Roman Law and the Legal World of the Romans

11. Civil Procedure EEE

I f someone says the word “law” to you, the first things likely to come to your mind will include “courts” and “tri als.” Arguably, that is a distorting view, and the law has its greatest effect less directly – when people know how to follow the rules on their own without direct enforcement or judgment, as in a game of pick-up football. Still, even that situation proba bly could not exist without at least the possibility of formal tri als, and courts are one of the most distinctive features of what we would recognize as a “legal” system. This chapter will dis cuss the procedure in what we usually call Rome’s “civil” courts (the actual Latin word is “private”), where the vast majority of cases were heard. Criminal (literally “public”) procedure will be treated in Chapter 19. I will begin by discussing the set of rules used during most of our period: the so-called formulary procedure. Then I will treat more briefly its predecessor (the legis actiones ) and a partial successor (called cognitio ). While this chapter is about procedural rules, not the sub stantive law discussed in most of the rest of this book, I should make one substantive point here. Since the civil and criminal courts operated under very different rules, I need to give a

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