Roman Law and the Legal World of the Romans

Roman Law and the Legal World of the Romans

Cognitio

Over the course of the Empire, a third and more distinct system arose and eventually displaced the formulary system. Today this is generally called cognitio ; the term is a Latin word for “inquiry, inquisition,” and it perhaps did not have quite as specific a technical sense at the time. Under this procedure, the distinction between in iure and apud iudicem hearings was eliminated. Instead, the same government official organized the case, heard the arguments, and rendered judgment. The iden tity of the official(s) involved varied over time as the structure of the imperial government evolved. Originally, it might be a praetor or even a consul (at least in hearings on certain topics), but the system did not really take off until they were replaced by new officials created by and answerable to the emperor. At any rate, this official not only combined the old roles of the magistrate and iudex , but also could (if he wished) take a more active interest in a given case than either had under the old sys tem – for instance, questioning the parties on his own initia tive. Also, in complicated cases, issues could be decided one at a time, rather than trying to resolve a complicated formula all at once. Conversely, issues that arose only in mid-trial could be taken into account, since the judge was not bound by a formula composed beforehand. During some periods officials authorized to exercise juris diction might themselves appoint deputies to hear cases, and in any case always operated as subordinates of the emperor. The existence of a hierarchy created the possibility for appeal that

118