Challenges, Reviews, Appeals

Until the principate and the arrival of the cognitio procedure, a disappointed litigant had limited means for challenging a judgment or the decision of a magistrate; none of the available means could be described as ‘appeal’.²⁰ Before cognitio, a lawsuit proceeded in a (to us) back-to-front manner, with the higher authority (the magistrate) making certain final decisions before the matter was passed to the lower authority (the judge).

In theory, this ought to clear the stage of appealable issues before trial. In practice, it might be necessary not to ‘appeal the case’ to a higher authority, but to revisit a matter that the magistrate had earlier decided. A litigant might, for example, seek the auxilium of a tribune or the veto of another magistrate.²¹ This must have been rare, however. The more usual method for revisiting a magistrate’s decision, and the method addressed at length in the praetor’s edict,²² was to seek restitutio in integrum (‘restoration to an earlier state of affairs’). This was a special praetorian remedy, often invoked to relieve a litigant from the legal effects of a transaction deemed to be unfair in that instance. The remedy resembled an appeal, however, when a litigant had lost his right to bring an action and equity demanded that that right be restored. This might occur, for example, if a litigant had innocently sued a person who lacked the capacity to be sued, or if a litigant’s action had expired because a magistrate’s own negligence had allowed it to do so. A further means to challenge the legal sufficiency of a judgment, somewhat analogous to restitutio, was for a losing defendant to mount a challenge when the prevailing party brought an enforcement action (actio iudicati). The need to furnish security, and the risk of a double condemnation in the event that the challenge failed, made this a perilous course.

Quite a separate avenue for challenging a judgment was to bring a personal action against the judge.²³ Aside from some possible pre-edictal roots, this type of proceeding belonged to the formulary procedure, and specifically to lawsuits that were brought before the lay unus iudex.

The grounds on which these actions were granted is not perfectly clear: the evidence is patchy, and it is difficult to distinguish the grounds set down in the praetor’s edict from the grounds set down later in a lex lulia de iudiciis privatis (17 BC, discussed below, 282). Properly speaking these actions were not a species of appeal or even a substitute for appeal, but a tool of administration: the state machinery lacked the means to manage the trial, and opted to ‘manage the judge’ instead. He was given a single commission and charged with performing it properly at the risk of personal liability. Aside from certain errors of calculation, easily avoided, he was bound (1) to give judgment within the proper time, and (2) not to give judgment in the face of certain unexpected events, for example a party’s illness. It is unlikely that a judge who crossed these lines would face certain condemnation, at least after the passage of the lex lulia; many of the errors for which a judge was responsible could be easily corrected (although after execution of a defective judgment, perhaps not.)

From the principate onwards, an increasing number of cases were brought under the cognitio procedure, and because the authority to adjudicate these cases derived ultimately from the emperor’s imperium, appeals could now be taken to the emperor himself or to persons or institutions to whom he delegated this authority.²⁴ The appellate authority, moreover, could reform the judgment, where restitutio had only allowed earlier proceedings to be annulled. For the principate the sources are more spare, but it appears that civil appeals were variously permitted to the urban praetor (from Roman litigants), to the senate (from provincial litigants), and in the late principate to the praefectus praetorio. We would expect, however, that in the usual case appeals would be taken from the delegated judge to the delegating magistrate or, where relevant, a provincial governor. In the later empire the judicature was much altered, with cases being heard at first instance in local courts and provincial governors’ courts, and more rarely before the now multiple praefecti praetorio and in the courts of regional vicarii (deputies of the praefecti). Second or even third appeals might be heard from these courts upwards, though the governors’ courts were usually the last resort for local matters.

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Source: Johnson David (ed). The Cambridge companion to Roman Law. Cambridge University Press,2015. — 554 p.. 2015

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