The Pros and Cons of Civil Procedure

In the archaic and mid-republican periods, civil litigation fell within the scope of one of five actions of the law (legis actiones) or general remedies granted by a magistrate endowed with jurisdiction based on imperium.

These remedies ranged from the taking of a pledge (pignoris capio) or personal execution (manus iniectio) to the initiating of judicial procedure in front of the magistrate (iudicis arbitrivepostulatio), on the basis ofa specific claim (condictio) which was at times stated under oath (sacramentum). Plaintiffs had to resort to one of these remedies (actiones) according to the nature of the claim. If none of the remedies fitted the case, there was no claim. Some remedies were more flexible than others. However, because of its excessive formalism, this archaic system of civil procedure underwent a natural evolution while keeping some of its key features: the two-step procedure, first in front of the magistrate (in iure), then before a judge (apud iudicem); and the turning point of the joinder of issue (litis contestatio), whereby the parties agreed on the legal framework, sanctioned by the magistrate, within which the appointed judge(s) would have to evaluate the facts. This legal framework was eventually described in a written formula instructing the judge(s) about the path to follow and leading to two opposite outcomes of the forthcoming trial (‘if it appears that..., then condemn; if not, then absolve’). Whatever happened thereafter, the joinder of issue extinguished the plaintiff s claim.³⁹

Commercial transactions could often - but not always - be enforced through the existing set of original remedies. Some situations, however, called for new solutions. Additional remedies came to be created over the next centuries by statutes, such as the lex Marcia against usury in 104 BC,⁴⁰ or by magistrates’ edicts.

Remedies came to be divided into those of the civil law (actiones civiles) and those introduced by magistrates (actiones honorariae), whether the praetor or the aedile. Since magistrates were free to deliver - or not - a legal remedy upon one party’s request, the available remedies tended to mushroom. Since the magistrate’s edict was valid for the duration of his tenure of office, a recognized actio could technically be refused (denegatio actionis), although social pressure may have played a part in the quest for consistency. Adventurous magistrates might be expected to create new actiones if and when they considered that the situation or their sense of equity allowed them to do so. Creativity could take various forms. When a remedy existed but did not exactly fit the situation, the magistrate could grant an actio utilis that extended the scope of the original remedy. If the existing but unsatisfactory remedy was based on a statute, the magistrate could introduce a fiction in order to meet the situation, such as the fiction that a party was a Roman citizen even though he was an alien (peregrinus). If Roman law provided no remedy to address the issue even remotely, the magistrate could create one based on his perception of the situation (actio in factum). Faced with an actual legal problem, the magistrate was allowed - and expected - to devise a legal solution, leaving it to the judge to decide whether the facts that had led to the solution were correct. As will be seen later on, this instrument proved to be most efficient in dealing with issues related to commercial life.⁴¹

It is obvious that this system, introduced between the fourth and second centuries BC and called the ordo or formulary system, gave great power to magistrates in charge of granting actiones. To alleviate the suspicion of arbitrariness and to give a sense of coherence to the administration of justice, magistrates who had jurisdiction were required to announce ahead of time when and in what circumstances they would grant a remedy (actio).

They did so through their (yearly) edict. We know next to nothing about the circumstances in which they devised their edicts, but we can imagine that outside inspiration or pressure may not have been totally foreign to their decisions. Pressure from whom remains debatable, but jurists and professionals involved in all kinds of business transactions unavoidably come to mind.⁴² Edictal law should be regarded as the ad hoc answer to legal problems and situations, whether foreseen or encountered. In this sense, it can be said that at least in its private law elements the Roman law of commerce was essentially a law originating with traders and adapted to the requirements of traders, although not exclusively traders. The ius honorarium introduced by magistrates in order to aid, supplement, or correct the existing civil law was geared towards protecting and promoting the interests of the community.⁴³ Economic interests must have ranked high on the list. Unfortunately, the details mostly escape us.

During the fifth and early fourth centuries BC, justice was administered by the consuls. Admittedly, plebeian aediles, two in number, may have had some jurisdiction, the extent of which is unclear. In 367 BC, if not before, new magistracies reserved to patricians were created: both the praetorship and the curule aedileship were devised to compensate for the loss of power resulting from sharing the consulship with plebeians. The new magistracies diluted some of the consuls’ powers, thus allowing patricians to retain control over them. These new magistrates heldpotestas, including the right to issue edicts and to enforce their authority, and they held imperium, the basis of their judicial power (iurisdictio).⁴⁴ With the addition of further praetors in and after 241 BC who dealt with foreigners (peregrini) and later held provincial governorships, these magistrates (praetors and aediles) were responsible for legal matters and the supervision of markets.

Their part in the development and implementation of the Roman law of commerce is attested by what remains of the edicts they promulgated over several centuries. Roman business law is first and foremost edictal law. However, individual edicts were necessarily phrased as briefly as possible and therefore left much room for interpretation. This is where the jurists stepped in, and edictal law must be approached through the juristic writings of the classical period, often the very source from which edictal law can be reconstructed. In the next sections, both sources of law will be examined in order to assess the making and refining of Roman business law. One should remember, however, that several centuries may have elapsed from the time a remedy was created until the time the legal texts commenting on it were written, before later finding their way into the Digest.

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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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The Pros and Cons of Civil Procedure

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