The Edicts of the Magistrates

The higher magistrates of the Roman state, such as the consuls, the praetors and the aediles, as well as the provincial governors, had the right of issuing administrative regulations or edicts (edicta) within their field of competence (ius edicendi).

Initially an edict consisted in a verbal announcement before a public meeting (contio) by which a magistrate notified the citizens of the rules by which he intended to be guided in carrying out his duties. In later times the magistrates' edicts were written on wooden tablets and were set up in the Forum (the market-place) for everyone to see. Of the edicts of the magistrates the most important from the point of view of private law were the edicts of the praetors (the praetor urbanus and the praetor peregrinus) and, to a lesser extent, those of the aediles (aediles curules). It is important to note, however, that the magistrates were not regarded as lawmakers (the enactment of legislation fell in the province of the assemblies). The chief function of their edicts was to give effect to the law by laying down the rules and procedures that had to be followed in the administration of justice. Thus the praetor's role was to ensure that a legal dispute between private individuals was properly formulated according to law and, after that, that a judge was appointed to arbitrate in the dispute as it was formulated. In his edict, which he issued upon taking up office, the praetor stated the rules of procedure which he intended to follow during his year in office and defined the circumstances in which he would exercise his power to grant an action in law. This edict was known as the perpetual edict (edictum perpetuum), since it was to remain in force for the whole year, in contrast with the temporary edict {edictum repentinum), which was issued by the praetor on special occasions.^{^[589]}[590][591]

Initially the praetors' edicts were based upon the much older procedure that applied under the highly formalised system of the legis actiones.

Under this system, when a party brought a suit against another he was obliged to make his claim according to a prescribed form, derived directly from the letter of the law, and to this form it was necessary for the plaintiff to adhere strictly. But from the third century BC, as Roman society continued to grow both in numbers and complexity, this system was recognised as inadequate. Cases were now increasingly arising where a right should clearly have been recognised but no legal action was available under the existing ius civile. At the same time, with the expansion of commercial activities and the ever-increasing influx of foreigners into Rome, the need arose for the introduction of a more flexible system of procedure under which disputes between foreigners and between foreigners and Roman citizens could be resolved. Until that time a foreigner living in Rome could not take part in legal transactions and if aggrieved by another the ius civile supplied no remedy. In response to this need the office of the praetor peregrinus was created in c. 242 BC. In carrying out his judicial functions the praetor peregrinus enjoyed much greater liberty than the praetor urbanus, his colleague who dealt exclusively with disputes between citizens. Out of the edict of the praetor peregrinus emerged, in the course of time, a body of rules based largely on common sense, expediency and fairness, which became known as ius gentium)⁵ But the development of the ius gentium was not without its effect on the ius civile administered by the praetor urbanus who, finding the rules of the ius gentium more adaptable to the needs of society, began to incorporate them into his own edict. He did this by relying upon the discretionary power vested in him which enabled him to go beyond the strict letter of the law and admit or reject an action, if he considered this to be fair and equitable, even where this was not in accordance with the ius civile)⁶ Thus, although the praetor was not empowered to make new laws, when he was extending the existing forms of action or was introducing new ones in order to deal with new

The Pre-Classical Period of Roman Law 187 circumstances, he was in effect creating new legal rights.^{^[592]}[593] In preparing his edict the praetor acted on his own responsibility but, since he might not be an expert in law, he often sought the advice of jurists. Thus the praetorian edict at any given time represented the consensus of opinion of the best- qualified legal minds of the past and present.

Normally a praetor would adopt the greater part of his predecessor's edictum perpetuum, and that part of the edictum perpetuum which was carried on from year to year was referred to as edictum tralaticium. In this way the praetor changed the character of Roman law. For all practical purposes he created a vast body of law which extended and corrected the existing ius civile and filled the gaps in it. This body of law became known as ius praetorium or ius honorarium (because it proceeded from the holders of offices - honor es).^}* A turning-point in the development of the ius praetorium was the passing of the lex Aebutia (c. 125 BC), which recognised the right of the praetor to introduce new forms of action in order to deal with claims not covered by the existing system of legis actiones. The relevant procedure became known as the formulary or per formulam procedure (the formula was the written document by which the praetor authorised the judge in a civil trial to condemn the defendant if certain facts were proved or, if they were not proved, to absolve him). The praetor's edict contained model formulae for each of the forms of action promised, although new forms of action could be granted by the praetor at any time after the publication of his edict. These were usually included in the edict which was published by his successor in the following year. In this way the formulae used in given types of cases became relatively fixed and the number of these established formulae was constantly being increased by the introduction of new formulae.

In the history of Roman law the praetor occupies a position between the legislature and the jurists. He may be described as the keeper of the common sense of the Roman people, for it fell upon him to decide in what cases the principles of natural justice (naturalis aequitas) were to be given priority over the strict letter of the law.^{^[594]} In the closing years of the Republic the ius honorarium stood out as a source of law distinct from the ius civile, and the number of the established formulae was so great that, according to Cicero, there seems to have been a formula for every possible occasion.

Cicero reports, moreover, that in his time the ius honorarium was studied, along with the Law of the Twelve Tables, by those who wanted to become lawyers.^{^[595]} In the course of time, however, it came to be expected that the praetor should not change the edict but abide by the remedies and procedures that had been developed by his predecessors.^{^[596]}' Thus praetorian initiatives became increasingly rare and, by the middle of the first century BC, the content of the edict became crystallised. As a result, the work of the praetor as a creator of law came to an end, although the edict continued to apply as law during the imperial period. In about 130 AD it was codified by the jurist Salvius Julianus by order of Emperor Hadrian and, from that time, it could only be altered by law.^{^[597]}

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Source: Mousourakis George. The Historical and Institutional Context of Roman Law. Routledge,2003. — 480 p.. 2003

The Edicts of the Magistrates

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