By the end of the Republic the formula had almost entirely replaced the legis actio as the main structural element in private law. The legis actiones were ready-made, verbally fixed expressions of the case at issue, whereas the formula allowed the parties to a lawsuit and the praetor to negotiate a precise formulation of the legal issue in a case, which could then be decided by a judge or judges (iudex or indices)}"4 The existence, or the increased importance, of the formula was the result of the Aebutian Law, which was enacted probably in the second century. For a long time the legis actio and the formula coexisted, in spite of the virtues of the latter, since the older procedure might offer some advantage to one of the parties.15 We know that, by the time of Aulus Gellius (second century ad), the legis actio was a dead letter. Gellius relates an anecdote in which an expert in Roman Law lumps the legis actio together with a group of legal terms that were rendered obsolete by the passage of the Aebutian Law. Apart from the use of the legis actio before the centumviral court, Gellius’ expert concludes that the practicing jurisconsult of that day no longer needed to know about this procedure (Gell. NA 16.10.8; Gai. Inst. 4.30). The formulary procedure in private law created a division of a lawsuit into two parts. The first, in the praetor’s court (in iure), would occur before a magistrate (generally a praetor), during which the issue in the case would be defined through the formula. The second part ‘‘before judges’’ (apud iudices) would occur before a juror (iudex), a small group of‘‘recoverers’’ (recuperatores), or a large group of jurors (centumviri), who were charged with applying the law to the factual and legal situation as he or they were able to discover it. The verdict of the juror or these adjudicators was not subject to appeal.
The ius honorarium (magistrate’s law) came into being to ‘‘assist, supplement, or correct’’ the ius civile, from which it remained separate in Roman jurisprudence (Papin. Dig. 1.1.7.1). Two praetors, the urban praetor and the peregrine praetor, ran the law courts dealing with private matters, with the sole exception of the law of sale, which fell within the domain of the aediles.1 Although praetors did not decide on verdicts in a trial, they did decide whether or not a case would go to trial, and whether to grant any number of requests that were likely to arise. These included injunctions to prevent certain things from taking place, grants of possession, and overturning the results of some deceptive practices. At the beginning of their 12-month term the new praetors announced an edict, called an edictum perpetuum, that clarified what kinds of cases they would admit to their dockets, and what other rulings they were willing to grant. Although originally the praetor may have simply been supplying remedies effectively to ‘‘shore up’’ the traditional ius civile, the praetor’s edict ultimately became one of the main vehicles for the development of Roman Law.17 Cicero’s attack on Verres, who served as urban praetor at Rome in 74, provides our fullest example of the workings of the ius honorarium (2 Verr. 1.103-58), particularly in matters relating to succession.18 The power of the ius honorarium was somewhat limited in 67 by a statute which required that praetors announce the rules they intended to follow at the beginning of their term of office, and that they adhere to those rules for the duration of their term (Asc. 59C; Dio Cass. 36.40.1).19 This law, designed to reduce the power of praetors to curry favor through arbitrary or inconsistent rulings, is generally seen to have ushered in a change in the focus of legal innovation, from the heyday of the urban praetor to that of the jurists.
World History
