The Cognitio Extraordinaria

Since the early Principate age the emperor or a state official acting on his behalf assumed, or was accorded, the right to decide certain cases when the positive law did not provide remedies.

This right was effectuated by a procedure called cognitio extraordinaria or cognitio extra ordinem. The cognitio procedure could be employed not only in cases involving private disputes, but also in criminal cases and disputes between private citizens and state organs. The new procedure probably originated from the early practice that allowed jurisdictional magistrates to directly deal with certain cases either on the application of a party or on their own initiative. The magistrates tackled these cases by using their administrative authority to cut through the formalities observed in regular court proceedings. The procedure was widely adopted in the provinces during the later republican period, especially in criminal cases. It was also engaged in cases involving private disputes between foreigners and cases relating to disputes between Romans when not enough Roman citizens were available to serve as judges. Such cases were addressed by the provincial governor either directly or through a delegate (iudex pedaneus), without observing the rules governing the ordinary procedure. From the time of Augustus, the cognitio extraordinaria was the only form of procedure used in the imperial provinces where the administration of justice was directed by imperial officials who acted as representatives of the emperor (legati Augusti pro praetore). By the early second century AD, it had become the regular form of procedure in the senatorial provinces. In Rome and Italy the cognitio extraordinaria was employed from the beginning of the Principate, although not on a regular basis. In the course of time, the new procedure gradually superseded the formulary procedure.

By the end of the third century ad, it was the ordinary form of procedure throughout the whole empire.^{^[1286]}

The establishment of the cognitio procedure as the main form of legal procedure was partly due to its great simplicity and flexibility. It also partly derived from the fact that, in accordance with imperial ideas, it facilitated the centralization of state authority. The cognitio extraordinaria was a device—as had been the formulary technique in the past—facilitating the judicial care of legal situations when the existing positive law did not offer appropriate solutions. At the same time, it became the vehicle for the subsequent evolution of the imperial jurisdiction that competed with, and if necessary, replaced the jurisdiction of the ordinary (republican) jurisdictional magistrates. As the imperial system developed, the state increasingly intervened in the sphere of law. This entailed the situation where legal disputes were no longer based on an agreement between the parties to present such a dispute before a judge, but on the power of the authorities to place a dispute before its officials, attain a resolution and execute the decision. A petition by one of the parties usually initiated the state intervention, but the emperor could also set it in motion by a procedure called evocatio that transferred the case to his extraordinary jurisdiction. Thus, cases of special importance could be withdrawn from their regular forum for determination by the princeps-emperor sitting, as a rule, in consultation with his legal experts. The emperor could also delegate his jurisdiction to subordinates designated in accordance with the subject matter of the particular case. In Rome and Italy the magistrates concerned were the special praetors, such as the praetor de liberalibus causis,^{^[1287]} the praetor tutelarius^{^[1288]} and the praetor

fideicommissarius,^{^[1289]} and various imperial officials, such as the praefectus praetorio, the praefectus urbi, the praefectus annonae, the praefectus vigilum and the procuratores fisci. As noted, in the provinces the administration of justice was in the hands of the governors (praesides).

Often these officials exercised their judicial functions through delegates (iudices dati or pedanei). These delegates were usually lower state officials appointed by their superiors. This contrasts with the iudices appointed by the praetor under the formulary system, who were private citizens chosen by the parties.^{^[1290]} The practice of appeal from the lower to the higher instance and finally to the emperor ultimately emanated from this technique of delegating judicial functions from the princeps-emperor to his high- ranking officials and the latter's authority to sub-delegate the case to their subordinates. The rulings of the emperor as judge in the first instance or in the case of an appeal (decreta) were theoretically only binding in the particular case. In the course of time, they came to be regarded as authentic statements of law and binding in subsequent similar cases. Thus, a new body of substantive legal rules evolved from the operation of the new imperial branch of the administration of justice. This new body acquired equal rank with the two traditional legal systems: the ius civile based on the Law of the Twelve Tables and the subsequent comitial legislation; and the ius honorarium derived from the edicts of the republican magistrates.

The most significant feature of the cognitio procedure was the abolishment of the two phases in iure and apud iudicem and the occurrence of the entire procedure before only one official. The summons, accompanied by the plaintiff's statement of claim (libellus conventionis), was issued by the plaintiff to the defendant with the judge's support (denuntiatio ex auctoritate), or by the judge on the plaintiff's request.^{^[1291]} This scheduled a date for the court appearance that was not less than 20 days later.^{^[1292]} On the appointed day, the parties or their advocates appeared in court and presented their cases and the facts on which they relied.^{^[1293]} Evidence might be oral or written, although generally the former was regarded as having relatively little value.

After all the evidence was considered and the arguments of the parties heard, the trial culminated in a judgment (sententia) from the magistrate-judge. This verdict was recited publicly and in the presence of the parties concerned.^{^[1294]} Unlike the formulary system where the judgment of the iudex was deemed final, the judgment in the cognitio extraordinaria could be appealed against—an appeal could ensue from a iudex pedaneus to the official who named him, from a lower to a higher magistrate, or in important matters, from a magistrate to the emperor. If the defendant was condemned without further recourse, he was granted a period (at least 4 months) to ensure compliance with the judgment. If the defendant failed to observe the judgment, the plaintiff could request the authorities to initiate steps for executing the judgment. The execution of a judgment could target the debtor's property and thus the relevant property would be officially attached and sold by auction. Alternatively, the execution could be directed against the defendant's person and this entailed the debtor's confinement in a public prison.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

The Cognitio Extraordinaria

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