Roman governors were required to make themselves available to their provinces to settle disputes and receive petitions on matters great and small (Marshall 1966 for the republic; on the empire see in general Burton 1975 and Haensch 1997: 334-42, and Meyer-Zwiffelhoffer 2002; for Egypt see Lewis 1981 and Ando 2000: 375-7, with Haensch 1994 and 1997; for Asia see Robert 1949 and Habicht 1975). Cities within each province were designated to hold a conventus or assize, and a schedule of the governor’s circuit and the regulations for his court must have circulated widely within each province (P. Oxy. 2754; Haensch 1997: 329-32; Ando 2000: 375-6). The popularity of the governor’s court is variously attested, by literary sources which praise the economic benefits that accrued from the trade in tourism it brought (D. Chr. 35.15-16, 38.26, and 40.33), by the efforts cities undertook to win a place on the governor’s circuit (e. g. SEG 28 no. 1566, ll. 69-77), and by the legal petitions and rescripts that cite their place in the record-books of any given conventus (Ando 2000: 376-7).
A Roman judge in the provinces could conduct any given case in one of two ways. First, he could use Roman formulary procedure, either by explicit quotation of or reference to the formulae published by the praetors at Rome: this was Cicero’s practice in Cilicia, and it was probably customary under the republic (Att. 6.1.15 with Galsterer 1986: 17, and 1996: 397-403). Even then, Cicero and others left themselves latitude for maneuver: Cicero did so by paradoxically leaving many things ‘‘unwritten’’ in his provincial edict, while promising that he would approximate his rulings to the praetor’s edict (Att. 6.1.15), while Verres in Sicily had justified the omission of a law on legacies from his provincial edict by allowing that he would act in accordance with the ‘‘urban edict’’ regarding ‘‘any matter that arose unexpectedly (ex improviso)’’ (Ver. 2.1.112).
Second, a judge was free to inquire into the facts of any given case himself, through a procedure called cognitio extra ordinem or cognitio extraordinaria, meaning simply a non-formulary judicial inquiry. This left plaintiffs greater scope to debate finer points of law and the judge and his advisors correspondingly greater scope in crafting their decision. Extant evidence suggests that this became far the most common procedure in the provinces under the principate: after all, provincials who knew Roman legal formulae were free to cite them in cognitiones - as Babatha cited the praetorian actio tutelae, a formula for suits regarding guardianship, only 19 years after the annexation of Arabia {P. Yadin 28-30) - and judges were likewise free, in such a hearing, to interpret praetorian formulae as expressions of substantive law {Stolte 2001: 176; see also Ando 2000: 378). Such was the fluid state of the law and legal theory in the provinces of the empire {Millar 1981: 71; for formal arguments see Peachin 2001 and Sirks 2001).
World History
