UNIT 11

Roman Law&

Roman Civil Procedure

History of the Roman civilisation - from the City of Rome to the fall of the Eastern Empire 753 BC – the City of Rome was founded – the Roman

Kingdom 509 BC – The Roman Republic was established

(Early Republic – 509 – 123 BC:

Late Republic – 123 – 23 BC) 27 BC - Ancient Roman Empire was founded (Augustus -

the first emperor) – 23 BC extended powers 285 AD - Division into Western and Eastern Roman

Empire (Byzantine Empire) 476 AD - Decline of the Western Roman Empire 1453 AD – Decline of the Eastern Roman Empire

Roman Law

= the law of ancient Rome from the time of the founding of the city in 753 BC until the fall of the Western Empire in the 5th century AD

remained in use in the Eastern, or Byzantine, Empire until 1453

as a legal system, Roman law has affected the development of law in most of Western civilization as well as in parts of the East

forms the basis upon which the law codes of most countries of continental Europe rest (eg. German Civil Code)

Law of the Roman Republic and Empire - Sources

customs and usage legislation - most laws were passed by

assemblies dominated by patrician families edicts and proclamations issued by

magistrates (rulings of magistrates were important)

laws issued by the emperor – (later emperors issued their own decrees)

interpretations of jurists (had the force of law)

Influence on the English legal system

ancient Roman rules never had the force of law in England

Roman Law was taught at Oxford and Cambridge

some substantive rules, concepts and ways of reasoning based on the Roman legal tradition influenced the English legal system

Law of the Twelve Tables

the earliest and most important legislation enacted in 451–450BC during the struggle of the plebeians for political equality

written by 10 commissioners at the insistence of the plebeians, who felt their legal rights were hampered (court judgments were rendered according to unwritten custom preserved only within a small group of learned patricians)

in 450 the code was formally

posted, likely on bronze

tablets, in the Roman Forum

Law of the Twelve Tables

originally 10 laws were drafted and 2 later statutes were added (prohibiting marriage between classes and affirming the binding nature of customary law)

- promoted the organization of public prosecution of crimes - instituted a system in which injured parties could seek just

compensation

justice was no longer based solely on the interpretation of judges

the text of the code has not survived, and only a few fragments collected from allusions and quotations of Cicero (numerous matters were treated, among them family law, delict (tort, or offense against the law), and legal procedure)

Corpus Juris Civilis (“Body of Civil Law”) the collections of laws and legal

interpretations developed under

the sponsorship of the Byzantine

emperor Justinian I from ad 529

to 565 AD the most successful effort to

gather and simplify the existing

laws beginning with the Law of

the Twelve Tables – formed the Roman Empire’s legal legacy not a new code the old law + the new law - Justinian’s

committees of jurists provided two collections of past laws (classical period) and extracts of the opinions of the great Roman jurists + an elementary outline of the law and a collection of Justinian’s own new laws

Corpus Juris Civilis (“Body of Civil Law”)

Comprises:

1. Codex Constitutionum (revised) – selected and adapted imperial constitutions

2. Digesta (the Digest) – simplified and digested writings of jurists

3. Institutes – a complete exposition of the elements of Roman law– based on the Institutiones of Gaius - used as manual for jurists

4. Novellae Constitutionem (the Novels) – new constitutions – Justinian’s ordinances issued between 534 and 565 AD

basis for the law which was in force in parts of Europe long after the fall of the Roman Empire – but not in its original form

interpreted, developed, and adapted to later conditions received additions from non-Roman sources

Roman Civil Procedure

Republic / Early Empire

lawsuits in two stages plaintiff called the defendant to court or brought him by

force; presented his case in person; defendant had to accept it – contractual element

plaintiff had the ‘burden of proof’ a magistrate then decided whether the case should go

before a judex, or prominent layman judex heard arguments from advocates and questioned

witnesses; he made a decision but had no power to execute it

the trial ended with procedural contract judex = a private person appointed to hear and try a

particular case as an arbitrator

Roman Civil Procedure - the earliest law suits (legis actiones)– conducted orally in 2 stages

1 IN JURE

(preliminary stage)

2 IN JUDICIO(actual presentation of evidence)

before the magistrate / praetor ; a very formal procedure

framing the issue appointment of judex or judices a hearing to determine if

a) the plaintiff has a case

b) action should be allowed to the plaintiff

proctor settled the formula / instructions to the judex

before the trier (judex) or triers

in the forum; no formal rules

trial ended with a procedural contract (commitment of the parties to abide by the judgement)

speeches, forum, evidence, witnesses

SUMMONS

In the early period plaintiff personally summoned the defendant and brought him before the magistrate – governed by the Twelve Tables

Table I.

1. If anyone summons a man before the magistrate, he must go. If the man summoned does not go, let the one summoning him call the bystanders to witness and then take him by force.

2. If he shirks or runs away, let the summoner lay hands on him.

3. If illness or old age is the hindrance, let the summoner provide a team. He need not provide a covered carriage with a pallet unless he chooses.

FORMULA – a set of instructions to the judex settled by proctor (pleadings of the parties and directions to the judge) ; composed of special phrases

Essential parts

A) intention – concise formulation of the plaintiffs claim

B) condemnatio – directions to the judge how to condemn the defendant if he found after hearing the evidence and the arguments for the condemnation (otherwise he should acquit)

Roman Civil ProcedureLate Empire plaintiff submitted written statement of his defence no formal procedural contract judex = a state official court could refer some point to the oath of a party

(settlement) only the unsettled issues were tried much greater power in the hands of the magistrates and courts;

the summons was issued by the court; the trial was held only before a magistrate; the court became responsible for the execution of the sentence

the contractual element in procedure and the old two-stage division disappeared

speeches held by orators (usually up to 4 for each party – points divided)

parties could speak on their own behalf

MAGISTRATE in Roman law = executive officials (consuls, praetors, quaestors-financial officers, proconsuls-provincial governors, censors); civil officer administering the law

PRAETOR = elected judicial officer, magistrate who presided over civil matters (the office was created in 367 BC to take over the expanding work involving citizens; elected yearly with the consuls)

- responsible for public games

- in the absence of consuls exercised authority in the government

- issued edicts concerning judicial procedures

- at various times the number of praetors varied

(late Republic -8 praetors – praetor urbanus heard civil cases; praetor peregrinus handled suits which involved foreigners )

- late Roman Empire – most praetors disappeared

JUDEX = a judge; a private person appointed in Roman law to hear cases and give judgements– an arbitrator

Reading comprehension I

Read the text in the book and use the information from exercise 1, p. 53 in the given table and fill in the table.

IN JURE IN JUDICIO

Reading comprehension IIAnswer the following questions.

1 What were the differences in the civil procedure between the Republic/the early empire and the later empire?

2 Why was “formula” such an important document?

3 What was the significance of the procedural contract?

4 How could evidence be introduced?

5 What is a forum?

Essential vocabulary ordinance = uredba, propis, zakon edict= proglas decree=odredba, uredba, ukaz to pass/pronounce/render /give a

judgement=donijeti presudu to seek just compensation=tražiti

pravednu odštetu the Roman empire’s legal

legacy=pravno nasljeđe Rimskog carstva

to interpret, develop and adapt =tumačiti, razvijati i prilagoditi

judex (pl. Judices) = osoba koja presuđuje, sudac

praetor=pretor (najviši rimski državni dužnosnik u području sudstva)

proctor=proctor, odvjetnik to issue summons= izdati sudski

poziv frame the issue=formulirati predmet

spora

formula= pismeni prikaz slučaja i prijedlozi mogućih pravnih posljedica – settle the formula

procedural contract=procesni ugovor

to execute a decision/sentence= provesti odluku/kaznu

execution of a decision/sentence= provedba odluke/kazne

to submit a written statement=predati pismenu izjavu

to abide by the contract=pridržavati se ugovora

to refer a point to the oath of the party= postići nagodbu za neki problem

unsettled issues = neriješena pitanja

arbitrator=izabrani sudac, arbitar

to try – trial – trier = suditi, suđenje, sudac/osoba koja odlučuje

an oath = prisega

Who is who in the Roman Civil Procedure?

praetor/superior magistrate

a judge; a private person appointed in Roman law to hear cases – an arbitrator

judex a judge

proctor (1) a civil officer administering civil law(2) military commander (governor)

trier one that by profession or special authorization manages another’s affairs in a court of civil or canon law

Latin terms- match the Latin terms with their English equivalentsLatin term English equivalent

legis actiones in judgement

in jure civil law

in judicio in right, law, or justice; in court

judex (judices) judge

jus civile Body of Civil Law

Corpus Juris Civilis legal action

Collocations- match verbs and nouns

to render a written statement

to frame by the result of the submission

to submit an issue

to abide some particular point to the oath of a party

to refer justice

to administer a judgement