The election of the praetor
The first praetor was appointed in 356 BC in the Comitia Centuriata, as a result of
Rome’s expansion. The office could only be held by a patrician until 337 BC,
when plebeians also became eligible for the post. His appointment carried a duration of one
year, and his role mainly concerned the administration of justice although he
had no special training in law. In 242 BC, following the Roman empire’s further
expansion accompanied by an influx of foreigners into Rome, a second praetor
had to be appointed to supervise litigation where at least one of the parties
was a foreigner. This second praetor was known the praetor peregrinus. The other praetor became known as the praetor urbanus (or simply the praetor)
and his sole responsibility became iuris
dictio between Roman citizens. The praetor decided whether parties were
allowed to bring a case to a judge and the way in which this was to take place.1
In time, more praetorships were introduced (see Brennan,
Praetorship I, chs. 6 and 7) but only the praetor urbanus and the praetor
peregrinus had iuris dictium over the
Men who ran for praetors did not get to choose their roles –
these were selected by lot. However once selected, a praetor was given the
power and authority to administer the law via the grant of imperium. Imperium, which was the utmost form of power, gave the
praetor the right to issue edicts in addition to the right to command armies. Because
of a praetor’s juris diction imperium right to interpret and carry out the law,
he had a dominant influence in law reform. A praetor’s jurisdictional reach in
Cicero’s time was likely at its most developed point.
The praetorian edict
During this period, the Twelve Tables were the main point of
legal reference. However, since these could not address every legal situation
that may have arisen, it was the praetor’s responsibility to fill in those
lacunae created by the Twelve Tables.
At the beginning of his tenure, a newly elected praetor issued
his edict on the basis of his ius edicendi. This edict was written on wooden boards and
set on display in the Forum. Once published, the praetor was expected to act in
accordance with it. The edict was an outline of the legal principles and
remedies that the praetor intended to enforce and be guided by during his term.
Since praetors were not legal experts, they often consulted jurists when
drawing up their edicts. The praetor was not bound by the edicts of his
predecessor, but would instead keep measures from the previous praetor’s edict
which functioned well, remove sections which had proved inefficient or unworkable,
and add new remedies or new defences. In
this way, the body of law was kept workable and to a reasonable size, while
remaining predictable and stable yet not at the detriment of flexibility. Through this annual process, the bulk of legal
principles were carried over from year to year developing into a new body of
praetoric law, defined by Papinian as “that law introduced by praetors to supplement or correct civil law for
public benefit”. Eventually civil law and praetoric law were merged
into the corpus iuris civilis, and contributed
to the development of the ius honorarium.
However, the praetor had a lot of power and discretion cast
upon him by virtue of his role, to grant new remedies which were not part of
the edict or to refuse remedies which were. This flexibility to amend the edict
during the year of tenure of a praetor was one of the major positive qualities
of the edict as a source of new law and as an effective agent for law reform.
In 130 BC Emperor Hadrian appointed the jurist Salvius
Julianus to organise the praetorian edicts which had now been formed over three
centuries. In 67 BC a lex Cornelia de edictis
praetorum was passed, requiring praetors to stick to the edict and keep it
intact, at which point they became reliable law sources.
The civil litigation process
The standard classical civil procedure is known as the
formulary system, which persisted for most of the classical period. In this
system, proceedings took place in two phases.
The first phase was before the praetor as
administrator of justice (in iure). Here,
by virtue of the power of iuris dictio
granted to the praetor as a result of his imperium, the praetor prepared the
trial. A plaintiff looking to commence civil litigation would put his concern
to the praetor, who, after looking at the facts submitted, would check whether
there was basis for legal action by consulting jurists and his edict. If the
edict contained no remedy for the issue brought to him and the praetor agreed
with this, then the action was refused. If the edict contained a remedy, then
his permission was granted to initiate proceedings by assigning a judge to the
case and preparing a formula.
The formula had three components:
(i) the appointment of a judge, (ii) an account of the issue brought up by the
plaintiff, and (iii) the authorisation of the judge to pass verdict. Other
sections including the intentio and
the condemnation were confined to a single sentence written according to a
fixed structure. Once the plaintiff and defendant agreed that the formula
reflected an accurate description of their dispute, the litis contestatio took place and the praetor proclaimed a decree
charging the judge to pass a verdict.
The formula captured the crux
of the dispute to be decided by the appointed judge based on the evidence
produced, and could only be done in the presence of the defendant, who had a
say in what was to be included in the formula. This meant that it was necessary
to have ways to compel the defendant to appear before the praetor. The parties
would agree to meet, at which point the plaintiff could formally summon him
before the praetor (in ius vocatio).
The praetor’s role was not to
decide on who is right, but simply to grant a formula covering the petitions of
each party in formal terms, while ensuring correct procedure and verifying the
legitimacy of the claim in conformity with the law. Once the formula was prepared and the judge
was selected, the praetor’s role complete and the dispute went before a judge (apud iudicem).
second phase was the actual trial. This was held in front of the judge, who was
a private citizen appointed by the praetor, with the objective of obtaining a
verdict. The praetor authorised the judge to act only on the dispute as defined
in the formula. Anything else was irrelevant and outside the judge’s competence.
The judge had to issue a sentence condemning or absolving the defendant, after
hearing the evidence brought by both parties.
The formulary process did not
bind the praetor to the legis actiones,
but rather he could make changes in his interpretation of them, and even introduce
new legal remedies for issues that not covered by the ius civile. Furthermore the formula, being written in a standard
manner, fixed the remedy and eliminated risks of mistakes and misunderstanding.
This separation of duties between
praetor and judge was a very important step towards the evolution of Roman
jurisprudence. The regulatory framework governing civil cases was thus
increasingly matured by the praetors. By mitigating the inflexibility of the legis actiones procedure, praetors contributed
significantly to the evolution of procedural law. Consequently, the praetor’s
activities led to the development of the ius
honorarium – a veritable legal system which developed alongside the ius civile.
Herbert F. Jolowicz and Barry Nicholas, Historical
introduction to the study of Roman law (3. ed. edn, Cambridge University