Roman Law and the Legal World of the Romans

Civil Procedure

instance, there was also an earlier procedure involving a so called legis actio (“action at law”), which was largely replaced, but not entirely abolished. From a modern point of view, the outlines of a trial under the legis actio procedure were broadly similar to those of a formulary trial. The main difference lay in the formality of the in iure proceedings. Instead of hear ing both sides and composing a (relatively novel) formula , the praetor and the parties followed specified scripts using fixed phrases. Each of these phrases was designed to be used in a specific circumstance. (In English we would probably describe them as “formulaic,” if that did not run the danger of con fusion with the Latin term for the later type of instruction.) A case could not be brought if it could not be expressed in one or another of these fixed phrases, and even a legitimate cause would fail if those words were spoken incorrectly. These scripts fell into several general forms, but the most important one took the form of a bet backed up by an oath on the matter at issue. The changeover to the formulary system is not well understood. It is generally thought to have occurred around 150 bc and probably did not happen all at once. Formulas were certainly introduced around that time, but it is not clear when (if at all) any parts of the legis actio procedure were formally abolished (as opposed to simply ignored). We do know that as late as the middle of the second cen tury ad legis actiones were still occasionally used in special circumstances.

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