I CIVIL PROCEDURE IN THE CLASSICAL PERIOD

i. Formulary procedure

Getting tCi UifinUcnl blfcoi tCi pocilco

Sidcr tWr procrdurr could dot commrecr witWout tWr drSrddadt, it was drcrssary to Wavr a mrads oS comprllidg Wis attrddadcr brSorr tWr prartor, a stagr oS procrrdidgs kdowd as procrrdidgs in iroi.

Uddrr tWr Sormulary systrm, it was dot uncommon Sor tWr partirs to agrrr to mrrt at a crrtaid elacr Sor tWr eureosr oS tWrd goidg brSorr tWr prartor to obtaid a Sormula. TWr prosprctivr drSrddadt would eromisr to aeerar at a crrtaid elacr add timr drar tWr court, so tWat tWr plaidtiff could tWrd Sormally summon Wim brSorr tWr magistratr (in irs vcsatic). A dumbrr oS survividg documrdts dral prrcisrly witW tWis (WolS 1985).

TWrrr was dotWidg drcrssarily rxtrddrd about tWrsr procrrdidgs: ow tWr wWolr tWr erartor did dot idvrstigatr tWr rigWts or wrodgs oS tWr mattrr but simely gradtrd a Sormula wWicW covrrrd tWr elras oS racW earty. TWrrr was, Wowrvrr, a groue oS casrs id wWicW tWr Sormula would br granted ooiy alter scrutiny of the Waso; mid if thS pleintiff sougWt ad actiod wWicW did dot apprar id tWr rdict tWis too would errsumably rrquirr morr timr.

TCi fcomrla

Id book 4 oS Wis Institutes Gaius givrs a clrar accoudt oS tWr way id wWicW Sormular wrrr ^meos'd (Inst. 4.39-52; 're also Jofowicc and NicWolas 1972: 203-15). TWr rssrdcr is tWis: Sormular wrrr built up oS clausrs, somr maddatory, otWrrs optiodal, so as to rdcapsulatr id a sidglr srdtrdcr all tWr issurs wWicW tWr judgr must drtrrmidr. TWr judgr was tWrrrSorr Sacrd witW ad (admittrdly comelrx) qurstiod to wWicW tWr adswrr must id rffrct br ‘yrs' or ‘do'. Plaidly tWis limitrd Wis scoer Sor rrror; not ad iiiciiipa sum owed (condictio), which would be used in the case of a lomauntu (um) or stipulatio of a tum oi’ monoh:

Let Gatiss Ije S 1jcSs^i If ft apyaaet rhat Nu nitriiis Nggidigt ought to givo Aules Agerius 1,000 sesterces, let the judge condemn Numerius Negidius to Aulus Agerius for 1,000 sesterces; ff tt does noo so appeae.

This i s an ensireto draightforward 1ot iouO, Bi.1 vsliai shauie be stbed io that the formula as it stands will allow the defendant to advance o defence: that he doo noi two ffie monon ^uppfp^, howencr, that ha admits he owes the money but alleges that the parties had m agreement titat foo a ae aiod of five years the plaintiff would not sue for repayment. To raise this issue before the court, so as to be entitled to lead witnesses or produce other evidence about it, the defendant will have to plead a further defence. Here the appropriate one would be the defence that there was an agreement (exceptio pacti): the words ‘unless it was agreed between Aulus Agerius and Numerius Negidius that no action for this money should be brought for five years’ would simply be added to the formula.

Similarly, if the defendant admitted the debt but alleged that he was tricked by the plaintiff into entering into the contract, he would have to plead a defence. Here the appropriate one might be the exceptio doli, which was a general plea to the effect that the plaintiff was acting fraud­ulently or in bad faith: the words ‘if in this matter nothing has been or is being done in bad faith by Aulus Agerius' would be added to the formula.

The pleading of a defence (exceptio) by the defendant may well not have been the end of the matter: the plaintiff might have wished to plead a further point in reply to it. This would be known as a ‘reply' (replicatio); a further reply by the defendant would be a triplicatio (more or less untranslatable); and so ad infinitum. Here is the formula for the actio Publiciana, which was discussed in chapter 4. This version includes the modifications necessary to reflect the fact that the action is being brought by the bonitary owner of a slave against the true owner, and the true owner has pleaded his civil-law title as a defence.

Let Gaius be judge.

The resemblance bbewcen thih iormiila and tlie Basic mndicatio with which we bbean is clear. One ran tiaerefnre ore an impaessien of fire satility of this system of pleading, where a new block is added t formula to dee I with a new eemplexity and iIutc he hi effect no limit to the ultimate extent of the formula. It has of course to be conceded that the longer and more complex the formula became, the more proble­matic it must have been for a lay judge to apply it. Help would be required.

Discretion

Some actions were known as ‘good faith actions' (bonaefidei iudicia). This was true of all of the most important contracts, with the exception of stipulatio and the loan of mutuum (for both of which, provided the stipula­tio was for a fixed sum of money, the appropriate action was the condictio mentioned above). The formulae for good faith actions — unlike the con­dictio — included specific reference to good faith. Here is the formula for the buyer's action under the contract of sale.

Let Gaius be judge. Whereas Aulus Agerius bought from Numerius Negidius the slave which is at issue, whatever as a matter of good faith Numerius Negidius ought to give to or do for Aulus Agerius, let the judge condemn Numerius Negidius to Aulus Agerius in respect oC that; if it does not so oppear, let him absolve.

The tiigiificance of this reference to good faith was that the judge had much more discretion: he was not left simply to determine whether 1,000 sesterces were owed or not owed but was able to decide exactly what the defendant ought to pay.

Non-standard formulae

The praetor's edict contained only the standard formulae. Not all cases would be covered. It was possible none the less for a plaintiff to seek a formula even in a novel case. In these instances the formula would often set out the facts on which the plaintiff relied, rather than the brief legal narrative given in the examples already mentioned. Actions with formu­lae of this sort were known as artiones in fartum or artiones utiles, and were particularly important in extending the law. For example, the Digest title on the lex Aquilia (D. 9.2) frequently refers to such actions: this was because they were of the greatest significance in bringing up to date and expanding the scope of a statute which had been drafted in rather narrow terms. The statute itself gave a remedy in damages only to the owner of a thing which had been harmed, and only where loss had been directly caused; artiones in fartum or artiones utiles extended the scope of liability in this area and so, for instance, gave a remedy to other people who had interests in the thing, and for loss which had been indirectly caused.

From praetor to judge

Once the formula was settled and the judge appointed, the praetor's role was over, and the parties' dispute went before a judge or iudex (proceed­ings apud iudirem). The task for the judge was to hear the evidence led by the parties in order to determine whether he should condemn the defen­dant to pay or absolve him.

Judgment in m.oney

The judgment would simply be a determination whether the plaintiff had proved the necessary facts set out in the formula: in effect, this was a ‘yes or no’ decision by the judge, since he need only pronounce that the defendant was condemned or that he was absolved.

No reasons were given in the judgment, nor was any appeal possible against it (although it might in exceptional circumstances be set aside as void). It would be difficult in any case to appeal against a judgment without knowing how the judge had arrived at it.

It was fundamental to the formulary system that the only judgments the judge could pronounce were monetary. It did not matter that what the plaintiff really wanted was she; re turu of his pro perty; the judge was able only to award a sum of money.

There was a device, however, for encouraging the defendant to re the property r aTihe ffian papang nts value. It is reflected in the formula of certain actions by the presence of what is known as the clausula arbitraria (‘discretionary clause’). The clause simply provided ‘and it has not in the opinion of the judge been restored to the plaintiff⁵; this appears, for instance, in 1 be forrnffiu for the vindicatio quoted ºãòȺº. The ðãîãºïññ ef this clause allowed the judge, when he had concluded that thffe was the owner, to delay pronouncing judgment against the defendant if he returned the object. If he did, no judgment was pronounced. If he did not, the judge would ask the plaintiff to value the object. Although the plaintiff had to swear an oath as to the value of the object, it seems clear thaa hh o t sh e houlcl err on the s ide of §¹£^08^ offer aU lliis wash expropriation of the plamtiffs property. The upshot was that, if the defendant elected not to return the object, he would have to pay an inflated value for it. Indirectly, therefore, some pressure was put on him to perform rather than pay.

This clause appeared in other actions besides the vindicatio: for example, in the action for warding off rainwater discussed in chapter 4. Its presence there again gave a defendant whom the judge had provi­sionally found liable an incentive to take down the construction that was causing rainwater to damage the plaintiff’s land. If he did so, judgment would not be pronounced against him.

This seems a very cumbersome method, which prompts the question: why? The answer probably lies in the fact that the judge was a lay judge: once he had pronounced his judgment, he had no further power. He had no chance to supervise what then happened, and no standing to do so. He had no court officials to execute the judgment or to provide means for its enforcement. A monetary judgment was a straightforward end of the p>rclass=a1 style='text-indent:0cm'>The execution of a judgment was either personal (against the person of the judgment debtor) or real (against his property). The system was described in section VI of chapter 5 in the context of insolvency.

2. Other procedures

The praetor was not confined to granting formulae for actions going to trial but was also as part of his power of jurisdiction empowered to grant orders of other types. It is worth noting the most important ones here; they have been mentioned where appropriate in earlier chapters.

(1)   Interdicts. The praetor’s edict contained a lengthy list of interdicts; book 43 of the Digest contains titles on thirty-three of them. They range widely. Interdicts were of exceptional importance in the law of property, where they regulated not just possession (D. 43.16, 17 and 31) but also rights of way, water and watercourses, drains, overhanging branches, windfall fruit from trees and other such things (D. 43.18, 20—3, 27—8). Some of them have already been discussed in chapter 4. Other interdicts were concerned largely with questions of municipal administration: pre­venting building in public or sacred places;enabling road repairs carried outt preserving accaes to public wcteI'wahs (D. 43.6—15).

The principal advantage of interdict proceedings was that they were swift. This was to a large degree because they were primarily concerned with preserving the status quo and involved no inquiry into the merits of the case. So, for example, someone could obtain an interdict to prevent his neighbour building, or interfering with his water supply, or carrying out any activity contrary to his prohibition: in each case the praetor was prepared to maintain the status quo by granting the interdict. The person seeking the interdict need not show entitlement, but simply a prima facie case, for example that he had been accustomed to use the water source.

(2)   ‘Sending into possession' (missio inpossessionem) was a remedy made available by the praetor in a wide range of circumstances: examples include the safeguarding of a legacy where there was doubt about the heir's solvency; where a neighbour sougut possession to secure himself against thee thbeatsncd co llopsp of on adjacent gnildiug {damnum infecCum: see chapter 4); and also aa a psoSiminacy step to Sntoioogcy oyoc osglngc (see shapSer 5).

(3)   Restitutio in integrum. This remedy, which means roughly ‘restora­tion of the status quo', was a means by which the praetor could relieve someone of the consequences of a transaction into which he or she had entered. The best-known example was mentioned in chapter 3, namely the relief of minors who had been imposed upon or deceived into entering a transaction. But the praetor also offered this remedy in general to people who had entered into a transaction under the influence of fraud or duress. The effect was in each case that the trans­action was set aside.

g. Other civil jurisdictions

Although the Digest gives the strong impression that litigation was a matter of appearing before a single judge, a few words should be said here about two other civil jurisdictions which operated in the classical period (for further discussion, see Kelly 1976).

(1) Recuperatores (‘recoverers'). A court of recuperatores was essentially a court composed of several persons eligible to be appointed as judges, usually but not always three. The cases in which recuperatorial proce­dure was appropriate are not quite clear, although they were supposed to involve a greater public interest than ordinary cases. The lex Irnitana indicates that there was a known list of cases or categories of case which went before recuperatores: it says that at Irni cases which would in Rome be heard by recuperatores should be treated in the same way at Irni (lex Irn. ch. 89). But we are not told which cases were on this list.

(2) Centumviri. Details about the court of centumviri (literally, 100 men) lack. It seems to have sat in divisions rather than as a whole, but the numbers sitting were clearly large. Its jurisdiction was very limited. Two of its principal concerns were evidently cases where inheritances in excess of a certain value were being claimed and cases where the valid­ity of wills was being challenged, again probably only where the estate exceeded a certain value. The ancient sources indicate that the centum­viral court was the forum for forensic advocacy, and that there might be considerable public interest in litigation there (Cic., de oratore 1.180; Pim., ep. 6.33.3; Qumtilian, inst. 12.5.6; Crook 1995: 181, 184-5).

name=bookmark377>4. Provincial practice

In the provinces, it was the provincial governor who exercised jurisdic­tion. As already mentioned in chapter 1, there are marked similarities between hii role: and th at of the praetor at Rom e; ond jurisdiction was exercised in arcotdnure with he hovetnoo’r edict.

It does not appear, however, that in the provinces the two-stage mulary prcognitio was conceptually different from the formulary system, the differences between the two systems can be exaggerated. The critical points are that in formulary procedure the parties were enti­tled to select their own judge, while in cognitio they were nop in foi'inm lary procedure the magistrate was obliged to appoint someone e judge, while in cognitio he see nnp in fotmnSacy procedure there was no appeal, while in cognitio there swa.

It wiil be el ell 1' aos'ii ere nr ffiis skclch 11 ch cognitio had rwap· roote, and that ii is non popsoble lo s^ttl^ on a date ad wh idt it gecame ‘the örocer dure' for ervii businots. FotπmSahe ρro('edιιrcase was obliged to answee a summons ts it; from mere ere caee would, if appro­priate, be remitted to a nighee < < >1 co Tencl 1927: 51—3).

g. Could magistrates be relied upon?

So far it has been assumed that the praetor could be relied upon, taking legal advice where necessary from jurists, to grant the appropriate formula sine ira et studio. But even in the Digest we hear of unfair or incompetent praetors or provincial governors (Paul, D. i.i.ii; f^i^jikia^n, D. 29.5.21.2; Maec-anus, D. 36.1.67.2; Ulpaan, D. 37.10.3.5). At least so far as incompetence is concerned, matters could be improved by taking advice; and we hcaa of no k ss a jar ist than Ulpr an sittmg ai ass essoa le a prto timeaurirts speap af ffif igno ranor or stupidity of judges; the same happens llow;ιd;ιys. of coprsa 11(^11^ D. 21.2.51 pr.; Paul, D. 24.3.17.2). Where legal problems arose in relating the facts to the formula, the judge would require to call for legal advice. Judges tended to sit with a panel of advisers (consilium), at least one of whom might have had legal expertise. Although our evidence is late, it also seems that judges often sat with assessors, who are lifely on the whole to have had legal fnowledge with which they could assist the judge (Paul, D. 1.22.1). It is true that there is no guarantee that an assessor would be appointed on grounds of professional competence rather than personal favour. But this, and the additional possibility of consulting jurists, must have intro­duced at least an element of legal rigour into proceedings.

The second-century author Aulus Gellius in a well-fnown passage describes his difficulties on being appointed judge in a case. In the end, having tafen advice, he was simply unable to reach a decision and toof the only way out open to him: to swear an oath that he could not decide (sibi non liquere). That was one possibility, although the judge would be expected preferably to return a decision to absolve or condemn (Noctes atticae 14.2).

Judges then were not appointed for their legal fnowledge. It might be hoped that they would be appointed for their fair-mindedness and inde­pendence of mind. Is that hope warranted? In the past, considerable pessimism has been expressed about their honesty and their openness to corruption (Kelly 1966: 31—68). But it is worth bearing in mind evidence on the selection of judges which has come to light since these negative assessments were made. For the first time, the lex Irnitana gives us full information about the criteria for eligibility to be a judge and the proce­dure for selecting a judge in a given case. It is true that the lex relates to municipal procedure, but there are strong reasons for thinking that it was modelled on the procedure applicable in Rome itself. (See chapter 1 above and lex Irn. chs. 89, 91 and 93.)

The essential point is that the parties could agree on their own judge. Only in the event of the parties' failure to agree on a name did the cri­teria in the lex Irnitana for eligibility to be a judge and the procedure for appointment come into play. Chapter 86 requires that the magistrates should within five days of entering office publish a list of those eligible for appointment as judges, divided into three panels of equal size. The number to be appointed is fixed by the provincial governor. The main criteria are that the person should be a decurion or councillor, or other­wise be of free birth, over the age of twenty-five, and meet a certain property qualification. (It seems likely that the property qualification varied according to the municipality in question, so there is no reason to think that the extremely modest qualification demanded at Irni — 5,000 sesterces - would apply in larger municipalities.) In addition, those who were ill or over sixty-five were not to be appointed.

From chapter 87 of the lex we learn that, if the parties could agree on a judge, it was open to them to have the praetor appoint him as judge in the case. If they could not agree, there was a system for arriving at a name from the published lists. First, starting with the plaintiff, each party would reject one of the three panels. From the remaining panel, the parties would then alternately reject a name until only one was left. If the number of names in the panel was uneven, the plaintiff had the first rejection; if it was even, the defendant did: so in either case the defen­dant had thh eight ho make the final rejection. The rigorousness with which the lex attempts to eliminate possible partiality of the judge is striking.

If both parties trusted a given individual sufficiently to agree to him as their judge, the chances are that as a rule he would not be open to bribery by either. Of course, we cannot assess how often agreement would have been reached. It seems likely that very often it would have been necessary to go through the process for selection of a judge. Here too our new evidence suggests that great care was taken to devise a system under which one could have some confidence that the judge ulti­mately appointed was not parti pris. Of course, it must be the case that some judges, once appointed and in a position to determine the outcome of the case, would have seen this as an opportunity to earn some money. There is no shortage of literary references to corrupt judges, and even the jurists from time to time refer to the unfairness of judges (Ulpian, D. 3.6.1.3; D. 49.1.1 pr.). There were, however, procedures for replacing judges who had a conflict of interest: such as the one who was appointed heir by one of the litigants (Ulpian, D. 5.1.17).

There were other devices to attempt to keep the judge in order. There is, for example, an institution in Roman law known as the ‘judge who makes the case his own' (iudex qui litem suam facit). This falls within the cat­egory of quasi-delicts, a rather miscellaneous category of civil wrongs which imposed liability in damages on the wrongdoer. The evidence on this is very meagre, although it has again been usefully supplemented by the lex Irnitana. It now seems that the judge was regarded as making the case his own, and therefore as becoming personally liable to satisfy the plaintiff’s claim, if he exceeded his powers by failing to deliver a judg­ment, or validly adjourn proceedings, within the time provided for him; but also if his judgment was tainted by bad faith (lex Irn. ch. 91; Ulpian, D. 5-^I-^I5·¹)·

So far as the cognitio procedure was concerned, much of what has been said above does not apply, since the parties did not select their own judge. Here they were effectively at the mercy of the magistrate, who decided that question for them. In essence, therefore, this comes back to the ques­tion whether the magistrate himself could be relied upon. To that, little can usefully be added to what was said above, other than to note that imperial guidance was given that it would be inappropriate to appoint as judge a person specifically requested by one of the parties (Callistratus, D. 5.1.47).

Yet matters go further than the legal knowledge and fairness of the judge: the question also arises how the judge would actually discharge his role. Since in formulary procedure the judges were not professional, there is a limit to what can usefully be said in general about judicial beha­viour. So far as the evidence is concerned, there were established rules about which party bore the burden of proof: in broad terms, the plaintiff must prove the essence of his case, and the defendant the essence of any defence (Celsus, D. 22.3.13; ^pann, D. 22.3.19 pr.; Kaser 1996: 363). Matters are vaguer when it comes to the witnesses and other evidence actually led in court. The material preserved in the Digest (D. 22.3) and Code (C. 4.19) is of limited value here, since nearly all of it appears to be concerned with the cognitio system of procedure.

There can be little doubt that the Roman judge might take into account factors which to a modern judge would seem irrelevant. Considerations about the relative worthiness and social status of the parties played an open part, greater (it is to be hoped) than they do today. The issue of worthiness is the first point mentioned by the jurist Callistratus in his remarks on weighing up the credibility of witnesses' testimony, and his approach is supported by the rescript of the emperor Hadrian which he goes on to quote (D. 22.5.3). (Although this is clearly a case of cognitio, the same seems likely to have applied in the formulary procedure too.) The same concern surfaces in Gellius' case: he was urged that his was a court of law not of morals, and his consilium of advis­ers took the view that he should absolve the defendant owing to lack of evidence, but a philosopher he consulted advised him to place more weight on the character of the parties involved (14.2.8—9, 21—3). The fact that insufficiency of evidence was not itself decisive for Gellius speaks volumes.

It is clear from the literary sources that ‘evidence' was often produced to make an emotional impact, or because of the favourable light it cast upon a party in general terms, rather than because it was germane to the point at issue. Cicero's speeches, even in civil litigation, contain (by modern standards) extraordinary abuse of the defendant, his witnesses, and — this is barely an exaggeration — his relatives and friends. The same was true of litigation in Athens. It may be that running this gauntlet was a deterrent to some litigants (Kelly 1976: 97-8). It does, however, seem doubtful that this was absolutely standard practice for civil proceedings before a single judge, on whom such outpourings of rhetoric might well have been wasted. In the early second century ad Pliny implies that the place for real rhetorical flights was the centumviral court, where there was a much larger audience. As in Athens, the popular entertainment provided there must have been not least at the expense of the litigants and their good names.

Until Justinian's day, in the ordinary case no special importance seems to have been attached to written evidence, so the judge's assessment of the credibility and reliability of the witnesses must have been decisive (Scaevola, D. 22.3.29 pr.; Ge... 14.2.7; Kaser 1996: 369, 600; Peachm 1996: 70; Crook 1995: 144).

g. Representation in court

Although the legal sources say little about it, it seems that as a matter of course litigants would usually be represented by advocates, practitioners of rhetoric rather than law. This was quite the opposite of the position in Athens, where the rule was that the litigant would present his case in person, although this might just amount to delivering a speech com­posed by someone else, and it was also possible to enlist another person to make a supporting speech (Crook 1995: 30-4). But in Rome represen­tation was normal in civil, as in criminal, and administrative cases. The evidence does not suggest that cost stood in the way of people getting advocates or that they were instructed purely by those of the highest social classes: the papyri indicate rather that advocates might appear even for parties of apparently modest means and in cases of modest significance (Crook 1995: 62—9, 131— 5).

Nowadays the costs of litigation are high, and it is well known that there is a poverty trap: the rich can afford to litigate and so can those who are sufficiently badly off that they are eligible for legal aid from the state. The situation in Rome was different. There was no legal aid. But neither advocates nor jurists were paid. Instead, litigation meant under­taking social obligations, which might be called upon in the fu meant entering upon the network of p;n 1011 and client celationships. Is would of course be naive to assume that justice was therefore everyone. The reality must have been that success in litigation de on interesting the best possible jurist in giving advice, and the b sible advocate in presenting the case. In a way, such things ar easily managed if it is a simple matter of paying for them.

6. Other obstacles

Access to knowledge of the law must have been difficult for both litigants and judges, especially outside Rome and major provincial centres. The edict itself was a model of concision and precision rather than clarity. The writings of the jurists, if available, were alarmingly extensive: every edictal provision and more besides had been scrutinized and closely commented on in detail.

From Pliny's experience in Bithynia it is clear that in the provinces access even to a basic library of legal materials could not be taken for granted. As the volume of imperial law-making grew, so did the prob­lems of knowing where to find a givee rescripp so evee hi d th t difficulties in knowing whether a rescript relied upon by one of the litigants was genuine (Plin., ep. 10.65-6; also C. 9.22.3 (ad 227)). These difficulties would not be resolved until systematic attempts were made to collect and order imperial rescripts. But this was not to happen until the end of the third century.

The massive edictal commentaries, especially those of Ulpian and Paul of the early third century, may have done something to satisfy this need for knowledge. Clear and comprehensive, authoritative, and in a sense consolidating the work of their predecessors in the two centuries before, these works may well have helped to fill the gap in knowledge about the law and the helplessness inspired by its immense volume.

p. Conclusions: the quality of justice

Litigation in Rome was fraught with more difficulty than the works of the Roman jurists may suggest. There were difficulties of access to knowledge about the law; difficulty in ;iciitiiiing its procedures; esthe law codes promulgated by their Germanic kings: the Visigoths by the lex Romana Visigothorum, the Burgundians by the lex Rom.ana Burgundionum and the Ostrogoths by the Edictum Theoderici. All of these codes drew heavily on Roman materials but their analytical level fell far short of that of the Justinianic compilations. The Corpus iuris civilis would remain unknown in the West for the next five centuries.

It is around 1100 that the study of Roman law appears to have revived, most likely owing to the import of the Digest, Code and Institutes from the East where they had never been lost. This revival is associated with the figure of Irnerius and with Bologna. Here begins what Vinogradoff' described as a ‘ghost story', ‘a second life of Roman Law after the demise of the body in which it first saw the light'. Certainly, this is the story of a ghost doomed to walk for an exceptionally long time (Vinogradoff 1909: 4).

The impetus given to the study of law by the rediscovery of legal materials so rich, so substantial and so elaborate is almost impossible to exaggerate. There is no better way to illustrate this than to say a few words about the various schools of jurists of the following centuries, each of which adopted a very different approach to the Roman texts. (An illuminating account of all of them may be found in Wieacker 1995.)

First came the glossators, who from the twelfth century wrote margi­nal comments (‘glosses'), explaining the texts and cross-referring to others. Their concern was to explain the texts using scholastic and logical methods. They were quite unconcerned with the practical appli­cation of the texts but treated them as a pure and timeless object of study.

The glossators were followed by the commentators, so called because of their more sustained commentaries on the Digest and Code, which began to appear in the course of the fourteenth century. The commen­tators did not confine themselves to the study of Roman law alone, and they attempted to accommodate the Roman texts to the demands of legal practice, even although this naturally involved construing the texts in a way quite different from what their ancient authors had intended.

As early as the fourteenth and fifteenth centuries the first signs of the third movement, of humanists, appear. With them came a backlash against the practical application of the Roman texts: the humanists' concern was to understand the classical signification of each text, and their contempt for what they saw as the crude efforts of their predeces­sors was undisguised. The quest for the classical also led the humanists to make the first attempts to separate out the elements in the Digest written by the classical Roman jurists and the words put into their mouths byJustinian: in short, the humanists were the first interpolation hunters.

In the seventeenth century the natural lawyers, Grotius and those who followed him, used the Roman texts in yet another way. For their pur­poses, the texts were not authoritative but they could still be called into service either as illustrations of the natural order of law or as rules of positive law to be compared with the rational tenets of natural law.

The Roman legal texts were therefore capable of inspiring quite divergent methodologies and conceptions about the nature of jurispru­dence. But matters went further than this: it was not the least of the attractions of the Digest that it supplied a fund of texts to suit all tastes even in the sphere of political discourse. For instance, for debates about sovereignty the Digest could supply proponents of autocracy with the brocard that the emperor was not bound by statutes (princeps legibus solutus est, D. 1.3.31) and republicans with the proposition that he should profess himself to be subject to them (digna vox maiestate regnantis legibus alligatum se principem. profiteri, C. 1.14.4).

Alongside all this scholarly activity it is important to remember too that the Roman texts represented positive law, applicable by the courts. It is true that Roman law was not the only law available: the Church began early to develop its own law, canon law, although this too was in parts substantially influenced by Roman law; local customs also played an important part; and feudal laws suppressed the Roman legal rules relating to land. None the less, there was an important residual role for Roman law to play right into the eighteenth century.

Roman legal concepts and institutions spread throughout Europe. It is often suggested that England was immune to these currents and remained in splendid isolation. But research is gradually redrawing this picture: although there is much work still to do, the relevance and the importance of the Roman-law tradition in England as early as the thir­teenth century — and as late as the nineteenth cei ill iry — have ulne-idy begun to emerge (Helmholz 1990; Hoeflich 1997).

The Enlightenment represented a break with the old order, including unquestioning reliance upon Roman law. None the less, the law of reason did not cast aside all that had gone before. What it did demand was that law should be systematic and orderly, so as to serve the needs of society. This involved a preference for legislation and in particular for the codification of law. Of the earlier codes the most influential was the French Code civil of 1804, which applied not only in France but was imposed by Napoleon in the Netherlands, served as a model for Italy and Spain, and was adopted in Louisiana. Following these national codifications, it became inadmissible to rely on Roman law, since all the law was now contained in the code. While for this reason Roman law is now of no authority in countries which rely on national codes, the fruits of the Roman-law tradition are still clearly to be seen in codes such as the Code civil or the German Bürgerliches Gesetzbuch of 1900. On the other hand, in uncodified systems such as those of Scotland and South Africa, Roman law continues in the absence of clear modern authority to be persuasive and is cited in the courts from time to time.

Much of the earlier history of the western European tradition was therefore formed by the differing reactions to, and uses made of, the Corpus iuris civilis by successive generations of jurists. But this is not simply a matter of history: elements derived from the Roman-law tradition remain present not just in continental legal systems but even in the common law. The Roman-law tradition therefore represents a small area of common ground among the legal systems of western Europe. For this reason it has i'ts p;Hiiopl;c^'iii(jurxjndbeing the creditor’s undertaking to convey it back again on satisfaction of the debt (2.60)

formula: in formulary procedure a statement issued by the praetor which appointed a judge, set out the legal issues raised by each of the parties, and gave the judge authority, having considered them, to determine whether the defendant should be absolved or condemned

institor. a person appointed by the owner of a business as its manager; the praetor made an action available directly against the owner of the business to those who dealt with the institor in the course of the business (4.71)

iudex: a judge in civil proceedings, responsible in formulary procedure for hearing evidence and deciding whether the defendant should be absolved or condemned in terms of the formula

locatio conductio: the contract of hire or letting, whether of a thing, of services or of a task to be done (3.142-7)

mancipatio: a formal conveyance in which, before five witnesses and a person holding a scale, ownership was conveyed ‘by bronze and scale’ to the acquirer; one of two possible methods for transferring ownership in res mancipi, the other being in iure cessio (i.119-22)

mutuum: loan of money or other consumables, concluded by delivery to the bor­rower (3.90)

peculium: a fund of property entrusted to a slave or to a child in the power of a paterfamilias, but which none the less remained the property of the paterfa­milias; the praetor granted actions directly against the paterfamilias to those who had dealt with the slave or child, but such actions were limited in quantum to the value of the peculium (4.72a-74a)

pignus: a type of pledge which gave the pledge-creditor possession of the object pledged

possessio: physical control of, rather than entitlement to, an object, and so to be clearly distinguished from ownership; the possessor was protected by inter­dict

res mancipi: a thing the ownership of which required to be transferred by formal conveyance, mancipatio or in iure cessio, namely land, slaves, certain animals - such as oxen, horses, mules and asses, but not elephants or camels; all other items were res nec mancipi (1.120, 2.i4a-23)

stipulatio: a contract entered into orally by formal exchange of corresponding question and answer (3.92)

suiheredes: heirs who were in the power of the paterfamilias at his death (2.156-7)

sui iuris: independent, not subject to paternal power traditio: a means of conveyance by delivery, sufficient to transfer ownership in things which were not res mancipi (2.19)

usucapio: acquisition of ownership of a thing by possessing it for two years (for land) or one year (for anything else), provided the possession was begun in good faith, for a good cause and was of an object which had not been stolen ⁽².4^2-58)

ususfructus: a right to make use of and enjoy the fruits of the property of another person without impairing its substance

color=black face="Times New Roman">vindicatio: a legal action seeking recovery of property (4.5)

It may be useful to begin with a note on the main modern works of reference and periodicals as well as the main ancient sources. The standard abbreviations used for them are also noted here.