Roman Law
9/18/2007
Outline
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I. THE JURISTS (continued)
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III. THE NATURE OF CIVIL LITIGATION IN ATHENS AND ROME
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IV. CRIMINAL
PROCEDURE IN ROME
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A glimpse at the jurists: We have
the names of a couple of hundred jurists and extracts from the works of
approximately 100.
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1.
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Republican jurists:
Quintus
Mucius the first to compile the ius
civile
Servius
Sulpicius Rufus friend of Cicero
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2.
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Augustan jurists:
Labeo of the old school, anti-imperial, the problem of the ius respondendi
The debate between the schools: Labeo vs. Capito, Nerva
vs. Sabinus, Proculus vs. Cassius, Julian vs. Celsus—called
Sabinians vs. Proculeans or Proculeans vs. Cassians
The beginnings of the bureaucratization—Javolenus Priscus
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3.
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Middle period classical jurists:
Celsus the definer
Aristo the practitioner
Scaevola the giver of responsa
Julian treasurer under Hadrian (consolidated the edict) vs.>
Pomponius and Gaius, the commentators, the “academics”
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4.
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Late period classical jurists, Severan period:
Papinian
Paul
Ulpian
Modestinus
Papinian, Paul and Ulpian are all prefects of the praetorian guard. Modestinus was prefect of the watch. Papinian was also secretary a libellis. Papinian was executed by Caracalla;
Ulpian was probably murdered by the guard.
They are important because they are responsible for well over half
the Digest. Ulpian alone is
responsible for almost 1/3 of it, Paul for 1/6. They are hard to characterize. They are all encyclopedic. Papinian may be the most balanced, Paul
the most original, Ulpian the most comprehensive, Modestinus
the least distinguished. Modestinus
is the only classical jurist to write in Greek. He dies c. 244 and is regarded as the
last of the classical jurist.
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1.
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Choice of procedure: dike
(private suit; case brought by victim or family); graphe (public suit; generalized standing); aikeia (battery) vs. hubris
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2.
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Summons, preliminary hearing (anakrisis)
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3.
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Trial: speechwriter (logographos);
klepsydra (water clock); dikastes (judge/juror)
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4.
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Timesis (penalty hearing)
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1.
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Descriptive theories of procedural systems
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a.
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The principle of bilateral hearing —> the problem of contumacy
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b.
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Party presentation (Verhandlungsmaxime)
vs. judicial investigation (Inquisitionsmaxime)
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c.
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Party-management (Parteibetrieb)
vs. official- management (Offizialbetrieb)
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d.
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Formal or legal proof vs. rational or moral proof
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e.
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Orality vs. documentation
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f.
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Immediacy vs. mediacy (e.g. examination of witnesses)
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g.
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Privacy vs. secrecy
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2.
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Access to justice and quality of justice in Athens
and Rome
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1.
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Late Republic and Early Principate: quaestiones
perpetuae
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2.
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Cognitio extraordinaria
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