John W. Cairns and Paul J. du Plessis
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748627936
- eISBN:
- 9780748651474
- Item type:
- book
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748627936.001.0001
- Subject:
- Law, Legal History
This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound ...
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This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.Less
This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.
Ernest Metzger
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199206551
- eISBN:
- 9780191705397
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206551.003.0025
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter uses the provisions of chapter 84 of the Lex Irnitana and other texts to argue that what may at first sight appear simply to be requirements that the judge should adjourn proceedings in ...
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This chapter uses the provisions of chapter 84 of the Lex Irnitana and other texts to argue that what may at first sight appear simply to be requirements that the judge should adjourn proceedings in particular circumstances are better seen as a mechanism for ensuring that the parties' right to a fair trial is observed.Less
This chapter uses the provisions of chapter 84 of the Lex Irnitana and other texts to argue that what may at first sight appear simply to be requirements that the judge should adjourn proceedings in particular circumstances are better seen as a mechanism for ensuring that the parties' right to a fair trial is observed.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0010
- Subject:
- Law, Comparative Law, Legal History
The French investigative procedural tradition developed around Roman–Canonical procedure. This chapter describes its development and that of the Conseil d'Etat's expressly inquisitorial judicial ...
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The French investigative procedural tradition developed around Roman–Canonical procedure. This chapter describes its development and that of the Conseil d'Etat's expressly inquisitorial judicial procedures. It shows how the various developed procedures of the Conseil d'Etat enable it to address the complex repercussions of judicial intervention in polycentric administrative disputes. The chapter contrasts the English adversarial tradition, the origins and development of which it explains. With reference to the Factortame litigation and leading cases on liability, estoppel, and proportionality, it shows how adversarial procedures have handicapped English courts in administrative disputes. It describes the Order 53 procedural reforms to the peculiarly restrictive prerogative remedies, their culmination in the Application for Judicial Review, the attempt in O'Reilly v Mackman to prevent circumvention of its technical safeguards, the extent of the consequent criticism, and Lord Woolf's further proposal for a Director of Civil Proceedings. By not addressing the need for inquisitorial procedures, it argues, the reforms have failed to entrench an English distinction between public and private law, which is thus not in convergence with the French.Less
The French investigative procedural tradition developed around Roman–Canonical procedure. This chapter describes its development and that of the Conseil d'Etat's expressly inquisitorial judicial procedures. It shows how the various developed procedures of the Conseil d'Etat enable it to address the complex repercussions of judicial intervention in polycentric administrative disputes. The chapter contrasts the English adversarial tradition, the origins and development of which it explains. With reference to the Factortame litigation and leading cases on liability, estoppel, and proportionality, it shows how adversarial procedures have handicapped English courts in administrative disputes. It describes the Order 53 procedural reforms to the peculiarly restrictive prerogative remedies, their culmination in the Application for Judicial Review, the attempt in O'Reilly v Mackman to prevent circumvention of its technical safeguards, the extent of the consequent criticism, and Lord Woolf's further proposal for a Director of Civil Proceedings. By not addressing the need for inquisitorial procedures, it argues, the reforms have failed to entrench an English distinction between public and private law, which is thus not in convergence with the French.
Ernest Metzger
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264743
- eISBN:
- 9780191682780
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264743.001.0001
- Subject:
- Law, Legal History
Roman litigation has long been a difficult subject for study, hampered by a lack of information concerning the practical operation of the civil courts. Using newly discovered evidence, this book ...
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Roman litigation has long been a difficult subject for study, hampered by a lack of information concerning the practical operation of the civil courts. Using newly discovered evidence, this book presents a new interpretation of how civil trials in Classical Rome were commenced and brought to judgement. The new evidence adds to our knowledge of Roman courts, and the book uses this evidence to create an original contribution to the literature on Roman Civil procedure.Less
Roman litigation has long been a difficult subject for study, hampered by a lack of information concerning the practical operation of the civil courts. Using newly discovered evidence, this book presents a new interpretation of how civil trials in Classical Rome were commenced and brought to judgement. The new evidence adds to our knowledge of Roman courts, and the book uses this evidence to create an original contribution to the literature on Roman Civil procedure.
E Metzger
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748627936
- eISBN:
- 9780748651474
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748627936.003.0036
- Subject:
- Law, Legal History
The study of Roman civil procedure has benefited enormously from the discovery of the Murecine archive, a collection of first-century documents belonging to a banking family in Puteoli. This chapter ...
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The study of Roman civil procedure has benefited enormously from the discovery of the Murecine archive, a collection of first-century documents belonging to a banking family in Puteoli. This chapter discusses two pre-trial matters — iusiurandum and the appointment of cognitores — which have been affected by a misinterpretation of parties' ‘promises to reappear’. Then follows a more general discussion of the postponement procedures, deduced with the considerable aid of the Murecine archive.Less
The study of Roman civil procedure has benefited enormously from the discovery of the Murecine archive, a collection of first-century documents belonging to a banking family in Puteoli. This chapter discusses two pre-trial matters — iusiurandum and the appointment of cognitores — which have been affected by a misinterpretation of parties' ‘promises to reappear’. Then follows a more general discussion of the postponement procedures, deduced with the considerable aid of the Murecine archive.
Amalia D. Kessler
- Published in print:
- 2017
- Published Online:
- May 2017
- ISBN:
- 9780300198072
- eISBN:
- 9780300224849
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300198072.003.0008
- Subject:
- Law, Legal History
The Conclusion reflects on the accuracy of the nineteenth-century American perception that the United States possessed a distinctively adversarial legal culture and considers how developments traced ...
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The Conclusion reflects on the accuracy of the nineteenth-century American perception that the United States possessed a distinctively adversarial legal culture and considers how developments traced in this book relate to the present. A comparative overview of nineteenth-century continental European and English civil procedure reveals that Americans were correct that their legal culture was uniquely adversarial. But the postbellum emergence of industrialization and concomitant birth of the regulatory state gave rise to new specialist lawyers, valued more for their expertise and negotiating skills than for their ability to litigate. The path connecting the late nineteenth-century zenith of adversarialism to the present was thus indirect. Nonetheless, the Conclusion argues that the history recounted in this book contributed to making American legal culture today distinctively adversarial. And it suggests that, while there are virtues to adversarialism, Americans have paid a high price for this inheritance—including comparatively greater difficulty in obtaining access to justice. Although a comprehensive reform proposal lies beyond this book, the Conclusion explores some nonadversarial possibilities raised by Americans’ forgotten history of equity and conciliation courts. The starting point, it argues, is to abandon the (constructed and contingent) assumption that due process and adversarial procedure are necessarily the same.Less
The Conclusion reflects on the accuracy of the nineteenth-century American perception that the United States possessed a distinctively adversarial legal culture and considers how developments traced in this book relate to the present. A comparative overview of nineteenth-century continental European and English civil procedure reveals that Americans were correct that their legal culture was uniquely adversarial. But the postbellum emergence of industrialization and concomitant birth of the regulatory state gave rise to new specialist lawyers, valued more for their expertise and negotiating skills than for their ability to litigate. The path connecting the late nineteenth-century zenith of adversarialism to the present was thus indirect. Nonetheless, the Conclusion argues that the history recounted in this book contributed to making American legal culture today distinctively adversarial. And it suggests that, while there are virtues to adversarialism, Americans have paid a high price for this inheritance—including comparatively greater difficulty in obtaining access to justice. Although a comprehensive reform proposal lies beyond this book, the Conclusion explores some nonadversarial possibilities raised by Americans’ forgotten history of equity and conciliation courts. The starting point, it argues, is to abandon the (constructed and contingent) assumption that due process and adversarial procedure are necessarily the same.
