Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

required to put up security (like bail in modern criminal cases) to guarantee their appearance in court. Three important features of the formula can be noted imme diately. First, the praetor does nothing to decide which side is right. Rather, he is trying to extract the legally relevant details of both sides’ positions and put them into a single instruction. Second, the terms of the formula are much more general than in a modern charge to a jury. (The example just given is quite typical.) This could give a certain amount of discretion to the trial court, but its main effect was to empower the jurists who “interpreted” the formulas. Finally, while the formula would typically be constructed from elements in the Edict, the praetor could in theory make up a novel one on the spot, especially if a genuinely new situation arose. The judge who actually heard and decided the case was neither an elected official (like the praetor) nor a legal profes sional (like most American judges). A single judge was the norm in most cases, though if certain issues were at stake (cer tain inheritance questions, for instance), multiple judges (called recuperatores or centumviri ) heard the case and decided it by majority vote. In the rest of this chapter I will speak only of the single-judge procedure, since the rules were otherwise the same. The judge could be chosen in different ways. The praetor had a list of adult men who met the qualifications to serve, and the parties could take turns rejecting potential judges they did not want. These qualifications included wealth, free birth and Roman citizenship, and “good character.” Whoever was left became the iudex . Or, if the parties could agree on a judge in

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