THE EDICT AND THE IUS HONORARIUM

1. The Nature of the Edict

| 148 Pomponius, Libro singulari enchiridii (D. 1.2.2.10)

During the same period (4 th c, B.C.) magistrates also administered the lawsand published edicts in order that the citizens might know what rule each magistrate would pronounce on each question, and take corresponding precaution.

Gaius, Institutionum commentarius 1.6

< Edicts are the precepts of those who have the right of speaking forth (ius edicendi} >. The magistrates ofthe Roman people have the right of issuing edicts. Very extensive law is contained in the edicts of the two praetors, the urban and the foreign, whose jurisdiction the governors have in the provinces. Also in the edicts of the curule ediles, whose jurisdiction the quaestors have in the provinces of the Roman people; for to the provinces of the emperor quaestors are not sent at all, and on account of this, this edict is not proposed in these provinces.

Cicero, In Verrem actio secunda 1.46.119

And since, while he (Verres) was still praetor designate, he composed his whole edict at the wishes of those who purchased law from him for their ownadvantage so. in fact, he decreed in his magistracy contra to his own edict without any scruples. Accordingly. L. Piso filled many books with those cases in which he had interceded because he (Verres} had ruled otherwise than he had declared in his edict.

Dio cassius, Historic Romana XXXVl.40.1-2 (67 B.C.)

The praetors were accustomed to compile and publish the edicts according to which they would grant actions, for those concerning agreements had not yet been fully set forth. Since they were not accustomed to do this once for all and did not observe the written rules but often made changes, many of which were introduced in order to favor or in order to defeat some person, he(C.

Asconius, In Comelianum, Bai. 58 (Stangl 48) (67 B.C.)

Then Cornelius offered another statute — and if no one dared to denounce it, yet to many it was against their will — that praetors should pronounce law according to their standing edicts. This fact ended immediately the favors by ambitious praetors who had been accustomed to declare legal rules in differing ways.

The Roman magistrates possessed the right of issuing edicts (ius edicendi), that is, proclamations setting forth their orders and contemplated measures.^[995] In the case of the magistrates with jurisdiction it was customary to pro­nounce, at the beginning of the term of office, the rules to be observed during the term. The edicts of the praetors, issued orally and written down on the white signboards (album) erected in the Forum, constituted the pro­gram of actions and other measures which would be entertained during the year of office.¹ Most of the edicts were pronouncements borrowed from the program of the preceding praetor, and hence were termed ‘handed-down edicts’ (edicta translaticia). However, new edicts could be and were added if the magistrate so desired. It was in the discretion of the praetor to provide a new remedy at any time in a particular case, as well as to deny an appar­ently available cause of action; thus rulings of the praetor (decreta praetoris) might well be incorporated among the edicts of a successor to the office.

The edicts of the praetor encompassed the various functions exercised by the office: under such and such conditions, ’I will grant an action’ (iudicium dabo), or ‘I will grant possession of goods’ (bonorum possessionem dabo), or ‘I will restore to its previous status’ (in integrum restituam), etc? Along with the collection of edicts was the accumulation of formulae, the forms of action which were to be employed in the causes of action provided by the civil law together with those of actions or other measures made available by the edicts of the praetor,^{[996] [997] [998] [999] [1000] [1001] Since the whole was valid for the duration of his term of office, it was known as the edictum perpetuum (continuing edict).}

Towards the end of the republic there were occasions when magistrates ceased to live up to the program, the edictum perpetuum, which had been announced at the beginning of the term of office. The only remedy seems to have been an intercession on the part of a colleague or superior magistrate, to veto the act of the recusant official. The best known example is that of the praetor Verres and the intercession by his colleague Piso. Apparently, in an attempt to curtail this malpractice, C. Cornelius, a tribune, had a plebis­cite enacted in 67 B.C. which required magistrates to pronounce law accord­ing to their standing edicts. Some scholars believed this constitutional measure effectively put an end to the practice of not living up to the edict? Others thought that the law was ineffective in that the jurists made no men­tion of the statute and refer to practices contrary to its provisions? Pugliese argued that the praetor could only depart from his edict if investigation of the case (causae cognitio) had been called for in the edict itself? Others have said the question cannot be resolved on the state of the evidence avail­able? The subject has been considered anew in recent years with a plethora of suggested solutions. Serrao believes that the lex Cornelia was directed against a magistrate acting with respect to an edict one way one time and another way at another time, and, further, that one praetor could not adopt a position taken by a colleague if it were not incorporated in his edict at the beginning of his term? Martini holds that the lex was not rigorously binding but was intended to prevent possible abuses of the practically unlimited exercise of discretional powers by the praetors.^{[1002] [1003] [1004] [1005] To Vonglis, a departure from his edict was only permissible if the praetor were acting on an opinion which had behind it the auctoritas of a jurist.11 Most revolutionary of all is the thesis recently expounded by Metro.[1006] [1007] In an exegesis of the Dio passage, Metro contends that the lex Cornelia provided twofold relief: (I) that some form of restraint was provided to see that a praetor lived up to the program set forth in his edict, and (2) that the jurisdiction of the praetor indicated in the standing edict at the beginning of his term could not be altered by edict of jurisdictional nature during his period of office.}

The manner in which the edicts of the praetor modified, even altered or negated, the ius civile, and the procedure by which the praetor supple­mented the civil law by his own magisterial law, the ius honorarium, is treated in the following sections. But first, it is necessary to report on the edicts of two other officials, the curule ediles (aediles curules) and the pro­vincial governors.

The curule ediles, the magistrates who had charge of the public markets among other functions (supra, § 67), also pronounced an edict upon entering

§ 148 office: to set forth the particulars respecting actions stemming from market sales.“ The issuance of edicts by the ediles arose from their jurisdictional authority, for they did not possess sovereign power (imperium). Hence the exceptional procedures utilized by the praetor, such as interdicts, restitu­tions to status quo, even execution of judgments, were not available to the ediles. '*

The most recent problem respecting the jurisdictional activity of the ediles was raised by Voiterra, who sought to show that the Roman jurists did not comment upon the edile edict as an appendix to their comment on the edict of the praetor, and, further, that the law developed by the ediles’ court did not constitute part of the ius honorarium, but was treated in com­mentaries on the ius civile.¹⁷ Guarino offered evidence to uphold the gen­erally accepted view that the law developed by all the magistrates with jurisdiction constituted ‘the law derived from public office*: it was only in post-classical times that ius honorarium was equated with iuspraetorium.¹· The comment of later scholars on this dispute is not conclusive one way or the other.

Cicero, Epistulae ad familiares liber III.8.4 (51 B.C.)

/ composed the edict at Rome. I added nothing except that which the tax­farmers requested of me when they came to me at Samos, that I should transfer the same number ofwords from yourfAppius Claudius Pulcher) edict to mine....

Pulcher was Cicero’s predecessor as governor of Cilicia.

Cicero, Epistulae ad Atticum liber VI. 1.15 (50 B.C.) Concerning the edict of Bibulus (governor of Syria), nothing is new save the except io (clause of affirmative defense) of which you had written to me, ‘as too grave a reflection upon our order. I, however, have an equivalent but more guardedly phrased (except io) from the Asiatic edict of Q. Mucius son of Publius, ‘except when the transaction has been so effected that in good faith it ought not to be respected'. And in many matters I have followed Scaevola, amongst them that one which the Greeks consider the grant of liberty to them, namely,

15. See generally, Vincent, Le droil des ediles (Diss. Paris 1922); Impallomeni, L’edino degli edili curuli. Briefly, Impallomeni, s.v. Edictum aedilium cunilium, NNDI6 (1960) 372­75, with full bibliography.

16. $«« Kaser, ‘Die Junsdiktion dcr kuruliseben Acdilcn", Mitanges MeyUm I 173-91.

17. Volterra, Scritti Borst 1-19: only in Justinianian and post-Justinianian sources is all magisterial law designated ius honorarium,

18 Guarino. Ubeo 1 (1955) 295-99, Volterra replied in lura 7 (1956) 141-49, to which Guarino responded, Labeo 2 (1956) 352-57; Guarino’s articles arc repeated, Ordinammto 385-95.

19. Grosso, Storia 289 n.3; Kaser, Rom- Privatrechi I 207 it. 15; Nicholas, in Jolowicz- Nicholas, Introduction 98 n.7.

that controversies amongst themselves be tried under their own laws. The edict is short because of my way of dividing it. for I thought of issuing edicts under two heads. One of which is provincial, in which there are: city-state finances, debts, interest, bonds, in the same way everything connected with tax-farmers.

When a magistrate was named to act as governor of a province in the time of the republic he promulgated an edict at the beginning of his office stat­ing the nature and extent of the jurisdiction he would entertain in his court in the province. Cicero's description of the edict he framed in Rome when named governor of Cilicia is an example of such a general provincial edict. Romanists early in this century construed Cicero's remarks to mean that the edict consisted of three parts: (1) the provincial section specifying administrative regulations for dealing with controversies involving public or semi-public affairs; (2) the remedies stemming from the sovereign power of the governor which had to be explicitly set forth in the edict; and (3) ‘a body of unwritten law, the outline of which was suggested by the edicta of the praetor urbanus at Rome'.¹⁰ As Cicero tells us, the edicts of the gover­nors of the various provinces were not uniform. Mitteis had suggested that provincials had access to all the remedies set forth in the urban edict, save those having to do with the supplementation or correction oftheius civile?¹ But Buckland demonstrated to the satisfaction of contemporary scholars that the main purpose of the edicts of republican governors was to extend the protection of the law granted by the praetor in Rome to Roman citizens resident in the provinces; the private controversies of the provincials were not involved, although the edict provided for the regulation of the admini­stration of state affairs?¹ Though Volterra pointed out that the views of Buckland left most of the questions respecting the provincial edicts of republican governors unanswered?¹ not until 1964 were entirely new con­clusions drawn from Cicero’s remarks and other republican sources, Marshall then demonstrated that Cicero did not 'compose' three 'sections’

20. Grcenidge, Procedure 119-28, quotation at p. 122. Sec also Weiss, Studien 66-71; Kruger, Geschichte 42 f; Abbott-Johnson. Adminisiralion $1.

21. Miueis, Reicfarechi 134.

22. Buckland, RR 13 (1934) 8196.

23. Volterra, Dintto romans e diritti oriental 296, 299 f

§ È8 of his edict, but, complying with the dialectical devices ofdivision (Siaipccru;) and genera and species (genus), he classified the materials that he selected from his models and discovered that one genus did not have to be included at all: a first genus was the administrative law for the province which had to be published to take effect, a second was the private law which was pro­mulgated for procedural convenience, and the third genus, the rest of the private law which did not have to be written down, but was made effective by mere assurance that the urban edicts would apply.¹⁴ Simultaneously, but without knowledge of Marshall’s study, Pugliese re-studied the Ciceronian letter, noting that Cicero classifies materials for his edict in three genera: (1) clauses of genus provinciale (provincial matter), (2) clauses founded on Roman principles and set forth in his edict, and (3) materials for which simple reference to the urban edicts would be sufficient, leaving to the governor the power of ‘accommodating* his judgments to the provisions of the urban edicts not written down.“ More importantly, Pugliese demon­strated that the matters within the genus provinciale were new problems in a formal sense, concerned with specific interests in the province of Cilicia. There is no conclusive showing that the matters mentioned in the first genus were necessarily administrative, for, in each specified, disputes could arise between private parties as well as between a private person and the state. The difference between the genus provinciale and the other genera of the edict ‘does not rest on the administrative nature of the first and the private law nature of the second, but on the specific purpose of the first to resolve problems peculiar to the province of Cilicia and the clear derivation of the second from Roman models’.“ Furthermore, the combination of the Cilician with the Roman edicts clearly shows that the provincial edicts of the republican era were not uniform in the different provinces, or even in the same province under successive governors.

During the Principate, at least from the time of the Antonines, it has generally been held that the edict of the governor, the provincial edict, was uniform throughout the provinces, reproducing the urban edicts with minor variations for provincial matters.” The evidence for this, it is pointed out, stems from the fact that the provincial edict upon which Gaius commented seems to have been remarkably similar to the urban edict upon which he and other jurists commented. Further, some scholars point to the evidence

24. Marshall. A JP 85 (1964) 185-91.

25. Pugliese, 'Riflessioni sull’editto di Cicerone in Cfficia\SyWe/ete3«wtgto-Jta/zn972-86.

26. Idem, p. 986 (translation of the author).

27. Lenel, Ediaum 3 ff.; Weiss, Studies 103—0; Wenger, Quetien 408 n.ll, 4]I; Katzoff, TR 37(1969) 415 n.t.

provided by the papyri of Egypt.²* In a recent re-study of the nature of the edictum provinciate, it would appear that many of the positions taken for granted are still unsettled.²* Martini points out: there is very little to show that particular provincial provisions (genus provinciate) of Cicero’s edict are reflected in Pliny’s remarks on edictal provisions in the province of Bithynia; there is no possibility of proving, on the evidence available, the existence of edicts of general character respecting the private law of provincials; and there is the difficulty of explaining the differences between a supposed uni­form provincial edict and the urban edict?⁰ Martini further suggests that Gaius’ commentary is an adaptation for provincial use of a commentary on the praetor’s edict, while the few divergencies from the latter reflect the different practice of the province or provinces for which the adaptation was made; and that there is grave doubt that a general provincial edict was promulgated in imperial provinces?’ With respect to the last point, Modrze- jewski has noted, and Katzoff has forcibly demonstrated, that in the prov­ince of Egypt there never was a general provincial edict issued at the beginning of the term of any praefectus Aegypti (governor of Egypt)?¹ In reply, on the basis of the same papyrological evidence, Ankum defended the view that there was a general provincial edict, uniform and promulgated in all provinces, including Egypt, from the time of Hadrian on, similar to the praetor’s edict, save that it was not so extensive?¹ Guarino undertook to answer Martini, expounding upon views expressed in his earlier writings?⁴ In the early years of the Principate jurisdictional edicts were promulgated in both senatorial and imperial provinces with clauses diverging from those of the two urban edicts, but gradually uniformity was achieved, at least in the parts conforming to the urban edicts; eventually, by the time of the Seven, the jurists could comment upon a unitary text in their treatises upon the edict?⁵ Gaius’ commentary on the provincial edict was the discussion of the edict of a senatorial province, or provinces, an edict which in part was a reproduction of the urban edicts; Martini’s thesis regarding the Gaian edict was not convincing to Guarino?* It is apparent that there is no

28. Evidence collected by Wenger, Queilen 411 n.49.

29. Martini, Rlcerche in tema di editto provinciate (1969).

30. Martini, op. dr., chaps II and III.

31. Martini, op. dr., chaps. IV and V.

32 Modrzejewski, rev. of Chalon, in RH 43 (1965) 98 f., and Proc. XHth Iniem. Cong of Papyr.. 341-44. Katzoff, ‘The Provincial Edict in Egypt*. TP 37(1969) 415-37.

33. Ankum, Gedenkboek Leemans 63-69, and Ann Toulouse 18 (1970) 357 64

34. Guarino, ‘Gaio e 1’edictum provinciale*, Iura 20 (1969) 154-71.

35. Guarino, op. di., 164-68.

36. Guarino, op. dr., 168-74; cf. also rev. of Martini, by Luzzatto, Iura 21 (1970) 209.211. communis opinio today respecting the nature and form of the edict of the governor of a province —■ in the age of imperial Rome —at the time of his assumption of office, an edict purporting to set forth the extent of his juris­diction. The newer text-books reflect the indecision.”

2. The Edict and the ius civile

§149 As judicial magistrate in Rome the praetor played a prominent role in the development of the Roman law in the classical period. Two factors were largely responsible for this situation.¹ Normally not trained in the law, the praetor called upon the jurists to advise him in the framing of his edict when taking office and to aid him in the decision of questions of law when these arose during his term. As has been noted earlier (supra, § 101), the advice and the responses which the jurists afforded the magistrate constituted one of the major activities of the jurists, particularly in theperiod of the republic. Secondly, the edict afforded a relatively high degree of continuity in the law, yet at the same time permitted novel legal doctrines which had gained approval in the course of the term of one praetor - presumably at the initiative of some jurist or council of jurists - to be incorporated in the edict of his successor, and carried over into succeeding edicts. The praetor as judicial officer necessarily presided over the conduct of the trials provided for by statutes or the interpretation of the jurists, ius civile in the narrow sense of the term. As magistrate with supreme power (imperium), however, he had the right and duty to interpose his will in furtherance of what he considered the welfare of the Roman state and society. In this role he had authority to deny a cause of action available under the civil law, to require sureties before he permitted a trial to proceed, to afford an affirmative defense to the defendant which would answer the claim of the plaintiff, to grant extraordinary remedies which might well defeat the purposes of the civil law?

Ulpianus, Libro XLIX ad edictum (D. 38.14.1 pr.) The praetor says: ‘As it will be proper for me, by reason of any statute < or > senatus consultant to grant possession of an estate (bonorunt possession so I shall grant it,’

Cf. Daube, Forms 21 f.

37. Nicholas, in Jolowicz-Nicholas, introduction 358; Kaser, Rdm. Privatrecht 220 n.37; Kunkel, Redtlsgeschicte 187.

1. Cf. Kaser, ROm. Privatrecht I 205 f.

2. Cf. von Labtow, Volk 530-37.

Gaius, Institutionum commentarius 11.253

But in later times, when Trebellius Maximus and Annaeus Seneca were consuls (56 A.D.), a senatus consultum was enacted in which it was provided that if an inheritance was delivered over to anyone on the basis of a trust (fideicom­missum}, the actions which would lie for and against the heir by the ius civile should also be given and against him to whom the inheritance had been delivered over on the basis of a trust. As a result of this senatus consultum sure­ties (above mentioned) ceased to be used. For the praetor now gives analogous actions (actiones utiles) for and against him who received the inheritance and these are set out in the edict.

IijSTiNiANLJS, Institutionum liber III.4 pr.

plus

Ul pi an us, Libro duodecimo ad Sabinum (D. 38.17.1 pr., 9 = Bruns, Fontes No. 64)

... Children were admitted (to succeed) to the property of their mother dying intestate, effected by the senatus consultum Orfitianum, which was enacted in the time of divas Marcus. Orfitus and Rufus being consuls (178 A.D.). (D. 38.17.1 pr.) Whether the mother be free or freedwoman the children can be admitted to her inheritance by the senatus consultum Orfitianum.... (9) 'If no one of the sons nor of those to whom as well the statutory inheritance is awarded wishes to accept that inheritance for himself, let the old law (ius antiquum) prevail.’...

Gaius, Libro VI ad edictum provinciate (D. 5.3.1, 3 i.f.)

Inheritance lies to us either by old law or new (vetere iure aut novo). By the old, by reason of a law of the XII Tables or by a testament which is legally made.... (3 i.f) All are heirs by new law who are entitled to the inheritance by virtue of senatus consulta or of imperial enactments.

Paulus, Libro XIX ad edictum (D. 6.2.12.4)

If the thing is of such a kind that a statute or imperial enactment prohibits alienation of it, in this case the actio Publiciana is not available, because in such cases the praetor aids no one lest he act contra to statutes.

Ulpianus, Libro XIV ad edictum (D. 4.9.1 pr., 3.1)

The praetor says: ‘Where ship-owners, innkeepers or stablekeepers have received the property of anyone for safe custody, unless they restore it I will give an action against them.’... (3.1) From this edict an actio in factum (action on the case) arises. But it is to be seen whether this is necessary, because it could be sued by civil action in this case; namely, if pecuniary consideration was involved (by actio) ex locato or ex conducto (action on leasing, on hiring), that is, if the whole ship was hired out, the one who chartered her could bring an actio ex conducto even for the goods which were missing;... but if goods were taken gratis. Pomponius says an action for deposit can be brought. Therefore he is amazed that a praetorian action (actio honoraria) is introduced when civil actions (actiones civiles) are available, unless, indeed, he says [ft was to be made known that the praetor took care to check the dishonesty of this class of persons; and] because in letting-hiring (locatioconductio) negligence is (answer­edfor), in deposit fraud only, but by this edict the one who received the goods is bound absolutely even if the goods are lost or damage occurs without his fault [unless what happens results from unavoidable damage]....

Interpolations are those generally accepted, among many conjectured, Index Interp. I 64 f., and Supp. I 82.

Paulus, Libro III ad edictum (D. 2.13.9 pr.)

There are some persons who are bound to present accountings to us but they are not, however, compelled by the praetor through this edict (on the duty of bankers to produce their accounts). Forexample, when an agent hasadministered our affairs or accounts, he is not ordered by the praetor to produce an accounting [on pain of an actio in factum (action on the cosej] because, of course, we can arrive at this by an actio mandati (action of mandate). And when a partner has handled the business dishonestly, the praetor does not intervene with this clause (of the edict), for there is an action on the partnership (actio pro socio). Nor does the praetor compel a tutor to produce an accounting for his ward; but it is wont to compel (its) production In a trial on guardianship (iudicio tutelae).

Interpolations according to De Francisci, Synallagma II 95.

In its final form the Edictum Perpetuum included two distinct compo­nents, the edicts of the praetor and the model formulae for use in the for­mulary procedure, in addition to appendices of other procedureal devices. For the actions framed on the civil law (actiones in ius conceptae) only the formulae were set forth, for it was taken for granted that the substantive norms of the statutes and juristic interpretation which gave rise to the remedy were known. To the separate edicts of the praetor were appended the model formulae for the praetorian actions (actiones in factum con­ceptae, etc.).¹ It has been suggested that in the earlier form of the edict all the formulae were lumped together, while at the very start it is quite un-

3. Cf. Krüger, Gewhichie 40; Chiazzcsc, Introduzioru 145 ft; Jolowicz-Nicholas, Introduc­tion 201 f.

likely that any distinction was made between actiones in ius and actiones in factum conceptae, that is, between civil and praetorian actions.^{[1009] [1010] [1011]}

In some instances we find edicts which have direct bearing on the ius civile. Among the few changes to the annual edict in the time of the Princi- pate were the actions granted to carry out the provisions of leges or senatus consults. So, for example, the lex Papia Poppaea (9 A.D.) gave the patron­ess, under certain conditions, the right of succession to the property of the slave she had manumitted (G. 3.50, 52). ’Effect was given to the provision of this statute by the general edict of the praetor on possession of property (bonorum possessio), the right to employ remedies afforded by the praetor to gain possession of property.* Similarly, where the Senate resolved (SC Trebellianum of 56 A.D.) that inheritance under a trust (fideicommissum) should give rise to the same actions for and against the heres (heir, suc­cessor to the rights and duties of the deceased) as was granted the heres under a will, the praetor provided the means to cany this out, by an edict coupled with sample formulae. However, with the compilation of the edict (see infra, 1151), and perhaps earlier, the intervention of the praetor with his edict was not required to give effect to senatus consulta in the field of private law. An example is the SC Orfitianum of 178 A.D., which provided that the children whould succeed to the estate of their mother who had died intestate. Schiller has argued that this constitutes an institution of the new law (ius novum), rather than part of the old ius civile or the praetorian law.^{[1012] [1013] [1014] [1015]}

In antithesis to the above cases the praetor would not come to the aid of the ius civile in those cases in which his action would be contrary to the provisions of statutes, etc. A typical example is the refusal to grant a praetorian action (the a“ Publiciana) for the recovery of a property lost before prescriptive rights had been obtained, where civil law had forbidden the alienation of such property.¹ In view of such a situation, some scholars have maintained that the praetor could not alter the civil law, nor, on the other hand, create ius civile? Buckland decisively demolished this point of view?⁰ for not only did the praetor nullify the ius civile by denying civil action where such had been provided or grant an affirmative defense which would defeat plaintiffs complaint, but in some instances he granted reme­dies which flatly contravened the principles of the civil law, e.g., gave right to the enjoyment of property which had been handed over, but had not been transferred according to the formal means required by the ius civile." Further, the praetor must have created those civil actions for which neither statute nor juristic interpretatio was responsible. " Most prominent among these are the actions based on good faith (bonae fidei iudicia), actions which gave recovery for breach of consensual contracts, for the most part. These actions are not based on a statute, and though juristic consensus and advice must have provided the impetus to frame the edicts and fashion the formu­lae, the praetor is the official source, creating actions directly at odds with the civil law at the time they were introduced. "These actions, praetorian in origin, were later included among the civil actions in the sources. '*

Indirectly, the commentaries of the jurists on the edict at times treat of the relation of the edict of the praetor to the ius civile. The last two passages quoted above are instances of this situation. Ulpian is at pains to demon­strate why a praetorian action is necessary when civil actions are available for recovery of property which has been hired out or deposited; the praetor meets the situation î Ã liability without fault.¹ * Gaius, in his commentary con­cerning the edict on the production of accounts by bankers (argentarii),¹⁴ remarks that there is no need for an edict for the production of accounts in other cases, e.g., an agent, a partner or a guardian, for the civil law requires that accounts be provided in these cases; no praetorian order is necessary.

3. Ius honorarium

§ 150 Cicero, De inventions 11.22.67

Law by custom is considered to be that which long existence has approved by the will of all, without statute. Among these there are some laws themselves now ^[1016] quite fixed by reason of long existence. Of this type there are many, and among them far the greatest portion (are those) which the praetors have been accus­tomed to (place in their) edict....

Cicero, In C. Verrem actio secunda 1.44.114

After the ius praetorium had been established, we have always used this law. If no tablets of the will were proffered, then possession is given to him who appears the most likely to have been heir if the deceased had died intestate. Why this is the most equitable it is easy to say, but in a matter so common it is suf­ficient to show that all have previously so declared, and this is the old and transmitted edict (edictum translaticium).

Papinianus, Libro [//] definitionum(D. 1.1,7.1)

Ius praetorium is what the praetors have introduced for the purpose of aiding or supplementing or correcting the ius civile to the pract ical interests of the public. It is also called ius honorarium after the office (honos) of the praetors.

Marcianus, Libro I institutionum (D. 1.1.8)

For the ius honorarium is of itself the living voice of the ius civile.

Modestinus, Libro II regularum (D. 44.7.52.6)

We are bound by the ius honorarium concerning those things which are ordered to be done or forbidden to be done by the edictum perpetuum or < by > a magis­trate.

In the previous section attention was largely directed to the rote of the praetor in giving full effect to the ius civile by his exercise of jurisdiction over civil controversies. In the last centuries of the republic and early years of the Principate the praetor did much more than 'aid’ the ius civile. By his edict he was actively engaged in supplementing and, to a considerable extent, in correcting or reforming the civil law. The edict provided for actions over and above those accorded by the civil law, actions which were framed on the advice and counsel of the jurists. By means of formulae ficti­tiously ascribing civil law status (formulae ficticiae), or of actions on the analogy of civil law actions (actiones utiles or actiones ad exemplum), or of actions based on the particular circumstances (actiones in factum) -which may be likened to Anglo-American actions on the case - the Roman law was kept up to date to meet practical needs.* The legal institutions which flowed from the exercise of these actions were early described as praetorian

1. Further illustration of procedural forma, infra, § 153. taw (ius praetorium) or official law (ius honorarium) in non-legal sources, terms not employed by the jurists until after the compilation of the edict in the reign of Hadrian?

The nature of ius honorarium has been the subject of a number of ex­cellent studies, of which attention may be called to two which are frequently cited? In a study on the creation of law by the praetor, Betti pointed out that by gradual evolution the edicts of the praetor rose from the rank of maxims of judicial practice to the dignity of judicial norms? Repeated and uninterrupted observance of those principles which did not fit into the ius civile led to the establishment of a new legal order, the ius honorarium. According to Betti, it was a system distinct from the ius civile, diverse as to source, as to territorial sphere, as to content and spirit, and distinct as to mode of operation? Some years later, Biondi devoted a number of pages in a monograph on prospectives in Roman law to the topic of the ius honor­arium? When Roman society reached a point where pure elaboration of the law by the jurists would not suffice, it came to rely on rules imposed by the state, arrived at by the skill and ability of the jurists. The role of the state was undertaken by a magistrate, the praetor. In a technical sense he neither applied the law nor did he create the law; he merely controlled the legal formalities of the procedures under the ius civile and he gave orders, in his status as magistrate with sovereign power, administrative orders which in time came to constitute the praetorian ‘law*? Further, the ius praetorium was an unorganized series of expedients, not capable of being constituted into a legal system comparable with the ius civile. Biondi illustrated this view with an analysis of bonorum possessio (praetorian succession) and bonorum venditio (enforced sale of debtor’s property)? In contrast to Betti, Biondi concluded that there was no usurpation of legislative power: the praetor merely stepped in with his orders, when, as Biondi says, ‘the evolution of society reaches a point in which the law cannot be interpretatio, that is, the simple elaboration of the jurists, a logical development of principles and traditional precepts; it attains, rather, a phase in which it requires the necessity of a legal regulation which cannot be obtained by the art or skill of a jurist, but which needs an act of command*?

The text-books reflect these views, with an occasional additional point.

2. Magdelain. Actions 63-68.

3. For further bibliography, see Bove, s.v. Ius Honorarium, ¹V£>/9 (1963) 383.

4. Betti. Studi Chiovenda 67-129, particularly 90 ft.

5. Betti, op. at., 101-05.

6. Biondi, Prospeitivc 36-50; cf. also his remarks in BIDR 43 (1935) 139,160-67 [ = Scritti I 260 ft., 342 ft],

7. Biondi, op. at., 38 f.

8. Biondi, op. al., 41-46.

9. Biondi, op. at., 49 f. (translation of the author).

Chiazzese, for example, notes that praetorian norms evolved as the result of practical needs in the development of the legal consciousness and the exigencies of social life.^{[1017] [1018] [1019] If difficulty arose in the application of the ius civile the praetor intervened to eliminate it. The praetorian law, elastic and progressive as it was, took the place of legislative action; the praetor's activity was dominated by the desire to render the law conformable to the common legal conscience, a spirit which the Romans designated aequitas.11 Text-books in English afford comparable, if brief, views of the nature of the praetorian development of the law?1}

Gellius, Noctes Atticae XX. 1.12-13

As for what I have said, that some (laws) appear to be much too lenient, do you not yourself think to be excessively ladling in force that law which is written regarding the penalty for an injury as follows: ’If one has done harm to another, the penalty shall be twenty-five asses’ (XII Tab. 8.4)? For who will be so poor that twenty-five asses would deter him from inflicting an injury if inclined to? (13) Therefore your friend Labeo, also, in the books which he wrote On the Twelve Tables, did not approve this law, saying: ’A certain Lucius Veratius was a thoroughly unprincipled man and of brutal madness. For amusement he was accustomed to strike the mouth of a free man with the palm of his hand- A slave followed him bearing a purse full of asses; as he struck someone, he ordered twenty-five asses to be counted out immediately, according to (the provision of) the Twelve Tables. Therefore’, he said ‘the praetors afterwards held this {law) was obsolete and abandoned, and edict ed that justices (recupera­tores) would be appointed to fix damages.'

Gaius, Institutionum commentarius III.4O-4I

Formerly it was permitted to a freedman to pass over his patron in his will with impunity.... (41) For this reason, afterwards, this iniquity of the law was cor­rected by the edict of the praetor. For if a freedman makes a will he is com­manded to provide that he leave his patron one half of his property, andifheshall have left him nothing or less than one half, the patron is given possession of the property in spite of the will (bonorum possessio contra tabulas) with respect to half...

Gaius, Institutionum commentarius IV.34

In addition, we have fictions of another kind in certain formulae as where one who has applied for possession of property under the edict sues on the fiction that he is heir. For as he succeeds to the place ofthe deceased by praetorian law, not by statutory, he has no direct actions and he cannot claim that what belonged to the deceased ‘is his', nor that which was due (the deceased) 'it is proper < be given > to him’.

Ulpianus, Libro XXIV ad edictum (D. 11.6.1 pr.)

The praetor offered an action on the case (a° in factum) against a surveyor of lands. It is proper that we not be deceived by one, for it is in our interest that we do not err in the report of the dimensions (of land) ifperchance a dispute exists about boundaries, or a vendor or purchaser wishes to know the area of the plot which is being sold. Accordingly, he proposed this action because the early jurists (veteres) did not believe there was (a contract) of hiring (locatio con­duct io) [with such a person'], but rather that his services were given by way of favor and that which was given to him was given as remuneration, and hence was to be termed honorarium. Indeed, if this shall have been action on the hire contract, it must be decided that the claim is not tenable.

Ulpianus, Libro XXIX ad edictum (D. 14.4.1 pr.)

The practical value of this edict, indeed, is not minimal, for a master who other­wise has a preferred right in cases of contract by a slave - inasmuch as he is liable only to the extent of the peculium (sum placed with the slave), the amount of which is subject to any deduction owed the master - is required under the edict to take his share as if an outside creditor, if he had known the slave was dealing with property of the peculium.

The passage has been tampered with, De Francisci,5^naZfagmaII414 n.l, and others, but the sense is classical.

Paulus, Libro XIV ad Sabinum (D. 1.1.11)

The word law (ius) is used in a number of meanings.... No less correctly is ius employed in our state for the ius honorarium. The praetor, further, is said to pronounce law (ius reddere) even when he decides unjustly, for the term does not refer to what the praetor did in his statement, but to what the praetor is sup­posed to do.

The texts translated are but examples from among scores of passages which illustrate the supplementation or correction of the ius civile by action on the part of the praetor. The Gellius passage reports intervention by the praetor to reform what clearly was an outworn situation.” The Gaius pas­sages reveal instances of the concept of bonitary ownership which was

13. Cf. Watson. J/«· 60 (1970) 105, 112 f. developed by praetorian effort.¹⁴ In the Ulpian extracts the praetor sup­plements and corrects the civil law in situations where practical needs called for law revision.” The remaining texts show that at the close of the classical epoch the ius honorarium was still a vital element in the Roman private law.

We may credit the praetor and the ius honorarium for some of the most significant developments of the law during the classical period. Among the institutions to be noted are: the idea of restoration to status quo (restitutio in integrum), actions arising from agreements made in good faith (iudicia bonae fidei), a general action in fraud (a⁹ de dolo), the creation of a new form of succession (bonorum possessio) which took into account blood relation­ship and the ties of husband and wife, the recognition of new informal transactions, such as the agreement not to sue (pactum de non petendo).¹⁴ It has recently been suggested by Hübner that the creative legal efforts of the praetor were accepted on a par with lex, in part because of the imperium of the magistrate, and in part because compensating factors prevented misuse of his power.¹¹ Among these latter were the limited term of office, the right of intercession by other magistrates, the liability after term of office, extra-legal sociological circumstances such as the conserva­tive, traditional views of the Romans, and the fact that the praetor’s further career depended on his actions while praetor, and, not least, that the law­making power actually derived from the jurists and the consilium who ad­vised him. The relation between the law credited to the praetor, the ius honorarium, and the law which is attributed to the direct creative efforts of the jurists, the ius civile, is further dealt with in the chapter on the practical aspects of the classical law?*

D.