The Context of Roman Litigation
Having considered in Chapter 1 the Roman constitution more generally, we now turn to the administration of justice within that constitutional context. It may be supposed that this is an area of less interest in modern law, but that would not be entirely accurate.
On occasion, Roman texts in this area are still found to be of relevance to modern discussions.[79](1) The Parties Involved
Before going further, a preliminary point must be made about terminology. The Romans did not have specific, set terms for the parties to litigation. For the party bringing the action, we see various terms. Examples are qui vindicat (‘one who vindicates'),[80] qui agit (‘one who pursues an action'),[81] eum qui acturus est (‘he who is to bring the action')[82] and actor (‘pursuer').[83] We see something similar with the other party, who is sometimes referred to simply as the adversarius (‘opponent')[84] or reus (‘accused'),[85] or direct reference is avoided altogether.[86] The tendency in modern accounts of Roman law is to call these parties, respectively, ‘plaintiff' and ‘defendant'. These, though, are not general terms of the English language. Rather, they are technical terms belonging to the English legal tradition. Their use is, therefore, potentially confusing and misleading for those of other legal traditions. For this reason, in this book the Scottish terms ‘pursuer' and ‘defender' are preferred and will be used. In addition, ‘pursuer' has the benefit of being a more literal translation of the Latin actor.
(2) The Conduct of Litigation
Roman law developed over a very long period of time, and it is only to be expected that procedure developed along with it. The Romans in fact used, at different times, three distinct forms of procedure, namely the legis actiones, the formulary procedure and the cognitio procedure.
The main formative period of Roman law occurred under the formulary procedure.[87] However, as the history of Roman law begins long before it was introduced, and continues long after it was superseded, it is necessary to consider all three. Moreover, if we are interested in the post-Roman influence of Roman law, the cognitio procedure is of particular interest. The canon law courts of the Roman Catholic Church (which, as we shall see in Chapter 4,[88] hadjurisdiction over a wide range of subject matter) drew heavily on the cognitio in developing their own procedure. This ‘Romano- Canonical procedure' has been described as the ‘principal legacy of the cognitio procedure'.[89] This legacy spread beyond the Church courts and, for example, was influential in the development of Scots civil procedure.[90]Before getting into the detail of each of these procedural systems, however, some general comments on Roman litigation seem appropriate.
(a) The Stages of Litigation
The first thing to note is a distinctive feature of the legis actiones and the formulary procedure. This is the division of litigation into two stages, each presided over by a different person and for different purposes.
We saw in Chapter 1 that the administration of civil justice was the responsiÂbility of a magistrate called the praetor. Although the praetorship was one of the highest offices of state, the praetor's role was not simply one of oversight of the courts. Instead, the praetor had a direct role in individual cases.
The first stage of litigation took place before the praetor. This is known as the in iure stage,[91] and it had two main purposes. The first of these was to determine the legal question that was to be considered. The second was to appoint the judge who was to preside over the second stage of the litigation, the stage apud iudicem (‘before the judge'). It was only when the matter moved to this separate, second stage that questions of fact would be considered.
As we shall see below, this two-stage process was superseded in the Empire, when the cognitio procedure was introduced.
(b) The Role of Lawyers
Another distinctive feature of the legis actiones and formulary procedures, surÂprising to modern eyes, is the comparatively limited role for the legally trained. Certainly, legal experts had an important role in advising those involved in the legal process. We shall meet in Chapter 3[92] a special group of legal experts called thejurists, mostly high-status Romans whose writings largely form the basis of our knowledge of Roman law. There were also others engaged in legal practice at a humbler level, making a living giving legal advice, drafting documents and recording transactions.[93] However, the actual conduct of litigation largely took place in the absence of lawyers.
Take first the parties' advocates. Even once it was recognised that a litigant ought to be able to have someone more skilled act as a representative to plead the case,[94] legal expertise was not necessarily seen as a high priority for those actÂing as advocates in this way. It is traditional to draw a clear distinction between jurists and advocates. While the divide was by no means uncrossable,[95] it was nonetheless true that the parties' advocates were not normally lawyers as we would understand it. They were employed for their skill in oral argument rather than their legal expertise.
This does not mean to say that advocates were ignorant of the law. On the contrary, an experienced advocate could hardly avoid picking up a fair degree of knowledge of the law that he was arguing about. An orator who did not understand the law he was arguing about could attract justifiable criticism. For example, the jurist Pomponius tells us about the advocate Servius Sulpicius, who sought advice from thejurist Quintus Mucius on a point of law. Having twice failed to understand that advice, and having asked for further clarification, he was ‘rebuked by Quintus Mucius.
For he told him that it was disgraceful for a patrician of noble family to be ignorant of the law on which his cases turned.'[96] So stung by this was Servius Sulpicius that he turned his attention to serious study of the law, and became in the end a prominent jurist himself.[97] Cicero, the most famous of all the advocates, also studied the law in his youth.[98] Nonetheless, advocates as a group relied to a great extent on others to advise them on the law.The same was true of judges. While an individual judge might happen to have legal knowledge, that is not what he was chosen for. The judge was not a professional or a trained lawyer, rather he was a respectable citizen, performing this role out of public duty rather than as a profession. If the judge needed to consider a point of law, he would be likely to consult those with expertise in that area rather than attempting to decide it himself.[99]
(c) Conduct of the Proceedings before the Judge
It is not surprising that proceedings before thejudge were very different from modern litigation. In modern litigation, the judge is an official of the state. The only public official involved in the legis actiones and formulary procedures was the praetor. Once the case had moved on to the next stage, the state took no real direct interest in proceedings. By contrast with the in iure stage, which was much more strictly regulated, there was very little formal regulation of proceedÂings apud iudicem in contrast with modern litigation. There were, for example, few developed rules of evidence. Nor were advocates expected to confine their arguments to matters that we would consider relevant. Adverse reference to a party's family origin, physical appearance and fashion sense was almost standard, whenever it could be used to influence a judge or jury's impression of the party's character. That party's own advocate, of course, would be doing his best to create a contrary, positive impression.[100]
Doubtless this process of public shaming acted as a disincentive to litigation. No doubt socio-economic factors often had the same effect. It would be a bold pursuer who brought a case against a defender of higher social standing, when political considerations would often lead the judge to favour the latter.
B.