Formulary Procedure

Different normative expectations of individuals continuously cause legal disputes, in both the past and today. From the multitude of varying and conflicting normative expectations, which cannot all be met at the same time, selection mechanisms have to choose which to count as law.

Thus, legal proceedings constitute a continuous process of trial and error contributing to the evolution of law.^[204] Not only in modern societies but also in Rome these selection mechanisms are institutionalized in formal legal proceedings, such as the legisactio and formula procedures. The older legisactio procedure was much less capable of adapting Roman law to socio-economic change than the more flexible formulary procedure/^[205] The latter procedure, which was the most important one for the Principate, enabled the praetors (assisted by the jurists in their consilium) to recognize new legal variants in individual cases. The selection of legal variants largely took place in the formulary procedure, which was highly sensitive to variations. The conditions of the conditional programmes included in the formulae could be changed in order to adapt the law to new transactional practices and changes in the law's environment.

From legisactio to formula

The most important type of civil proceedings in the late Republic and the Principate was the formulary procedure: litigare per formulas.^[206] ^{^[207] ^[208] ^[209] ^[210] This procedure originated in the last quarter of the second century bc, a period in which Roman economic and social life drastically changed. Its predecessor, the legisactio procedure/³ could ‘never have met the needs of the emerging Roman empire/⁴ The forms of action of the extremely formalistic legis actiones were limited to a small number of cases that could be reduced to leges.}

These legis actiones were laid down in unchangeable and oral forms of action and were only available for Roman citizens. In legal systems operating with oral communications, stability will need to be achieved by means other than writing, in particular by fixed rituals/⁵ The Roman legisactio procedure was oral and operated with ritualistic forms of action, whose fixed wording had to be strictly observed.66 The forms of action were limited in number and scope, a position which remained unaltered for centuries. As Fogen lucidly observes, the fixed wordings of the legis actiones restricted ‘the entrance of life to the law’.^[211] The formulary procedure granted life much wider access to the law.^[212] The forms of action of the formulary procedure did not need their foundation in a lex. They could be adapted to the circumstances of the case, were in writing, and were also available to peregrini.^[213] ^{^[214] ^[215] ^[216] ^[217] ^[218] The formulary procedure was, however, not a radical innovation but—according to Wieacker— rather an ‘organic developmental stage’ of the legisactio procedure/⁰ Features which the formulary procedure did at least borrow from the legisactio procedure were the operating with forms of action and the division of the procedure in two stages (praetor and index). Legislation seems to have significantly contributed to the supersession of the formulary procedure at the expense of the legisactio procedure.7¹ As Nicholas observes, the formulary system ‘is remarkable for its simplicity, economy, and adaptability. By the use of a small number of typical “parts” or elements, the essentials of any dispute could be concisely and clearly expressed/² It is no wonder then that the rigid legisactio procedure was largely ousted by the more flexible formulary procedure.7³ The new procedure gave a large freedom of assessment to judicial magistrates in adapting Roman law to socio-economic developments and enabled the creative force of the jurists to unfold.7⁴
Actiones in factum and actiones utiles
Where the fact pattern on which the claimant sought redress in formulary proceedings could not be subsumed under an existing formula in the praetor’s edict—not even by reinterpretation of concepts included as conditions of existing forms of action—the praetor could simply deny the claimant’s action (denegatio actionis).
In that case a negative selection took place: the praetor decided not to enforce a legal variant which would have accommodated the claimant. Where, on the other hand, the praetor was willing to enforce a new legal variant he could grant an ‘action on the facts' (actio in factum). A formula would be devised—presumably by the jurist acting as counsel for the claimant or as consilium to the praetor—which was specifically tailored for the individual facts of the case.^[219] The praetor could even add an entirely new action to his edict. In many cases these newly standardized actions would then bear the name of the praetor who first consolidated them in his edict/^[220] But even after they were stabilized in the edict, they would still be regarded as in factum concepta. Thus all the actions which were based on the conventio pignoris—the actio Serviana and the actiones pigneraticiae (directa and contraria)—did have formulae in factum conceptae.^[221] ^{^[222] ^[223] ^[224] ^[225] ^[226] The praetor could also incidentally change the scope of an existing action, by amending the formula and grant an analogous action/⁸ The expression ‘actio utilis’ was used where a condition of an existing formula was changed or deleted, in order to accommodate new cases. Thus, in the late classical period an actio Serviana utilis was granted to the creditor, where future assets had been pledged. In the adapted formula of this action the condition that the pledged assets were owned (in bonis) by the debtor at the time of conclusion of the pledge agreement was modified, so that also assets which were afterwards acquired would be charged/⁹ Such a change could also be drastic, such as when the actio Serviana was adapted in order to enforce pledge agreements pursuant to which receivables were pledged/⁰ Luhmann observes that consistency ‘does not require a reflection on the unity of the system or orientation by a sense of the system as a whole/¹ One can also attempt to reach consistency by solving similar cases in a similar manner. This is what common law courts have been doing for centuries.
The adaptation of an existing form of action by the praetor to a new situation would involve this kind of consistency. In particular here one could find support for the proposition that it is ‘the need for consistency in its internal operations, and not its alignment with the economy or the political system, that above all drives the workings of the legal system and defines its “efficiency” /² Formula as conditional programme
A decisive factor for the evolution of Roman law as an autonomous system was the role played by the praetor in instructing judges on how to make their decisions. These instructions, which were documented and passed on in edicts, were cast in the form of—what Luhmann calls—‘conditional programmes’. The concept of the conditional programme is ‘one of the great evolutionary achievements of social development’.^[227] ^{^[228] ^[229] Luhmann mentions the Roman formula as a classical example of a conditional programme.}
Only conditional programmes can instruct the continuous linking of selfreference and external reference; only conditional programmes provide the system’s orientation to and from its environment with a form which is cognitive and at the same time which can be evaluated deductively in the system. The formal Roman process began with the instruction: ‘si paret.. Th⁴
It is through its conditional programmes that the legal system responds to communications from the other subsystems of society (e.g., economy). They contain the conditions on which it depends whether (and which) legal consequences must be attached to fact patterns which are within the scope of the legal system. A conditional programme has an ‘if a then b’ structure: if conditions a1, a₂, and a occur, then the legal consequence shall be b.^S5 Whenever concrete fact patterns meet these conditions the legal consequence shall be the same. Although they may borrow the values from other subsystems, the ‘filters’ included in the conditional programmes—that is, the conditions a1, a₂, and a —determine whether the defendant would be condemned or dismissed.
x
This allowed the Roman legal system to respond to other subsystems, but only where its conditional programmes were capable of recognizing events of these other systems as legally relevant facts, by subsuming them under the conditions of a formula. Under the influence of societal circumstances (e.g., new transactional practices) conditional programmes may change over time, by changing the conditions or by giving them a new interpretation. Legal evolution takes place by creating, modifying, or deleting conditional programmes encapsulated in forms of action, legislation, legal opinions, and judgments.^[230] ^{^[231] ^[232]} The concept of the conditional programme appears to be very useful for analysing the evolution of the Roman law of real security, which to a large extent took place by interpreting or modifying the conditional programme comprised in the formula of the actio Serviana (the actio with which a creditor could enforce his right of pledge both against the debtor and against third parties).
Conditional programmes and legal institutions
A criticism on reducing law to conditional programmes is that it neglects legal forms which cannot be fitted into the ‘conditional scheme’/⁷ In particular, it has been said not to give sufficient weight to the importance of the concept of ‘legal institution’ as a complex of connected legal rules/8 It is true that many of the legal characteristics of pignus and hypotheca are not expressly mentioned in the formula of the actio Serviana but are to be found in jurists’ opinions and imperial constitutions interpreting this form of action. Thus, the conditions of the actio Serviana (e.g., in bonis, solutio, and satisfactio) have given rise to a complex body of rules of substantive law, which together with those on fiducia cum creditore constitute (what we now call) the Roman law of real security. To employ the concept of a conditional programme as an analytical tool is by no means irreconcilable with considering legal institutions as the prime focus of legal-historical research.
The focus can be on how a particular conditional programme changed over time or on how a particular legal institution (e.g., pignus and hypotheca) evolved in a particular period. For the action-based Roman private law, the latter (legal institution) will in most cases make the first (conditional programme) necessary. The conditional programme expressed in a formula can be regarded as the procedural expression of a number of more specific rules of substantive law relating to the validity or enforceability of contracts, rights in rem, or other legal relationships. Although the jurists did discuss pignus and hypotheca in terms of substantive law, they often also spoke in terms of actions.^[233] ^{^[234] ^[235] This intimate connection between substance and procedure in Roman law is nicely illustrated by Gaius in D. 9.4.27 pr.: ‘for it is not a pledge what cannot be recovered' (‘nullum enim pignus est, cuius persecutio negatur). In other words, there cannot be a substantive right (pignus) where there is no action (actio Serviana). Therefore, although this book primarily looks at (the evolution of) pignus and hypotheca as a legal institution, it does so—in imitation of the Roman jurists— with intermittent references to the conditional programme encapsulated in the formula of the actio Serviana. 2.4}}}

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Source: Verhagen Hendrik L.. Security and Credit in Roman Law: The Historical Evolution of Pignus and Hypotheca. Oxford University Press,2022. — 448 p.. 2022

Formulary Procedure

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