Civil Procedure in Classical Rome: Having an audience with the magistrate

During the classical period of Roman law, civil lawsuits were divided into two proceedings: a brief proceeding before the magistrate, who decided certain preliminary matters, and a longer proceeding before a judge, who tried the case. The first proceeding is said to take place "in iure," which roughly means "in the magistrate’s court." Unfortunately the figure "in court" has been understood too strictly to refer to the whole of the first phase, and this has given rise to the misunderstanding that the whole of the first phase took place in the magistrate’s presence. The better view is that the first phase took place both in, and around, the magistrate’s tribunal. This paper discusses several institutions of Roman civil procedure where the better view is evident. The paper concludes with a discussion of a first-century settle agreement from Puteoli; the settlement agreement illustrates the better view

The current view of the extra-judicial vadimonium

How did a lawsuit begin in classical Rome? There is a common view that it began with a contract: the parties made an agreement for the day and hour when they wished to appear before the magistrate. The contract was called vadimonium, a formal promise to appear. We know that these vadimonia were used by magistrates to bring defendants back before the court. The question is whether the parties used them voluntarily, as a way to commence the lawsuit itself. The theory that lawsuits began in this way was based on an obvious error: a misreading of the Digest 2.6 rubric by 16th century Humanists. When the error was discovered, the theory changed, along with the evidence on which it was based. When two large collections of written vadimonia were discovered in the 1930s and 1950s, the theory underwent a second change. At no time did the common opinion ask whether, in fact, lawsuits began with a vadimonium. This article argues that we have no evidence that lawsuits began with a vadimonium. The vadimonium evidence we possess, to the contrary, are instances of the ordinary, compulsory vadimonium, used by magistrates to bring defendants back to court. This article is a study preliminary to the author's Litigation in Roman Law (2005).</p

An effective medium approach to the asymptotics of the statistical moments of the parabolic Anderson model and Lifshitz tails

Originally introduced in solid state physics to model amorphous materials and alloys exhibiting disorder induced metal-insulator transitions, the Anderson model $H_{\omega}= -\Delta + V_{\omega}$ on l^2(\bZ^d) has become in mathematical physics as well as in probability theory a paradigmatic example for the relevance of disorder effects. Here $\Delta$ is the discrete Laplacian and V_{\omega} = \{V_{\omega}(x): x \in \bZ^d\} is an i.i.d. random field taking values in \bR. A popular model in probability theory is the parabolic Anderson model (PAM), i.e. the discrete diffusion equation $\partial_t u(x,t) =-H_{\omega} u(x,t)$ on \bZ^d \times \bR_+, $u(x,0)=1$, where random sources and sinks are modelled by the Anderson Hamiltonian. A characteristic property of the solutions of (PAM) is the occurrence of intermittency peaks in the large time limit. These intermittency peaks determine the thermodynamic observables extensively studied in the probabilistic literature using path integral methods and the theory of large deviations. The rigorous study of the relation between the probabilistic approach to the parabolic Anderson model and the spectral theory of Anderson localization is at least mathematically less developed. We see our publication as a step in this direction. In particular we will prove an unified approach to the transition of the statistical moments $$ and the integrated density of states from classical to quantum regime using an effective medium approach. As a by-product we will obtain a logarithmic correction in the traditional Lifshitz tail setting when $V_{\omega}$ satisfies a fat tail condition

Adam Smith’s historical jurisprudence and the "method of the civilians"

Smith lectured in jurisprudence at the University of Glasgow from 1751 to 1764, and various records of these lectures survive. Since Smith never completed a treatise on law, these records are the principal source for his theory of lawmaking. In his final year at Glasgow, Smith undertook to reorganize the course of lectures: he began with a series of lectures on "forms of government", where formerly these lectures had fallen at the very end. He explained that his reorganized lectures followed the method of the civilians (i.e., contemporary writers on Roman law), and that this method was to be preferred. This paper discusses Smith’s theory of lawmaking and seeks to explain why he undertook to reorganize his lectures. Some scholars have argued that Smith had a substantive reason for his decision, i.e., that the change was demanded by his developing theory of law. This paper, to the contrary, argues that his decision was far more innocent. He had occasionally sought to explain how certain laws came about by reference to the "ages of society". This is the theory that societies tend to present themselves under the model of one of four ages, each age identifiable by a certain mode of subsistence. This "stadial theory", however, though adequate to explain the genesis of a handful of rights, was inadequate to explain the genesis of most laws. For the latter, Smith used a more immediate cause: form of government. Yet exposition of this thesis was difficult when the lectures on government were postponed to the end. Smith’s decision to reorganize the course of lectures helped to cure the problem. The method of the civilians, whom Smith claims to be following, is the method of contemporary institutional literature. Civilian works that were written to follow the order of Justinian’s Institutes began, as the Institutes began, with a discussion of government

The Case of Petronia Iusta

This article examines a lawsuit from the 70s AD, concering a young woman from Herculaneum

Roman judges, case law, and principles of procedure

Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever relied on the decisions of other judges, has been largely ignored. The common opinion which today correctly rejects "case law" passes over "precedent" without comment. It does so because for many years an anachronistic view of the Roman judge was in fashion. This was the view that a Roman judge's decision expressed the people's sense of right about a specific set of facts. A decision, on this view, is simply a piece of information for an expert to examine; it has no value to another judge. With the passing of this view, however, the common opinion could accept the existence of precedent in Roman law

Lawsuits in context

The study of Roman procedure has benefited enormously from the discovery of wooden tablets near Pompeii. They are variously referred to as 'the Murecine tablets' (after the Agro Murecine, their place of discovery), 'the Pompeian tablets' (after the ancient site near their place of discovery), 'the Puteoli tablets' (after the ancient site from which they were removed in antiquity), or 'the archive of the Sulpicii' (after the presumed owner of the archive in antiquity). Unfortunately, the tablets are sometimes misinterpreted, for the simple reason that the procedures they describe do not always match the procedures which more familiar sources have (wrongly) led us to believe existed. The tablets, in fact, give us the rare opportunity to revise our understanding of procedure, particularly when taken together with another remarkable find, the lex Irnitana. This article gives a sketch of the 'new' Roman civil procedure now available to us as a result of these exciting finds