific' basis. Their efforts created a true legal science under the control of professionals. By the last years of the Republic, Roman jurists had come to exercise considerable influence over the conduct of private trials, particularly in resolving questions of law that arose in the course of trials. Although in the late Republic neither the praetor nor the iudex was legally obliged to accept the jurists' opinions as presumptively binding statements of law, in fact the jurists already determined large areas of law that had previously been discretionary.[1155]
The establishment of the Augustan Principate did not at first lead, as might have been expected, to a diminution of juristic independence and influence. On the contrary, the jurists, who in the late Republic derived chiefly from the Italian and equestrian stock that formed the core of Augustus' new oligarchy,[1156] found themselves well positioned to interpret the aspirations of the new regime within the limited but important domain of private law. Likewise, emperors seem to have perceived the value in preserving private law's independence, as a symbol of legitimacy and continuity; accordingly, direct imperial intervention in the Roman judicial system was initially cautious and sporadic, at least as a rule. Only very slowly, over centuries, did the government move to control and centralize the administration of justice, and thus to give the Roman judicial system a more regularized form, one more familiar to modern eyes. This evolution hinged on two major changes: the gradual replacement of the formulary system with 'extraordinary cognition' under the control of imperial officials; and the rise of imperial rescripts as a major source of law eventually supplementing or replacing jurists' law. However, neither change was complete until after the end of the classical period of Roman jurisprudence, in the middle of the third century a.d.
During the classical period, Roman jurisprudence was more or less identical with the thought and writings of the great jurists of the city of Rome. Except for Gaius' Institutes, an introductory treatise, no classical writings survive except in fragmentary form; but Justinian's Digest, promulgated in a.d. 533, contains more than 800,000 words of lightly edited excerpts from the main works of the classical jurists, and other sources, mainly compilations of post-classical origin, supplement the Digest.8 By working closely with these sources, modern legal historians have developed a reasonably reliable impression of how classical Roman law formed and evolved during the first three centuries of the Empire.
procedural reforms that actually consolidated the formulary system and strengthened the jurists' authority within it.
Probably in 17 B.C. Augustus proposed and carried a general statute reforming private procedure (lex lulia de iudiciis privatis).n The text of the law does not survive, but its content is briefly described by Gaius and also often alluded to in juristic, literary and epigraphic sources. One portion of this law eliminated almost all surviving vestiges of archaic legis actio procedure. Henceforth, with the major exception of the centum viral court (which chiefly heard important inheritance cases), all private lawsuits brought at Rome had to be initiated through formulary procedure.[1157]
The Lex lulia also contained numerous provisions on the process of adjudication; it regulated the official panel (album) from which iudices were normally named, the conduct of judges in hearing trials, the legitimate excuses for avoiding service as a judge, and so on.[1158] One fundamental distinction it introduced was between 'statutory trials' (iudicia legitima) and 'trials dependent on magisterial office' (iudicia quae imperio continentur). 'Statutory trials' included only suits brought at Rome between two Roman citizens, provided these were to be decided by a single iudex\ the grant of such suits by the praetor remained effective for eighteen months, after which it lapsed if the iudex had not yet reached a verdict. By contrast, all other private lawsuits lapsed if they were undecided at the end of the granting magistrate's term of office.[1159]Although this distinction probably resulted from delays in handling the large volume of lawsuits brought at Rome, its consequence was to give the urban praetor's court a special standing among all jurisdictions in the empire.