Roman Law: Legal Status and Formulary Procedure

Roman Law Case Study: Family Status

Case Scenario: Faul and Dercy's Children

Faul, a 28-year-old Roman citizen and sui iuris, marries Dercy, a Greek woman, through confarreatio. A year after their wedding, Dercy becomes pregnant. Faul dies, and eight months later, a boy and a girl are born.

Question: Determine the legal status of each child.

Analysis of Children's Legal Status

In Roman law, an individual's legal status was defined by three key components:

• Status Libertatis (Freedom Status): Whether a person was free or a slave.
• Status Civitatis (Citizenship Status): Whether a person was a Roman citizen, a Latin, or a foreigner (peregrinus).
• Status Familiae (Family Status): Whether a person was sui iuris (independent, not under anyone's power) or alieni iuris (under the power of another, typically the paterfamilias).

Status of the Children:

Given the circumstances:

• Status Libertatis: Both children are freeborn (ingenui), as their mother was free at the time of conception and birth.
• Status Civitatis: Both children are Roman citizens. Although their mother was Greek, marriage through confarreatio was a patrician Roman marriage, and children born from a valid Roman marriage (iustae nuptiae) followed the father's Roman citizenship.
• Status Familiae:
  • Upon Faul's death, if there was no other living male ascendant (e.g., Faul's father) above him, Faul's children would become sui iuris. This means both the boy and the girl would be legally independent.
  • As sui iuris individuals who had not yet reached puberty, both children would require a tutor to manage their affairs.

Note on Status Familiae: Some interpretations suggest that the girl might be considered sui iuris only until her brother potentially became the paterfamilias of their family unit. However, under standard Roman law, if the father dies and no other male ascendant exists, all children become sui iuris.

Roman Civil Procedure: From Legis Actiones to Formulary System

Understanding Agere per Formulas

The agere per formulas, or formulary procedure, was a pivotal development in Roman civil law. It was the process where a plaintiff initiated an action before a magistrate (the praetor). If the magistrate determined that the conditions for the action were met, they would draft a specific written document called the formula. This formula would then guide the entire legal proceeding.

Each type of action had its own specific formula. Key parts of a formula typically included:

• Appointment of the Judge (Iudicis Nominatio): Naming the private citizen who would serve as judge.
• Demonstratio: A brief statement of the facts giving rise to the dispute.
• Intentio: The plaintiff's claim or demand.
• Condemnatio: The part instructing the judge to condemn or absolve the defendant.
• Adiudicatio: (Present in specific actions, e.g., division of common property) Instructing the judge to assign property.

Historical Context: The Shift in Roman Procedure

To clarify the evolution of Roman legal procedure, it's important to understand the system that preceded the formulary process:

Previously, to demand one's rights, a ritualistic approach known as legis actiones (actions of the law) was required. This system was characterized by its oral and extremely formal nature. Litigants had to accurately pronounce solemn words before the magistrate; even a single wrong word could lead to the loss of the entire action.

This highly rigid system of legis actiones was primarily in use until approximately 130 BCE. The significant shift occurred with the introduction of the Lex Aebutia (Aebutian Law), which paved the way for the widespread adoption of the agere per formulas.

With the formulary procedure, the process became more flexible and less prone to technical errors:

• The plaintiff still requested the action before the magistrate, who verified if the conditions were met.
• Crucially, before the magistrate, the formula of action—a concise written text outlining the reasons for the controversy—was drafted.
• A private citizen was then appointed as judge (iudex). The judge's role was to hear the evidence presented by both parties and render a verdict based on the instructions in the formula.

By adopting this procedure, the need for symbolic rites was eliminated, and the significant danger of losing the action due to a minor verbal error was greatly reduced, making Roman justice more accessible and efficient.