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IUS CIVILE

&
IUS HONORARIUM

The ius civile and the ius honorarium


had and still have an important role in
Roman law.

We can start with


the

IUS CIVILE

Historical introduction
III century BC

BEFORE
The ius civile
was based on
custom or
legislation and
it applied
exclusively to
Roman citizens.

AFTER
The ius civile was
developed by the
Romans to be
applied both to
themselves and to
foreigners.

The ius gentium was not the result of legislation, but


was, instead, a development of the magistrates and
governors who were responsible for administering
justice, in cases in which foreigners were involved.
The ius gentium became, to a large extent, part of
the massive body of law that was applied by
magistrates to citizens, as well as to foreigners, as a
flexible alternative to ius civile.

The law that the magistrates applied probably


consisted in three elements:
1. an existing mercantile law that was used by the
Mediterranean traders;
2. those institutions of the Roman law that, after being
purged of their formalistic elements, could be applied
universally to any litigant, Roman or foreigner;
3. in the last resort, a magistrates own sense of what was
fair and just.

This system of ius gentium was also adopted when Rome


began to acquire provinces so that provincial governors could
administer justice to the peregrini .
This word came to mean not so much persons living under
another government as Roman subjects who were not citizens.

The most important jurists who founded the ius civile are:

Publius Mucius,
Brutus &
Manilius

as

Pomponio said.

Pomponio

He believed that the ius civile had more


ancient origins and especially Pomponio
locateS in the activity of these three
lawyers full maturation of the scientific
method of jurisprudence, from which
they would eventually developed the ius.
The special exhibition of the collections
of their responses and interpretative
rules they made meant that their works
could be used even later from the
righteous, from whom they had
authority.
The judgment of Pomponio is then the
expression of a particular conception of
the jurist of his era, which identifies the
same ius civile in the product of scientia
iuris.

Another author who talks about the ius civile as


well as Pomponio is definitely
Cicero,
dealing with constituent elements, according to
his own interpretation.

He treats of components of
the ius civile in terms of
rhetorical distinction between
divisio and partitio and in
terms of the different
technique for the purposes of
the definition of a particular
concept.

Cicero

The divisio involves the identification of a genus


abstract conceptand its subdivision into species.
The proceeding of the partitio regards to dividing a
unit into its constituent parts all hired as entities
and all essential.

EXAMPLE
He invoked the image of the limbs of a human body; they are
divisible into head, limbs, trunk, but do not constitute a body
and does not perform the same function if not compounds in
that particular collection. In turn the body cannot exist in his
perfect structural configuration if one of its parts.

Then these premises, we analyse at first


individual parts listed by Cicero, in order to
clarify the concept of ius civile that results from
it.

LEGES
It does not offer any particular problems with the heading of
leges, that during this period we should consider including of
plebiscites.
The analysis of the procedure for the formation and enactment
of laws not the specific subject of this course, so we simply
remember that the so-called leges plebiscita rogatae and
constitute, after the codification of the XII Tables, the only
normative source general of ius civile, but are in very small
number and govern very limited areas of private law.

SENATORIAL CONSULTS
Major issues can envisage the mention of Senatorial consults,
especially if you want to assign to this same general regulatory
value of pars leges.
It is well known that throughout the period of the Republic the
Senate had no power to legislate in the proper sense, since it was
not within its competence to issue rules with General value
designed to regulate the conduct of all citizens.
The difficulty is overcome easily if one considers instead the overall
size of ius civile, in which the intervention is mediated ' of the
Senate is very frequent, through its advisory powers, extending to
all activities of prosecutors, and that will undoubtedly affect the
same training laws and edicts of the magistrates.

RES IUDICATAE
The speech is more complex in relation to res iudicatae.
If we take into account the fact that the text of Cicero does
not give a list of ' sources of law ' as appropriate procedures to
establish binding rules in the context of sorting, but these are
the components of the ius civile seen in the collection of all
elements which are included in its process of formation, the
problem ceases to be that of the value of ' binding ' of
judgments , to move to the question of the practical impact
that the res iudicatae could have in determining the overall
ius, and what relationship they should be considered with
other factors, such as auctoritas prudentium, mos, aequitas.

Topica
&
Rethorica ad Herennium

Topica
The reference to res iudicatae in the Topica has clearly a
different value from that which you can locate other sources of
speech, in which they are considered in terms of the evidence
inartifciales such as exempla, and reviewing the criteria for
the most effective quote from them before the judge to
influence their decision.

Rethorica ad Herennium
The fact that a judge or a magistrate has previously uttered in a
sense in connection with a similar case can be used to persuade
the judge in front of which we discuss to rule Similarly; to this
end, the citation of the exemplum will be all the more useful and
effective the more similar are the two cases that decided
previously and that still to be decided, the more they will be close
in time, and the more authoritative and prestigious was the
judge, or the Court or the magistrate from which the previous
decision; even more effective will be the mention of a large
number of judgments of the same content, especially if you know
that the opponent does not have the possibility to oppose a
number equal to or greater than the opposite content rulings.

All though, as mentioned above, testifies to the res iudicatae


were frequently used in judicial practice, as ' proof ' of a
certain way of posturing of the previous law, and that there
could be a tendency for judges to follow rulings particularly
numerous or influential, if they believed that the case had to
decide was similar.

In the vision of Cicero in fact the judgments are among the


components of the right as their relevance is confirmed by
custom, similarly to what happens also for the content of the
edicts of magistrates, for fairness or agreements between
private people.
From sources, it is clear that, while the single sentence does
not entail any change in the civil law, a series of rulings that
conform, especially if supported by an authoritative court
and lawyers ' opinion, can involve the introduction of a new
legal principle, whose strength derives from customary law.

EXAMPLE
The restriction of freedom of establishment in respect of
testamentary heirs, implemented in part through equitable
solutions of the Tribunal of the centumviri and from whose
judgments he derived the rule sui heredes aut instituendi sunt
aut exheredand : in fact in the judgments of the Court of the
centumviri was stated consistently the principle that, where the
son was ' preterite ', that is not mentioned in any way, the will, to
equitable reasons, had to be considered ineffective.
The popular cause curiana, which tells Cicero, created a '
previous' of great importance for the prevalence of an
interpretation time to focus the will of the testator in relation to a
literal application of the words contained in the will.

We can continue with


the

IUS HONORARIUM

The changing meaning of IUS CIVILE in relation to the term


that is contrasted here has its clear confirmation. In fact, here,
where the term is contrasted IUS HONORARIUM, the meaning
of ius civile is to be such as to also include the "ius gentium", in
so far as this is made up of common rules at the various peoples,
such as those affecting to slavery or tradition, or customary rules
in fate relations with foreigners, and not rather by foreign rules
implemented only by the magistrates with their particular
methods of proceeding such as those on foenus nauticum.
Symmetrically we saw before the expression ius civile power, as
opposed to" ius gentium ", also include the" ius honorarium "in
cases where it was applicable only to Roman citizens.
In ius civile" was, therefore, a more or less wide margin of
fluctuation.

IUS CIVILE vs IUS HONORARIUM


The difference between ius civile and ius honorarium was
both structurally clearer and less significant in practice than
that between ius civile and ius gentium.
It was more pronounced, because the ius honorarium, unlike
the ius civile in all its phases and ius in its entirety, was a
product right from the organs and acts not deputies of the
right to production, and on the basis of criteria unrelated to
the civil jus

In this regard it should be noted that while the ius civile had
its organic nature and was constructed in a logical way, the
ius honorarium had not organic, because it did not cover the
whole field of private type social relations, and was mostly
inspired by the needs not of logic, but of opportunity or
justice.

Then we can understand the Ius


Honorarium
The Ius Honorarium is a body of the law developed in edicts
issued by the praetors during the Republic and early Empire.
This new type of ius used another Praetor, Praetor Pilgrim,
to make decisions about cases maybe external to Rome and
to its citizens, individual and particular cases. The Ius
Honorarium, infact, was born from the need to regulate the
relationship between citizens and foreigners, especially in
functional cases, such as trade.

PAPINIAN

The Roman jusrist Papinian summarizes its role in the


Digest:

The ius pretorium is the law introduced by the magistrates


in order to help, add, amend (the ius civile) for public use;
what it is also called honorarium by the honor of the
magistrates.

The distinction between ius civile and ius honorarium was


less significant in practice than that between ius civile and
ius gentium because nature 'iuris civilis "or" iuris gentium
"of an act or an institution had its corollary punctual
practical applicability or inapplicability of the pilgrims, the
nature 'iuris civilis "or" iuris honorarii "of an act or an
institution could have formal and procedural consequences,
but hardly substantial.

Which was the role of the Praetor


before the Ius Honorarium?
The figure of the Praetor was created in 242 BC as
magistrates appointed of the administration of the justice
and for this reason was said that the Praetor had a power of
command called imperium. They introdeuced a new type of
process called per formulas, which was different from the
legis actiones.

In 17 BC, with the publication of the Lex Jiulia Iudiciorum


Privatorum, the legis actiones were repealed and replaced
by the process per formulas. The praetors could take part
in the Roman Jurisdiction also through restitutiones in
integrum, missiones, stipulationes praetoriae and
interdicta.

THE PROCESS PER FORMULAS


The fundamental character was to entrust the judgment of a
dispute to a judicial body, chosen specifically for this, and
accepted by the parties, and to determine its role and its power
with propositions, whose words , while following usually
predefined schemes.
The formula was used to determine the role of the judge, pointing
to what he had to result him true or false for power and duty to
condemn the man. In theory, the parties and the magistrate could
have created the formula so it appeared more convenient for the
precise determination of the task of the judge.

Gaius calls "partes formularum" and


Inst. 4.39 indicates four, which considers
fundamental: demonstratio, intentio,
adiudicatio, condemnatio.

DEMONSTRATIO
Gai says. 4.40: The demonstratio is the part of the formula,
which [..] because they indicate the question about which
acts: as this part of the formula: "Given that A. Agerio sold a
slave to N. Negidio"; also this: "Given that A. Agerio filed a
slave at N. Negidio".

INTENTIO
Gai says. 4, 41: "The intentio is the part of the formula with
which the actor states his claim: as this part of the formula
"If it appears to the court that no Negidio must give ten
thousand gold to Aulus Agerio" so this "everything N.
Negidio duty is give and take to A. Agerio" ; also this: "If it
appears to the judge that the slave belongs to A. Agerio
under the law of the Quirites".

ADIUDICATIO
Gai says. 4.42: "The adiudicatio is the part of the formula,
with which it allows the judge to award something to
someone of the litigants, as if between joint heirs will act on
the sharing-or pearl division between co-owners of
communion or between close to the settlement of boundaries.
In fact there is no "what is necessary to award, the court
awarded to Tom."

CONDEMNATIO
Gai says. 4.43: "The condemnatio is the part of the formula
with which gives the court the power to condemn and acquit;
as this part of the formula: "Judge condemns N. Negidio ten
thousand gold to A. Agerio".

Turning back to the process per


formulas
Gradually they formed ,through the repetition of cases and
the corresponding experience, various models, and the
magistrates began to point them at the conclusion of their
edicts clauses. Precisely when they promised to authorize a
process by iudicium dabo( I will give life to a process' )
added: "in haec verba" and reported the following formula
model.

Subsequently they began to issue edicts (ius edicendi) to


specify particolar cases. Usually the edicts were issue at the
beginning of the year from the two Praetors and lasted for
the whole year (this is the reason of the name edictum
perpetuum). But sometimes, because of particolar events,
could happen that they issue new edicts during the year
called edicta repentina.

The edicts of the magistrates


D. 1,2,2,10 (Pomp. L.sing.enchiridii): In the same period
the judges administered justice, and issued edicts so that
citizens know what right they would have applied in respect
of each case. These edicts of magistrates constituted the jus
honorarium: it is called 'honorary' because it comes from the
office of magistrate.

But, who judged these cases?


The urban magistrate, in the case of regulations to safeguard
the citizens of Rome, and the Praetor pilgrim, in the case of
rules does not refer to the citizens of Rome. The competence
of each magistrate was defined not only on the basis of
citizenship of the men, but also geographically. In principle
its jurisdiction extended to the whole of Italy, but, if the man
in cause resided in a municipium, a colony or other smaller
constituencies where there were magistrates equipped with
iurisdictio.

The most important innovation, in technical procedural level,


is that there is no longer a system of typical actions, that
mean the magistrate has no autonomy, the whole procedure
is centered on the power of the magistrate , who, having
heard the parties, decide whether or not to iudicium, and, if
so, how to structure the formula, which, through decretum,
will be forwarded to the judge.

In the famous partitio Ciceroniana of the Ius Civile, he


divided in aequitas, edicts of the magistrates and the
auctoritas of iuris periti.
In the last century of the Republic the cause Curiana is case
of the clash between two orientations, one based on strict
application of the ius civile, therefore favorable the literal
interpretation, and the other, who, referring to the aequitas
says the prevalence of voluntas. The judgment of the
centumvirale court affirmed the prevalence of voluntas,
surpassing the interpretive formalism.

AEQUITAS & IUS HONORARIUM


EXAMPLE
1

The introduction in this age of bonorum possessio in


favor of the natural family, not even related to the
deceased by agnatic relationship.

The recognition of the natural family succession in position


equal or even overriding the agnatic family that begins to
take shape in the very last period of the Republic, and the
intervention in this sense of the magistrate is explicitly
reconnected by Cicero and subsequent legal profession for
the need to affirm the criteria that derive dall'aequitas.

PAUL
"... quamvis enim jure civil deficiant free, here propter capitis
deminutionem desierunt on heredes them, tamen propter
aequitatem rescindit eorum capitis deminutionem praetor":

though according to the ius civile free have no right to


happen, because with the emancipation ceased to be on, but
the judge, in equity, nullified the effects of this emancipation"
.

EXAMPLE
2
The introduction of the register praetorian, exceptions and
prosecutions in cases where the protection of the contractual
will had been "spoiled" by deceit or violence .

PAUL
ideo autem hanc exceptionem praetor proposuit it when dolus
suus for occasionem iuris civilis contra naturalem aequitatem
prosit

the magistrate suggested this exception so that no one is


ahead of its intent for an opportunity offered by the civil jus
against natural equity

PAPINIAN
... Here aequitate defensionis infringere
actionem potest, doli exceptione tutus est

one who can take away value to the


action with the fairness of the defense, is
rutelato with the exceptio doli

Papinian

The aequitas therefore also constitutes in this case the


criterion underlying the activity of the judge in correcting the
injustice that would result sometimes from strict application
of the ius civile, and in it find concrete determination
resulting in an element of positive law.

The foregoing considerations highlight once again the


complex interweaving of dynamic training elements of the
ius, the evolution of which is articulated in the dialectic
strictum ius and aequitas, with the mediation of Giusdicente
magistrate, in his edict that translates into reality the new
law legal principles ; these new criteria, which, as
mentioned, have relevance not only procedural, but involve a
profound innovation in terms of substantive law, in turn, will
gain certainty and general binding force through the passage
of time.

Yet this process of evolution is totally incomprehensible in its


structure without taking into account the fact that the
homogeneity and consistency of the whole legal system stem
from interpretative technique of Jurists, and dall'auctoritas
that developed them, making possible the 'intervention in all
the moments of legal life.