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.