- The role of the Praetors
After the expulsion of the Kings, full executive powers were vested in the Consuls. In 367 B.C. the first Praetor was appointed to carry out those duties of the Consuls which involved civil jurisdiction. In 242 B.C. a Praetor Peregrinus was appointed. The Praetor Urbanus originally had jurisdiction over Roman citizens; the Praetor Peregrinus had jurisdiction in cases involving foreigners. In addition to their judicial powers the Praetors possessed imperium, which included powers of military command and of summoning the Senate.
- The Edict
+ The imperium of the Kings did not include the power to legislate; hence the imperium transmitted to the Consuls and Praetors did not include the power to make laws. But the power of the Praetors in administrative matters manifested itself in the issuing of important administrative regulations which, in time, came to include the provision of certain remedies at law.
+ At the beginning of the Praetor's term of office he published his Edictum Perpetuum in which was set out the procedure which would govern his administration. The Edictum Perpetuum consisted of:
. Edictum Tralaticium (that part of his predecessor's Edict which he intended to carry over and use).
. Edictum Novum (new administrative regulations).
Note: An Edictum Repentinum was a special administrative order published for a particular occasion.
+ The Edict included all recognised causes of action, defences, formulae for actions and other types of remedy.
+ Lex Cornelia de Edictis (67 B.C.) prohibited the Praetors from varying or departing from an Edictum Perpetuum.
+ The Praetor could grant an actio in factum in a case for which his Edict did not provide a suitable action.
- The Edict and the Development of Law
In three important ways the Praetors, through the Edicts, developed the Roman Law:
+ By emendation of the ius civile (emendandi gratia), e.g. the granting of bonorum possessio to a person who was not, in strict terms, an heir.
+ By supplementing the ius civile (supplendi gratia), e.g. the granting of legal protection to peregrini (aliens or foreign residents, as opposed to Roman citizens).
+ By creating auxiliary remedies (adjuvandi gratia), e.g. the granting of actiones utiles.
Note:
. The Praetor played a very important part in the creation and operation of the Formulary system.
. Other significant examples of Praetorian innovation can be seen in Praetorian Interdicts and the remedy of restitutio in integrum.
- Decline of the Praetorian Edict
By the time of the Principate the Edicts were tending to remain unchanged. In A.D. 130 Salvius Julianus, a jurist (and Praetor-designate), was commissioned by Hadrian to consolidate the Edicts of the Praetors and the Curule Aediles. His work became known as the Edictum Perpetuum. The Edictum Perpetuum was used in the centuries which followed as a basis for commentaries which themselves extended the equitable principles of Roman Law.
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- Roman Law: Historical background
+ Periods in the history of Roman Law
+ Roman political history (I): The period of the Kings
+ Roman political history (II): The period of the Republic
+ Roman political history (IV): The period of the Empire
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Source:
Roman Law, L. B. Curzon, pages 10 - 11.
