- DU PLESSIS L “An Introduction to Roman Law” Juta & Co. Ltd 1992
- GAIUS, IV.139, 140
- TUORI “The ius respondendi and the Freedom of Roman Jurisprudence” Revue - Internationale des droits de l’Antiquité LI (2004)
- URCH E “The Origin of the Actio Per Formulam”. The Classical weekly Vol. XXVI. Whole No. 712 Mon 10th of April 1933
- GONZALEZ DE CANCINO E. “Manual de Derecho Romano” Universidad Externado de Colombia 2000
- MACKENZIE “Studies in Roman Law with Comparative views of the Laws of France, England and Scotland” . William Blackwood and sons. London
- NICHOLAS B. “An Introduction to Roman Law” (Clarendon Law Series)
Wednesday, March 30, 2011
The role of the praetor and Classic Jurists. Lecture Review III
The role of the Praetor in Roman Law: The praetor was in charge of administration of justice without being a jurist himself. He had help from the most prominent jurists in his time and contributed greatly to the development of the roman Law during the Republic and early Principate by modifying the law with his Edict the praetor gave prevalence to substance over forms. He introduced to Roman Law the underpinning principles that survive until today such as Justice, fairness and equality.
-Replacement of Actio per sacramentum with Actio per formulam: the formulary process was simpler than the sacramental process established by the civil law. Initially it involved foreign citizen and gradually became the standard procedure for cases where both parties where Roman citizens.By reforming the legis actionis the praetor aided by the Classis Jurists introduced principles and established precedent which ultimately formed a substantial part of the Roman Law
- ISSUE OF INTERDICTS. "In certain cases (certis ex causis) the praetor or proconsul, in the first instance (principaliter), exercises his authority for the termination of disputes. This he chiefly does when the dispute is about Possession or Quasi-possession; and the exercise of his authority consists in ordering something to be done, or forbidding something to be done. The formulae and the terms, which he uses on such occasions, are called either Interdicta or Decreta. They are called Decreta when he orders something to be done, as when he orders something to be produced (exhiberi) or to be restored: they are called Interdicta when he forbids something to be done, as when he orders that force shall not be used against a person who is in possession rightfully (sine vitio), or that nothing shall be done on a piece of sacred ground. Accordingly all Interdicta are either Restitutoria, or Exhibitoria, or Prohibitoria (Gaius, IV.139, 140). This was the first notion of a singular trial as we know it now. There are still interdicts in South Africa for the same purposes (to forbid something to be done).
- THE PRAETOR’S EDICT (Started in 367 BC): Annual process program (policy plan or government plan) creating new actions, introducing exceptios(to the formulary procedure) or adopting the dispositions of the previous year.
Classic Jurists: Aided the development of Roman Law by emitting their opinions which were adopted by the praetor and applied in the Edict and as binding law whenever they had ius respondendi.
The classic jurists were highly influenced by Greek tradition. From the sophisticated Greek thought they brought concepts of justice, fairness and equity. (Equity understood as the justice of the concrete case- Aristotle-.)
- Sabinian and Proculian Schools of Thought/ Ius respondendi:
The Sabinians and the Proculians, as were most Roman jurists, were first and foremost legal practitioners whose main activity was to give advice (responsa) in court cases and other legal disputes. Most probably, the controversies arose when representatives of the two schools had been consulted by parties locked in a case and had come to contradictory opinions. The controversies differed from ordinary differences of opinion between jurists because the heads of the schools were invested with the ius publice respondendi ex auctoritate principis, making their opinions binding upon the court.
The school controversies have been explained in terms of conservative versus Progressive, which will be referred to as the socially-inspired explanation. While some Romanists, such as Voigt and Kodrebski, qualified the Sabinian school as conservative and the Proculian school as progressive In Voigt’s view, moreover, the opposition between the two schools could be explained by way of the contrast between rigor iuris and verbi ratio, on the one hand, and aequitas and voluntatis ratio, on the other. Whereas the Sabinians looked as far as possible to interpret texts to the letter, the Proculians underlined the voluntas or the intention of the parties and, thus, were sensitive to claims of equity.
- Classic Jurists in the Corpus Iuris Civilis: Their opinions on different issues were recovered and compiled in the corpus iuris, confirming the strength of their abstractions and the permanency in time of the concepts that they reached.
Thursday, March 17, 2011
LECTURE REVIEW II
Hadrian’s Codification of the
Praetorian Edict by Salvius Julianus
Jim Safley
In this essay I will interpret the circumstances culminating to Hadrian’s codification of the praetorian edict by the renowned jurist Salvius Julianus (c. 130 CE). Accordingly, I will attempt to explain how and why the codification occurred. The codification was a considerable turning point in the process of Roman law: the imperial juror gained supreme prestige, and, more importantly, the praetor surrendered his ability to augment his legal jurisdiction while the emperor legitimized his own predominant rank in Roman law. To lend this essay coherence I will explore the imperial system of law during the early Empire, focusing on the role of the juror, the praetor, and, to a lesser extent, the emperor. It is important to understand the evolution of the juror and the praetor to fully appreciate the enormity of the codification. For this reason I have also included some historical information regarding the origin of these offices of law.
There are many sources available in Ancient Roman law. Classical jurisprudence is, in fact, one of the most documented subjects in Roman history. Because Roman law has flourished in some form or another since its establishment, much of its principles and analyses are still contemporary. The current knowledge of the codification of the praetorian edict is a good example of the contemporary nature of some historical events. There is no definitive primary source on the subject, and only through intensive study of myriad ancient works of law can one find reference to it. The earliest reputable source that mentions the codification is Emperor Justinian’s Constitution, Tanta.[1] Though it is a vague and contradictory reference, Justinian is precise in his statement regarding the existence of such a codification.[2]
Some of the foremost treatises on Roman legal history were written by German and British law scholars during an age of classical law revival. In the late nineteenth century, German law professor Rudolph Sohm wrote The Institutes, a systematic survey of the entire field of Roman law.[3] Even before Institutes, Sir Henry Maine, a distinguished English law scholar, wrote Ancient Law, an extensive comparison of ancient law and Modern English law.[4] In 1932 another English scholar, H. F. Jolowicz, authored an updated treatise on classical legalism, titled Historical Introduction to the Study of Roman Law.[5] Some of the most scholastic modern sources on Ancient law can be found in the form of these “historical introductions of law.” In 1966, Wolfgang Kunkel, an accomplished German law professor, wrote An Introduction to Roman Legal and Constitutional History.[6] Twenty-four years later a Dutch author, Olga Tellegen-Couperus, wrote A Short History of Roman Law.[7] Both of these texts are effectively utilized by law professors worldwide.
The system of law in the Roman Empire relied heavily on the influences of several imperial offices. Each of these offices had unique and indispensable responsibilities, and all issued written documents of one form or another that announced their opinions, intentions, or decrees. Jurors, through their responsa, provided legal opinions to judges, magistrates, and citizens. Praetors, whose role was the administration of justice, annually issued an edictum perpetuum that laid out the terms of their office. Emperors, who obtained much of the magisterial powers of the high offices in the Republic, enjoyed the right to issue two imperial proclamations: the edictum (a decree addressed to the general public) and the mandata (an official directive to the officials in the emperor’s service).
JURISTS
In Rome the knowledge of law and its procedure fell primarily on jurists. They were the center of the Roman legal system and influenced the decisions of judges and magistrates, who were not necessarily schooled on jurisprudence. During the Republic, jurists were closely associated with the Roman senate, and most originated from the senatorial class. The jurists’ influence was pervasive in law. They assisted private citizens by drafting legal texts, wills, etc. (cavere), serving as advocates in lawsuits (agere), and giving legal opinion on questions of law submitted to them (respondere).[8]
The role and character of the jurist changed under the reign of Augustus. Imperial backing of the equestrian class assured a rise in equestrian jurists, though most remained of the senatorial class.[9] Whereas in the Republic jurists had a limited capacity in legal authority and legislation, the new princeps gave certain preeminent jurists the privilege of giving their legal opinion ex auctoritate principis – that is, in the name of the emperor.[10] In turn, jurists’ written replies to matters of law (rensponsa) had the force of law.[11] By bestowing on jurists the ius respondendi, or the imperial right to give legal opinions, Augustus ushered in an unprecedented age of classical jurisprudence.
SALVIUS JULIANUS
Among the greatest of Roman jurists was the renowned Salvius Julianus (Lucius Octavious Cornelius Publius Salvius Julianus Aemilianus). Julianus was born around the turn of the second century CE at the village of Pupput, near Hadrumetum, in the province of Africa. Of Roman birth he belonged to a family evidently so distinguished that he was able to enter upon a senatorial career.[12]
Julianus served in a wide variety of senatorial offices under Hadrian, Antoninus Pius, and Marcus Aurelius. His imperial roles included: decemvir stlitibus iudicandis, quaestor Augusti of Hadrian, one of the tribuni plebis, praetor, praefectus both of the aerarium Saturni and of the aerarium militare, consul in 148, pontifex, curator aedium sacrarum, imperial governor of Germania Inferior, imperial governor of Hispania Citerior, and republican governor of Africa.[13]
Julianus acknowledged himself as a disciple under the prominent Roman jurist Javolenus Priscus (Gaius Octavius Tidius Tossianus Javolenus Priscus), who was a member of Trajan’s consilium and head of the Sabinian School.[14] Sabinus Masurius, a Roman jurist of the first half of the first century CE, founded the Sabinian School, which began as a doctrinal school for jurists.[15] There was an unspecified rivalry between the Sabinian School and another school for jurists, the Proculian School.[16] Both schools died out after the death of Salvius Julianus, who was the last recorded head of the Sabinian School. In a measure of his supreme authority, there is no doubt that Julianus’ death allayed the hostility between the schools.[17]
Julianus was a man of high authority and fame among his contemporaries. He enjoyed such repute even at a young age that Hadrian doubled his salary as quaestor Augusti.[18] His most important legal work is his Digesta, organized into 90 books detailing virtually every aspect of civil and praetorian law. It introduced the theory and nature of Roman legalism. The work is preserved mainly in subsequent codes, especially in Justinian’s Digesta and among other works by classical jurists.[19]
Before Julianus was 30 years old Hadrian entrusted him with the revision and rearrangement of the praetorian edict, which secured his enduring and distinguished reputation. To understand the significance of this codification, the role of the praetor and his edict in Roman legalism must be understood and appreciated. To be sure, a systematic revision and permanent rearrangement of a body of precepts is a considerable and serious event.
PRAETORS AND THE PRAETORIAN EDICT
In the early Roman Republic, the office of the praetor was synonymous with the consulship; but in 366 BCE the judicial powers of the consuls were delegated to special officers, each named praetor urbanus. The paramount responsibility of the praetor urbanus was the administration of civil and criminal justice in Rome and in Roman Italy, though he occasionally exercised his right of military command (imperium), and he had the authority to convene the comitia and initiate legislation.[20] Over a century later the proliferation of commerce necessitated the appointment of a second officer, the praetor qui inter peregrinos ius dicit, a title which afterwards was shortened to praetor peregrinus. The praetor peregrinus supervised civil litigation in which one or both parties were foreigners.[21]
In their early capacity, praetors had an enormous sphere of judicial and executive influence (certain praetors were appointed as provincial governors). However, Sullan reforms in the late Republic limited the role of the praetor in executive positions, and after Augustus’ judiciary laws, both the praetor urbanus and the praetor peregrinus were restricted entirely to the administration of private law. In the provinces the former jurisdictional and executive roles of the praetor were consigned to the quaestor.[22]
On entering office, praetors were required to outline the central principles of their jurisdiction and ostentatiously display them in the Roman Forum.[23] In this outline, titled the edictum perpetuum, or simply edict, the praetors declared the steps they intended to take in the implementation of their office. Officially, once the magistrate left his post (usually after one year), the edict ceased to be binding, and the succeeding praetor had a free hand in the matter of his edict; but in practice the successor usually confirmed the previous edict (the edictum tralaticium), only amending what expediency dictated.[24] The right of praetors to alter the edict, no matter how negligible the changes, was a component of their ius honorarium, or magisterial law.
Though the edicts were an important source of law, the praetor was not a legislator. He was unable to formulate or alter the law itself, as could the assemblies in the Republic and the Senate in the early Empire by a lex (statute) or a plebiscitum (ordinance of the people).[25] Consequently the edict did not take the same form of a statute. It consisted mainly of statements detailing how the praetor would carry out his office, and of what he would do in certain legal circumstances. It was in these respects that made it possible for the praetor to influence the laws to such a large degree.
The edict’s advantage over strict statutory code was its expedient and organic nature. Although praetors tended not to alter it greatly, over time, when a procedure became obsolete or unnecessary, it was deleted. Similarly, when a course of action was necessary and an applicable precept did not exist, the praetor revised the edict to provide for the action.[26] Initially the edictum perpetuum was not binding and the praetor could arbitrarily disregard his own principles. Later however, by a lex Cornelia (67 BCE), the praetor was legally bound to his edict, unable by law to modify it while in office.[27]
CODIFICATION OF THE PRAETORIAN EDICT
By the second century CE the edictum tralaticium had accrued to a formidable and arduous size. There were at least two hundred separate provisions in the edict before Emperor Hadrian commissioned Salvius Julianus to codify the edict (c. CE 130), effectively fixing it in permanent form – taking away the praetor’s right to alter it.[28] The praetorian edict was confirmed by a senatus consultum, and all further legislative revisions fell to the emperor.[29]
Why exactly did the codification occur? Ancient sources are silent on the subject, and modern sources deal exclusively on assumptions and conjectures. Certainly it is debatable whether Hadrian intended the codification to be a protective action regarding the edict’s immense size and complexity, or an attempt to stifle the innovative legal abilities of the praetor (ius honorarium).
Many modern authors of law differ in opinion. Rudolph Sohm points out that emperors were well aware that the legal power of the praetor originated from Republican magistrates – offices that emperors found distasteful. “The rising imperial power could not permanently tolerate any rival independent authority.”[30] Thus, Hadrian ordered the codification to suppress the jurisdictional power of the praetors. H. F. Jolowicz offers a more moderate version of Sohm’s theory. He writes that the overarching power of the emperor inherently limited, and was incompatible with, the authority of Republican magisterial offices, including the praetor. Hadrian, in his decision to codify the edict, was simply “bringing the republican form into line with the new realities.”[31]
Incompatibility with the authority of the emperor is not the only rationale given for the codification. The eminent law scholar Sir Henry Maine, on the other hand, believed that the edict’s “immense length” and “disorderly texture” demanded the codification.[32] I have found that most law textbooks concur with Maine in that the edict was merely too large and unwieldy for practical use, so Hadrian had no other choice but to order it written as a final draft (though Kunkel and Tellegen-Couperus do mention the gradual weakening power of the praetor under the Principate).[33]
Hadrian’s own administrative character may prove to be the defining clue into why he ordered the edict to be set into permanent form. He had a cold relationship with the Senate, and distrusted the few remnants of Republican government. While he slowly deserted the already eroding old system of government, he strengthened the new, imperial system. Under his rule, the Equestrian Order obtained a more ennobled status: they secured many civil service positions, and even joined Hadrian’s board (consilium principis).[34] He also appointed judges in place of the traditional role of the Senate, furthering the imperial centralization of the state. It would be consistent with his mistrust of Republican customs that Hadrian ordered the codification of the praetorian edict. Indeed, what better way to limit the powers of the praetor than to deny him the ius honorarium?
Whatever Hadrian’s motives, his decision to order the final revision of the praetorian edict permanently shifted legal initiative to the emperor. As a result, praetors suffered a precipitous decline in power. Now more than ever, jurists, who had been rising in eminence since Augustus’ ius respondendi, played a vital role in the interpretation of Roman law. Their influence on the emperor’s legal decisions was unprecedented, as is exemplified by the codification of the praetorian edict by Salvius Julianus.
--------------------------------------------------------------------------------
[1] Justinian, constitutio Tanta, 18.
[2] Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 89; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed. trans. J. M. Kelly (London: Oxford University Press, 1973), 93.
[3] Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, 3d ed. trans. James Crawford Ledlie, B. C. L., M. A. (London: The Clarendon Press, 1940; reprint, New York: Augustus M. Kelley Publications, 1970) (page citation are to the reprint edition).
[4] Henry Maine, Ancient Law (London: The Aldine Press, 1954).
[5] H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (London: Cambridge University Press, 1972).
[6] Kunkel.
[7] Tellegen-Couperus.
[8] Ibid., 60-61.
[9] Kunkel, 109.
[10] Ibid., 107; J. Declareuil, Rome the Law-Giver (London: Trubner & Co., 1927; reprint, Westport: Greenwood Press, 1970), 24 (page citations are to the reprint edition).
[11] Will Durant, The Story of Civilization, vol. 3, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster, 1972), 394.
[12] Oxford Classical Dictionary, 2d ed., s.v. “Julianus (2) Salvius,” by Adolf Berger and Barry Nicholas.
[13] Ibid.
[14] Ibid. s.v. “Javolenus Priscus,” by Berger and Nicholas.
[15] Ibid. s.v. “Sabinus (2),” by Berger and Nicholas.
[16] Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970), 29.
[17] Kunkel, 118.
[18] Ibid., 117; Durant, 392.
[19] OCD, 2d ed., s.v. “Julianus (2) Salvius,” by Berger and Nicholas.
[20] Ibid., s.v. “Praetor,” by Piero Treves and Eastland Stuart Staveley.
[21] Sohm, 73-74; Tellegen-Couperus, 41.
[22] Kunkel, 84-85.
[23] Durant, 393.
Find this article in Hadrian’s Codification of the Praetorian Edict by Salvius Julianus by Jim Safley
Praetorian Edict by Salvius Julianus
Jim Safley
In this essay I will interpret the circumstances culminating to Hadrian’s codification of the praetorian edict by the renowned jurist Salvius Julianus (c. 130 CE). Accordingly, I will attempt to explain how and why the codification occurred. The codification was a considerable turning point in the process of Roman law: the imperial juror gained supreme prestige, and, more importantly, the praetor surrendered his ability to augment his legal jurisdiction while the emperor legitimized his own predominant rank in Roman law. To lend this essay coherence I will explore the imperial system of law during the early Empire, focusing on the role of the juror, the praetor, and, to a lesser extent, the emperor. It is important to understand the evolution of the juror and the praetor to fully appreciate the enormity of the codification. For this reason I have also included some historical information regarding the origin of these offices of law.
There are many sources available in Ancient Roman law. Classical jurisprudence is, in fact, one of the most documented subjects in Roman history. Because Roman law has flourished in some form or another since its establishment, much of its principles and analyses are still contemporary. The current knowledge of the codification of the praetorian edict is a good example of the contemporary nature of some historical events. There is no definitive primary source on the subject, and only through intensive study of myriad ancient works of law can one find reference to it. The earliest reputable source that mentions the codification is Emperor Justinian’s Constitution, Tanta.[1] Though it is a vague and contradictory reference, Justinian is precise in his statement regarding the existence of such a codification.[2]
Some of the foremost treatises on Roman legal history were written by German and British law scholars during an age of classical law revival. In the late nineteenth century, German law professor Rudolph Sohm wrote The Institutes, a systematic survey of the entire field of Roman law.[3] Even before Institutes, Sir Henry Maine, a distinguished English law scholar, wrote Ancient Law, an extensive comparison of ancient law and Modern English law.[4] In 1932 another English scholar, H. F. Jolowicz, authored an updated treatise on classical legalism, titled Historical Introduction to the Study of Roman Law.[5] Some of the most scholastic modern sources on Ancient law can be found in the form of these “historical introductions of law.” In 1966, Wolfgang Kunkel, an accomplished German law professor, wrote An Introduction to Roman Legal and Constitutional History.[6] Twenty-four years later a Dutch author, Olga Tellegen-Couperus, wrote A Short History of Roman Law.[7] Both of these texts are effectively utilized by law professors worldwide.
The system of law in the Roman Empire relied heavily on the influences of several imperial offices. Each of these offices had unique and indispensable responsibilities, and all issued written documents of one form or another that announced their opinions, intentions, or decrees. Jurors, through their responsa, provided legal opinions to judges, magistrates, and citizens. Praetors, whose role was the administration of justice, annually issued an edictum perpetuum that laid out the terms of their office. Emperors, who obtained much of the magisterial powers of the high offices in the Republic, enjoyed the right to issue two imperial proclamations: the edictum (a decree addressed to the general public) and the mandata (an official directive to the officials in the emperor’s service).
JURISTS
In Rome the knowledge of law and its procedure fell primarily on jurists. They were the center of the Roman legal system and influenced the decisions of judges and magistrates, who were not necessarily schooled on jurisprudence. During the Republic, jurists were closely associated with the Roman senate, and most originated from the senatorial class. The jurists’ influence was pervasive in law. They assisted private citizens by drafting legal texts, wills, etc. (cavere), serving as advocates in lawsuits (agere), and giving legal opinion on questions of law submitted to them (respondere).[8]
The role and character of the jurist changed under the reign of Augustus. Imperial backing of the equestrian class assured a rise in equestrian jurists, though most remained of the senatorial class.[9] Whereas in the Republic jurists had a limited capacity in legal authority and legislation, the new princeps gave certain preeminent jurists the privilege of giving their legal opinion ex auctoritate principis – that is, in the name of the emperor.[10] In turn, jurists’ written replies to matters of law (rensponsa) had the force of law.[11] By bestowing on jurists the ius respondendi, or the imperial right to give legal opinions, Augustus ushered in an unprecedented age of classical jurisprudence.
SALVIUS JULIANUS
Among the greatest of Roman jurists was the renowned Salvius Julianus (Lucius Octavious Cornelius Publius Salvius Julianus Aemilianus). Julianus was born around the turn of the second century CE at the village of Pupput, near Hadrumetum, in the province of Africa. Of Roman birth he belonged to a family evidently so distinguished that he was able to enter upon a senatorial career.[12]
Julianus served in a wide variety of senatorial offices under Hadrian, Antoninus Pius, and Marcus Aurelius. His imperial roles included: decemvir stlitibus iudicandis, quaestor Augusti of Hadrian, one of the tribuni plebis, praetor, praefectus both of the aerarium Saturni and of the aerarium militare, consul in 148, pontifex, curator aedium sacrarum, imperial governor of Germania Inferior, imperial governor of Hispania Citerior, and republican governor of Africa.[13]
Julianus acknowledged himself as a disciple under the prominent Roman jurist Javolenus Priscus (Gaius Octavius Tidius Tossianus Javolenus Priscus), who was a member of Trajan’s consilium and head of the Sabinian School.[14] Sabinus Masurius, a Roman jurist of the first half of the first century CE, founded the Sabinian School, which began as a doctrinal school for jurists.[15] There was an unspecified rivalry between the Sabinian School and another school for jurists, the Proculian School.[16] Both schools died out after the death of Salvius Julianus, who was the last recorded head of the Sabinian School. In a measure of his supreme authority, there is no doubt that Julianus’ death allayed the hostility between the schools.[17]
Julianus was a man of high authority and fame among his contemporaries. He enjoyed such repute even at a young age that Hadrian doubled his salary as quaestor Augusti.[18] His most important legal work is his Digesta, organized into 90 books detailing virtually every aspect of civil and praetorian law. It introduced the theory and nature of Roman legalism. The work is preserved mainly in subsequent codes, especially in Justinian’s Digesta and among other works by classical jurists.[19]
Before Julianus was 30 years old Hadrian entrusted him with the revision and rearrangement of the praetorian edict, which secured his enduring and distinguished reputation. To understand the significance of this codification, the role of the praetor and his edict in Roman legalism must be understood and appreciated. To be sure, a systematic revision and permanent rearrangement of a body of precepts is a considerable and serious event.
PRAETORS AND THE PRAETORIAN EDICT
In the early Roman Republic, the office of the praetor was synonymous with the consulship; but in 366 BCE the judicial powers of the consuls were delegated to special officers, each named praetor urbanus. The paramount responsibility of the praetor urbanus was the administration of civil and criminal justice in Rome and in Roman Italy, though he occasionally exercised his right of military command (imperium), and he had the authority to convene the comitia and initiate legislation.[20] Over a century later the proliferation of commerce necessitated the appointment of a second officer, the praetor qui inter peregrinos ius dicit, a title which afterwards was shortened to praetor peregrinus. The praetor peregrinus supervised civil litigation in which one or both parties were foreigners.[21]
In their early capacity, praetors had an enormous sphere of judicial and executive influence (certain praetors were appointed as provincial governors). However, Sullan reforms in the late Republic limited the role of the praetor in executive positions, and after Augustus’ judiciary laws, both the praetor urbanus and the praetor peregrinus were restricted entirely to the administration of private law. In the provinces the former jurisdictional and executive roles of the praetor were consigned to the quaestor.[22]
On entering office, praetors were required to outline the central principles of their jurisdiction and ostentatiously display them in the Roman Forum.[23] In this outline, titled the edictum perpetuum, or simply edict, the praetors declared the steps they intended to take in the implementation of their office. Officially, once the magistrate left his post (usually after one year), the edict ceased to be binding, and the succeeding praetor had a free hand in the matter of his edict; but in practice the successor usually confirmed the previous edict (the edictum tralaticium), only amending what expediency dictated.[24] The right of praetors to alter the edict, no matter how negligible the changes, was a component of their ius honorarium, or magisterial law.
Though the edicts were an important source of law, the praetor was not a legislator. He was unable to formulate or alter the law itself, as could the assemblies in the Republic and the Senate in the early Empire by a lex (statute) or a plebiscitum (ordinance of the people).[25] Consequently the edict did not take the same form of a statute. It consisted mainly of statements detailing how the praetor would carry out his office, and of what he would do in certain legal circumstances. It was in these respects that made it possible for the praetor to influence the laws to such a large degree.
The edict’s advantage over strict statutory code was its expedient and organic nature. Although praetors tended not to alter it greatly, over time, when a procedure became obsolete or unnecessary, it was deleted. Similarly, when a course of action was necessary and an applicable precept did not exist, the praetor revised the edict to provide for the action.[26] Initially the edictum perpetuum was not binding and the praetor could arbitrarily disregard his own principles. Later however, by a lex Cornelia (67 BCE), the praetor was legally bound to his edict, unable by law to modify it while in office.[27]
CODIFICATION OF THE PRAETORIAN EDICT
By the second century CE the edictum tralaticium had accrued to a formidable and arduous size. There were at least two hundred separate provisions in the edict before Emperor Hadrian commissioned Salvius Julianus to codify the edict (c. CE 130), effectively fixing it in permanent form – taking away the praetor’s right to alter it.[28] The praetorian edict was confirmed by a senatus consultum, and all further legislative revisions fell to the emperor.[29]
Why exactly did the codification occur? Ancient sources are silent on the subject, and modern sources deal exclusively on assumptions and conjectures. Certainly it is debatable whether Hadrian intended the codification to be a protective action regarding the edict’s immense size and complexity, or an attempt to stifle the innovative legal abilities of the praetor (ius honorarium).
Many modern authors of law differ in opinion. Rudolph Sohm points out that emperors were well aware that the legal power of the praetor originated from Republican magistrates – offices that emperors found distasteful. “The rising imperial power could not permanently tolerate any rival independent authority.”[30] Thus, Hadrian ordered the codification to suppress the jurisdictional power of the praetors. H. F. Jolowicz offers a more moderate version of Sohm’s theory. He writes that the overarching power of the emperor inherently limited, and was incompatible with, the authority of Republican magisterial offices, including the praetor. Hadrian, in his decision to codify the edict, was simply “bringing the republican form into line with the new realities.”[31]
Incompatibility with the authority of the emperor is not the only rationale given for the codification. The eminent law scholar Sir Henry Maine, on the other hand, believed that the edict’s “immense length” and “disorderly texture” demanded the codification.[32] I have found that most law textbooks concur with Maine in that the edict was merely too large and unwieldy for practical use, so Hadrian had no other choice but to order it written as a final draft (though Kunkel and Tellegen-Couperus do mention the gradual weakening power of the praetor under the Principate).[33]
Hadrian’s own administrative character may prove to be the defining clue into why he ordered the edict to be set into permanent form. He had a cold relationship with the Senate, and distrusted the few remnants of Republican government. While he slowly deserted the already eroding old system of government, he strengthened the new, imperial system. Under his rule, the Equestrian Order obtained a more ennobled status: they secured many civil service positions, and even joined Hadrian’s board (consilium principis).[34] He also appointed judges in place of the traditional role of the Senate, furthering the imperial centralization of the state. It would be consistent with his mistrust of Republican customs that Hadrian ordered the codification of the praetorian edict. Indeed, what better way to limit the powers of the praetor than to deny him the ius honorarium?
Whatever Hadrian’s motives, his decision to order the final revision of the praetorian edict permanently shifted legal initiative to the emperor. As a result, praetors suffered a precipitous decline in power. Now more than ever, jurists, who had been rising in eminence since Augustus’ ius respondendi, played a vital role in the interpretation of Roman law. Their influence on the emperor’s legal decisions was unprecedented, as is exemplified by the codification of the praetorian edict by Salvius Julianus.
--------------------------------------------------------------------------------
[1] Justinian, constitutio Tanta, 18.
[2] Olga Tellegen-Couperus, A Short History of Roman Law (London: Routledge, 1993), 89; Wolfgang Kunkel, An Introduction to Roman Legal and Constitutional History, 2d ed. trans. J. M. Kelly (London: Oxford University Press, 1973), 93.
[3] Rudolph Sohm, The Institutes: A Textbook of the History and System of Roman Private Law, 3d ed. trans. James Crawford Ledlie, B. C. L., M. A. (London: The Clarendon Press, 1940; reprint, New York: Augustus M. Kelley Publications, 1970) (page citation are to the reprint edition).
[4] Henry Maine, Ancient Law (London: The Aldine Press, 1954).
[5] H. F. Jolowicz and Barry Nicholas, Historical Introduction to the Study of Roman Law, 3d ed. (London: Cambridge University Press, 1972).
[6] Kunkel.
[7] Tellegen-Couperus.
[8] Ibid., 60-61.
[9] Kunkel, 109.
[10] Ibid., 107; J. Declareuil, Rome the Law-Giver (London: Trubner & Co., 1927; reprint, Westport: Greenwood Press, 1970), 24 (page citations are to the reprint edition).
[11] Will Durant, The Story of Civilization, vol. 3, Caesar and Christ: A History of Roman Civilization and of Christianity from Their Beginnings to A.D. 325 (New York: Simon and Schuster, 1972), 394.
[12] Oxford Classical Dictionary, 2d ed., s.v. “Julianus (2) Salvius,” by Adolf Berger and Barry Nicholas.
[13] Ibid.
[14] Ibid. s.v. “Javolenus Priscus,” by Berger and Nicholas.
[15] Ibid. s.v. “Sabinus (2),” by Berger and Nicholas.
[16] Alan Watson, The Law of the Ancient Romans (Dallas: Southern Methodist University Press, 1970), 29.
[17] Kunkel, 118.
[18] Ibid., 117; Durant, 392.
[19] OCD, 2d ed., s.v. “Julianus (2) Salvius,” by Berger and Nicholas.
[20] Ibid., s.v. “Praetor,” by Piero Treves and Eastland Stuart Staveley.
[21] Sohm, 73-74; Tellegen-Couperus, 41.
[22] Kunkel, 84-85.
[23] Durant, 393.
Find this article in Hadrian’s Codification of the Praetorian Edict by Salvius Julianus by Jim Safley
Thursday, March 3, 2011
Iniuria useful info for the assignment
Injuria
Article by George Long, M.A., Fellow of Trinity College
on pp637‑638 of
William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
INJUʹRIA. Injuria, in the general sense, is opposed to Jus. In a special sense injuria was done by striking or beating a man either with the hand or with any thing; by abusive words (convicium); by the proscriptio bonorum, when the claimant knew that the alleged debtor was not really indebted to him, for the bonorum proscriptio was accompanied with infamia to the debtor (Cic. pro Quint. 6, 15, 16); by libellous writings or verses; by soliciting a mater familias or a praetextatus [Impubes]; and by various other acts. A man might sustain injuria either in his own person, or in the person of those who were in his power or in manu. No injuria could be done to a slave, but certain acts done to a slave were an injuria to his master, when the acts were such as appeared from their nature to be insulting to the master; as, for instance, if a man should flog another man's slave, the master had a remedy against the wrong-doer, which was given him by the praetor's formula. But in many other cases of a slave being maltreated, there was no regular formula by which the master could have a remedy, and it was not easy to obtain one from the praetor.
The Twelve Tables had various provisions on the subject of Injuria. Libellous songs or verses were followed by capital punishment, that is, death, as it appears (Cic. Rep. iv.10, and the notes in Mai's edition). In the case of a limb being mutilated the punishment was Talio (Festus, s.v. Talio). In the case of a broken bone, the penalty was 300 asses if the injury was done to a freedman, and 150 if it was done to a slave. In other cases the Tables fixed the penalty at 25 asses (Gellius, XVI.10, xx.1; Dirksen, Uebersicht, &c.).
These penalties which were considered sufficient at the time when they were fixed, were afterwards considered to be insufficient; and the injured person was allowed by the praetor to claim such damages as he thought he was entitled to, and the judex might give the full amount or less. But in the case of a very serious injury (atrox injuria), when the praetor required security for the defendant's appearance to be given in a particular sum, it was usual to claim such sum as the damages in the plaintiff's declaration, and though the judex p638was not bound to give damages to the amount, he seldom gave less. An injuria had the character of atrox, either from the act itself, or the place where it was done, as for instance, a theatre or forum, or from the condition of the person injured, as if he were a magistratus, or if he were a senator and the wrong-doer were a person of low condition.
A Lex Cornelia specially provided for cases of pulsatio, verberatio, and forcible entry into a man's house (domus). The jurists who commented on this lex defined the legal meaning of pulsatio, verberatio, and domus (Dig. 47 tit. 10 s5).
The actions for Injuria were gradually much extended, and the praetor would, according to the circumstances of the case (causa cognita), give a person an action in respect of any act or conduct of another, which tended, in the judgment of the praetor, to do him injury in reputation or to wound his feelings (Dig. 47 tit. 10 s5, 22, 23, 24, &c.). Many cases of Injuria were subject to a special punishment (Dig. 47 11) as deportatio; and this proceeding extra ordinem• was often adopted instead of the civil action. Various imperial constitutions affixed the punishment of death to libellous writings (famosi libelli). [Libelli.]
Infamia was a consequence of condemnation in an actio Injuriarum [Infamia.] He who brought such an action per calumniam was liable to be punished extra ordinem. (Gaius, III.220‑225; Hor. Sat. I.1.80; Dig. 47 10; Cod. Theod. ix. tit. 34; Cod. IX. tit. 36; Paulus, Sent. Recep. v. tit. 4; Rein, Das Criminalrecht der Römer, p35, &c.).
find this at: http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Injuria.html
Article by George Long, M.A., Fellow of Trinity College
on pp637‑638 of
William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.
INJUʹRIA. Injuria, in the general sense, is opposed to Jus. In a special sense injuria was done by striking or beating a man either with the hand or with any thing; by abusive words (convicium); by the proscriptio bonorum, when the claimant knew that the alleged debtor was not really indebted to him, for the bonorum proscriptio was accompanied with infamia to the debtor (Cic. pro Quint. 6, 15, 16); by libellous writings or verses; by soliciting a mater familias or a praetextatus [Impubes]; and by various other acts. A man might sustain injuria either in his own person, or in the person of those who were in his power or in manu. No injuria could be done to a slave, but certain acts done to a slave were an injuria to his master, when the acts were such as appeared from their nature to be insulting to the master; as, for instance, if a man should flog another man's slave, the master had a remedy against the wrong-doer, which was given him by the praetor's formula. But in many other cases of a slave being maltreated, there was no regular formula by which the master could have a remedy, and it was not easy to obtain one from the praetor.
The Twelve Tables had various provisions on the subject of Injuria. Libellous songs or verses were followed by capital punishment, that is, death, as it appears (Cic. Rep. iv.10, and the notes in Mai's edition). In the case of a limb being mutilated the punishment was Talio (Festus, s.v. Talio). In the case of a broken bone, the penalty was 300 asses if the injury was done to a freedman, and 150 if it was done to a slave. In other cases the Tables fixed the penalty at 25 asses (Gellius, XVI.10, xx.1; Dirksen, Uebersicht, &c.).
These penalties which were considered sufficient at the time when they were fixed, were afterwards considered to be insufficient; and the injured person was allowed by the praetor to claim such damages as he thought he was entitled to, and the judex might give the full amount or less. But in the case of a very serious injury (atrox injuria), when the praetor required security for the defendant's appearance to be given in a particular sum, it was usual to claim such sum as the damages in the plaintiff's declaration, and though the judex p638was not bound to give damages to the amount, he seldom gave less. An injuria had the character of atrox, either from the act itself, or the place where it was done, as for instance, a theatre or forum, or from the condition of the person injured, as if he were a magistratus, or if he were a senator and the wrong-doer were a person of low condition.
A Lex Cornelia specially provided for cases of pulsatio, verberatio, and forcible entry into a man's house (domus). The jurists who commented on this lex defined the legal meaning of pulsatio, verberatio, and domus (Dig. 47 tit. 10 s5).
The actions for Injuria were gradually much extended, and the praetor would, according to the circumstances of the case (causa cognita), give a person an action in respect of any act or conduct of another, which tended, in the judgment of the praetor, to do him injury in reputation or to wound his feelings (Dig. 47 tit. 10 s5, 22, 23, 24, &c.). Many cases of Injuria were subject to a special punishment (Dig. 47 11) as deportatio; and this proceeding extra ordinem• was often adopted instead of the civil action. Various imperial constitutions affixed the punishment of death to libellous writings (famosi libelli). [Libelli.]
Infamia was a consequence of condemnation in an actio Injuriarum [Infamia.] He who brought such an action per calumniam was liable to be punished extra ordinem. (Gaius, III.220‑225; Hor. Sat. I.1.80; Dig. 47 10; Cod. Theod. ix. tit. 34; Cod. IX. tit. 36; Paulus, Sent. Recep. v. tit. 4; Rein, Das Criminalrecht der Römer, p35, &c.).
find this at: http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Injuria.html
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