Praetor’s Edict, Ius Honorarium, and Ius Novum

The incidental adaptation by the praetor of a standard form of action would only result in structural legal change if there were stabilization mechanisms causing the change to be conserved and remain accessible.

In modern Western legal systems, either codification (civil law systems) or a doctrine of binding precedent for case law (common law systems) are the most important stabilization mechanisms?⁰ In the Principate neither a general codification of private law was enacted, nor was there published case law subject to a doctrine of precedent. When subsequent praetors granted an adapted action on the basis of similar fact patterns as the original one, the jurists would— certainly in the last two centuries bc—have recommended that they be included in the edict as a new standard formula. In the edict the praetor would then give a standardized description of the fact patterns in respect of which an action would be granted, accompanied by the relevant form of action (formula). What is unique about Roman law is that the praetor's edict, ‘that masterpiece of republican jurisprudence?¹ combined the stability and predictability of a codification, with the adaptability of case law. The ius honorarium was the product of this combination. After the fixation of the praetor's edict under Hadrian, the adaptive capacity of this source of law was significantly reduced. The imperial chancery, however, took over the role of the praetor in adapting Roman law to new needs of Roman society. This resulted in a new body of rules, which in modern literature is referred to as ‘ius novum'.

Praetor’s edict: stability and adaptability

At the beginning of his one-year term in office, the praetor urbanus would issue an edict, which was made accessible to the public by placing an album (texts written in black with red rubrics against a white background) on the forum.^[236] In the praetor’s edict it was indicated in which circumstances he would be prepared to grant an action (iudicium dabo) in formulary proceedings.

The praetor’s edict would also contain an elaborate list of the forms of action (formulae) which a claimant should use in litigation, often accompanied by standard form defences (exceptiones) and counter-defences (replicationes). Although formally each year the new praetor enacted a new edict, in practice the great majority offormulae included in such edict would be copied from the edict of his predecessor. The Romans even used a special term for the unaltered part of the edict: ‘handed-down edicts’ (edicta translaticia).^[237] The praetors were generally not trained as lawyers and at the beginning of their one-year term in office there would not have been sufficient time to elaborate an entirely new praetor’s edict?^[238] Only the jurists in the praetor’s consilium were capable of securing the continuity of the praetor’s edict?^[239] The legal rules to be found in successive edicts by the praetor were either identical to their predecessors or only incidentally modified. This ensured a stability of normative expectations which is essential for a well-functioning legal system. Stability was, however, combined with adaptability?^[240] The law could be adapted, because the praetor could insert new remedies in his edict, including those granted in rulings (decreta) by his predecessor outside the latter’s edict during his time in office, or amend existing ones?^[241] The structure of the praetor’s edict clearly shows that it is the product of incremental evolution?^[242] Schulz reflects that Mommsen called the edictal order a ‘disorder’ and observes that ‘certainly it is anything but a masterpiece of systematization?9 An example of this disorder is the place of the actio Serviana in the praetor’s edict.¹⁰⁰

The praetor’s edict and evolution of classical law

The most formative period of the praetor’s edict was probably the second and first century вс.¹’¹ By the end of the Republic most praetorian remedies had already been included in the edict and the creation of new remedies was a rare occasion during the Principate.

If new clauses were added to the edict, it was usually to implement legislation (senatus consulta and leges).^[243] ^{^[244] This did not mean, however, that in classical Roman law the possibility of edictal changes of law was completely cut off. Thus, the prevailing opinion among modern Romanists (to which I do not necessarily subscribe) is that the scope of the actio Serviana was only extended from tenant’s pledges to pledges in general at the time of (and perhaps even by) Julian.™³ In addition, there are indications that another pledge remedy—the creditor’s contractual actio pigneraticia (contraria)—did not yet exist in early classical law, and must therefore have been introduced into the edict in the classical period.™⁴ Even the fixation of the praetor’s edict under Hadrian still left room for praetorian innovations. Kelly notes that because it is likely that in the one hundred and fifty years before the codification of the Edictum perpetuum very little new material had been added to the edict, ‘it would be quite wrong to suppose that its final edition by Salvius Julianus under Hadrian brought to an end an era of continuous productivity’.™⁵ In cases not provided for in the Edictum perpetuum there would still be room for innovation by the praetor, albeit curtailed by the existing edictal framework. Their fixation in the praetor’s edict was no obstacle for jurisprudence to develop variations of existing rules by using innovative interpretations.™⁶ Moreover, actiones utiles and actiones in factum could still be granted. In fact, we will see that under the regime of the Edictum perpetuum many of the most significant changes of the law of pledge took place. New transactional practices were positively sanctioned by the praetors, by granting adapted versions of the actio Serviana. The contractual actiones pigneraticiae in ius conceptae even originated after the codification of the praetor’s edict and were stabilized as extra-edictal actions.™⁷
Ius honorarium and ‘ius novum’
The interventions by the praetors (and the aediles curules for market sales) resulted in a second body of law existing alongside the traditional ius civile.¹⁰⁸ This ius honorarium was largely responsible for Roman law developing from a static law for an agrarian society primarily based on land tenure and personal relationships, to a more dynamic law facilitating the free circulation of goods and the availability of credit.¹"⁹ The Roman law of pledge is to a large extent the product of the ius honorarium and its interactions with commercial and financial practices.
The landlord's pledge on invecta et illata, the non- possessory pledge, the creditor's right to sell the pledged assets, the creditor's obligation to pay any surplus proceeds back to the debtor, multiple security rights, the charge of receivables, the antichretic pledge, and the general pledge all find their origin in transactional practices. These transactional practices were recognized by the praetor, by inventing, interpreting and adapting remedies—in particular the praetorian actio Serviana—in order to give effect to the new arrangements put before him. The law of pledge was largely developed through transactional practices which were recognized by the ius honorarium. The ius honorarium ultimately allowed a right in rem (hypotheca) to be created merely by way of an informal agreement: nuda conventione, as Julian and Ulpian state.“" It is precisely the fact that it was largely a creation of the ius honorarium—being less strict than the ius civile—that made it possible that a wide-ranging right in rem evolved that could be created without formalities or the transfer of possession. In the late classical period important changes occurred, most importantly through imperial intervention. In particular, the imperial chancery of the Severans made significant contributions to the development of Roman law, which leads Coriat to speak of the ‘ius novum Severianum. Coriat builds upon a theory advanced by others (including Biondi and Schiller) that late imperial law constituted a ‘third stratum' in the history of the sources of classical Roman law?“ This ius novum was largely developed by the imperial rescript practice. Not only Roman officials but also individual citizens could petition the emperor for an answer on a question of law. This could take place during legal proceedings, but also in preparation for legal proceedings or precisely in order to avoid them. Although formally not a statute or judgment, a rescript
I"⁸ See recently, De Ligt 2020.
i"’ Wieacker 1988: 474-5. 11" Jul. D. 41.3.33.4; Jul. D. 41.3.33.5; Ulp. D. 13.7.1 pr. Section 6.5.
iii Coriat 1997: 170-1.
was ‘an authoritative ruling on the law’.^[245] To the extent that they were concerned purely with matters of law, rescripts were regarded as having general force, and were used by the jurists as legal precedents.“^[246] As such, rescripts not only could be invoked by persons who had petitioned for the rescript but could be relied upon by anyone.“^[247] It may not be a coincidence that the rescripts practice, and more generally imperial constitutions, really started to influence Roman law with emperor Hadrian, the same emperor who ordered Julian to codify the Edictumperpetuum.^[248] ^{^[249] ^[250] ^[251] This may be the main reason why imperial law took over the leading role from the ius honorarium in reforming Roman law. Legal change was no longer the product of a joint effort of magistrates and independent jurists. Law-making became, at least formally, more firmly in the hands of the imperial state and much law can be found in constitutions and senatus consulta drawn up in the imperial chancery.“⁶ There was, however, a large degree of continuity between the ius honorarium and the ius novum. The imperial chancery used ‘praetorian techniques’ in order to fill lacunae in the praetorian edict and to adapt Roman law to the needs of society. Like the praetors before them, although rescripts were supposed to be statements concerning existing law, the chancery actually innovated the law by introducing new rules and institutions in the legal system, without disturbing its coherence.“⁷ Also in another sense, there was continuity: the jurists continued to be materially responsible for interpreting and changing the law.}
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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

Praetor’s Edict, Ius Honorarium, and Ius Novum

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