The lus Honorarium (Praetorian Law)

We saw in Chapter 2^[189] that, in the later Republic and into the Empire, litigation was governed by a system known as the formulary procedure. This system of procedure, as did the earlier legis actiones, had the distinctive feature of dividing the trial into two stages.

As we saw in Chapter 1,^[190] the urban praetor was the magistrate who was responsible for the administration of civil justice. If the praetor had simply been an administrator in the manner this suggests, however, he would have been of less interest to us than he is. In fact, however, the praetor's activities were a source of legal development in themselves. As the jurist Papinian explains: ‘Praetorian law is that which the praetors have introduced, for the public benefit, to aid, supplement or correct the civil law.'^{[191] [192] [193]}

The main vehicle for the development of the ius honorarium was the edict which, as a magistrate, the praetor issued on taking office at the start of the year. An edict was a statement of how the magistrate intended to execute his functions, and in the case of the praetor the edict detailed all of the grounds on which he would allow an action to proceed. A person wishing to pursue an action would be expected to select one of the forms of action provided for by the edict.

In principle, the edict issued by each praetor was valid only for his term of office.^[194] In practice, though, the edict would largely be carried forward from one year to the next. Changes were made, however, and by the end of the Republic the praetor's edict had been used as the vehicle for quite substantial reform of the law. This was, though, undoubtedly the product of a lengthy period of develop­ment.^[195] It is, to say the least, unlikely that the praetor's powers to reform the law sprang forth fully formed. In reality, praetorian innovation would not have initially involved major law reform. It is rare that we can be certain of the date of a par­ticular reform, but the likely progress of the praetor's law-making can be sketched out. As the magistrate responsible for the administration of the judicial process, though, the praetor would have felt himself empowered from an early period to introduce measures designed to promote the efficiency and effectiveness of the process. Of this kind are measures penalising defenders who fail to appear when summoned.^[196] Such reforms are broadly unobjectionable, as they do not interfere with parties' substantive rights. Indeed, they assist parties in enforcing those rights.

Similar in nature are those reforms ‘which do not merely shore up a weak pro­cedural norm, but go a little further'.^[197] Reforms of this kind involve the praetor intervening more actively in how rights are enforced. Probably the most impor­tant reform of this kind is the introduction of the possessory interdicts.

From the last decades of the second century BC onwards, until the end of the Republic, the praetor seems to have largely superseded the assemblies as a source of new private law. The natural next step would have been to allow defences in favour of those sued using a claim that was valid under the civil law, but which the praetor considered to be improper. An example might be the praetor refusing to allow enforcement of a contract that the defender had been induced to enter into by the pursuer's fraud. In fact, though, in the first century BC, the praetor was going further than this, and granting new rights of enforcement. By the end of the Republic, there was hardly an area of private law that had not been touched by praetorian intervention. We see the praetor, then, progressing step by step towards being in substance a lawmaker.

E.