Lecturer: Miljen Matijašević Session 2, 19 Mar 2014

1. Roman Civil Procedure 2. The Passive - practice

Unit 11

Work in pairs to answer the following questions: 1. What is Roman Law? 2. Why is Roman Law studied still today?

 the period covers roughly 1,000 years, from cca 449BC to 530AD  starting and ending with principal legal documents: ◦ the Law of the Twelve Tables ◦ the Corpus Juris Civilis

 continued to be applied in some form in European countries formerly part of the Empire, but also in others  however, underwent changes through centuries  brought about the development of the continental civil law system, which is in place still today in the vast majority of European countries

 another legacy of Roman law ◦ law developed as a science  emergence of jurists – legal scientists  jurists gave legal opinions, assisted in drafting legislation, provided legal advice to individuals and those in charge of administering justice, developed legal concepts (contract, tort, legal action, public and private law, etc.)

The Law of the Twelve Tables  the first legal text of which there is any record  conceived by the patricians as the first legal code to be applied against the plebeians  regulated rights and obligations with regard to civil procedure, debt, family relations, marriage, inheritance, property, torts, funerals, crimes and constitutional principles  the original text not preserved

The Law of the Twelve Tables  not a complete and coherent system of rules, but a set of provisions amending the existing customary law  its aim was to prevent magistrates from applying the law in an arbitrary way  mostly pertains to civil procedure and private law

Corpus Juris Civilis (‘Body of Civil Law’) , Byzantine Emperor Justinian I  brings order into the mass of Roman law  compiles Roman constitutions, statutes from the republic and the early empire, and decrees issued by the Senate

Corpus Juris Civilis (‘Body of Civil Law’) , Byzantine Emperor Justinian I  also includes simplified legal writings by Roman jurists, and  ordinances issued by Justinian during his reign

KEY PERSONS INVOLVED  magistrate – a civil officer with executive and judicial powers  praetor – a type of magistrate with varying duties, among which to adminsiter justice (judicial magistrate)  judex, judices – a private person appointed to hear and determine a case (corresponding to a modern referee or arbitrator appointed by the court); in later Empire – an official  proctor – a person appointed to represent a party, similar to attorney

 a two-stage procedure ◦ a preliminary hearing (in jure) ◦ the trial (in judicio)  the content of the stages changed slightly with time

STAGE ONE – in jure  plaintiff presents a case before a magistrate (praetor)  praetor decides whether action should be allowed  if allowed – issues to be tried are framed and judices (triers) appointed for the ‘in judicio’ stage

STAGE ONE – in jure  the praetor approved the formula written by the plaintiff’s proctor  the formula included the legal remedy which was to be ordered by the judex if the case was decided in favour of the plaintiff  the plaintiff could have been made to alter the contents of the formula  in any event, the defendant had to agree to the formula before the procedure could continue in judicio

 procedural contract – the parties agreed to abide by the decision of the judex  in later empire ◦ judex an official, not a lay person ◦ no formal procedural contract ◦ some issues not tried but taken for facts based on the oath of a party

 speeches and presentation of evidence  orators speak on behalf of each party  a party could also speak for themselves  this stage took place in the forum

Still later, basilicas ……… around the forum ……… for the trial of civil cases, while state trials ……… to be held in the forum. Literally, the word basilica means a royal hall, i.e. a hall in which the king sits to do justice. As the matters coming before tribunals ……… more complicated and as permanent judges ……… to sit in them, the old open air trials ……… obsolete and the trials ……… in a basilica.

 Rewrite the following sentences so that they start with the words printed in red. The rewritten sentences must also be in passive voice.

1. It was allowed that the praetor settle the formula or set of instructions to the judex. 2. It was expected that the court refer some particular point to the oath of a party, leaving other issues to be tried. 3. It was claimed that the orators frequently made separate set speeches. (Perfect!) 4. It was believed that the court was tired by going over the same ground. 5. It was proved that the proceeding in judicio took place in the forum. (Perfect!)

Thank you for your attention!