Download judex

UNIT 11
Roman Law
&
Roman Civil Procedure
History of the Roman civilisation
- from the City of Rome to the fall of the Eastern Empire
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753 BC – the City of Rome was founded – the Roman
Kingdom
509 BC – The Roman Republic was established
(Early Republic – 509 – 123 BC:
Late Republic – 123 – 23 BC)
27 BC - Ancient Roman Empire was founded (Augustus the first emperor) – 23 BC extended powers
285 AD - Division into Western and Eastern Roman
Empire (Byzantine Empire)
476 AD - Decline of the Western Roman Empire
1453 AD – Decline of the Eastern Roman Empire
Roman Law
= the law of ancient Rome from the time of the founding of
the city in 753 BC until the fall of the Western Empire in the
5th century AD
 remained in use in the Eastern, or Byzantine, Empire until
1453
 as a legal system, Roman law has affected the development
of law in most of Western civilization as well as in parts of the
East
 forms the basis upon which the law codes of most countries
of continental Europe rest (eg. German Civil Code)
Law of the Roman Republic and
Empire - Sources
 customs and usage
 legislation - most laws were passed by assemblies
dominated by patrician families
 edicts and proclamations issued by magistrates (rulings
of magistrates were important)
 laws issued by the emperor – (later emperors issued
their own decrees)
 interpretations of jurists (had the force of law)
Influence on the English legal
system
 ancient Roman rules never had the force of law in
England
 Roman Law was taught at Oxford and Cambridge
 some substantive rules, concepts and ways of reasoning
based on the Roman legal tradition influenced the
English legal system
Law of the Twelve Tables
 the earliest and most important legislation enacted in 451–450BC
during the struggle of the plebeians for political equality
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written by 10 commissioners at the insistence of the plebeians, who
felt their legal rights were hampered (court judgments were rendered
according to unwritten custom preserved only within a small group of
learned patricians)
 in 450 the code was formally
posted, likely on bronze
tablets, in the Roman Forum
Law of the Twelve Tables
 originally 10 laws were drafted and 2 later statutes were added
(prohibiting marriage between classes and affirming the binding nature of
customary law)
 - promoted the organization of public prosecution of crimes
 - instituted a system in which injured parties could seek just compensation
 justice was no longer based solely on the interpretation of judges
 the text of the code has not survived, and only a few fragments collected
from allusions and quotations of Cicero (numerous matters were treated,
among them family law, delict (tort, or offense against the law), and legal
procedure)
Corpus Juris Civilis (“Body of
Civil Law”)
 the collections of laws and legal
interpretations developed under
the sponsorship of the Byzantine
emperor Justinian I from ad 529
to 565 AD
 the most successful effort to
gather and simplify the existing
laws beginning with the Law of
the Twelve Tables – formed the Roman Empire’s legal legacy
 not a new code the old law + the new law - Justinian’s committees of
jurists provided two collections of past laws (classical period) and
extracts of the opinions of the great Roman jurists + an elementary
outline of the law and a collection of Justinian’s own new laws
Corpus Juris Civilis (“Body of
Civil Law”)
Comprises:
1.
Codex Constitutionum (revised) – selected and adapted imperial
constitutions
2.
Digesta (the Digest) – simplified and digested writings of jurists
3.
Institutes – a complete exposition of the elements of Roman law–
based on the Institutiones of Gaius - used as manual for jurists
4.
Novellae Constitutionem (the Novels) – new constitutions –
Justinian’s ordinances issued between 534 and 565 AD
 basis for the law which was in force in parts of Europe long after the
fall of the Roman Empire – but not in its original form
 interpreted, developed, and adapted to later conditions
 received additions from non-Roman sources
Roman Civil Procedure
Republic / Early Empire
 lawsuits in two stages
 plaintiff called the defendant to court or brought him by force;
presented his case in person; defendant had to accept it –
contractual element
 plaintiff had the ‘burden of proof’
 a magistrate then decided whether the case should go before a
judex, or prominent layman
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judex heard arguments from advocates and questioned witnesses;
he made a decision but had no power to execute it
 the trial ended with procedural contract
 judex = a private person appointed to hear and try a particular case
as an arbitrator
Roman Civil Procedure
- the earliest law suits (legis actiones)– conducted
orally in 2 stages
1 IN JURE
2 IN JUDICIO
(preliminary stage)
(actual presentation of evidence)
 before the magistrate / praetor ; a
very formal procedure
 framing the issue
 appointment of judex or judices
 a hearing to determine if
a)
the plaintiff has a case
b)
action should be allowed to the
plaintiff
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proctor settled the formula /
instructions to the judex
 before the trier (judex) or
triers
 in the forum; no formal rules
 trial ended with a procedural
contract (commitment of the
parties to abide by the
judgement)
 speeches, forum, evidence,
witnesses
SUMMONS
 In the early period plaintiff personally summoned the
defendant and brought him before the magistrate –
governed by the Twelve Tables
Table I.
1. If anyone summons a man before the magistrate, he must go. If the
man summoned does not go, let the one summoning him call the
bystanders to witness and then take him by force.
2. If he shirks or runs away, let the summoner lay hands on him.
3. If illness or old age is the hindrance, let the summoner provide a team.
He need not provide a covered carriage with a pallet unless he
chooses.
FORMULA – a set of instructions to the judex settled by
proctor (pleadings of the parties and directions to the
judge) ; composed of special phrases
Essential parts
A) intention – concise formulation of the plaintiffs claim
B) condemnatio – directions to the judge how to
condemn the defendant if he found after hearing the
evidence and the arguments for the condemnation
(otherwise he should acquit)
Roman Civil Procedure
Late Empire
 plaintiff submitted written statement of his defence
 no formal procedural contract
 judex = a state official
 court could refer some point to the oath of a party (settlement)
 only the unsettled issues were tried
 much greater power in the hands of the magistrates and courts; the
summons was issued by the court; the trial was held only before a
magistrate; the court became responsible for the execution of the
sentence
 the contractual element in procedure and the old two-stage division
disappeared
 speeches held by orators (usually up to 4 for each party – points
divided)
 parties could speak on their own behalf
MAGISTRATE in Roman law = executive officials (consuls, praetors,
quaestors-financial officers, proconsuls-provincial governors, censors); civil
officer administering the law
PRAETOR =
elected judicial officer, magistrate who presided over civil
matters (the office was created in 367 BC to take over the expanding work
involving citizens; elected yearly with the consuls)
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responsible for public games
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in the absence of consuls exercised authority in the government
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issued edicts concerning judicial procedures
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at various times the number of praetors varied
(late Republic -8 praetors – praetor urbanus heard civil cases; praetor
peregrinus handled suits which involved foreigners )
-
late Roman Empire – most praetors disappeared
JUDEX = a judge; a private person appointed in Roman law to hear cases and
give judgements– an arbitrator
Reading comprehension I
Read the text in the book and use the information from
exercise 1, p. 53 in the given table and fill in the table.
IN JURE
IN JUDICIO
Reading comprehension II
Answer the following questions.
1 What were the differences in the civil procedure between the
Republic/the early empire and the later empire?
2 Why was “formula” such an important document?
3 What was the significance of the procedural contract?
4 How could evidence be introduced?
5 What is a forum?
Essential vocabulary
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ordinance = uredba, propis, zakon
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formula= pismeni prikaz slučaja i
prijedlozi mogućih pravnih posljedica –
settle the formula
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edict= proglas
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decree=odredba, uredba, ukaz
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procedural contract=procesni ugovor
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to pass/pronounce/render /give a
judgement=donijeti presudu
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to seek just compensation=tražiti
pravednu odštetu
to execute a decision/sentence= provesti
odluku/kaznu
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the Roman empire’s legal legacy=pravno
nasljeđe Rimskog carstva
execution of a decision/sentence=
provedba odluke/kazne
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to interpret, develop and adapt
=tumačiti, razvijati i prilagoditi
to submit a written statement=predati
pismenu izjavu
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judex (pl. Judices) = osoba koja
presuđuje, sudac
to abide by the contract=pridržavati se
ugovora
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praetor=pretor (najviši rimski državni
dužnosnik u području sudstva)
to refer a point to the oath of the party=
postići nagodbu za neki problem
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unsettled issues = neriješena pitanja
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proctor=proctor, odvjetnik
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arbitrator=izabrani sudac, arbitar
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to issue summons= izdati sudski poziv
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frame the issue=formulirati predmet
spora
to try – trial – trier = suditi, suđenje,
sudac/osoba koja odlučuje
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an oath = prisega
Who is who in the Roman Civil
Procedure?
praetor/superior
magistrate
a judge; a private person appointed in
Roman law to hear cases – an arbitrator
judex
a judge
proctor
(1) a civil officer administering civil law
(2) military commander (governor)
trier
one that by profession or special
authorization manages another’s affairs in a
court of civil or canon law
Latin terms
- match the Latin terms with their English equivalents
Latin term
English equivalent
legis actiones
in judgement
in jure
civil law
in judicio
judex (judices)
in right, law, or justice; in
court
judge
jus civile
Body of Civil Law
Corpus Juris Civilis
legal action
Collocations
-
match verbs and nouns
to render
a written statement
to frame
by the result of the
submission
an issue
some particular point to
the oath of a party
justice
a judgement
to submit
to abide
to refer
to administer