Precedent in Roman law: Basic terms and their semantic content

Abstract

Introduction. Until today, the prevailing opinion is that precedent did not play a significant role in the legal system of Rome. However, a number of sources, in particular the papyrus entries of judgement which record the provincial legal practice in Roman Egypt in the period from the 1st to the 3rd centuries, say otherwise. The significant role of precedent in the legal system of Rome is also evidenced with the texts of M. Tullius Cicero, M. Fabius Quinctilian, Pseudo-Asconius, G. Julius Victor. Theoretical analysis. The study of these texts makes it possible to understand what terms the Romans used to denote an authoritative judicial decision, what semantic content they put into them, and how close this content is to the modern idea of a judicial precedent. To designate a court decision that becomes a model, and which judges will be guided by when considering other cases with similar circumstances, Roman talkers use the terms res iudicata, praeiudicium, and exemplum. The precedent, in its classical sense, contains the fundamental legal provisions formulated by the judge in relation to this case, which are usually denoted by the term ratio dicendi. The question arises whether the decision of the court in Rome could establish these legal principles followed by other judges. Empirical analysis. The answer to this question can be obtained by considering the case of the so-called Fulcinian Estate. Being the representative of Caecina in this case, Cicero warns the recuperators against accepting the arguments of his opponent, Piso, based on the legal consequences of their possible decision. Thus, in this case, the judges could issue a decision containing a new legal principle, formulate a generalized legal position in relation to this case. Results. Court decisions in the legal system of Rome had the power of authority. They possessed it for a reason, due to the generalized legal reasoning or legal principles formulated by the judges in relation to the situation under consideration. That is why they became precedents. There were many such court decisions in Rome, they had sufficient authority and contained certain legal principles that judges applied when considering cases with similar circumstances.

Keywords

• precedent
• res iudicata
• praeiudicium
• exemplum
• legal principles
• generalized legal reasoning
• litigation about the fulcinian estate
• the authority of the court decision