6 - Litigation

Summary

The last three chapters have been concerned with substantive law: the rules which governed everyday life and its transactions. But, in the end, the question whether a person enjoys a particular right comes down to whether he or she is able to enforce it in practice. This is where the issue of procedure, of litigation, is important. The first section of this chapter gives a sketch of the workings of the various Roman civil procedures in the classical period; to a large extent this is confined to the bare facts. The second section then attempts to draw out the significance of the procedural rules for the vindication of rights in practice, and also deals briefly with access to the courts and legal representation.

CIVIL PROCEDURE IN THE CLASSICAL PERIOD

Formulary procedure

The standard classical civil procedure is known as the formulary system, for reasons which will become obvious. It was neither the first nor the last of the Roman civil procedural systems, but it held sway for most of the classical period; the writings of the leading jurists were written in connexion with it; and to some degree they depend on understanding it.

Characteristic of formulary procedure is that it took place in two stages, the first before the praetor, the magistrate charged with the administration of justice, and the second before a judge. To initiate civil litigation a plaintiff had to obtain a formula from the praetor, which encapsulated the essence of the dispute. This could be done only in the presence of the intended defendant, since the defendant too had to have some say in what was included in the formula.