What is praetor law in Roman law? To understand this, one should consider in what period of Roman history it appeared, who is praetor, what are its powers. And also get acquainted with the system of Roman law: civil, praetor, the law of peoples.
Who is praetor?
The word "praetor" in Latin means "going ahead, leader." That was the name of one of the important government posts in ancient Rome. Its content has changed several times over the centuries. After the abolition of tsarist rule, dictators and consuls, the two highest magistrates, were called praetors.
From the second half of the 4th century BC, the highest official became known as the consul, and the second as the praetor. His competence began to include the administration of justice in the civil affairs of the city. When the consul was absent, the powers of the first person passed to the praetor. It was during this period that praetor law began to take shape in Roman law.
From the middle of the III century BC. e. there were already two praetors. One of them, the city, was in charge of the processes that were conducted between the citizens of Rome. And the other - conducted cases relating to disputes between the Romans and foreigners or between foreigners.
What is the point?
Praetor law in Roman law is a special type of private law that gradually developed in the period from the 3rd to the 1st century BC. It was based on the norms developed in the course of the activities of the praetors relating to the civil procedure, as well as other judicial magistrates.
Prior to this, the primitive Roman private law was civil law, based on the rules of the XII tables and comments on them. Later formed the right of peoples - common to the entire Roman population of different nationalities. It regulated the relations between Roman citizens and the fences and at first consisted of international treaties. Later it became necessary to establish the position of Praetor Praetor, as mentioned above. After all, civil law did not extend to foreigners. Over time, the norms of these two industries began to converge, which was the merit of praetors.
In Roman law, civil law and praetor law differed in particular in that the praetors did not have a legislative function. But they had inherent broad procedural powers, and they were engaged in creative activities. This ultimately made it possible to change the substantive norms of both civil and foreign law, to make them more successful, more flexible, less formal.
Further development
In a particular way, praetor's lawmaking intensified from the middle of the II century BC. e., when the praetor formula was introduced in Roman law. This was a new civil procedure. As before, it went through two stages. The first proceeded directly from the praetor or from any other judicial magistrate. The second is with the judge whom they appointed.
At the first stage, the substantiation of the claim took place, when the defendant submitted his objections. It was not the duty of the praetor to verify the factual circumstances of the case. He provided this to the judge, he himself only assessed the validity of the claim, and decided whether the defendant's objections deserved attention.
Then he worked out for the judge a “formula” - an obligatory instruction, following which he had to conduct the trial. From this came the name “formulary process”. The praetor pointed out exactly what circumstances would facilitate the consideration of the claim, and in what situation it would be denied. And this is regardless of the rules of civil law, even if, in accordance with them, the relations in question were to be protected.
Other remedies
In addition to remedies in the form of a claim, there were also means of praetor protection in Roman law.
Praetors could use:
- Interdict.
- Restitution.
- Stapulation.
- Introductory possession.
An interdict is an order of the praetor in which he pointed out the need to terminate any actions conducted in violation of the rights of Roman citizens. Their praetor published certain civil cases at the investigation stage. Most often, they concerned collateral and fines and were subject to immediate execution. Next, we consider in more detail first the types of interdict.
Varieties of interdict
Praetor interdict in Roman law was divided into such types as:
- Simple, touching only one side.
- Bilateral, which was facing two disputing sides.
- Forbidden - forbade behavior or actions (for example, a ban on violating the boundaries of ownership).
- Restorative, prescribing to restore a destroyed building, which was public, or to return a thing to a person.
- Representative - demanded immediate presentation of the person to the praetor.
Restitution
Consider the last three types of praetor interdictions mentioned in the previous section. One of them is restitution.
Restitution is a return to the original state of things. The praetor used this method when it was impossible to use the rules of common law or when the praetor believed that this would not be fair.
The grounds for applying restitution are:
- Minor age of any of the parties.
- The absence of one of the parties on a temporary basis (for example, being held captive).
- Implementation of a transaction in the presence of a threat.
The conditions of restitution include:
- The fact of causing damage.
- The presence of one of the above grounds.
- Timeliness of the application for restitution.
Stipulation and ownership
Another type of praetor interdict is stimulation. This is a person’s promise, given in the presence of a praetor, to take certain actions. For example, transfer ownership or ownership.
Types of stimulation include:
- Adjusting the proper conduct of disputes.
- Extrajudicial incentives.
- Ensuring the process without any obstacles.
In conclusion, let's say about the introduction of ownership. This type of praetorial interdict was used in lawsuits related to the law of succession. The praetor performed such an action as “bringing the heir into possession”, that is, he actually declared him the heir.
Law of obligations
An obligation is a complex legal relationship, the parties of which are the creditor and the debtor. And its content is the rights and obligations of the entities participating in it. The one who has the right to demand is the creditor, and the one who is obliged to fulfill the demand is the debtor. The lawyer Modestin believed that the debtor is the one with whom it is possible to recover under the law against his will.
The subject of an obligation is always an action that has legal significance and gives rise to legal consequences. Roman jurists divided obligations into those arising from contracts and those resulting from tort. There were significant differences between them. The former always passed to the heirs, and the latter only in rare cases.
The means of their implementation was the lawsuit and enforcement, which was guaranteed by the state. The binding sanction, that is, the legal consequences of violations, is reflected here. Personal lawsuits were used to protect obligations. The creditor was able to present the obligation only to the obligated, but not to the third party. This was the main difference between personal claims and real ones, which gave absolute protection.
Civil and Praetor Obligation in Roman Law
According to the principle of origin of legal protection, obligations were divided into civil and praetor.
- Civil obligations were those that were recognized by civil law, were based on its norms.
- Praetor established the praetor in accordance with the praetorian law. In Roman law, they were created and defended by his claims and were temporary. Their action was limited to the reign of a particular praetor. Some of the norms were gradually introduced into civil law.
Praetor Edict
As one of the highest magistrates, the praetor had the right to convene public meetings and submit bills. He could also command the army when he was called upon to do so. In addition, the praetor law in Roman law provided for the publication of edicts upon his assumption of office, as well as the publication of interdict orders. They were binding and enforced by strict sanctions.
The edict was binding on the magistrate who published it, and acted for one year. That was the term of the praetor. But in practice, every newly appointed official, issuing his edict, in accordance with the established tradition, retained that part of the edict of his predecessor, which he assessed as reasonable and reasonable.
At the same time, the praetors were not entitled to cancel or suspend the application of legislative norms. This was the prerogative of the popular assembly. In special cases, a resolution of the Senate was called, which was called the "Senate Consult." However, the praetor could “compensate” for the impossibility of repealing the law by issuing an edict, which was a rather effective means. Moreover, they have very rarely resorted to the repeal of the law and without much hunting.
Throughout its term of office, the praetor had the right to make additions and changes to edicts issued by him. In their form they were procedural, that is, they were related to claims that the praetor admitted to the defense.
Influence of copyright law
The narrowing of the praetor law-making activity began to be observed during the transition to the empire. Instead of praetor’s edicts, emperor’s decrees called “constitutions” and senate decrees began to appear.
In the 2nd century AD, Emperor Hadrian ordered the famous Roman lawyer Julian to publish a set of praetor edicts. It was called the “permanent edict”, since the immutable edicts that entered it became one of the most important sources of Roman law for several centuries.
The influence of praetor law was especially felt in the development of such institutions as property, ownership, inheritance, and contracts. At the same time, Roman law changed without breaking its forms, but its nature changed. The parallel existence of civil and praetor law lasted until the VI century AD, in which the codification of Justinian took place . In it, both systems, united, were transformed into classical Roman law.