THE PRAETOR AND THE CONTROL OF REMEDIES

For most of the duration of the republic the law was developed less through legislation and its interpretation than through the control of legal remedies. Originally the first stage of a legal action was formal and technical; there was a limited number of forms of action, which were begun by the oral declaration of set words in the presence of the mag­istrate and the defendant.

The magistrates, originally the two consuls, elected annually, who replaced the king as the head of the state, were responsible for all governmental activities. The administration of justice was only a minor part of their duties and the procedure allowed them little scope for inno­vation. As Rome expanded, a special magistrate, called the praetor, also elected annually, was established in 367 bc, to deal exclusively with the administration of justice. He had no special training but he was expected to supervise the formal stage of every legal action. The praetor retained the two-stage character of the legal action, the first concerned with the categorisation of the issue in legal terms and the second with the actual trial of that issue. The second stage had always been, and remained, rel­atively informal. This procedure was very economical of official time. The magistrate was concerned with the first stage, which was essential, but it was the second stage which was by far the more time-consuming. The Romans realised that in many situations quarrels arise not from dis­agreement about the law, which is clear enough, but from dispute about the facts and that an ordinary citizen, even without experience of the workings of the law, was quite capable of deciding what had happened.

In the second half of the republic an important change in legal pro­cedure was introduced. When the parties appeared before him, the praetor allowed them, instead of adhering to set forms, to express their claims and defences in their own words. Then, having discovered what the issue was, he set it out in hypothetical terms in a written document, known as a framuld. This instructed the iudex to condemn the defendant, if he found certain allegations proved, and to absolve him, if he did not. The formula, once it was settled by the praetor and the parties, was sealed, so that the iudex who opened it could be sure that it had not been tampered with. The iudex derived all his authority from the formula and had to act within its terms. So long as he did so, he was allowed great freedom in his conduct of the trial and often took the advice of a orosil- ium of friends to help him reach a decision. In the early republic the parties had represented themselves but later they tended to hire profes­sional orators, trained in rhetoric, to present their case to the iudex.

The praetor could grant a formula whenever he felt that legal policy justified it, in the sense that he considered that a plaintiff, who could prove his case, ought to have a remedy. The function of the praetors was to declare the law (ius dioeae) and to give effect to it by their grant of appropriate remedies. Most remedies were concerned with recognised claims, such as that the defendant was detaining the plaintiff⁵s property against his will or that the defendant owed the plaintiff money. The praetor could, however, grant a formula in a situation in which there was no precedent. Officially in such a case he was not making new law; that would have been beyond his powers. In effect he was saying that the claim justified a remedy and so the law must provide it. Although he spoke as if he were just implementing existing law, he was in fact making new law.

Since the new remedies were presented as an expression of the old law, the innovation was disguised.

At the beginning of his year of office the praetor published an edict, in which he set out the various circumstances in which he would grant a formula, and eventually appended the appropriate formulae. Pros­pective litigants would consult the edict and could obtain on demand any formula promised in it. A defendant who disputed the plaintiff’s allegations would not be prejudiced by the grant of a formula, as he would be confident that his opponent could not persuade the iudex that his allegations were well founded.

The formula was a flexible instrument and could be modified to take account of particular defences put forward by the defendant. For example, where the civil law prescribed a particular form for a legal transaction, it was originally concerned only with whether or not the form had been complied with. It did not look behind the form. An important formal contract, mentioned in the Twelve Tables, was stipula­tio, an oral question-and-answer form which could convert almost any agreement into a binding obligation.

Such a defence, or exceptio, was required where the defendant admit­ted the truth of the plaintiff’s allegation (e.g. ‘I did make the formal promise’) but asserted further facts (e.g., ‘but that promise was obtained from me by fraud’) which nullified the plaintiff’s claim. By allowing the defences, the praetor gave legal recognition to the principle that trans­actions tainted by fraud or duress were unenforceable. In certain formu­lae, the iudex was told to condemn the defendant only to pay whatever sum he ought to pay ‘according to good faith (ex fide bond)', and in such cases a specific exceptio was not needed. The only award which the iudex could make at the conclusion of a legal action was money damages. Once he had given his judgment in favour of one of the parties, his task was over and he ceased to exist as a iudex. He could not, therefore, order a party to do something or not to do something, since, when the time came to decide whether or not the order had been obeyed, he would no longer be a iudex. A decision that a defendant should pay a particular sum is an appropriate conclusion of many types of dispute but it is not suitable in all cases. In the later republic, when remedies other than the grant of regular legal actions were required, the praetor could not remit them to a iudex and had to deal with them himself.

The earliest of these ‘extraordinary' remedies (i.e., outside the ordi­nary grant of formulae) was probably the interdict, an order by the praetor to do or not to do something. Many interdicts were designed to prevent interference with the peaceful possession of property and to ensure that claims were made properly by legal process.

The last ground further illustrates the cautious Roman approach to law reform. The civil law granted legal capacity to any boy who had reached the age of puberty, eventually agreed to be at fourteen years. At this age he could marry, and if independent of the power of a pater­familias, deal with his property for himself. This age was quite appropri­ate in the simple society of the early republic, but a boy of fourteen might well not be able to stand up to a clever merchant, who persuaded him to buy what he did not really want. No doubt the most logical way of dealing with this situation would have been to raise the age of legal capacity. But that would have been seen as a drastic change in a funda­mental rule of the traditional law, that capacity and puberty go together. The Romans were reluctant to contemplate such a change, which might have had all manner of unforeseen consequences. They preferred to leave it to the praetor, in the exercise of his discretion, to reverse the effects of transactions where it appeared that advantage had been taken of the youth's inexperience. The consequence was that people refused to deal with those under the age of twenty-five (the limit set by the praetor), unless they were independently advised.

The law derived from the grant of the new remedies, contained in the edicts of the praetors, was known as ius honorarium (from the honores held by elected office holders). Most legal development affecting civil disputes in the second half of the Republic was achieved through this kind of law.

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