Litigation

Metzger, E. (2015) Litigation. In: Johnston, D. (ed.) The Cambridge Companion to Roman Law. Series: Cambridge companions to literature. Cambridge University Press: Cambridge, pp. 272-298. ISBN 9780521895644 (doi: 10.1017/CCO9781139034401.018)

Abstract

The Romans resolved civil disputes by recourse to litigation based on law. Litigation was guided by formal procedures which underwent reform by statute, praetorian innovation, and imperial enactment. The earlier procedures depended to a high degree on the initiative of the plaintiff and the cooperation of the defendant. The later procedures depended to a greater degree on the power of the courts to compel obedience. Surviving Evidence of Civil Procedure Our understanding of Roman procedure relies on diverse sources, none of which is satisfactory on its own, and even taken together are only adequate. Physical evidence has been lost with time, but the problem is deeper. The Romans did not reflect on their procedural law in the way they reflected on their private law. They did not linger over modes of pleading or representation. If a rule of procedure was unfair or inappropriate, it was mended without a view to the system of litigation as a whole. This prevented the Romans from appreciating that their procedural law had a tradition and an evolution, and that there was something to be learned from studying older law. The result is that the Romans treated old rules as if they were old newspapers. Justinian’s compilation and the Theodosian Code are sources for the procedure of late antiquity, but scarcely for the earlier forms. Justinian was particularly ruthless: rules that had fallen out of use were either discarded by the compilers or altered to be fit for re-promulgation. Occasionally the compilers performed these tasks clumsily and the shadow of some earlier law makes itself known through an artless interpolation. But what we miss in Justinian, in strong contrast to his treatment of private law, is even a cursory discussion of old and new law side by side.

• Item Type: Book Sections
• Keywords: Roman law
• Status: Published
• Glasgow Author(s) Enlighten ID: Metzger, Professor Ernest
• Authors: Metzger, E.
• College/School: College of Social Sciences > School of Law
• Publisher: Cambridge University Press
• ISBN: 9780521895644

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