Praetor and Iudex in law

Praetor and Iudex in law

If two parties have a dispute about a particular case, the legal solution will depend on two factors: the facts of the case and the contents of the law. In Roman law, these two factors were linked with two roles in a legal procedure, namely the role of the praetor and the role of the iudex (judge).The function of praetor was only instituted in 366 BC.

Jurist in law

Jurists If one party wanted to sue another, he had to go to the praetor and explain his case. If the praetor was of the opinion that the case might be successful, he would formulate a kind of instruction (the formula) to the iudex, in which this judge would be told to grant the suing party a legal remedy if certain factual conditions had been fulfilled. It was then up to the judge to determine what the facts of the case actually were and whether these facts, in light of the formula provided by the praetor, justified the remedy. This division of roles made the praetor responsible for establishing the precise content of the law and the iudex for the determination of the case facts.Because the role of the iudex did not require special legal knowledge, it could be fulfilled (and actually was fulfilled) by laymen.

In modern times we find a role similar to that of the iudex in juries, consisting of laymen who must decide about the facts of the case. In criminal cases the finding of the juries will be “guilty” or “not guilty”. If the function of the iudex is fulfilled by a jury, the function of the judge will resemble that of the praetor.

Praetor in law

Because the praetor had the task of interpreting the law, he had a considerable influence on the content of the law. However, the function of the praetor was first and foremost a political one, a stepping stone on the way to become a consul. The praetor was therefore not necessarily a trained lawyer. Possibly to remedy this deficiency, the praetor was advised by jurists, who also advised process parties. As a consequence, jurists had, through their advice, a great degree of influence on the development of the law.