Introductory

Roman private law was closely connected with the law of civil procedure, other­wise recognized as the law relating to actions. In a sense, the law of actions may be construed as the most important part of the law.

As noted previously, the early Romans used the term ius to denote a right or a form of conduct approved by the community. Before the formation of the state there was no comprehensive system of rules or remedies designed to assist an aggrieved person with the enforcement of his rights. The obvious course for an aggrieved person was self-help, for example, by forcibly evicting a trespasser or reclaiming property he was wrongly deprived of by another person. A general awareness existed of the circumstances where such demonstrations of hostile power were iura and this was established by custom. The development of the state was accompanied by the formation of rules that required the person aspiring to wield self-help to show actual infringement of his rights, and establishing this proof often necessitated a judicial decision.

G. Mousourakis, Fundamentals of Roman Private Law,                                                                      309

DOI 10.1007/978-3-642-29311-5_6, © Springer-Verlag Berlin Heidelberg 2012 functions. The exercise of his power to issue commands, that could be drastically enforced, assisted the aggrieved party in obtaining the ius that was declared as their entitlement. Therefore, if a person possessed or claimed a ius against another and secured that person's appearance before the magistrate, he could have both his ius confirmed and its exercise protected by the suppression of any resistance. Initially, the magistrate's law-finding activity must have been a relatively simple task as the circumstances where a ius was recognized were mainly presumed. But as social and economic conditions changed, magistrates were confronted with unfamiliar claims and forms of ius. We may surmise that they denied support for such cases, unless the new ius was adapted to resemble a recognized form. In the course of time, a more sophisticated system of rules and principles developed to provide remedies for a variety of infringements on the rights of Roman citizens.

The Roman law of procedure is generally distinguished by three stages of development: the period of the legis actio procedure, the period of the formulary system and the period of the cognitio extraordinaria. The legis actio procedure was used during the Republic; the formulary system featured in the second century BC to the third century AD; and the cognitio extraordinaria prevailed during the Empire.

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