Praetor's Edict
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The Praetor's Edict ''(Edictum praetoris)'' in ancient
Roman law Roman law is the system of , including the legal developments spanning over a thousand years of , from the (c. 449 BC), to the ' (AD 529) ordered by Eastern Roman emperor . Roman law forms the basic framework for , the most widely used legal s ...
was an annual declaration of principles made by the new ''
praetor Praetor ( , ), also pretor, was the title A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some langua ...
urbanus'' – the elected magistrate charged with administering justice within the city of Rome.Such Edicts were also issued by the ''Praetor peregrinus'' and by the
Aediles Aedile ( ; la, aedīlis , from , "temple edifice") was an elected office of the Roman Republic. Based in Rome , established_title = Founded , established_date = 753 BC , founder = King Romulus , image_map = M ...
.
During the early Empire the Praetor's Edict was revised to become the Edictum perpetuum.


Legality

The incoming Praetor by his
Edict An edict is a decree or announcement of a law, often associated with monarchy, monarchism, but it can be under any official authority. Synonyms include "dictum" and "pronouncement". ''Edict'' derives from the Latin wikt:edictum#Latin, edictum. N ...
laid out legal principles he intended to follow when making judicial decisions during his year in office. To some degree the new Praetor had sufficient discretion to modify the existing Edict of the former Praetor. Many years the new Praetor would simply adopt and so continue the contents of Edict he "inherited" from his predecessor. Praetors often did not possess any special expertise in law, but rather were successful politicians. So, in deciding whether or not to augment or otherwise modify the Edict, the new Praetor would usually consult with Roman jurists who were familiar with the applicable areas of the law, and who knew the emerging currents of legal change. Language from the
responsa ''Responsa'' (plural of Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the ...
of these Roman scholars of
jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. ...
often found its way into the Edict. The Praetor's Edict had legal force only during the incumbency of the particular Praetor who issued it. Yet, as the pre-existing contents of the ongoing Edict were generally adopted by next Praetor, the Edict attained substantial continuity, subject to marginal changes. On the other hand, the yearly changes usually resulted in welcome legal innovations. With the accretion of annual modifications, the document grew in stature, as well as in size, scope, and reach; it became a primary source of legal growth and evolution. In 67 BCE, a ''lex Cornelia de edictis'' passed, which required the Praetor to abide by his own Edict.


Contents

The reconstructed Edict we have today is divided into five parts: I preliminary procedures, II ordinary remedies, III summary remedies, IV execution of judgment, V formulas, interdicts, exceptions, stipulations. Also the Edict has 45 titles, with some subdivisions, and 292 paragraphs. Many paragraph entries contain only the subject matter addressed, without any of its substance (which is unknown to us). While much is considered authentic, uncertainties and unresolved disputes remain for further study. Much is missing.


Example quotations

Several miscellaneous examples taken from the reconstructed Edict:
"Persons under twenty-five years old. Whatever is said to have been transacted with a person less than twenty-five years old, I shall consider each case on the basis of its particulars." Paragraph 41, in the first part, from title X "Restorations to Original Status".
"Whence anything is thrown out or is poured out onto that place where commonly is made a road or where persons assemble I shall grant an action, for twice as much damage as thereby is caused or done against the person who dwells there." From paragraph 61, in the second part, from title XV "Those Goods That Are in Anyone's Property".
"The institorian action. Whatever is transacted with an agent in respect to that thing for which he is appointed, against the person who appoints him I shall grant an action." Paragraph 102, in the second part, from title XVIII "Whatever Business Is Transacted with a Shipmaster or an Agent Who Is in Another Person's Power".
"Whoever hides for the purpose of defrauding his creditors, if he is not defended according to the judgment of an honorable man, I shall order his property pursuant to the edict to be possessed, to be advertised for sale, and to be sold." Paragraph 205, in the fourth part, from title XXXVIII "Those Causes for Which a Person Enters into Possession".
"As you now possess certain land about which there is the present action, which land the one party has procured from the other party neither by violence nor secretly nor by precarium, in such manner you shall possess it. Against these conditions, I forbid violence to be employed." Paragraph 247a, in the fifth part, from title XlIII "Interdicts", from subdivision vi "Interdict on as you possess".


Reconstruction

The Edict we have now has been reconstructed from various sources, mainly from juristic commentaries on it, such as that of
Furius AnthianusFurius Anthianus (or possibly Furius Anthus) was a jurist, jurisconsult of ancient Rome of uncertain date, though probably not later than the period of the emperor Alexander Severus,Pierre Fran Besier, ''Dissertatio philologico-juridica inauguralis d ...
. Because of its great importance, the Praetor's Edict, or portions of it, often became the subject of detailed examination and study, in the course of which the specific content of the Edict would be described or quotations would be made directly from it. Of course, much of the literature of the ancient world has been lost, the works of Roman jurists included. Those juristic works that do survive usually come from the latter, or classical, period of Roman Law. Accordingly, most of the Edict we have now is based on the content of the Edict revised in AD 129 by Hadrian (see below). How much and in what fashion and degree this Edict of Hadrian's reign differs from the earlier Praetor's Edict of the Roman Republic are questions that may only be addressed by informed speculation.


Formulary procedure

An important aspect of the Praetor's Edict concerned formulary procedure. During the late Republic, the trial at civil law increasingly employed formulary procedure. In this process, the Praetor first determines the legal issue in a pending case. Then the Praetor decides on a prescriptive formula which instructs what remedy will be appropriate depending on what facts are found. Then the Praetor assigns the case to a ''
iudex A judge is a person who presides over court proceedings, either alone or as a part of a Judicial panel, panel of judges. A judge hears all the witnesses and any other Evidence (law), evidence presented by the barristers or solicitors of the cas ...
'' for trial. After the facts are determined at trial, the ''iudex'' gives judgment according to the formula. The Praetor's Edict contained many different principles of law, often drawing on prior legal rulings. Besides the trial formulas, it also regulated procedural matters, such as the initiation of a legal suit. In time, such sample formulae became listed by the Praetor in his Edict issued at the beginning of his term of office.


Influence

As later summarized by the Roman jurist
Papinian Aemilius Papinianus ( grc, Αἰμίλιος Παπινιανός; 142 CE–212 CE), simply rendered as Papinian () in English, was a celebrated Roman jurist A jurist is a person with expert knowledge of law; someone who analyses and comm ...
(c. 148–211), the law that was developed by the Praetors in their Edict became an instrument which could supplement, explain, and improve the
Ius civile Roman law is the legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is de ...
. He writes:
"Praetorian law (''jus praetorium'') is that which in the public interest the praetors have introduced in aid or supplementation or correction of the ''jus civile''. This is also called honorary law (''jus honorarium''), being so named for the high office (''honos'') of the praetor."
Thus, the Praetor's Edict developed into an important vehicle for the evolution of Roman civil law. A great deal of commentary was written by jurists concerning this "praetorian law" or ''ius honorarium'', addressing the legal principles contained in this Edict.


Edictum perpetuum

Eventually, the above discretion allowed the ''Praetor urbanus'' regarding his Edict was no longer considered appropriate. Accordingly circa CE 129, action was taken that severely restricted its further modification. Under the emperor
Hadrian Hadrian (; la, Caesar Traianus Hadrianus ; 24 January 76 – 10 July 138) was from 117 to 138. He was born into a Roman Italo-Hispanic family, which settled in Spain from the Italian city of in . His father was of senatorial rank and was ...

Hadrian
(r. 117–138), the celebrated jurist
Salvius Julianus Lucius Octavius Cornelius Publius Salvius Iulianus Aemilianus (c. 110 – c. 170), generally referred to as Salvius Julianus, or Julian the Jurist, or simply Julianus, was a well known and respected jurist, public official, and politician who serve ...
made a formal revision to the ''Praetor's Edict'' as well as to similar edicts, e.g., that of the
Aediles Aedile ( ; la, aedīlis , from , "temple edifice") was an elected office of the Roman Republic. Based in Rome , established_title = Founded , established_date = 753 BC , founder = King Romulus , image_map = M ...
. This newly edited and consolidated version of the edict then became fixed, subject only to changes approved by the Emperor: hence, the ''Edictum perpetuum''.Johnson, Coleman-Norton, Bourne at 182–204.


See also

*
Edict An edict is a decree or announcement of a law, often associated with monarchy, monarchism, but it can be under any official authority. Synonyms include "dictum" and "pronouncement". ''Edict'' derives from the Latin wikt:edictum#Latin, edictum. N ...
*
Praetor Praetor ( , ), also pretor, was the title A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some langua ...
*
Salvius Julianus Lucius Octavius Cornelius Publius Salvius Iulianus Aemilianus (c. 110 – c. 170), generally referred to as Salvius Julianus, or Julian the Jurist, or simply Julianus, was a well known and respected jurist, public official, and politician who serve ...
*
Ius civile Roman law is the legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is de ...


Notes


References


Citations


Bibliography

*Adolph Berger, ''Encyclopedic Dictionary of Roman Law'' (New York: Philosophical Society 1953). * A. H. J. Greenidge, ''The Legal Procedure of Cicero's Time'' (Oxford: The Clarendon Press 1901; reprint 2000). *Johnson, Coleman-Norton, Bourne, ''Ancient Roman Statutes'' (Austin: University of Texas 1961). *H. F. Jolowicz and Barry Nicholas, ''Historical Introduction to the Study of Roman Law'' (Cambridge University 1932; 3rd ed. 1972). *
Otto Lenel Otto Lenel (13 December 1849 – 7 February 1935) was a Germany, German Jewish jurist and legal historian. His most important achievements are in the field of Roman law. Life and career Otto Lenel was born in Mannheim, Germany on 13 December 1849 ...
, ''Das Edictum perpetuum. Ein Versuch zu seiner Wiederherstellung'' (Leipzig 1907
3rd ed. 1927
reprint: Aalen 1956, 1974, Frankfurt am Main 2008). * Fritz Schulz, ''History of Roman Legal Science'' (Oxford University 1953). *Alan Watson (legal scholar), Alan Watson, ''Law Making in the Later Roman Republic'' (Oxford University 1974). {{Refend Roman law Edicts