Litigation in Classical Rome

After speaking with litigators from around the world, I became surprised by how similar judicial systems in different countries are. One major source for these similarities is a shared heritage from legal systems that began in ancient times. So I decided to learn more about them. I started this journey by speaking with Prof. Ernest Metzger, a professor at the University of Glasgow who studies Roman civil procedure, to learn about litigation in Classical Rome from 100 BCE to 250 CE.

Why should you continue reading this post about litigation in Classical Rome?

• You made some mistakes with your time machine and now you are being sued in the year 100 BC.

• You want to see a picture of a very blue court building.

• You can’t wait another week before this blog’s next post comes out.

Prof. Ernest Metzger, a professor at the University of Glasgow

Can you tell me about the kinds of civil disputes that were litigated in Classical Rome? 

Just about any civil matter could be litigated. Certain Roman magistrates were responsible for administering justice, and would publish a list of potential actions that a litigant could bring. This list was long and it expanded over time as the population demanded more rights. Going by the evidence that survives, there were a vast number of cases dealing with succession – the passing of property after someone died, whether testate or intestate. There was also litigation about people’s civic status, such as whether someone was a slave or free, along with other “personal” relationships, such as guardianship, patronage, and the like.

But alongside these were vast numbers of lawsuits on utterly familiar disputes: property, contract, tort (called “delict”), and restitution (what we now call “unjust enrichment”). Under these broad headings the magistrate outlined quite specific disputes. Under delict you could sue for fraud, injury, duress, theft, damage to property, and much more. Contract litigation was also very wide ranging: sale, partnership, services, tenancy, and of course all manner of debt litigation.

Debt litigation was in fact quite important to civil procedure, because the Romans preferred to reduce every civil dispute to a debt. “Specific performance” was awkward to enforce. Typically the prevailing plantiff went away from trial with a judgment debt, and if he were able unable to collect he could bring an enforcement action on that judgment.

Did Roman law allow for employment disputes?

Classical Rome did not have a distinct labor law, but typical labor disputes could be settled under contract law.

How did Roman law develop?

Until about 300 BCE, the Roman legal system was fairly limited. But then large numbers of foreigners, including merchants, came into Rome. In the ancient world, different peoples typically conducted themselves according to their own, native laws: law did not have the “territoriality” it has today. So the presence of foreigners, each subject to their own native laws, made justice and commerce difficult.

The Roman magistrate in charge of administering justice recognized the problem and started actively making new law to accommodate them. Alongside this was the growing sophistication in the affairs of the Roman population. Successive magistrates, until the late first century BCE, were eager to give remedies to the people who came to them, so if there wasn’t a type of lawsuit that addressed someone’s harm already, the magistrates invented one. This resulted in a huge expansion of remedies.

This growth in remedies was aided by a professional body of educated lawyers, called “jurists.” They gave legal advice, assisted in litigation, and wrote books on the law. Judges and magistrates relied on jurists to develop the law. Their role can’t be underestmated: neither the magisrates who allowed cases to be heard, nor the judges who heard them, were trained lawyers.

How do we know about Roman law today?

In sixth century CE, the emperor Justinian undertook a program of law reform: he loved what Rome used to be and he loved the law. He entrusted a law commission to read the juristic literature and take excerpts from them. The product of their work is called “the Digest  of Justinian.” It is twice the length of the Bible and yet contains only five percent of the material they began with.

How expensive were lawsuits and lawyers?

The true “expenses” of Roman litigation were in time and reputation. There were no filing fees and such. Advocates in Rome did not typically charge fees:  advocacy was provided as part of a system of patronage, friendship, and professional ambition.

Did judges in Rome issue written decisions? 

Judges gave a yes-or-no decision in civil disputes: the defendant was “condemned” or “absolved.” No reasons were given.

The actual physical form of the judgment is something of a mystery, but there must have been physicial copies, if only to allow plaintiffs to bring enforcement actions (and for defendants to resist those actions).

Who kept the records of litigation? 

Litigation generated all manner of documents, but it was the litigants rather than the magistrate who preserved the records.

Image credit: https://en.wikipedia.org/wiki/Ancient_Rome#/media/File:Foro_romano_dal_campidoglio_04.JPG

How did litigants initiate a lawsuit in Rome?

During certain periods of the day the magistrate would set up a temporary tribunal in a public place, and sit in a special chair surrounded by various assistants.  Potential litigants would gather nearby, intending to sue or settle. They used this time to argue with one another and show each other their evidence. If they did not resolve the dispute, the next step was for the parties to approach a magistrate to obtain the right to sue.

The real oddity here is that litigation was by consent, similar to how arbitration works today. The magistrate would give an action – a right to sue – almost for the asking, but both parties had to agree to the action. The action was described in a brief set of words called a “formula.” The formula was basically a set of instructions to the judge, telling the judge under what circumstances he should rule for the plaintiff.

The judge himself was selected by the parties from a list. The procedure for selecting the judge was in fact very even-handed: the parties took turns rejecting names until they came to one they could agree on.

The parties then brought the formula to the judge, who heard the evidence and made a decision.

What would happen when a defendant did not consent to litigation? 

There were strong social pressures to participate. Litigation was mostly conducted by the well-to-do, and such people did not ignore their affairs lightly. But there were legal pressures as well: if a defendant “secreted himself” so as to avoid litigation, the magistrate could issue a decree against him, threatening the seizure and sale of his assets, which would be used to compensate the plaintiff. This procedure was severe and probably used rather rarely.

An awkward “middle way” between consent and avoidance was delay: a defendant could draw out the preliminaries by disputing the underlying facts, or sending personal representatives to argue and negotiate in their stead.

How did the seizure decrees work?

The magistrate essentially authorized the plaintiff to sequester certain assets of the defendant and advertise their sale. It was a solemn and drastic remedy, and not typically allowed in small communities outside Rome.

How did judgment creditors collect on their judgments in Rome?

A good Roman paid debts and suffered social disgrace if he didn’t adhere to his promises. If he didn’t pay a judgment debt, the plaintiff could bring an enforcement action after thirty days. If the plaintiff could persuade the magistrate that the defendant’s resistance was meritless, the magistrate would tack on a penalty of one-third, payable if the defendant lost.

Who was allowed to participate in litigation? Was it only men?

Litigation was typically conducted by the “head of the family” (paterfamilias): he was, after all, the person who typically owned all of the family’s property.

A woman with no living male ascendants was technically the head of her family, so she could be a litigant too. Women, however, could not be a magistrate, judge, or advocate.

There’s even a story, possibly apocryphal, about a Roman woman who made a nuisance of herself, after which all women were barred from advocacy.

Generally speaking, how long does it take for a case to go from complaint to judgment?

The litigants typically had 18 months from the day they received their action. After that, it would “die.” 

What rules governed the trials? Were there rules that governed the admissibility of evidence?

Trials tended to be governed by rhetorical conventions rather than legal rules. The law was much more present during the pretrial phase.

Our evidence rules tend to be drawn at a high level abstraction, to suit any case. Roman rules of evidence tend to be narrow, and attach to specific actions.

Were Roman trials open to the public? 

Yes. Many took place in the open air. And some wealthy people had large houses that had areas that were set up for the public to watch trials.

Litigants were probably motivated to settle partly out of a desire to avoid publicity. There was likely little interest in minor trials.

Do you believe that the Roman legal system had a particular strength for resolving commercial disputes?  How about a weakness?  What are they? 

As for strengths, the Ancient Roman system was accessible. One could get the opportunity for a remedy in virtually any case since the list of remedies was huge.

As for weaknesses, since judges did not articulate reasons for their decisions, there were no opportunities to take lessons from individual cases.

What impact does Roman law have on modern legal systems?

Most countries of the world have legal systems at least partly shaped by Roman law.

In some countries the influence is direct: most European countries fall into this class.

In other countries it is indirect, for example Japan, which adopted a civil and commercial law from (Roman-influenced) Germany.

Did the Roman legal system allow for appeals? 

No. But matters which we would treat on appeal were frequently treated during pretrial phase.

How did litigation operate outside of Rome? 

Historians used to think that, outside Rome, litigation was less on the arbitration model and conducted more directly by a magistrate. But we know now that the same divided procedure (magistrate, then judge) was used even in small communities.