ROMAN CIVIL ROMAN CIVIL PROCEDUREPROCEDURE

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SummonsSummons Formulary procedureFormulary procedure Stages in the civil procedureStages in the civil procedure PraetorPraetor EdictEdict FormulaFormula Procedural contractProcedural contract TrialTrial

SUMMONSSUMMONS

In the classical law a summons for In the classical law a summons for a lawsuit was performed a lawsuit was performed privately: a person would find his privately: a person would find his opponent or his opponent’s opponent or his opponent’s representative and bring him representative and bring him before the magistratebefore the magistrate

THE FORMULARY THE FORMULARY PROCEDUREPROCEDURE

Forms of action were described Forms of action were described precisely, which gave the law precisely, which gave the law continuitycontinuity

In an individual case, the forms could In an individual case, the forms could be altered and assembled in different be altered and assembled in different ways to create a specific statement of ways to create a specific statement of issuesissues

This altering and assembling of forms This altering and assembling of forms was performed by a judicial magistratewas performed by a judicial magistrate

STAGES IN THE CIVIL STAGES IN THE CIVIL PROCEDUREPROCEDURE

1. 1. In jureIn jure, before a magistrate, the , before a magistrate, the praetor, charged with administering praetor, charged with administering justice. The magistrate determined justice. The magistrate determined whether the litigants should be whether the litigants should be allowed to proceed and, what form allowed to proceed and, what form their action should taketheir action should take

2. 2. In judicioIn judicio, before a judge, a private , before a judge, a private individual who need not have been a individual who need not have been a lawyer - trial lawyer - trial

PRAETORPRAETOR

An elected An elected magistratemagistrate

Commander of Commander of an armyan army

Provincial Provincial governorgovernor

THE EDICTTHE EDICT

The magistrate needed a scheme for The magistrate needed a scheme for determining which claims would be allowed determining which claims would be allowed to proceedto proceed

A long list containing the lawsuits to be A long list containing the lawsuits to be allowedallowed

The edict - individual entries describing The edict - individual entries describing actions that could be granted actions that could be granted

The EdictThe Edict

If the litigant’s circumstances did If the litigant’s circumstances did not match any of the entries, he not match any of the entries, he might persuade the magistrate to might persuade the magistrate to invent a new claim and allow it to invent a new claim and allow it to go before a judgego before a judge

If the magistrate accepted, he If the magistrate accepted, he might incorporate the new claim might incorporate the new claim in the edict for future casesin the edict for future cases

JUDGEJUDGE

The judge did not hold office but was The judge did not hold office but was appointed for service in a single case, appointed for service in a single case, and selected personally by the and selected personally by the parties parties

He had no special qualifications other He had no special qualifications other than his wealththan his wealth

A private individual who conducted A private individual who conducted the trial without guidance from the the trial without guidance from the statestate

CONSEQUENCESCONSEQUENCES

A lay judge needed detailed A lay judge needed detailed written instructions at the outsetwritten instructions at the outset

His conduct of the trial and his His conduct of the trial and his judgement was of no enduring judgement was of no enduring importance to the legal systemimportance to the legal system

INSTRUCTIONSINSTRUCTIONS

The final expression of the law in The final expression of the law in a given case was the set of a given case was the set of instructions that the magistrate instructions that the magistrate gave to the judgegave to the judge

The parties’ pleadings, containing The parties’ pleadings, containing their allegationstheir allegations

INSTRUCTIONSINSTRUCTIONS

The allegations had to satisfy the The allegations had to satisfy the requirements of the law as requirements of the law as determined by the magistrate, determined by the magistrate, they came into the judge’s hands they came into the judge’s hands in a form that permitted relief in a form that permitted relief under the lawunder the law

InstructionsInstructions

The single most important item in The single most important item in the lawsuit, far more important the lawsuit, far more important than the judgementthan the judgement

The core of the dispute: what a The core of the dispute: what a party had to show in order to winparty had to show in order to win

FORMULAEFORMULAE

The instructions – prepared The instructions – prepared according to formulae, composed according to formulae, composed of “specially prepared phrases”of “specially prepared phrases”

Each formula – divided into parts, Each formula – divided into parts, and each part had a particular and each part had a particular functionfunction

Very few actual formulas survivedVery few actual formulas survived

A FORMULA FOUND NEAR A FORMULA FOUND NEAR POMPEII, 1ST CENTURY POMPEII, 1ST CENTURY

ADAD ““Blossius Celadus shall be the judge. Blossius Celadus shall be the judge.

If it appears that C. Marcius If it appears that C. Marcius Saturninus ought to give 18,000 Saturninus ought to give 18,000 sesterces to C.Sulpicius Cinnamus, sesterces to C.Sulpicius Cinnamus, which is the matter in dispute, C. which is the matter in dispute, C. Blossius Celadus, the judge, shall Blossius Celadus, the judge, shall condemn C. Marcius Saturninus for condemn C. Marcius Saturninus for 18,000 sesterces in favour of c. 18,000 sesterces in favour of c. Sulpicius Cinnamus; otherwise he Sulpicius Cinnamus; otherwise he shall absolve”shall absolve”

Procedural contractProcedural contract

The parties undertook to abide by The parties undertook to abide by the judge’s decision and the the judge’s decision and the judgement was binding judgement was binding

THE TRIALTHE TRIAL

The trial took The trial took place in the place in the forum, an open forum, an open space used at space used at first as the first as the market place but market place but later used chiefly later used chiefly for judicial for judicial proceedingsproceedings

TrialTrial

Speeches with introduction of Speeches with introduction of evidence, speeches followed by evidence, speeches followed by evidence, or a speech for the evidence, or a speech for the plaintiff, a speech for the plaintiff, a speech for the defendant, then evidence on each defendant, then evidence on each side, then speeches by way of side, then speeches by way of summing up; or evidence followed summing up; or evidence followed by speeches on each sideby speeches on each side

PRINCIPLES OF PRINCIPLES OF PROCEDUREPROCEDURE

1. The principle of party 1. The principle of party representationrepresentation

2. The principle of publicity: 2. The principle of publicity: public participation acts as a public participation acts as a restraint of abuses of procedurerestraint of abuses of procedure

3. The principle of orality, closely 3. The principle of orality, closely related to the principle of related to the principle of immediacyimmediacy

THE PRINCIPLE OF THE PRINCIPLE OF IMMEDIACYIMMEDIACY

Preserves the integrity of a Preserves the integrity of a judgement by ensuring that judgement by ensuring that arguments and evidence are put to arguments and evidence are put to the judge in the most direct manner the judge in the most direct manner possiblepossible

One-day rule: pleading, proof, One-day rule: pleading, proof, argument and judgement must take argument and judgement must take place on the same day, the judgment place on the same day, the judgment being given before sunsetbeing given before sunset

THE PRINCIPLE OF THE PRINCIPLE OF IMMEDIACYIMMEDIACY

If judgement cannot be given If judgement cannot be given before sunset, the case must begin before sunset, the case must begin anew on another day, with at least anew on another day, with at least some of the events of the previous some of the events of the previous session being repeatedsession being repeated

A judge should have a vivid picture A judge should have a vivid picture of the case in mind and thereby be of the case in mind and thereby be less liable to make a mistakeless liable to make a mistake

SummarySummary

In jureIn jure In judicio, or apud judicemIn judicio, or apud judicem

In jureIn jure

Purpose: to frame the issues to be Purpose: to frame the issues to be tried, tried,

To appoint a judex; To appoint a judex; hearing to decide whether the hearing to decide whether the

action should be allowed to the action should be allowed to the plaintiffplaintiff

FormulaFormula Procedural contractProcedural contract

In judicioIn judicio

TrialTrial SpeechesSpeeches EvidenceEvidence ForumForum Principles of party representation, Principles of party representation,

publicity, orality, immediacypublicity, orality, immediacy

Legal termsLegal terms

Person asking relief against another Person asking relief against another person in civil proceedings: person in civil proceedings:

plaintiff, claimantplaintiff, claimant Person who is sued in a civil action: Person who is sued in a civil action:

defendantdefendant The written, preliminary settlements of The written, preliminary settlements of

the matters at issue in a dispute that the matters at issue in a dispute that are exchanged between the parties are exchanged between the parties before the trial: before the trial:

pleadingspleadings

Legal termsLegal terms

TryTry to hear civil or criminal trial; voditi sudski to hear civil or criminal trial; voditi sudski

postupakpostupak TrialTrial The hearing of a civil or criminal case before The hearing of a civil or criminal case before

a court of competent juridiction. Trials must, a court of competent juridiction. Trials must, with rare exceptions, be held in public; with rare exceptions, be held in public; suđenjesuđenje

HearingHearing Any appearance of a case before a court, Any appearance of a case before a court,

including trial; ročište, saslušanje, raspravaincluding trial; ročište, saslušanje, rasprava

Legal termsLegal terms

UndertakeUndertake To promise to do something; obvezati To promise to do something; obvezati

sese Abide byAbide by If you abide by a law, agreement, or If you abide by a law, agreement, or

decision, you do what it says you should decision, you do what it says you should do; respectdo; respect

BindBind To make someone obey a rule o keep a To make someone obey a rule o keep a

promise (bound; binding)promise (bound; binding)

Legal termsLegal terms

ArbitratorArbitrator A person not concerned with a A person not concerned with a

dispute who is chosen by both dispute who is chosen by both sides to try to settle it; izabrani sides to try to settle it; izabrani sudacsudac

arbitration; arbitratearbitration; arbitrate

Put the verbs in Put the verbs in brackets into brackets into appropriate formsappropriate forms Since the days of the Law of the Since the days of the Law of the

Twelve Tables, developed during Twelve Tables, developed during the early the early RRepublic, the Roman epublic, the Roman legal system legal system _________(characterize, passive) _________(characterize, passive) by a formalism that by a formalism that _______(_______(lastlast)) for more than 1.000 years. for more than 1.000 years.

Put the verbs in Put the verbs in brackets into brackets into appropriate formsappropriate forms Early Roman law Early Roman law _______(_______(drawdraw, ,

passive)passive) from custom and from custom and statutes, but later during the statutes, but later during the times of the empire, the emperors times of the empire, the emperors ______(______(assertassert)) their authority as their authority as the ultimate source of law. the ultimate source of law.

Put the verbs in Put the verbs in brackets into brackets into appropriate formsappropriate forms Their edicts, judgments, administrative Their edicts, judgments, administrative

instructions, and responses to petitions instructions, and responses to petitions _____(_____(collectcollect, passive), passive) with the with the comments of legal scholars.comments of legal scholars.

"What "What _____(_____(pleaseplease)) the emperor has the emperor has the force of law." As the law and the force of law." As the law and scholarly commentaries on it scholarly commentaries on it ______(______(expandexpand)), the need , the need _____(_____(grgrooww)) to to codify and to regularize conflicting codify and to regularize conflicting opinions. opinions.

KeyKey

Since the days of the Law of the Since the days of the Law of the Twelve Tables, developed during the Twelve Tables, developed during the early republic, the Roman legal system early republic, the Roman legal system was characterizedwas characterized by a formalism by a formalism that that lastedlasted for more than 1.000 years. for more than 1.000 years.

Early Roman law Early Roman law was drawnwas drawn from from custom and statutes, but later during custom and statutes, but later during the times of the empire, the emperors the times of the empire, the emperors assertedasserted their authority as the their authority as the ultimate source of law. ultimate source of law.

KeyKey

Their edicts, judgments, administrative Their edicts, judgments, administrative instructions, and responses to instructions, and responses to petitions petitions were all collectedwere all collected with the with the comments of legal scholars.comments of legal scholars.

"What "What pleasespleases the emperor has the the emperor has the force of law." As the law and scholarly force of law." As the law and scholarly commentaries on it commentaries on it expandedexpanded, the , the need need grew grew to codify and to regularize to codify and to regularize conflicting opinions. conflicting opinions.

Supply the missing words: Supply the missing words: consequences, fairness, consequences, fairness, flexibility, form, principles, flexibility, form, principles, procedures witnessesprocedures witnesses The basis for Roman law was the idea The basis for Roman law was the idea

that the exact____, not the intention, of that the exact____, not the intention, of words or of actions produced legal____. words or of actions produced legal____. Romans recognized that there are Romans recognized that there are _____ to actions and words, but not to _____ to actions and words, but not to intentions. Roman civil law allowed intentions. Roman civil law allowed great _____in adopting new ideas or great _____in adopting new ideas or extending legal ____in the complex extending legal ____in the complex environment of the Empire. Without environment of the Empire. Without replacing older laws, the Romans replacing older laws, the Romans developed alternative ____that allowed developed alternative ____that allowed greater ______. greater ______.

action, flexible, action, flexible, invalid, property, invalid, property, testamenttestament For example, a Roman was entitled by For example, a Roman was entitled by

law to make a will as he wished, but, if law to make a will as he wished, but, if he did not leave his children at least 25 he did not leave his children at least 25 percent of his____, the magistrate would percent of his____, the magistrate would grant them an ____ to have the will grant them an ____ to have the will declared ____ as an "irresponsible____." declared ____ as an "irresponsible____." Instead of simply changing the law to Instead of simply changing the law to avoid confusion, the Romans preferred avoid confusion, the Romans preferred to humanize a rigid system by to humanize a rigid system by ____adaptation. ____adaptation.

Code, collectively, Code, collectively, emperor, publish, emperor, publish, ruledruled It was not until much later in the It was not until much later in the

6th century AD that the 6th century AD that the ____Justinian I, who ____ over the ____Justinian I, who ____ over the Byzantine Empire in the east, Byzantine Empire in the east, began to ____a comprehensive began to ____a comprehensive ____ of laws, ____known as the ____ of laws, ____known as the Corpus Juris Civilis, but more Corpus Juris Civilis, but more familiarly as the Justinian Code. familiarly as the Justinian Code.

KeyKey

The basis for Roman law was the idea that The basis for Roman law was the idea that the exact the exact formform, not the intention, of words or , not the intention, of words or of actions produced legal of actions produced legal consequencesconsequences. . Romans recognized that there are Romans recognized that there are witnesseswitnesses to actions and words, but not to to actions and words, but not to intentions. Roman civil law allowed great intentions. Roman civil law allowed great flexibilityflexibility in adopting new ideas or in adopting new ideas or extending legal extending legal principlesprinciples in the complex in the complex environment of the empire. Without environment of the empire. Without replacing older laws, the Romans developed replacing older laws, the Romans developed alternative alternative proceduresprocedures that allowed greater that allowed greater fairnessfairness. .

KeyKey

For example, a Roman was entitled by For example, a Roman was entitled by law to make a will as he wished, but, if law to make a will as he wished, but, if he did not leave his children at least 25 he did not leave his children at least 25 percent of his percent of his propertyproperty, the magistrate , the magistrate would grant them an action to have the would grant them an action to have the will declared will declared invalidinvalid as an as an "irresponsible "irresponsible testament."testament." Instead of Instead of simply changing the law to avoid simply changing the law to avoid confusion, the Romans preferred to confusion, the Romans preferred to humanize a rigid system by humanize a rigid system by flexible flexible adaptation. adaptation.

KeyKey

It was not until much later in the It was not until much later in the 6th century AD that the 6th century AD that the emperoremperor Justinian I, who Justinian I, who ruled ruled over the over the Byzantine Empire in the east, Byzantine Empire in the east, began to began to publishpublish a comprehensive a comprehensive codecode of laws, of laws, collectivelycollectively known known as the Corpus Juris Civilis, but more as the Corpus Juris Civilis, but more familiarly as the Justinian Code. familiarly as the Justinian Code.