The legacy of the praetor continued
The previous thrilling episode (see legacy of the praetor) ended with the work of the praetor at the beginning of the second century BCE, when his work was largely confined to extending existing remedies to also utilise them in new situations that the old, strict and formal ius civile had not anticipated.
Shortly before this time, a second praetorian office was created, and the original official was henceforth referred to as the praetor urbanus (the city praetor – bearing in mind that as far as the Romans were concerned, there was only one city: Rome), while the newly created official was referred to as the praetor peregrinus (the praetor for foreigners). This development was necessitated by the large number of non-Romans present in Rome due to the city now being a international port of trade, with foreign merchants and also large numbers of slaves from virtually every portion of the then known world present within the city. As indicated in the previous write-up, the foreigners had no access to the ius civile, not being Roman citizens.
Because the Romans were essentially a tribe of people who idolised the principle of rationality and order, they necessarily developed a system which would also accommodate the foreigners. The office of the praetor peregrinus did exactly that. From 242 BCE this official dealt with the administration of justice in the case of disputes between foreigners, as well as disputes arising between Romans and foreigners. Obviously, in the latter situation, a remedy needed to be found that would solve the problem is a way that would not utilise the ius civile, as this was not available to the foreign litigant. The result was that the praetor peregrinus utilised what was referred to as the ius gentium (the law of other (according to Roman thought, there were only Romans and “others”) nations). Essentially, the pr. peregrinus would formulate a remedy using the laws of the countries of the litigants, and attempt to fashion an equitable, reasonable solution to their dispute.
We discussed briefly the notion of the edicts of the praetores previously. More must be said about this instrument here. Initially, a praetor would issue an edict at the inception of his year in office, stating which remedies he (and it could never be a woman, as only men were eligible for public office) intended to make available for which types of situations. More often than not, this was probably based on the advice of a predecessor who would inform the incumbent praetor of difficulties he had experienced during his term of office. This edict came to be known as the edictum annuum, i.e. the edict for the year. This meant that at the end of the particular year, the edictum annuum ceased to have any function, resulting in the remedies that were made available through it, ceasing to be available. As a consequence, the practice developed for the new praetores (there now being at least two (the number varied through the years, sometimes as many as twelve or even more being elected), the urbanus and the peregrinus) to simply take over the edict of his predecessor (called an edictum tralaticium = the edict taken over form the previous official) with such additions as he thought were appropriate or desirable for his year in office. Thus the edict became what was referred to as the edictum perpetuum (the perpetual edict). In this way, the equitable changes effected by one praetor became part of the entire system of Roman law. The praetorian edict in the form now of virtually a law, was ultimately referred to as the ius praetorium (the praetorian law), and formed the basis of the ius honorarium (the law as created by the various honorary magistrates, the praetor not being the only official that created law, although he was the most important official in this respect). In fact, in 67 CE the praetor was prohibited by a lex Cornelia from deviating from the edict in any way, thereby rendering the praetorian perpetual edict law of general application.
The praetorian law became a very useful and important instrument of law, due to the day to day use of these edicts. Students of law then started to study the praetorian edicts, and began writing comments and opinions based on the praetorian law and how it was applied by the courts. Ultimately in 130 CE the emperor Hadrian ordered the jurist Salvius Iulianus to compile the entire body of praetorian law into a single body of law. Little is known about how the compilation was done. It is probable that contradictory bits of law were removed and the entire body of praetorian law streamlined by also removing repetitions and redundant bits and pieces. This was called the Edictuum Perpetuum (as opposed to an edictum perpetuum), and the magistracy was obliged to follow it, not being allowed to change or add to it as they were previously entitled to do. This was necessary in order to create a system of law that could be used as a standard, and to obviate situations of arbitrary application of law.
The value of the praetorian law lies particularly in the fact that it incorporated the equitable applications of various different nations’ legal thought and philosophy, and created a body of law that was eminently suited to the international character of the Roman society, which at the height of the empire, included almost the entire known world. During the golden age of Rome, estimates of the population of the city, while often varying to a large degree, place the population at as much as 2, 000, 000 people, of which more than half would have been non-Romans. This of course changed when in 212 CE the emperor Caracalla extended Roman citizenship to all the inhabitants of the empire, which effectively rendered the office of the peregrine praetor redundant. Later, towards the end of the middle ages, when commerce between the various European kingdoms, duchies and countries expanded once again, the entire body of praetorian law as it had been at the fall of the Roman empire, again came into use, to form the basis of the European ius commune, being a body of law that was ready-made for use by merchants and traders from countries and areas with different laws and regulations in respect of trade and commerce. In this way, the equitable basis of Roman law was incorporated into the law of the low lands (Holland, in particular) and came to be exported to the rest of the world including South Africa, Sri Lanka, and also parts of the USA, which in several states initially had a legal system based on the Roman-Dutch law of the sixteenth and seventeenth centuries. But that, kind hearts and gentle souls, is a story for another day.