Roman civil law principles and history

Roman Law

The Praetor is commonly described as the gatekeeper of common sense in the Roman legal system. Discuss. Was he effectively a legislator?

The position of praetor was developed to create a new, more flexible system of law that could be more responsive to the needs of a dynamic and increasingly complex Roman society. The praetor was a magistrate of the people and was technically not a legislator. He could not create legal precedents that other praetors must follow when he issued his edicts. However, unlike the actions of a judge in America, whose edicts must conform to the laws passed by the congress, the results of the praetor's rulings were both legally protected and could provide a guide for interpreting existing and future laws, and were based largely upon his own personal judgment. The precedents set by the current praetor's predecessor were not binding upon the rule of the succeeding praetor. Still, the acts of the former praetor often provided a guide and thus a kind of de facto, if not de jure system of precedent was created in praetorial law.

To create an image of impartiality and to set the tone for his administration, much like a legislator, a praetor, on assuming office would announce the principles, particularly the new principles that would govern his decisions. According to the Encyclopedia Britannica's entry on "Roman Law," "In place of the legis actiones," the praetors often used the formulary system, whereby "a formula, like a legis actio," would act a device for determining the issue between the parties; but instead of being a mere interchange of prescribed speeches, it provided a structure for discussing the actual dispute. Whichever method was used, when the nature of the dispute was agreed upon, the parties brought their case before the judex, a private functionary, who considered the evidence and gave judgment." ("Roman Law," Answers.com, 2006) For the first time in Rome, an adversarial and inquisitorial, or interactive system of justice was created -- judges acted as fact-finders and the parties in a dispute acted as advocates for their cause. The praetors were thus intimately involved in the administration of justice, perhaps even more than a legislator, as the praetors got to know all of the persons at the heart of the dispute, and the specific facts of the issue under discussion.

As the civil law tradition began to develop in Rome, a system of praetoric law also began to emerge that was used to supplement or correct the rigidities inherent in the earlier system of Roman law. Praetoric law was based upon practice, not upon theory, hence the idea that the praetor was the arbiter of common sense in the Roman judicial system. Also, because the praetor was not technically responsible for setting the law of the land, he could be more responsive to the needs of specific situations and extenuating circumstances that other members of the judicial system.