APPLIED CIVIL LAW: LEGAL PROCEDURE

The importance of deriving a rational procedure from the available texts was recognised equally by civilists and canonists and they devel­oped such a procedure as a joint venture.

The generation of glossators which succeeded Irnerius took the first steps to tackle the problem. Bulgarus, one of the Four Doctors, wrote a work called Excerpta legum, with the aim of elucidating the mysteries of law (archana iuris) to his friend Cardinal Aimericus, chancellor of the Church from 1123 to 1141. He begins with the elements of a legal action, the participants, statements of claim and defence, evidence, judgments and appeals. Some earlier writers had suggested that, apart from the parties and the judge, the advocates and the witnesses should also be considered as participants. But, said Bulgarus, the essence of a legal action is a proceeding of three persons, the plaintiff asserting his claim, the defendant denying it and the judge in the middle, discovering. Bulgarus explains that normally the burden of proof in a civil action is on the plaintiff and discusses how, in some cases where proof is lacking, the matter may be settled by oath.

Bulgarus's pupil Johannes Bassianus gave the impetus to a new genre of legal literature, the ordo iudiciorum, which sought to clarify what a civil action was, how it was begun and ended and how it could be avoided. Bassianus gave practical examples of how to draft a libellut, a statement of claim.

The elaboration of a rational procedure from the materials of Roman law was not just an academic exercise. Legally minded popes, such as Alexander III, required churchmen who decided disputes involving ecclesiastical bodies to follow the rules of the ordo, as the only means of ensuring that litigants' interests would be protected. The end of the twelfth century saw a flowering of procedural ordines, especially in the Anglo-Norman kingdom. At first they consisted exclusively of Roman material, culled mainly from the Code. They typically dealt with summons of the defendant, the giving of security for the parties' appear­ance, proctors who represented the parties, oaths, the effect of over­claim, defences, witnesses, compromises, the distinction between judges and arbitrators, judgments and appeals. Towards the end of the century, as the canonist authorities increased through the promulgation of more and more papal decretals, these procedural works became less depen­dent on civil law. They were intended for practitioners in both systems and the resulting procedure is properly designated Romano-canonical.

The procedural works culminated in the Speculum judiciale (Mirror of Justice) of Guglielmus Durandus, which appeared in 1271. Durandus was a Provencal, who studied canon law at Bologna and became a papal auditor, or judge dealing with appeals to Rome from all over the Christian world, and eventually a bishop in his native Provence. The Speculum relied heavily on earlier work, but Durandus wove it all together in a form that made it easy to consult. In four books he dealt with the persons involved in a legal action, civil procedure, criminal procedure and precedents of pleading, the latter part including precedents for deeds. The work ensured lasting fame for its author, often referred to as the Speculator.

In practice the Romano-canonical procedure, ultimately derived from the late-Roman professional procedure, was developed in the Church courts and in arbitrations conducted by churchmen. By the thir­teenth century it was ready to be used in secular courts. The Parlement de Paris adopted a version of it which served as a model for other French courts. It was an entirely professional procedure, the judges personally investigating, in private, the facts which were not admitted by both sides. To ensure that the examining judge asked relevant questions, the parties suggested questions in advance, together with their initial statements of claim and defence. The evidence collected was all recorded in writing. Eventually an entirely written procedure was created, which, as it became more technical, needed professional advocates to operate it. If they were university trained, it was natural that they would cite the civil law that they had learned, where it advanced their argument. The adop­tion of the learned procedure was thus the first step to adopting parts of the civil law.

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