Transcript Roman Civil Procedure

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The City of Rome was founded in 753 BC
The Roman Republic was established in 509
BC
Ancient Roman Empire was founded in 27 BC
by Augustus, the first emperor
The Empire was divided into Western and
Eastern Roman Empire in 285 AD
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Civil law or Ius civile in its broadest sense was
the law of the city of Rome.
In a narrower sense it refers to the secular
law of Rome, private and public, to the
exclusion of sacred law
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The beginning and end of Roman civil law are
conveniently marked by the Twelve Tables
and Justinian's codification
Law of the Twelve Tables - the earliest and
most important legislation enacted in 450 BC
It was (most probably) posted on tablets in
the Roman Forum
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The Twelve Tables were written by the
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unprecedented powers to draft the laws of
the young Republic.
Originally ten laws were drafted; two later
statutes were added prohibiting marriage
between the classes and affirming the
binding nature of customary law.
Decemviri Consulari Imperio Legibus
Scribundis (the 10 Consuls), who were given
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The new code promoted the organization of public
prosecution of crimes and instituted a system
whereby injured parties could seek just
compensation in civil disputes.
The plebeians were protected from the legal
abuses of the ruling patricians, especially in the
enforcement of debts.
Serious punishments were levied for theft and the
law gave male heads of families enormous social
power (patria potestas).
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The important basic principle of a written
legal code for Roman law was established ,
and justice was no longer based solely on the
interpretation of judges.
These laws formed an important part of the
foundation of all subsequent Western civil
and criminal law.
The full text of the code has not survived,
only some fragments
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The most successful effort to gather the
existing laws starting from the Law of Twelve
Tables and to add new laws
The collection of laws and legal interpretation
developed under Justinian’s sponsorship from
529 AD to 565 AD; it is commonly called
Corpus Juris Civilis
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The Roman civil trial was governed in the
course of history by three systems of
procedure: that of the legis actiones (actions
in law), the formulary system, and the
cognitio extra ordinem or cognitio
extraordinaria (extraordinary inquiry).
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Under it for each cause of action there was an
appropriate form of action, expressed in a set
of words or formula; and the praetor had the
power to create new formulae to meet new
needs.
The formula constituted the pleadings of the
parties (plaintiff and defendant)
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The bringing of an action began with the
plaintiff personally summoning the defendant
to follow him before the magistrate. The
Twelve Tables contained detailed provisions
governing this summons.
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Table I: Preliminaries to a trial
1. If plaintiff summons defendant to court, he shall
go. If he does not go, plaintiff shall call witness
thereto. Then only shall he take defendant by force.
2. If defendant shirks or takes to heels, plaintiff
shall lay hands on him.
3. If disease or age shall be an impediment, he
shall grant him a team (for transport); he should
not spread with cushions a covered carriage if he
shall not so desire.
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6-9. When the parties compromise the
matter, an official shall announce it. If they do
not compromise, they shall state the outline
of the case in the meeting place or market
before noon. They shall plead it out together
in person. After noon, the judge shall
adjudge the case to the party that is present.
If both are present, sunset shall be the time
limit (of the proceedings).
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In jure – before the magistrate; its purpose was to
define and formulate the issue (i.e. the limits of the
dispute between the parties). This stage culminated
in joinder (joining) of issue, an acceptance by the
parties, under the magistrate's supervision, of the
issue thus formulated and the nomination of the
iudex authorized by the magistrate – very formal
In judicio – before the iudex or iudices; informal;
speeches held by orators
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Speeches held by orators (for the plaintiff, for
the defendent, evidence on each side,
summing up)
There was no limit to the number of orators
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The iudex presided in the second stage when
the case was heard and argued.
A private person empowered by the
magistrate's order to give judgement, but
more than a mere private arbitrator, because
that judgement was recognized by the state
and enabled the successful plaintiff to put it
into effect.
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Judge and magistrate elected yearly along
with the Consuls
A praetor was one of the greater Roman
magistrates with imperium or legal power.
They led armies, presided in law courts, and
administered the law.
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Judging matters between citizens was the job
of one specific magistrate, the praetor
urbanus (city praetor). Since he was in charge
of the city, he was only allowed to leave the
city for the period of ten days.
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In the late Republic there were eight Praetors;
senior was the Praetor Urbanus who heard
civil cases between citizens
The Praetor Peregrinus heard cases involving
foreigners, the others presided over criminal
courts
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The praetor settled the formula – a set of
instructions to the iudex
The formula varied from action to action, but its
structure was based on some permanent essential
parts: the intentio (concise formulation of the
plaintiff's claim) and the condemnatio, by which the
judge was directed to condemn the defendant if he
found after hearing the evidence and the
arguments that the plaintiff's case was good,
otherwise to acquit him.
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When the formula was complete, the parties
joined in the procedural contract – they
undertook to abide by the result of the
submission to the iudex
Because of the contract, the judgment was
binding on them
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All actions, except those intended only to
settle a preliminary question, necessarily led
to a condemnatio for a money sum to be paid
by the defendant. The assessment of the sum
was made by the iudex.
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An open meeting and market area; the
premier forum was the Forum Romanum
surrounded by the Capitoline, Palatine and
Caelian hills
The court met outdoors in the Forum when
the weather was good
Later it was paved and devoted solely to
public business, and market functions were
transferred to the Forum Boarium, the cattle
market
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http://www.youtube.com/watch?v=0HTeWER
WaJ4
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They (the parties) undertook to abide by the
result of the submission to the judex, and the
judgment was binding on them by virtue of
that contract.
Can you guess the meaning of the phrase by virtue of?
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It was allowed that the praetor settle the
formula or set of instructions to the judex.
It was expected that the court refer some
particular point to the oath of a party,
leaving other issues to be tried.
It was claimed that the orators frequently
made separate set speeches. (Perfect!)
It was believed that the court was tired by
going over the same ground.
It was proved that the proceeding in judicio
took place in the forum. (Perfect!)
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The praetor was allowed to settle the
formula or set of instructions to the judex.
The court was expected to refer some
particular point to the oath of a party,
leaving other issues to be tried.
The orators were claimed to have frequently
made separate set speeches.
The court was believed to be tired by going
over the same ground.
The proceeding in judicio was proved to
have taken place in the forum.
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just compensation – pravična odšteta
to refer a point to the oath of the party postići nagodbu za neki problem
unsettled issues - neriješena pitanja
to summon – pozvati na sud
summons – poziv na sud
to condemn – osuditi
to acquit - osloboditi