Roman private law developed from the law of procedure, otherwise recognized as the law relating to actions.
This derived from the fact that the Roman jurists were concerned not so much with the formulation of general principles regarding the rights and duties of individuals, but with establishing the factual circumstances under which an aggrieved person should be granted a legal remedy.
As a remedy in Roman law existed only where there was an appropriate action, the law as a whole had little import for the Romans unless a recognized form of action existed whereby an individual could enforce a claim. From the decisions given in individual cases general rules and principles were distilled at a later stage in the development of the law.The law of procedure became applicable when a person claimed that his rights had been infringed upon and he wished to remedy this situation. In the earliest times, when no comprehensive system of remedies existed to assist an aggrieved person in the enforcement of his rights, the obvious course for him was self-help. It is clear, however, that this method could lead to all manner of irregularities as the stronger person could coerce a weaker one without the latter having an opportunity of having their objections heard. With the development of the Roman state, rules were introduced limiting the application of self-help by subjecting it to certain requirements. Thus, self-help became permissible only after the state had satisfied itself that there had indeed been an infringement of one’s rights and, to prove this, a judicial decision was frequently necessary. In the course of time, self-help was eliminated and a more sophisticated system of rules evolved to provide remedies for a variety of infringements of Roman citizens’ rights.
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 employed during the Republic; the formulary system was in use from the second century BC to the third century AD; and the cognitio extraordinaria prevailed during the Empire.
The two principal types of legal procedure up to and including the Principate age, namely the legis actio and the formulary procedures, were both divided in two stages.
The first stage, known as procedure in iure (‘before the law’), took place before a jurisdictional magistrate[438] and terminated when issue was joined (litis contestatio—in modern law the equivalent of closing of pleadings). The magistrate did not himself pronounce the final judgment, but merely determined whether the case was sufficiently strong for referral to a judge for trial and, if so, declared the applicable law. The second part of the procedure took place before the judge or judges and was known as apud iudicem (‘before the judge’).[439] During this phase the judge (iudex) conducted the trial based on the evidence produced within the frame established by the magistrate and pronounced a formal judgment.3.6.1
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