The ius novum, insofar as it deviates significantly from older law, is often associated with a new form of procedure 'outside' the normal formulary system: extraordinary cognition (cognitio extra ordinem).M In the first century this new procedure still had a somewhat makeshift character, as various elements of administrative process were loosely combined. For example, when Augustus made informal testamentary requests {fideicommissa) legally enforceable in some instances, he ordered the consuls to supervise their implementation. Such fideicommissa proved popular and soon became more generally enforceable; in order to ease the burden on the consuls, Claudius created two new praetors (reduced to one by Titus) who did nothing but handle them.[1198] In other instances the emperor relied on his own deputies; for example, Claudius gave legal force to the decisions of his procurators.[1199]
Procedure before judges who had been delegated by the emperor differed markedly from the formulary system. Unlike the urban praetor, these judges took a much more active role in summoning the defendant, conducting the trial, determining the case and enforcing the verdict.[1200]Unlike formulary procedure, which presumed a model in which adversary proceedings led to the binding arbitration of disputes, extraordinary cognition more resembled the inquisitorial procedure commonly associated with modern Continental law.
Extraordinary cognition implies the power of the emperor to hear and decide lawsuits, either personally or through delegates; Augustus and his successors used this power extensively, although its constitutional basis is once again elusive.[1201] In turn, delegation implies at least the possibility of appeal (appellatio, provocatio) from the delegated judge to a higher authority. Appeal is also attested as early as Augustus, and it seems to become steadily more frequent under later emperors.[1202] Further, appeal was not confined, as might have been expected, only to extraordinary cognition; already Augustus is reported to have quashed the jurisdictional rulings of 'ordinary' magistrates, and Claudius and Domitian went still further by reforming the verdicts of iudices.[1203]
Extraordinary cognition is a considerable advance in procedural rationality over formulary procedure; the ancient arbitrational system gradually gave way before a system with more modern characteristics - a striking instance of how legal modes of thought came gradually to pervade the Roman judicial system. Nevertheless, although the elements of this new system were in place by the first century a.d., formulary procedure remained the dominant form of civil procedure for Roman citizens throughout the empire (except in Egypt). Its continued preeminence is reflected in the numerous procedural documents buried by the ashes of Mount Vesuvius in a.d. 79,[1204] as well as in the writings of first-century jurists who virtually ignore extraordinary cognition.
Another early imperial reform was also to be of lasting significance. By the Lex Cincia of 204 b.C., judicial advocates had been forbidden to accept honoraria for their services; Augustus reaffirmed this law, although it was already being widely flouted. In a.d. 47, however, Claudius had carried a senatusconsultum allowing payment of up to 10,000 sesterces to advocates; this measure was apparently confirmed, though with some restrictions, when Nero became emperor.[1205] Ancient sources usually regard the change with distaste, because it eroded the position of oratory as a gentleman's pursuit. However, the possibility of pay undoubtedly encouraged an enlargement in the corps of orators, so that their services became more widely and easily available to litigants; and pay also promoted a more professional attitude on the part of advocates in their argument of cases. In Tacitus' Dialogus (set in the early 70s), speakers lament the displacement of lush oratory by legalism in the private courts;[1206] what they basically resent is the emergence of truly professional lawyers, a major step in the rationalization of Roman civil procedure.
vii. the flavian jurists
Probably even before Nero's overthrow in 68, the two juristic schools had changed leadership. The new heads, both closely associated with Vespasian, enjoyed little prestige within the later juristic tradition. Caelius Sabinus (cos. suff. 69), who headed the Sabinians, is all but ignored by later jurists.[1207] His Proculian counterpart, Pegasus (cos. suff. 76?), fares only somewhat better; despite his reputadon among contemporaries for vast learning, he is known to history mainly from Juvenal's biting description of his complacent behaviour while serving as Domitian's urban prefect.[1208] Little is known about Pegasus, but he is perhaps the brother of a considerably more important jurist, Plautius, who may conceivably be D. Plotius Grypus (cos. ord. 88); Plautius' writings, also in the Proculian tradition, were frequently annotated and excerpted by later jurists.[1209] By contrast, the elder Juventius Celsus, who succeeded Pegasus in the Proculian school, is an exceedingly dim figure.[1210] The Flavian jurists in general maintained the standard school distinctions, with little major innovation in substance or method.[1211]
The Flavian period was thus a disappointing one from the jurists' standpoint; talent was lacking, or the times were not right. However, by the end of Domitian's reign jurisprudence attracted several new personalities of major importance: Javolenus Priscus (cos. suff. 87), the successor of Caelius Sabinus among the Sabinians; Titius Aristo, who probably remained outside the Senate; and Neratius Priscus (cos. suff. 97) and the younger Celsus (pr. 106/107,cos- П 129), who jointly headed the Proculians after the death of the latter's father. The advent of these brilliant jurists marks the beginning of Roman private law's 'high classical' period, the apex of the juristic movement at Rome.[1212]
APPENDICES
I. CONSULAR DATING FORMULAE IN REPUBLICAN ITALY
Consular dating formulae in series are of extreme rarity in republican Italy; they occur on wine amphorae, roof-tiles, the so-called tesserae nummulariae, and also on the inscriptions of the Capuan magistri.
Dates on wine amphorae are readily intelligible:
C/L i2 2929, Falernian, 160 b.c. (A. Tchernia, be vin de I'ltalie romaine, Rome,
1986, 60-3, should not have rejected the testimony of Cic. Brut. 287; the
absence of the term Falernian from the fragment Polyb. xxxiv. 11.1 is
manifestly without significance if one reads it in its context in Athenaeus)
ILLRP 1178, 121 в.с.
ILLRP 1180a, 107 в.с.
ILLRP 1181, Massican Falernian, 102 в.с.
ILLRP 1182, Falernian, 102 b.c.
IILRP 1179, 'O(pimianP)' Falernian, 101 в.с. (compare 1180, 'O(pimianP)' Falernian)