THE URBAN PRAETOR
The praetor also had an important role in the development of Roman law, through his involvement in litigation. A fuller account of the role of the praetor will be found in Chapter 10.
However, in brief, before taking a dispute before a judge, it was necessary to go first before the praetor to ask to be allowed an action. At this point, the appropriate form for the action would be decided.The praetor's edict
As one of the higher magistrates, the praetor had the power to issue edicts, which were essentially statements of how the magistrates would discharge their responsibilities during their term of office. In the praetor’s case, the edict he issued at the start of his term of office would state the circumstances in which he would allow an action. This edict would for the most part normally be taken over as it stood from the previous year’s praetor. However, the praetor could and did innovate, and add new actions.
The ius honorarium
Roman law was called civil law, ius civile, as the law of the Roman citizens, cives. Strictly, this law could be changed only by legislation. Although they controlled litigation, the praetors formally had no legislative competence. However, in practice, by controlling the giving of remedies the praetors controlled the development of the law. By creating a new action, the praetor was in effect creating new rights. Likewise, where the praetor qualified an existing remedy, he was qualifying a right that a party would otherwise have held. As the jurist Papinian put it, the jurists could introduce provisions in the edict “in the public interest... in aid or supplementation or correction of the civil law” (D.1.1.7.1).
Probably the earliest stage of the development of praetorian law was the granting of interdicts, orders to individuals either to do or to refrain from doing something, in order to keep the peace. The most prominent of these are the possessory interdicts, considered in Chapter 4, which protected posÂsessors of disputed property against wrongful dispossession, as an interim measure until the parties’ actual rights could be determined.
Later, the development of the praetorian law became bolder, as it began to affect parties’ substantive rights. Thus, the praetor might grant a defence to a civil law action, or allow a remedy not available under the civil law on the facts at issue. In theory, the civil law remained, but in practice the praetor’s edict was a source of substantive law reform. Such reforms normally appeared in the edict issued at the beginning of the praetor’s term of office, but it was also possible, though much less usual, for a reform to be made during the praetor’s term, if a party sought it and the praetor thought it appropriate. This law created by the praetor was named ius honorarium to distinguish it from the ius civile. As law, the praetor’s edict itself attracted juristic considera- tion.Jurists were also responsible for much of its content, as the praetor would not normally have legal expertise.Changes in the Empire
In the Empire, it was not consistent with the new constitutional situation for anyone to be introducing legal reforms independently of the emperor.
Thus, most of the legal developments coming through the ius honorarium came in the Republic. There was little such development in the Empire. As a result, the importance of the office of praetor declined. During the reign of Hadrian in the second century ad, the jurist Julian was commissioned to produce a consolidated form of the edict, the Edictum Perpetuum, removing any scope for radical reform in the future.