The history of legal procedures is hardly less than the history of the legal system itself.

Roman law is no exception. Legal remedies so influenced the structure and evolution of Roman law that substantive law can be understood only from this procedural perspective. Roman jurists were more concerned about specific legal remedies than abstract rights.

Three different systems of procedure conducted Roman civil trials over the course of Roman legal history: the system of legal actions (legis actiones), the formulary system (ordo iudiciorum), and the extraordinary cognition (cognitio extraordinaria or cognitio extra ordinem). The three systems succeeded one another in time but with some overlap. The system of legis actiones was the oldest. It existed at the time of the Twelve Tables (Gaius 4.17a), and it con­stituted the only civil procedure until the lex Aebutia (around 130 bce) abol­ished it (with some exceptions) and introduced the formulary system. The formulary system was the standard procedure that dominated the classical period. The new procedure bestowed a new relevance on the position of the praetor and prescribed written forms. The formulary system was completed by two statutes in Augustus’s time, the controversial duae leges Iuliae (Gaius 4.30). Augustus’s laws abolished oral proceedings and declared written proceedings to be mandatory.

A new procedure, cognitio extra ordinem, or extraordinary cognition, was administrative in nature.

This chapter will mainly address the formulary procedure, since it was the procedural system that enabled and fostered the development of Roman jur­isprudence. Major jurists of the classical period wrote their works in connection with it. References to the other systems will be made only to enable a full understanding of the formulary system.

The best source of information about the Roman civil procedures is probably book four of the Institutes of Gaius, which provides unique material about the system of the legis actiones. New inscriptions like the lex Irnitana, six bronze tablets containing fragments of municipal laws found in 1981 in Spain, or the collection of first-century tablets from Herculaneum and Puteoli, revealed new data and details on Roman legal proceedings. Cicero also provided important information, as he placed Roman procedure at the center of speeches like Pro Caecina and Pro Quinctio. Quintilian and Aulus Gellius, among others, are also valuable sources for understanding procedure.

Legis actiones

Older than the Twelve Tables and marked by unreasonable archaism and enormous formalism, the system of the legis actiones (“actions based on law”) was the earliest form of Roman legal procedure. Its origin is obscure. Its remarkable feature was the use of prescribed oral formularies of claims framed by the pontifical, or priestly, jurisprudence in accordance with the wording of new statutes or adapting the wording of new formularies to existing statutes.

There were five formularies. Three of them served to initiate a claim (legis actio sacramento, legis actio per iudicis arbitrive postulationem, and legis actio per condictionem), and two were for execution of claims (manus iniectio and pignoris capio).

The two legal actions to enforce the execution of a previous judgment were different from these first three. The manus iniectio was a form of personal execution on a debtor for specific claims when the debtor did not fulfill the monetary judgment within thirty days. Unlike the manus iniectio, the pignoris

Civil litigation 113 capio allowed a creditor to take a pledge for the debtor’s property. It could be applied even in the absence of the debtor because it was extra-judicial.

The procedure of the legis actiones was divided into two stages: one before the magistrate (initially a consul and, after 367 bce, a praetor), and the other before a citizen appointed as judge. In the first stage, called in iure, the magistrate formulated the issue by establishing the limits of the dispute. The first stage ended with the joinder of issue (litis contestatio). During the second stage, apud iudicem, the judge conducted the trial in accordance with the framing that the magistrate had established.

Gaius (4.30) writes that the procedure of the legis actiones fell into popular disfavor owing to a rigid formalism and lack of flexibility. To illustrate this inflexibility, Gaius (4.11) reports the case of a man who raised an action over the cutting down of vines. He lost his case because he used the word “vines” (vites) instead of “trees” (arbores) as was prescribed in the very general terms of the Twelve Tables (8.11). Another important disadvantage to this system was that the magistrate could neither establish new forms of legal actions nor extend the application of existing legal actions to new claims not provided by the law. The need to accommodate legal procedures to new economic and social developments demanded the vesting of more jurisdictional power in the hands of the magistrate.