2Preview Summons Formulary procedure Stages in the civil procedure PraetorEdictFormulaProcedural contractTrial
3SUMMONSIn the classical law a summons for a lawsuit was performed privately: a person would find his opponent or his opponent’s representative and bring him before the magistrate
4THE FORMULARY PROCEDURE Forms of action were described precisely, which gave the law continuityIn an individual case, the forms could be altered and assembled in different ways to create a specific statement of issuesThis altering and assembling of forms was performed by a judicial magistrate
5STAGES IN THE CIVIL PROCEDURE 1. In jure, before a magistrate, the praetor, charged with administering justice. The magistrate determined whether the litigants should be allowed to proceed and, what form their action should take2. In judicio, before a judge, a private individual who need not have been a lawyer - trial
6PRAETORAn elected magistrateCommander of an armyProvincial governor
8THE EDICTThe magistrate needed a scheme for determining which claims would be allowed to proceedA long list containing the lawsuits to be allowedThe edict - individual entries describing actions that could be granted
9The EdictIf the litigant’s circumstances did not match any of the entries, he might persuade the magistrate to invent a new claim and allow it to go before a judgeIf the magistrate accepted, he might incorporate the new claim in the edict for future cases
10JUDGEThe judge did not hold office but was appointed for service in a single case, and selected personally by the partiesHe had no special qualifications other than his wealthA private individual who conducted the trial without guidance from the state
11CONSEQUENCESA lay judge needed detailed written instructions at the outsetHis conduct of the trial and his judgement was of no enduring importance to the legal system
12INSTRUCTIONSThe final expression of the law in a given case was the set of instructions that the magistrate gave to the judgeThe parties’ pleadings, containing their allegations
13INSTRUCTIONSThe allegations had to satisfy the requirements of the law as determined by the magistrate, they came into the judge’s hands in a form that permitted relief under the law
14InstructionsThe single most important item in the lawsuit, far more important than the judgementThe core of the dispute: what a party had to show in order to win
15FORMULAEThe instructions – prepared according to formulae, composed of “specially prepared phrases”Each formula – divided into parts, and each part had a particular functionVery few actual formulas survived
16A FORMULA FOUND NEAR POMPEII, 1ST CENTURY AD “Blossius Celadus shall be the judge. If it appears that C. Marcius Saturninus ought to give 18,000 sesterces to C.Sulpicius Cinnamus, which is the matter in dispute, C. Blossius Celadus, the judge, shall condemn C. Marcius Saturninus for 18,000 sesterces in favour of c. Sulpicius Cinnamus; otherwise he shall absolve”
17Procedural contractThe parties undertook to abide by the judge’s decision and the judgement was binding
18THE TRIALThe trial took place in the forum, an open space used at first as the market place but later used chiefly for judicial proceedings
19TrialSpeeches with introduction of evidence, speeches followed by evidence, or a speech for the plaintiff, a speech for the defendant, then evidence on each side, then speeches by way of summing up; or evidence followed by speeches on each side
20PRINCIPLES OF PROCEDURE 1. The principle of party representation2. The principle of publicity: public participation acts as a restraint of abuses of procedure3. The principle of orality, closely related to the principle of immediacy
21THE PRINCIPLE OF IMMEDIACY Preserves the integrity of a judgement by ensuring that arguments and evidence are put to the judge in the most direct manner possibleOne-day rule: pleading, proof, argument and judgement must take place on the same day, the judgment being given before sunset
22THE PRINCIPLE OF IMMEDIACY If judgement cannot be given before sunset, the case must begin anew on another day, with at least some of the events of the previous session being repeatedA judge should have a vivid picture of the case in mind and thereby be less liable to make a mistake
24In jure Purpose: to frame the issues to be tried, To appoint a judex; hearing to decide whether the action should be allowed to the plaintiffFormulaProcedural contract
25In judicio Trial Speeches Evidence Forum Principles of party representation, publicity, orality, immediacy
26Legal termsPerson asking relief against another person in civil proceedings:plaintiff, claimantPerson who is sued in a civil action: defendantThe written, preliminary settlements of the matters at issue in a dispute that are exchanged between the parties before the trial:pleadings
27Legal termsTryto hear civil or criminal trial; voditi sudski postupakTrialThe hearing of a civil or criminal case before a court of competent juridiction. Trials must, with rare exceptions, be held in public; suđenjeHearingAny appearance of a case before a court, including trial; ročište, saslušanje, rasprava
28Legal terms Undertake To promise to do something; obvezati se Abide by If you abide by a law, agreement, or decision, you do what it says you should do; respectBindTo make someone obey a rule o keep a promise (bound; binding)
29Legal terms Arbitrator A person not concerned with a dispute who is chosen by both sides to try to settle it; izabrani sudacarbitration; arbitrate
30Put the verbs in brackets into appropriate forms Since the days of the Law of the Twelve Tables, developed during the early Republic, the Roman legal system _________(characterize, passive) by a formalism that _______(last) for more than years.
31Put the verbs in brackets into appropriate forms Early Roman law _______(draw, passive) from custom and statutes, but later during the times of the empire, the emperors ______(assert) their authority as the ultimate source of law.
32Put the verbs in brackets into appropriate forms Their edicts, judgments, administrative instructions, and responses to petitions _____(collect, passive) with the comments of legal scholars. "What _____(please) the emperor has the force of law." As the law and scholarly commentaries on it ______(expand), the need _____(grow) to codify and to regularize conflicting opinions.
33KeySince the days of the Law of the Twelve Tables, developed during the early republic, the Roman legal system was characterized by a formalism that lasted for more than years.Early Roman law was drawn from custom and statutes, but later during the times of the empire, the emperors asserted their authority as the ultimate source of law.
34KeyTheir edicts, judgments, administrative instructions, and responses to petitions were all collected with the comments of legal scholars. "What pleases the emperor has the force of law." As the law and scholarly commentaries on it expanded, the need grew to codify and to regularize conflicting opinions.
35Supply the missing words: consequences, fairness, flexibility, form, principles, procedures witnessesThe basis for Roman law was the idea that the exact____, not the intention, of words or of actions produced legal____. Romans recognized that there are _____ to actions and words, but not to intentions. Roman civil law allowed great _____in adopting new ideas or extending legal ____in the complex environment of the Empire. Without replacing older laws, the Romans developed alternative ____that allowed greater ______.
36action, flexible, invalid, property, testament For example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his____, the magistrate would grant them an ____ to have the will declared ____ as an "irresponsible____." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by ____adaptation.
37Code, collectively, emperor, publish, ruled It was not until much later in the 6th century AD that the ____Justinian I, who ____ over the Byzantine Empire in the east, began to ____a comprehensive ____ of laws, ____known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.
38KeyThe basis for Roman law was the idea that the exact form, not the intention, of words or of actions produced legal consequences. Romans recognized that there are witnesses to actions and words, but not to intentions. Roman civil law allowed great flexibility in adopting new ideas or extending legal principles in the complex environment of the empire. Without replacing older laws, the Romans developed alternative procedures that allowed greater fairness.
39KeyFor example, a Roman was entitled by law to make a will as he wished, but, if he did not leave his children at least 25 percent of his property, the magistrate would grant them an action to have the will declared invalid as an "irresponsible testament." Instead of simply changing the law to avoid confusion, the Romans preferred to humanize a rigid system by flexible adaptation.
40KeyIt was not until much later in the 6th century AD that the emperor Justinian I, who ruled over the Byzantine Empire in the east, began to publish a comprehensive code of laws, collectively known as the Corpus Juris Civilis, but more familiarly as the Justinian Code.