Roman Civil Procedure: Historical Stages and Legal Actions
Roman Civil Procedure IV Item 20: Origin and Evolution
It is used for a legal act. Throughout history, this defense has undergone an evolution. The first defense that existed was vis (force), i.e., that people lived in tribes for defense. In a second phase, the defense was fas (right of sacral origin); rituals were established, and some struggles had to meet strict standards. Soon, this defense became outdated. Strict rituals disappeared, but some remained.
These issues and defenses were divided into two distinct areas:
- Criminal Sphere: It is the law of retaliation; there is a legal composition.
- Civil Sphere: The evolution is different because it is necessary to prove the existence of rights.
Initially, civil problems were solved by the Papacy. The Twelve Tables established a procedural process; they were vestiges of self-defense. Self-defense was removed in the Republican era. From the Twelve Tables, when a person has a problem, they use a procedure. Use a first actio (formalities) and a second one, iurisdictio.
1 – Historical Stages
- Legis Actiones: Used from the 5th century BCE to 7 BCE. Ordo Iodiciorum Privatorum.
- Per Formulas: From the 2nd century BCE to the 3rd century CE.
- Extraordinem: From the 1st century CE until the end of the Roman Empire, it was named the official cognitio.
Between the ordo procedure and the official cognitio, there were several stages. There are differences regarding subpoenas; the ordo did not have citations, and the officer is made in the scriptures. In the extraordinem procedure, there can be a trial about a person who is not present. In the first two, if the second person is not given, it is considered a failure of attendance. The procedure is the relationship linking one part to another. There are different kinds of procedures:
- Civil: Civil crimes
- Penal: Public offenses are public and private. The private initiates an individual and is decided by a private judge. The audience starts a magistrate.
The procedure begins through an actio.
2 – The Actio: Class Action
It is the legal means to achieve recognition of a person’s rights. In Rome, every law is an action, and if there is no right, a means is given to achieve it. Actions are different:
- Actio realis, personalis, and mixta: It is real when a person is defending something that is theirs. It is personal when a person claims that another person should have appropriate behavior. Mixed when a person asks you something and to give both a person has a specific behavior.
- Actiones vindicationes: They are real actions.
- Condictio: Rights are strictly personal. The strict legal actions are those in which the judge can only condemn those who pleaded, not one more or one less.
- Actiones in bonam fidem: It takes into account a circumstance that a person…
- Actio civilis: Devised by the ius civile.
- Actio honoraria: It is conceived by the ius honorarium.
- Perpetua: Which has no expiration date.
- Temporalis: Those that do have an expiration date.
- Directa: The one for which it was created.
- Utilis: Granting to such a situation.
- Ficticia: Those in which something is pretended.
- Actiones in rem scripta: Personal action but has a real impact. Example: If an animal breaks something else, the owner of the animal is responsible.
3 – The Concept of Imperium and Iurisdictio
Exercise for the administration of justice. From 367 BCE, this power was the urban praetor, who grants or denies the action when a procedure begins. The action exerted by a judge is one or is delegated to an actio. Secondly, it is to be applied right (ius dicere). Thirdly, the judge appointed a woman judge and gave an order of adjudication. These words derive from the fas, and words are good and bad days that may or may not hold a trial. The fatality rate for granting and denying actions varied depending on the policy of the time.
The court is of two types:
- Contentious: When two people are facing each other.
- Volunteer: No clashes, and parties have come to a mutual agreement to declare to the judge.
People who had jurisdiction were: Aedilis curulis, some judges, urban praetor, praetor peregrini. The judges must have the competence to participate in a particular act. It serves the will of the parties; no agreement will go to local courts, and it is in the defendant’s domicile, where the object of theft or crime scene is. It is often done in the forum of the day, and Latin makes individuals. Judges are appointed for each process; they had great importance because they made a current list of who could be judges. Within the list, the parties have the power to choose the judge, and when chosen, the praetor appoints them. The judge is appointed within the process.
4 – The Parties and Their Representatives
In this procedure presented to a judge, the parties are: the complainant, who is the acting party, and the defendant, who denies the allegations. The parties must have standing, the ability to understand a process, and legitimacy. First, the paterfamilias, after Latinos, and finally, the pilgrims were those who could attend the trial. Besides these parties, more auxiliary parties may act; litigants are acting because they have something of interest in the matter. Besides all these parties, some representatives can go to trial.
In Legis Actionem, in the absence of such representation, they are supported only in specific cases, for example, when acting on behalf of the people, when claiming the freedom of a person, or when acting on behalf of an absentee (pro populo, pro libertate, ex lege Hostilia). There are two kinds of representatives:
- Cognitor: An agent that acts whenever it suits one party; the appointment is made by the opposing party and sacred word. The verdict is in favor or against the cognitor; whether representing the plaintiff, the action runs. But if the defendant is the one who appointed the cognitor, the same respondent said that the cognitor will speak for him.
- Procurator: A person who acts on trial for failure to do the main part, a person who is absent. If it acts on behalf of the applicant, it does not exhaust the action; then, the procurator has a guarantee that the defendant will not return to testify (cautio de rato), and the procurator of the guarantee that it will respond like the defendant (satisdatio iudicatum solvi).
5 – Iurisdictio Voluntary: Its Contraposition with the Iurisdictio Contentious
In classical times, there is a distinction between voluntary and contentious. The differences are:
- The place and time where the proceedings are held; it is held on an auspicious day, either in the forum or at the polls.
- Presence of lictors; they must be present in the contentious, but they may not be in the volunteer.
- In the territorial district, in contentious circumstances, specific competencies are established. In the volunteer, it can be done in any constituency. There is a difference in handling; the volunteer remained actionem legislative procedure; in contentious, it is the procedure per formulas.
A judge cannot delegate to the litigation if the voluntary can delegate. The judges can act on the voluntary part of these people (the consul, interrex), anyone with imperium in non-contentious.