Serena Correia: Italia America 2022

Civil Structure – Judicial

Introduction

The present legal system within the United States and most of western countries derives from ancient Rome. It is not incorrect to deduce that our modern courts mirror that of ancient Roman courts. Though great differences between the modern judicial system in the United States and ancient Rome must be calculated and analyzed to better appreciate the similarities between the two. Initially, it is pertinent to understand that Roman courts seldom handled normal case within Roman population, instead exceptional cases were handled. For the common Roman, it was not normal to attend court. Within our society, a small percentage of individuals participate with the judicial system. The majority of individuals within our society obey laws and utilize alternative methods of dispute resolution (e.g., arbitration, mediation) before resulting in a formal court hearing. In comparison to modern day, an even smaller percentage of Romans were involved with the courts. This is because of three reasons: (1) Romans either had limited entrance to the Roman legal system (non-Roman citizens) or no slaves, (2) the Roman community had a larger role of regulating behavior amongst members that our current society (e.g., the limited policing efforts within ancient Roman society implies that other forces were utilized), and (3) ancient Roman society was exceedingly appalling (e.g., individuals were free or enslaved, citizens or non-citizens, wealthy or poor) (Lintott, Violence in Republican rome 2004).

Roman Primary Texts

In delving within legal texts, there is very minimal information regarding the court environment as it pertains to Ancient Rome. Ultimately, the environment did not impact the application of law within the region. Valuable information is retrieved from artistic representations since archaeology provided limited information. Legal matters were found detailed on papyrus and wax tablets, though incomplete (Metzger, 155–163 2008). The details that described the judicial civil structure were mainly contained within literary texts. Writers such as Pliny the Younger, Quintilian, and Cicero are essential to understanding this topic. In fact, all three were fierce advocates and gave valuable acumen towards the courtroom environment. Pliny the Younger and Cicero take note of the eyewitness accounts within hearings attended. Quintilian represents an advocate’s skills to present a case strenuously. On the other hand, critics Martial and Juvenal contribute valuable acumen, though opinionated, towards the effect that affluence, entitlement, and ambition cause individuals to engage or withdraw from the courts. Moreover, Tacitus and Suetonius document the legal battles encompassing the most elite individuals of Roman society.

Court Officials

This section will cover the civil structure of court officials present within the judicial section. Similarly, to the western court system, a magistrate represents the Roman court instead of a location. Though informative records about the earliest time period within Roman history remain scarce. Chief legal magistrates had consuls that accomplished both their duties and that of the chief legal magistrates. In 367 BCE, the formation of the praetorship aided in overflow of assignments. In 242 BCE, another praetor joined forces with the initial praetor as both magistrates headed the judicial section (Brennan, 58–135, 2000). Criminal law proceedings would be handled by the magistrates. (Lintott, 147–162, 2015). The magistrate conducts both sections of the trial and concludes with a verdict for each case brought forward (Lintott, 147–162 2015). If the magistrate finalized the case and mandated execution, then the case would be brought forward to the citizen body, also known as Comitia Centuriata, for the final verdict (Lintott, 147–162, 2015).Civil law proceedings would contain hearings, also known as in iure. Magistrates would conduct hearings to learn about the dispute and bring both parties, also known as complainants, together. After the conclusion of the hearing, a judge, also known as iudex, was magistrate-appointed, and would set trial, also known as apud iudicem (Roebuck et al., 94–113 2004).

Between the 1st and 2nd century BCE, an increasing number of praetors aided in the increased legal work (e.g., during the time of Augustus, there are 16 praetors). The praetor’s role consisted of attending hearings within standing courts, also known as quaestiones perpetuae. In 149 BCE, the initial quaestio de repetundis was enacted, though Sulla’s reforms included others. The criminal system procedure consisted of first standing in front of the praetor, typically appointed by quaestio, then participating within a trial hearing after intermediate hearings involving the case have occurred. However, it is important to note that coherence was not established within court proceedings (e.g., there wasn’t an official count of the judges available) (Greenidge et al., 456–504 1971) (Robinson et al., 1–14 1996). Though the disorganization and unregulated nature of the judicial sector within Roman society changed with the leadership of Augustus, also known as leges luliae ludiciariae (Greenidge et al., 456–504 1971) (Robinson et al., 1–14 1996).

Augustus’s role as emperor created a new position or section within the civil structure of the judicial section. The emperor’s role within the civil structure of the judicial section only acted as an addition to the legal system in place, though not well unified. This resulted in the emperor have an equal or even an increased share of power likened to individual magistrates. In particular, the nature of litigation altered as the emperor’s power within the judicial section expanded. The emperor discarded the former judicial procedure, also known as cognition extra ordinem, and instead paid attention to the entire case in place of the multi-step judicial procedure. If unavailable, the emperor assigned a delegate in place of himself. This extension of the emperor’s powers prompted many Romans to bring negative judgments issued by other magistrates to the emperor or his delegate (Millar, 516–549 1992) (Peachin, 79–91 1996). Ultimately, the magistrate’s job transformed from being the judge to judicial support staff (Millar, 516–549 1992) (Peachin, 79–91 1996).

In comparison to America, the civil structure for the judicial section is divided into the following sections. The federal judiciary system unites both the state and federal government (The United States Government, The judicial branch, 2021). However, both state and federal governments have their own court officials (e.g., judges in place of solely magistrates though magistrates work in conjunction with judges within the U.S., court system), and separate court systems that may link depending on the severity of the case and type of crime (The United States Government, The judicial branch, 2021). The below details how court officials are selected within modern-day United States:

           State Court System:

State court judges are selected through various ways including appointment after an election has occurred, election by the people, appointment for a certain number of years, and life-long appointment (The United States Government, The judicial branch, 2021).

            Federal Court System:

            The selection of federal court judges is detailed within the Constitution which states that judges are ultimately nominated by the current President of the United States of America and are confirmed by the Senate (The United States Government, The judicial branch, 2021). Specifically, federal court judges most likely hold their position on the bench for life. However, an exception in being a lifelong judge is subjection to Congressional impeachment proceedings, where judges are evaluated and removed from their position if bad behavior was eminent (The United States Government, The judicial branch, 2021).

Court Participants

From the standpoint of the Roman citizens, there are many barriers that barred them from being involved with the Roman judicial system or legal system. For example, numerous Roman citizens lived far from Rome or did not have the financial ability to travel and stay in Rome to be present for trial proceedings or intermediate hearings. Thus, sources have shown that Roman citizens may have settled their legal battles utilizing their local community. Roman citizens would appear in front of the chief local magistrate, also known as the duovir, who ultimately had legal authority for a limited jurisdiction. The duoviri had a limited ability because they did not have authority to settle specific types of cases, additionally, the cases they handled had a financial value limit and both parties had to stipulate that the matter be public (Rodger, The Lex Irnitana and procedure in the Civil Courts 1991) (Lintott, 129–153 1993). All other cases that did not fall within the categories mentioned above were forced to appeal to the governor or travel to Rome (Rodger, The Lex Irnitana and procedure in the Civil Courts 1991) (Lintott, 129–153 1993). For most areas in Italy, the highest judicial position was the governor. Governors had jurisdictional power to hear local cases involving both Roman citizens and non-citizens, while adhering to Roman law. One of the many hats that governors wear is to serve as a judge for cases, though ultimately tedious as he travels across his governing land to hear local cases (Marshall, Governors on the move 1966) (Burton, Proconsuls, Assizes and the administration of Justice under the Empire 1975) (Richardson, Roman law in the provinces 2015).

Unfortunately, many Roman citizens did not take advantage of their rights under the Roman Empire. In fact, many individuals believed that it would not better their situation to be involved with the Roman judicial/legal system. Thus, the civil structure of the judicial sector placed great emphasis on local law within provinces which would resolve minor issues throughout provinces in Italy. Though, as the empire accumulated more land and extended overseas, the Roman empire faced difficulties in maintaining the legal system in place. Change settled in as Roman citizens learned to embrace the benefits of their citizenship (e.g., connections with the Roman courts).

In comparison to America, court participants can be represented by attorneys within litigation, arbitration, mediation, depositions, and more (Who are the players in the courtroom?: The Judicial Learning Center). However, the extent to which an attorney represents you has two deciding factors, one of which is whether you have the funds to finance an attorney’s representation of you in a claim and second whether the attorney chooses to take your case which is based on the merits of the case (Who are the players in the courtroom?: The Judicial Learning Center). United States citizens face the same economic hardship that Ancient Roman citizens felt entrapped within. The only slight loophole to the economic hardship that is to follow a lawsuit is the concept of a “contingency fee” or a “contingency case” (Contingency fee). This fee is only paid to the attorney if your case was won/settled or compensated with attorney fees (Contingency fee). However, this loophole is still subjected to the deciding factor mentioned above, that is: the attorney chooses to take your case based on the merits/facts of the case and the plausibility that the attorney will win/settle the legal matter (Who are the players in the courtroom?: The Judicial Learning Center).

In comparison to Ancient Rome, the United States has an unlimited amount of legal cases that are founded on genuine fact and others that are not. Though the number of cases rise each day, and further extend past the number of legal cases that Ancient Rome dealt with—the United States, like ancient Rome, faces difficulties to maintain an orderly, efficient legal system (Federal Judicial Caseload Statistics 2019). For instance, in 2019, the United States Courts System released federal judicial caseload statistics that show how civil and criminal cases rose by more than 3% within U.S. federal district courts (Federal Judicial Caseload Statistics 2019).

Accessibility of the Courts

This section will cover the accessibility of the courts within the judicial section. Whether citizens held confidence in legal matters regarding monetary or life-threatening problems dating back to Ancient Rome is a difficult issue to evaluate. Whether wealth, the social class system, or socioeconomic status of Roman citizens created varying legal results is a highly troublesome topic. For instance, all magistrates within the Roman judicial system originated from the most affluent members of society (Bablitz, Actors and audience in the Roman courtroom 2007). The process to be a judge laid with the praetor who crafted the list of judges, also known as album iudicum, which advocates would then select a judge of their choosing (Bablitz, Actors and audience in the Roman courtroom 2007). The only way to be included on the album iudicum is to have a glean of wealth or act as a current equestrian or senator. (36) Essentially, wealth dictated who was placed within the album iudicum. Litigants and future parties that wanted to bring legal matters towards the judicial system had to ask themselves whether they had the funding for achieve justice.

The regular Roman citizen would simply have to accept injustices done to him as it is not cost-effective to travel to Rome for more money than what is owed. Additionally, the verdict that would be supplied by the legal system may not have been decided in the regular Roman citizen’s favor. This perspective also needs to account for the job that the regular Roman citizen leaves behind as he is present in Rome to follow through all legal proceedings and eventually receive a trial date. However, a loophole that is detailed within sources tells that the parties involved in litigation can proffer a representative to take his place at the proceedings (Bablitz, Actors and audience in the Roman courtroom 2010) (Metzger, 23–26 2005). After careful evaluation, many would deem the justice system to be in favor of the rich. Also, the power behind influence shows how many who did not have favorable odds already predetermined the outcome of trial/legal proceedings. Thus, it is no surprise that many involved with the emperor’s court were wary of the potential retaliation that may have been followed from those they accused.

In comparison to America, most individuals have dealt with the law and have had some connection with the judicial system. Many participate within the justice system by acting as witnesses, jurors, violators of the law (e.g., receiving a traffic ticket or committing a felony) (The justice system). The difference between Ancient Rome and the United States in regard to the accessibility of the courts is that in-person appearances are not mandatory in order to resolve legal matters since services such as Zoom have allowed for flexible appearance in court though, not proving to be as effective as in-person hearings (The justice system). Additionally, the cost for other related services (e.g., court reporters, translation services) that occur in conjunction with litigation significantly raises the cost of involvement with the justice system in comparison to those within ancient Roman society (The justice system). Though similar ideologies like jurisdiction (e.g., each U.S. case filed must state the jurisdiction and proper court name), and the usage of jurors or the judgment of the people in legal affairs: Comitia Centuriata (The justice system) (Lintott, 147–162, 2015).

Conclusion & Future Ramifications

This paper introduced the civil structure of the judicial section of both America and Ancient Rome. My personal connection to this subject stem from my interest in the origination of law and judicial proceedings. In studying the origins of judicial pleadings within democracies, we are able to further examine concepts within criminal law proceedings such as penal punishment, execution, and restorative justice. Furthermore, this subject interested me as it highlighted similar economic disparities that individuals, both American and Roman, faced in not being able to participate in the legal system to fight for justice. The controversial nature behind linking the current state of the legal/judicial system to that of one dated back thousands of years ago must ruminate within individuals who read this passage. Ultimately, the following controversial topics explored must spark conversation and lead to changes within the current legal system:

  1. Federal judges are appointed not entirely by the people, but instead by a representative chosen by the majority of the people. Ancient Romans had magistrates that were mainly chosen due to wealth.
  2. Expenditure for lawsuits involving litigation were the root cause of why many individuals did not participate in the legal/judicial system.

Works Cited

Bablitz, Leanna. “Actors and Audience in the Roman Courtroom.” 2007, pp. 92–103., https://doi.org/10.4324/9780203946770.

Bablitz, Leanne E. Actors and Audience in the Roman Courtroom, Routlege, 2010, pp. 77–81.

Brennan, T. Corey. “58–135.” The Praetorship in the Roman Republic, Oxford University Press, 2000.

Burton, G. P. “Proconsuls, Assizes and the Administration of Justice under the Empire.” Journal of Roman Studies, vol. 65, 1975, pp. 92–106., https://doi.org/10.2307/370065.

“Contingency Fee.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/contingency_fee.

“Federal Judicial Caseload Statistics 2019.” United States Courts, https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2019#:~:text=Civil%20case%20filings%20in%20the,rose%202%20percent%20to%20150%2C936.

Greenidge, Abel Hendy Jones. “456–504.” The Legal Procedure of Cicero’s Time, A.M. Kelley, 1971.

“The Judicial Branch.” The White House, The United States Government, 15 Jan. 2021, https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-branch/.

“The Justice System.” Bureau of Justice Statistics, https://bjs.ojp.gov/justice-system.

Lintott, A. W. “147–162.” The Constitution of the Roman Republic, Oxford University Press, 2015.

Lintott, Andrew. “129–153.” Imperium Romanum: Politics and Administration, Routledge, 1993.

Lintott, Andrew. Violence in Republican Rome. Oxford University Press, 2004.

Marshall, Anthony J. “Governors on the Move.” Phoenix, vol. 20, no. 3, 1966, pp. 231–246., https://doi.org/10.2307/1086481.

Metzger, Ernest. “155–163.” Litigation in Roman Law, Oxford University Press, 2008.

Metzger, Ernest. “23–26.” Litigation in Roman Law, Oxford University Press, 2005.

Millar, Fergus. “516–549.” Emperor in the Roman World, Bloomsbury Publishing, 1992.

Peachin, Michael. “79–91.” Iudex Vice Caesaris Deputy Emperors and the Administration of Justice during the Principate, F. Steiner, 1996.

Richardson, John. “Roman Law in the Provinces.” The Cambridge Companion to Roman Law, 2015, pp. 45–58., https://doi.org/10.1017/cco9781139034401.006.

Robinson, Olivia Fiona. “ 1–14.” The Criminal Law of Ancient Rome, The Johns Hopkins University Press, 1996.

Rodger, Alan. “The Lex Irnitana and Procedure in the Civil Courts.” Journal of Roman Studies, vol. 81, 1991, pp. 74–90., https://doi.org/10.2307/300490.

Roebuck, Derek, and Loynes de Fumichon Bruno De. “94–113.” Roman Arbitration, Holo Books the Arbitration Press, 2004.

“Who Are the Players in the Courtroom?: The Judicial Learning Center.” The Judicial Learning Center | An Online Companion to the Judicial Learning Center in St. Louis, Missouri., 18 June 2013, https://judiciallearningcenter.org/the-players-in-the-courtroom/.

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