The Rise of Magisterial Law

The Roman law of the archaic period was built around a relatively simple system of rules for a community of farmers and large landowners and its scope of application did not extend beyond the boundaries of the city-state of Rome.

We observed earlier that the praetor was the official who supervised the admin­istration of justice. In civil cases his role 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. In archaic Roman law, legal suits had to fit into certain set actions and comply with certain strict formalities.

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).^[101] 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.^[102] 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 enactment of the lex Cornelia (67 bc) that forbade the praetors departing from their edictum perpetuum.^[103]

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.

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.

progressive and free, and subject to continual change and development.^{New Roman",serif;color:black'>[109]} 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).

But how did the praetor choose which rights to protect? The main basis for this choice appears to have been the social and ethical values generated by the condi­tions of the times. These values materialized in appropriate guidelines that empha­sized the importance of fairness and honesty in business practices, accorded preference to substance over form in transactions and refused to uphold obligations arising from promises elicited by fraudulent means. An important factor was the growing role of contractual good faith (bona fides) as a legal concept relating to the enforcement by legal means of what had been previously viewed as merely social or moral obligations.^[110] The classical jurists used the term aequitas (equity) when referring to the basis or the qualifying feature of praetorian measures granted on a case-by-case basis and promised in the edict.^[111] There are two ways to understand the connection of equity with positive law: first, aequitas may be construed as the substance and intrinsic justification of the existing legal norms; secondly, it may be conceived as an objective ideal the law aims to effectuate and which determines the creation of new legal norms and the modification of those that do not conform with society’s sense of justice nor accomplish the requisite balance in human relations. This second understanding of aequitas served as the basis of the innovations produced by jurisdictional magistrates and jurists. However, according to classical jurists, what has positive force is not aequitas as such, but ius, or law in a broad sense. Thus, until aequitas is transfused into a positive norm it remains confined to a pre-legal sphere. Once this transfusion has occurred, ius has notable significance while aequitas exists as the matrix.^[112] The incorporation of equity into the admin­istration of the law is attributable to the praetorian edict and the interpretations of the jurists. This redressed the formalism and rigidity of the traditional ius civile, and enabled the creation of new law that could fulfill the needs of a changing society.

The following two examples provide good illustrations of the techniques engaged by the praetor for surmounting the difficulties arising from the rigidity of the ius civile.

The idea that legal obligations could materialize from anything other than a strict form was strange to the original structure of Roman law established in the Law of the Twelve Tables. Such obligations could only arise from transactions executed in a few solemn forms and rites that had a predominantly public and partly sacred character. Consider stipulatio, for example. This formal transaction consisted of a solemn question posed by one party to the other as to whether the latter would render specific performance, followed by a solemn affirmative answer from the other party. This exchange of question and answer created an actionable obligation of the answering party under the ius civile. Circumstances could exist that made it unfair for the creditor to enforce the transaction. However, no remedy was provided by the ius civile in such a case. If the parties had observed all the prescribed formalities, the validity of the contract could not be questioned. To rectify the situation, the praetor could use his own authority to include an additional clause (exceptio) in the relevant formula that enabled the defendant to render the plaintiff’s claim ineffective by showing grounds for denying judgment in the plaintiff’s favour. When the exceptio was based on the allegation that the plaintiff had acted fraudulently (dolo), it was designated exceptio doli.62 Granting exceptions was an ingenious device that enabled the praetor to deliver appropriate relief in individual cases without questioning the validity of the relevant legal rule. Thus the exceptio doli left the principle of the stipulatio intact, i.e. the obligation to act as one had promised by responding in a particular way to a specific question posed. The form of the transaction still created the legal obligation, although the recognition that intention had priority over form was implicit in accepting the exceptio doli.

An important distinction in the early Roman law of property existed between res mancipi and res nec mancipi. Res mancipi included land and buildings situated in Italy, slaves and draft animals, such as oxen and horses. All other objects were res nec mancipi. The ownership of res mancipi could be transferred only by means of a highly formal procedure called mancipatio. The ownership of res nec mancipi, on the other hand, could be passed informally, e.g. by simple delivery (traditio).^{[113] [114]} If a res mancipi was transferred to someone in an informal manner, the transferee did not acquire title under the ius civile.^[115] In such a case, if the transferee lost possession of the property he could not recover it from the person with the current holding. While retaining possession of the property he could be challenged by the transferor who remained the lawful owner (dominus). As economic relations grew more complex, the strictness of the law proved detrimental to many legitimate interests. To rectify the situation, the praetor intervened and placed the transferee in the factual possession of a civil law owner. The property was then regarded as in bonis (hence the concept of ‘bonitary’ ownership) and such a ‘bonitary’ owner could acquire true ownership by usucapio (i.e. through lapse of a certain period of time).^[116] If the bonitary owner lost possession of the property, he could recover it by means of the actio Publiciana.^[117] This action was granted to all bona fide possessors in the process of acquiring ownership by usucapio, and was based on the fiction that the period required for obtaining the property by usucapio was completed. If the original owner endeavoured to claim the property, the bonitary owner could raise the defence of exceptio rei venditae et traditae (defence of a property sold and delivered by traditio),^[118] or the exceptio doli. The praetor engaged these devices to create a new type of property right that supplemented those recognized under the traditional ius civile and this generated a considerable improvement in the Roman law of property.^[119]

The above examples present a sketch of the techniques the praetor used to invent not merely supplementary but often superseding rights that galvanized the devel­opment of the ius honorarium. The descriptions expose two interrelated character­istics of the Roman legal system: a pervasive dualism, perhaps even a dialectic relationship between old and new; and a tendency towards gradual adaptation. There is the dualism between ius civile and ius honorarium, between an adherence to past forms and an admirable ingenuity in designing ways to address new situations and problems. This system is even more remarkable as both the aspects of respecting the past and adapting to the new were combined in the praetor. The praetor used all his creativity to construct devices that tackled the problems arising from novel socio-economic circumstances, and also acted as a guarantor of the basic forms and principles of the old law. Such a system seemed to satisfy the people’s desire to believe that things remained the same as long as they were ascribed the same labels. It created the comfortable illusion that nothing really had changed. The reluctance to abandon the fundamental principles of the tradi­tional legal system is aptly illustrated by the institution of the patria potestas, which was recognized by the Romans as a characteristic element of their system. Despite the enormous inconveniences generated by this institution, it survived until as late as the fourth century ad. Devices were designed to mitigate its unwanted conse­quences in a new era that no longer required a family structure based on the traditional patia potestas; yet, these devices did not affect the essence of that institution. Although several aspects were modified, like the power to prevent the marriage of a daughter, it had a longevity that virtually resembled that of Roman law. The practice of the praetor to grant exceptions to defendants illuminates the same tendency for observing the old rules. Granting exceptions was a cautious device that retained the essence of the rules, while providing relief in a particular case or type of case. Indeed, classifying a particular case as exceptional would appear to confirm the validity of the relevant rule. Similarly, the use of fiction helped the victim of bad faith or error in cases where the requirements of strict law were not fulfilled. However, it did not diminish the validity of the legal principles that applied under the old ius civile. For example, the fiction of a completed usucapio in the actio Publiciana did not affect the basic principles of the ius civile relating to the acquisition of ownership over res mancipi. Fictions and other praetorian devices facilitated the cautious and gradual adaptation of the rules insofar as this was deemed necessary, but did not appear to change any elements on the normative level. On closer observation, it is not difficult to discern that these devices produced important changes to the law. This evokes the Hegelian idea that a change in quantity may lead to a change in quality. Although the form of this change suggested that only a minor detail of a rule was affected, a major principle of the Roman ius civile was actually rendered ineffectual or set aside. The relation­ship between the ius civile and the ius honorarium (or between law and equity) clearly exhibits the Romans’ commitment to the two notions of stability and change, of preservation of the past and efficient adaptation to new needs.

2.3.2.1     Relationship with Non-Roman Communities and the Concept

of Ius Gentium

The development of the ius honorarium in the later republican era was closely connected with the dramatic increase in contacts between the Romans and non-Roman 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 had no access to the Roman ius civile.^[120] 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. The peregrine praetor enjoyed greater liberty than his urban colleague did as no law limited his operations. Thus, when formulating remedies he could consider the new needs created by the ever-changing social and economic condi­tions. Governors in the provinces were also granted jurisdiction over disputes concerning Roman citizens settled there and provincials; and, occasionally, over cases involving foreigners. The edicts of the praetor peregrinus and, to a lesser extent, 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.^[121]

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. 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.

Although little information exists on the methods employed by the peregrine praetor in performing his functions, we may surmise that he adopted the ius civile when applicable to the relevant case. Moreover, the customary norms common to many nations must have been relevant to determining whether or not a claim was acceptable. For example, a magistrate could easily fathom that many nations transferred titles to land and property by mere delivery and payment, and not by the formal methods familiar to Rome. This entailed an increasing recognition by jurisdictional magistrates of the validity of informal agreements or consensual contracts based on good faith (bona fides) in commercial transactions—contracts where Romans and foreigners alike could engage.^[122] However, an important note is that when a magistrate addressed a dispute involving foreigners he had to recall that his solutions must accord with what was considered proper and reasonable from a Roman citizen’s viewpoint. Thus the ius gentium might be described as a complex system of generally observed customs and rules that embodied elements the Romans regarded as reflecting the substance of ius, or law in a broad normative sense; in other words, ‘that which was good and fair’ (bonum et aequum).^[123]

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. As a result of this development, the urban praetor was no longer bound by the old statutory forms of action (legis actiones) and had freedom to devise new remedies and corresponding procedural formulae to tackle ad hoc controversies engendered by novel socio-economic circumstances. Such measures were not restricted to the application of the laws in force, but could be used to modify or replace existing law. Although in principle neither praetor had legislative authority, they actually created new law by extensively engaging their right to regulate the forms of proceedings accepted in court. A new body of law thus emerged that incorporated the norms of private law derived from the edicts of the praetors and other magistrates: the ius honorarium.

2.3.3