The Scope of the Law
Litigation was governed by law but the law was not comprehensive: litigants supplemented the law with practices that acknowledged but were not determined by the law, and advocates conducted trials based on rules and practices developed outside the operation of the law altogether.
The present day owes its comprehensive laws of procedure to its enthusiasm for testing its systems against wider principles such as ‘hear both sides’ and ‘due process’, and reforming the law to suit. Roman procedure was not deaf to these principles nor resistant to improvement, but there were no means to challenge the validity of questionable law in a way that might have led to wider reflection and a more comprehensive body of rules. This is why it is somewhat jarring to see modern scholars do what the Romans never did: assess Roman procedure for its fidelity to certain ‘principles of procedure’.13 We know, for example, that the Romans favoured publicity in their proceedings, and that at times they avoided taking decisions in a defendant’s absence, but to treat these features as conscious aspirations wrongly suggests that the Romans were somehow anticipating a better and more complete system. 14In fact the law of procedure, until very late, concerned itself with a limited number of issues, the principal ones being summons, joinder of issue or establishing the claims, and the instigation of trial. Execution of judgments was rudimentary until the creation of appropriate devices under the imperial cognitio procedure. The limited scope of procedural law reflected the limited authority of the magistrates15 who enforced it. From at least the time of the Twelve Tables, and through the principate, much of the ordinary civil litigation took place in two distinct stages, and the magistrate presided over the first stage only. This was the so-called in iure stage.
Generally speaking, this stage was devoted to isolating the issues for trial. In some cases this could be a complex task to perform, requiring special findings of fact, interim remedies, or sanctions for disobedience. At bottom, however, this stage had a modest goal - to produce the trial agenda - and the law of procedure developed to assist the magistrate in that goal. The law extended hardly at all into the second stage of the lawsuit, the trial before the judge (apud iudicem). This was the stage at which witnesses and evidence were presented and a judgment given. There were no laws to assist the judge comparable to those that assisted the magistrate.lang=EN-US style='font-size:9.0pt;line-height:115%'>Thus, the Roman practice of dividing the lawsuit into two stages left the trial stage relatively unregulated. There were important exceptions: the judge was answerable for certain mistakes and misbehaviour (usually reflected in the form or timing of the judgment), and in some circumstances a litigant could return to the magistrate to have the lawsuit restored to an earlier, pre-trial state of affairs (restitutio in integrum, discussed below, 277). But for the most part the trial was conducted according to other rules: the rhetorical conventions cultivated by the orators who spoke on behalf of the litigants. In the republic these were the patroni, men of wealth and standing, later named advocati as they came to be drawn from less elevated ranks and became more professionalized. They imported Greek rhetoric and nurtured it into a peculiarly Roman discipline.1
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More on the topic The Scope of the Law:
- Writing in the Australian Law Journal in 1964,7 DM Gordon,8 began by observÂing that the decision ‘presents more than one drastic break with tradition' and concluded that it reflected the growing ‘Americanisation of English law'.9
- Conclusion
- Introduction
- The ‘End and Aim Rule’ [1397] and Indeterminate Liability
- Pure Economic Loss, Hedley Byrne and the Rise of Proximity
- The New Zealand Reform
- A Departure from a ‘Liberal’ Analysis About Pakistan
- 1956 War
- Conclusion
- Testate Succession