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THE ORIGIN OF THE DUAL MODE
IN ROMAN PROCEDURE
Viro clarissimo Iulio Christiano van Oven
antecessori iuris romani in Universitate
Lugduno-Batava
amicitiae pignus
HE distinctive feature of the Roman procedure by which
it stands apart from nearly all other forms of proce-
dure is its separation in two phases: in iure and apud
iudicem. Between these two phases there were fundamental
differences. They not only took place before different per-
sons, at different times and in different localities, but their
general character was radically different. The procedure in
iure was controlled by the magistrate, in the older form of
procedure, per legis actiones, as well as in the younger form
with a written formula (per concepta verba). Its purpose
was to lead to the formal declaration of the controversial issue
by the litigants in order to put it in that form before the
iudex privatus, a civis romanus, to be settled. In the second
phase, apud iudicem, the points at issue were debated before
the chosen iudex and sentence was given.
The main difference as to the general characteristics of the
two phases of the :Roman process is the extreme formalism
in iure and the absolute freedom of the iudex in the investi-
gation and the examination of the facts. As illustrations of
the former, the well-known examples mentioned by Gai. 4.11
and his remarks in 4.30 and Vat. frg. 318 instantly occur to
memory. The iudex, on the other hand, is not bound by any
formal rule of evidence; he is free even in his appreciation of
an oath and a confession (Africanus, D. 42.2.7) and the
sentence is pronouced without any formality. It is not so
easy to give a satisfactory explanation of the historical
evolution which led to this dual mode. The modern view
of Roman procedure, due to the great Austrian jurist Moriz
Wlassak, has moved the men on this chessboard too, but
it did not succeed in establishing a generally accepted opinion.
DUAL MODE IN ROMAN PROCEDURE
The older school was not unwilling to follow suit and still
in the most recent edition of Girard's Manuel we find the
question treated in this manner,2 but nowadays the majority
of scholars is inclined to consider these ancient reports un-
reliable and untrustworthy. In the first century before Christ,
the Romans did not dispose of reliable information concerning
the constitutional law of their regal period 8 and the view of
the authors cited is probably based on constructive thinking
rather than on historical evidence available to them. Cicero
himself gives us a hint where he could have found his idea
of iudicia regia when he regards Numa, the founder of the law
and of the cult of the gods, as an imitator of the Greek kings
and when he fathers upon him the same tasks which formed
the essence of laiAcda in the heroic age, according to Aristotle,
Pol. 111.10 (1.1285 b): mtparyyo E -YAp ca &Kaov 6 fpauLt,
Sr(v To
i-p Oco4 XupIoS-whereas previously it is said of
the kings: 4 8h&ag bp(vov. Mommsen's doubt as to the his-
torical truth of this presentation of the facts is shared by
most of the later writers, who are inclined to attribute to the
then current ideas about Greek constitutional evolution the
anachronistic misconceptions of Dionysius by which he as-
cribed the dual mode in Roman procedure to the good demo-
cratic King Servius Tullius.'
2P. F. Girard, Manuel (1929) p. 24, p. 1032 note 5; Organisationjudiciaire
des Romains (1901) p. 77-82, cf. p. 22 note 1; Ed. Cuq, Manuel (1928) p. 805;
G. May, Rlements de droit romain p. 599; G. Cornil, Ancient Droit romain
(1930) p. 122; Mommsen, Rom.Staatsrecht II, 229; Bethmann-Hollweg, Rum.
Civilprozess I, 54f.; Paul Jors, Romische Rechtswissenschaft (1888) p. 48;
Wlassak, Prozessgesetze II, 333.
3 Rosenberg, article " Rex" in Pauly-Wissowa, R. E.
4 M. Wlassak, Zum rum. Provinzialprozess (1919) p. 12, note 3.
5 Mommsen, Rom. Strafrecht (1899) p. 5: "wahrscheinlich der letzten re-
publikanischen Epoche angehirige Legende" and in note 1: "diese vermutlich
spaitrepublikanische Schilderung des idealen Rechtsstaates "; Abriss des rbm.
Staatsrechts (1893) p. 145: "Wenn nach der allerdings weniger auf Tradition
DUAL MODE IN ROMAN PROCEDURE
30 Od. VII.74.
31
Aristotle, Polit. 1285b.
32 I. XXIII. 485 [86p4 vvv, " rptro~oq irpL8"Wo'/'? A8-qTo3, (486) L0ropa