The Development of Magisterial Law-Making

As a result of Rome's transformation from a small and closed agrarian community into a vast commercial empire, the Romans faced the problem of how to adjust their law so that it might meet the challenges imposed upon it in this new era.

In response to this problem, Roman law broke through the barrier of archaic formalism and formed a highly flexible system that could constantly adapt to the changing demands of social and commercial life. The transition to a more flexible system was made possible by the practice of granting wide powers to the jurisdictional magistrates who declared and applied the law, thus enabling them to mould the law in its application.

In civil cases the role of the praetor (the chief jurisdictional magistrate of the state) was to conduct a preliminary investigation where he determined the admissibility of the plaintiff’s claim, i.e. whether the plaintiff had an action at law. If he was satisfied on this point, the praetor appointed the judge (iudex) before whom the case would be heard; in the opposite scenario, the plaintiff could not proceed to enforce his rights. As previously elaborated, in archaic Roman law, legal suits had to fit into certain set actions and comply with certain strict formalities. If the correct form of action was identified and the requisite formalities were adhered to, the magistrate had little choice but to grant the action and appoint a judge. However, in the later republican period there emerged a far more flexible procedure for initiating legal actions that allowed the magistrate greater discretion and freedom of action. Under this system, litigants could raise claims and concomitant defences that were not provided in the recognized actions. The admissibility of these claims and defences was determined in an informal procedure before the magistrate.

The main reason behind this development was that as social and economic life grew in complexity there increasingly emerged cases where a right should clearly have been recognized, but this right and an appropriate legal action were not accommodated by the traditional ius civile. The magistrate was thus empowered to proceed beyond the strict letter of the law and admit or reject an action when he considered this right or equitable, even where this was not in accordance with the ius civile. He did not accomplish this step by introducing fresh legal rights (magistrates had no formal law-making authority), but by promising the applicant a remedy. He would inform the plaintiff that he now had an action on which to proceed in the subsequent hearing before the judge, and that success at that hearing meant his claim would be enforced by a remedy the magistrate granted. Ultimately, the end result was largely the same: though no civil law right existed, there was a praetorian remedy and hence a praetorian right. At the end of the proceedings before the magistrate, the latter composed a written document (formula) that prescribed the direction for the investigation and determination of the case by the judge appointed to try the case. In this document, he authorised the judge to condemn the defendant if certain facts were proven or to absolve the defendant if they were not proven. It must be assumed that the innovations in substantive law introduced through this system were gradual and organic. Whenever possible, the new formula was fitted into the system of actions recognized by the ius civile; in other cases the magistrate emancipated himself entirely from the established law by instructing the judge to decide the case on the basis of the factual situation, thus in essence functioning as a law-maker.

Every magistrate at Rome was in the habit of notifying to the public the manner in which he intended to exercise his authority, or any change which he contemplated in existing regulations, by means of a public notice (edictum).

With respect to magistrates who were merely concerned with administrative work, such notices were often occasional (edicta repentina). With respect to magistrates concerned with judicial business, they were of necessity valid for the whole period during which the magistrates held their office (edicta perpetua). The edicts of the Praetors were necessarily of this latter type.^{^[22]} Although a newly elected magistrate was in theory free to introduce any measures he saw fit, over time it was expected that he would absorb the bulk of his predecessor’s edict and make only limited alterations (that part of the edictum perpetuum adopted from year to year was referred to as edictum tralaticium). No legal obligation was imposed on the magistrate to adhere to the directions set out in his edict, for that was taken for granted. However, the breakdown of good government in the closing years of the Republic prompted the necessary enactment of the lex Cornelia (67 bc) that forbade the praetors departing from their edictum perpetuum.^{^[23]}

The edictum of the praetor, in the sense in which this word is commonly used, is really a colloquial expression for the album, or great notice board exhibited by that magistrate, which contained other elements besides the edicta in their true and proper sense. It contained the legis actiones and the formulae of the traditional ius civile, probably preceded by certain explanatory headings, but by no ruling in law (for the praetor did not create the rulings on which these civil actions and formulae were based). But the edict contained also model formulae for each promised remedy created by a praetor and his predecessors. Each of these formulae must have been preceded, at least eventually, by the ruling in law, which might have grown out of the formula, but finally served as its basis and justification.^{^[24]} Thus the edictal part of the album was really a series of separate edicta, each edict being followed by its own formula; it was regarded as being a supplement to that portion which specified the actions of the ius civile; and it really had this character of being a mere supplement in so far as praetorian actions were rarely granted where a civil action would have sufficed.

But its supplementary role had far-reaching implications for the development of the law. This is because the edicts might take cognizance of cases not provided for by the ius civile at all, they might replace the mechanism provided by the civil law for attaining a legal end, and they might alter the character of the end itself. The edict of the peregrine praetor was necessarily still more of a substitute for the ius civile than that of his urban colleague. For, as the actions of the civil law could not (at least in many cases) be employed by foreigners, the peregrine praetor was obliged to devise equivalents for these actions and the forms by which they were accompanied.

Another perpetual edict valid in Rome was that of the curule aediles. As pertaining to the limited civil jurisdiction these magistrates exercised in the market place, this edict played a part in the development of the Roman law of sale. By far more important, however, was the edict issued by the provincial governors (proconsuls or propraetors). These officials issued notices of their intentions with respect to jurisdiction, similar to those of the praetors at Rome as regards their permanent character and the possibility of their transmission, but peculiarly applicable to the particular governor’s special sphere of administration. A special edict was issued for each separate province,^{^[25]} but this edict’s special character did not prevent certain interrelations between the edicts of separate provinces. We know that the provincial edict might be prepared at Rome, before the governor went to his province and although the man who prepared it (usually with the assistance of professional lawyers) sought to model his rules as closely as possible on those of his predecessor in the province to which he was going, yet he might borrow improvements which had been initiated by the governor of some other province. Again, the same man might pass from one province to another, and, much as the circumstances of the separate spheres of government differed from one another, it is inconceivable that he should not have carried some of his favourite rules of procedure with him.

In the course of time, a general conception of what a provincial edict should be like must have grown up, the differences between the edicts being probably those of matter rather than of form (the matter being determined by the local customary law of the subject peoples, which Rome meticulously respected). Where there were striking differences of form, these must have been mainly due to the varieties of rights granted by the charters of the different provinces (leges provinciarum). It is obvious that where much was granted by charter little was left to the discretion of the governor. Where the charter granted only a few elementary rights, the latter had a much freer hand. One important point in which the governor of a province differed from the praetor at Rome was that he was an administrative as well as a judicial official. Hence the provincial edict had to contain a good many rules of administrative law not to be found in its counterpart at Rome. This portion of the edict spoke about the financial relations of the various political communities of the province to the Roman state and its agents, and laid down the rules governing the relations of the tax farmers (publicani) to the taxpayers. The rest of the edict covered the procedure the governor promised to apply for the recovery of certain rights by individuals such as, for example, those entailed in inheritance or the seizure of a debtor’s goods. Although these rules were based on Roman law, they were mere outlines capable of adaptation to the local customs of the subject communities. But there was, at least in certain provinces, a portion of the edict, still dealing with the rights of individuals, which assumed no definite shape. There were points on which the governor did not care to frame rules until he knew the emergencies he would have to address.

The various rules and remedies by which the magistrates were actually transforming the old ius civile furnished the basis for the development of a new body of law that was ultimately designated honorary or magisterial law (ius honorarium)—because it proceeded from the holders of offices (honores)—and that existed in contradistinction with the narrowly defined ius civile.^{^[26]} The magisterial law served a vitally important function in the Roman legal system in various ways.

Firstly, it aided the ius civile as the magistrate introduced remedies in addition to those that the civil law provided for the person who possessed a civil law right. For instance, the edict would state that an individual recognized as the owner of property under the civil law might be granted, in addition to the normal action, a speedier magisterial remedy. Secondly, it supplemented the ius civile as the magistrate granted remedies to persons who had no rights or remedies under the civil law. For instance, the wife of a deceased person who died intestate without leaving children or relatives had no rights to his estate. However, the edict would grant the widow a remedy to acquire possession of the estate. Thirdly, it amended or corrected the civil law as persons who had no rights or remedies under the civil law were granted remedies by the magistrate at the detriment of those who did have such rights. For instance, the edict might provide that the magistrate would uphold certain wills that did not meet the requirements of the civil law and he would grant a remedy to the person nominated as heir in such a will at the detriment of the intestate heir who would have succeeded under the civil law. Through these means, the magisterial law became the living voice of the law of the Romans. Alongside the rigid and formalistic ius civile there emerged a body of law that was progressive and free, and subject to continual change and development.^{^[27]} A parallel may be drawn between the Roman ius honorarium and English equity. Unlike the English common law and equity, however, the ius civile and ius honorarium did not operate as two separate systems administered by different courts but were regarded as two sides of the same legal system.

The development of the ius honorarium during this period was closely connected with the dramatic increase in contacts between the Romans and nonRoman communities, and the growth in economic relations between Roman citizens and foreigners (peregrini). As the granting of Roman citizenship had not kept pace with Rome's expansion, a growing mass of foreigners residing in Roman territory did not have Roman citizenship and therefore no access to the Roman ius civile (as already noted, this law was only for Roman citizens and non-citizens were unable to share therein). However, the development of foreign trade and the proliferation of foreigners living in Rome prompted the need to formulate rules applicable to disputes between foreigners, and between foreigners and Romans.

The Romans responded to this need by appointing (from c. 242 bc) a special praetor, the praetor peregrinus, to handle cases involving foreigners. Governors in the provinces were granted jurisdiction over disputes concerning Roman citizens settled there and provincials; and, occasionally, over cases involving foreigners. The edicts of the praetor peregrinus and those of the provincial governors engendered a new system of rules governing relations between free men without reference to their nationality. Although this body of law was Roman in origin, it became known as ius gentium: the law of nations.

From an early period the Romans realised that certain institutions of their own ius civile also existed in the legal systems of other nations. As contracts of sale, service and loan, for example, were recognised by many systems, it was assumed that the principles governing these were everywhere in force in the same way. These institutions which the Roman law had in common with other legal systems were thought of by the Romans as belonging to the law of nations (ius gentium) in a broad sense.^{^[28]} But this understanding of the ius gentium was of little practical value for the Roman lawyer, for the specific rules governing the operation of such generally recognised institutions differed from one legal system to another. When the Romans began to trade with foreigners they must have realised that their own ius civile was an impossible basis for developing trading relations. Foreigner traders too had little inclination to conform to the tedious formalities of domestic Roman law. Some common ground had to be discovered as the basis for a common court, which might adjudicate on claims of private international law, and this common ground was found in the ius gentium, or the law of nations in a narrow, practical sense. Attending to disputes involving people of diverse national backgrounds would have been difficult without employing rules based on common sense, expediency and fairness that were confirmed by general and prevalent usage among many communities. In contrast to the ius civile, the ius gentium was thus characterized by its simplicity, adaptability and emphasis on substance rather than form. The absence of any rigid rules in the procedure implemented by the peregrine praetor created sufficient elasticity for its adjustment to the demands of the relevant case. For that reason, not only foreigners but also Roman citizens increasingly resorted to the procedure as a means of resolving legal disputes. The elastic technique of the praetor peregrinus was gradually adopted by the praetor urbanus, the magistrate in charge of the administration of the Roman domestic law (ius proprium Romanorum), when deciding cases between citizens that fell outside the scope of the traditional ius civile. At the same time, elements of the ius gentium entered the province of Roman domestic law through the urban praetor's edict. In this way, the ius gentium became one of the main channels whereby enlightened contemporary thinking (notably Greek ideas) infiltrated the system of Roman law.

It is germane to note at this point that the magistrates were not solely responsible for the creation of the ius honorarium. Since magistrates very often possessed little knowledge of the law, most of the techniques they engaged to produce the required legal innovations were demonstrated to them by expert jurists (iurisconsulti or iurisprudentes). The jurists explained the law to magistrates and offered guidance in framing their edicts and drafting the formulae used in legal proceedings. Thus, the legal norms incorporated in the edictum perpetuum at any given time represented the consensus of opinion of the best-qualified legal minds of the day.

In the absence of an established norm, how did the magistrate (or his legal advisors) decide which rights to protect? The decision appears to have been based largely on the social and ethical values generated by the conditions of the age. These values materialized in appropriate guidelines emphasizing the importance of fairness and honesty in business practices, giving preference to substance over form in transactions and refusing to uphold obligations arising from promises elicited by fraudulent means. The classical jurists used the term aequitas (equity) when referring to the basis or the qualifying feature of magisterial measures—both those devised on a case-by-case basis and those promised in the edict. There are two interconnected ways to understand the role of aequitas in its relation with positive law: firstly, aequitas may be conceived as the substance and intrinsic justification of the existing legal norms; secondly, it may be thought of as an objective ideal at which the law aims, prompting the creation of new legal norms and the modification of those that do not conform to society's sense of justice or meet the need for balance in human relations.^{^[29]} It was the second understanding of aequitas that served as the basis of the innovations devised by jurisdictional magistrates and jurists. But, one should recall that ius or law in a broad sense had positive force rather than aequitas as such. Thus, aequitas remained confined to a pre-legal sphere until it was transfused into a positive norm; once this transfusion occurred, ius had significance rather than aequitas that was construed as the matrix. The conception of equity as the touchstone of the norms of positive law obviously inspired Cicero's definition of the ius civile as ‘the equity constituted for those who belong to the same state so that each may secure his own',^{^[30]} and the renowned aphorism of the jurist Celsus, ‘the ius is the art of promoting that which is good and equitable'.^{^[31]} By means of the magisterial edict and the interpretations of the jurists, equitable principles entered into the sphere of law. These principles redressed the formalism and rigidity of the traditional ius civile and enabled the creation of new legal norms capable of meeting the needs of a constantly changing society.

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

The Development of Magisterial Law-Making

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