The legacy of the praetor
Certainly one of the richest legacies of the Roman legal tradition, is the beauty of the adaptiveness of the system of law Rome created. In saying this, I wish by no means to belittle the enormous contribution Rome made to western civilisation in the form of the awesome body of law the Romans created. Many countries still follow the Roman tradition and in fact still apply law that has come down through the European ius commune, through canon law from the original Roman law. What is intended, is to make the point that the great lesson from the Roman legal tradition for us today, is the supple adaptiveness the Romans showed in applying what could easily have stagnated and become a very rigid and unbending system, to a society that changed and required the law and its application to adapt as well.
Roman law started out as a system that catered only for the original Latins, a small community settled around what is now Rome. In this sense the law was rigid, paternalistic (literally giving the male head of the household the power of life and death (ius vitae necisque) over his entire household), formal and of a highly ritual and religious nature. The law of the XII Tables (lex duodecim tabularum; originally there were ten tables, two being added later) was promulgated in approximately 451 or 450 BCE, and made provision for those situations that are important for a small agrarian community. As may be expected, this piece of legislation contains short commands, and rules. It was not an extensive dissertation of law and legal precepts.
Necessarily, as the community expanded, and particularly as the Latins succeeded in occupying more territory and subjecting the surrounding tribes, it became necessary to adapt both the law(s) and the functioning of the system of law. Originally, Roman law only applied to, and could only be used by, Roman citizens. For this reason, the original Roman law was referred to as the ius civile (the law applying to citizens). Foreigners (peregrini) could not avail themselves of the remedies Roman law provided. At the same time it must also be borne in mind that foreigners could not own land in Italy, and neither did they have access to the highly formalistic and ritualistic forms of contracting (either sale or marriage etc) such as mancipatio (which was only available to Roman citizens, and required at least five male witnesses, all above the age of puberty and in good standing in the community).
The result was that in or about 363 BCE the popular assembly (comitia centuriata voting in contione) created the office of the praetor. Intially only available to patricians, but later also to plebeians, this office was an honorary magistracy tasked with regulating the administration of justice. Although this official had certain functions in respect of criminal law, most of what we would today consider “crimes” were dealt with under what we today regard as civil remedies, i.e. between one person and another without the intervention of the state. Although vested with the full imperium (power) of the state, the praetor was the subordinate colleague of the consul, substituting for the consul in the latter’s absence, and even commanding the army when necessary. The praetor had a specific job, though, and that was to see to the proper functioning of the legal procedure and regulate the process.
The function of the praetor was to assist litigants in their quest for justice, within the bounds of the originally highly formal system of Roman law. This system functioned on the basis that where the law made available a remedy for a specific wrong committed against you, you could approach the court for assitance in having the grievance redressed. Absent a remedy, you were left without recourse. The principle was contained in the maxim ubi remedium, ibi ius (literally: where there is a remedy, there is a right to recourse). The praetor was neither lawmaker, nor judge. The result was that someone would sometimes suffer a wrong at the hands of his neighbour, but without a prior remedy being available, leaving him without any assistance. The praetor was vested with the capacity to interpret the available remedies and in appropriate cases to extend their availability to situations that formerly may not have had remedies. As an example: suppose the law made available a certain remedy if someone cut down another’s vines. If it now happened that instead of your vines, it happened to be a tree that was cut down there was technically no remedy available to you. The praetor could, if he thought he could properly extend the remedy, make the remedy in respect of the vines, available in the case of trees being cut down.
This the praetor did by virtue of his ius edicendi, literally the right to issue edicts. These “edicts” differed from our understanding of an edict, in the sense that all the praetor could decree, was that a particular remedy would, for the term he held office (always only a year), also be available to persons who suffered a particular form of damage at the hands of another. The praetor was not vested with the capacity to create new remedies or to enact laws. He could only extend the application of an existing law or its remedy. In this sense, the praetor was an official with substantial power, because effectively he was the official who decided whether a matter would be brought to trial before a judge or not, by either recognising the claimant’s right and the remedy attached to it (iudicium dare = granting the claimant the right to ask a judge to adjudicate the matter) or he could deny the claimant his access to the remedy (iudicium denegare).
The extension of remedies was part of the function of the praetor in order to give effect to his mandate to facilitate, supplement and improve the ius civile as expediency demanded.