What Are the Strengths and Weaknesses of the Legisactiones - Assignment Example

Name: Tutor: Course: Date: Question one: What are the strengths and weaknesses of the legisactiones; formulary system and cognitioextraordinaria? Legisactions, formulary system and cognitioextraordinaria were the three main procedural systems that formed the history of Roman law. The legis actiones were considered as actions-at-law or procedures that were formed to establish a form of litigation. Under the legisactiones procedure and formulary system, the trial of any action to be taken was remarkably implemented through two main divisions, before the magistrate who was held responsible for the supervision and arrangement of all the preliminaries. The issue could as well be decided upon before the judge who was not a magistrate or a private lawyer, but a person agreed upon through mutual discussion between the two parties. The legisactiones were advantageous in the sense that it proved to be relatively fast and involved less court costs which even seemed not be a major concern for the people involved (Olga & Tellegen-Couperus 174). Formulary system was formed to control the weaknesses of the legisactiones such as excessive formality, limited effectivess and the nature of the procedure used could not fit well in the modern legal systems. Therefore, a written document referred to as a formula was introduced in the civil trial authorization through which the judge used to criticize the defendant in case some legal circumstances were proved. Otherwise the defendant could be absolved if the case was not approved (Herbert & Barry 528). This implies that formulary system required the plaintiffs to specific whilst stating the case so as justify the reasons for the accusations. It should be noted the magistrate or praetor played a great role in drafting a formulaic statement that was required to be clear and specific in prescribing the different aspects of claimed by the plaintiffs (Brennan 354). Generally, it can be concluded that the formulary system offered the plaintiffs with the opportunity to address the specifics as well as to present cases that were more relevant to their individual needs. On the other hand, cognitioextraordinaria offered a more robust practice in the pursuit of law where the sheer detail and changing nature of the actions taken by the court resulted in a more reliable legal system. It was an expression that denoted a type of administration of justice considered outside the normal organization of justice under the constitutional principles of the republican epoch (William 67). According to (Metzger) legal actions under Cognitioextraordinaria, however, had its own weaknesses because it would incur high costs as well as consume more time due to increased administrative tasks. Question two: What were the differences between cum manu marriage and 'free' or 'sine manu' marriages? Based on the Roman law, the main difference between the two forms of marriage is that in the cum manu marriage the wife was entirely considered under the legal control of the husband, while in the sine manu marriage the wife could be held under the legal control of the family. In the case of cum manu marriage, the wife was considered the husband’s agnates where she was required to shift from the domestic cult of her original family, while in the sine manu marriage the husband was only entitled to own the possession. It is important to note that termination of marriage in the case of cum manu marriage could be accepted only in situations such as death occurrence of one spouses, loss of citizen of the either partner or simply through divorse (Thomas 419). This was a different case with the sine manu marriage where termination of marriage involved mutual agreement among the spouses. Due to the influence of Christianity, there were certain restrictions during the Roman Empire. Based on the opinions of some legal experts, it could be argued that the Romans considered marriage as an exclusive civil contract. This is because there was no formal character to be considered, and thus marriage was private in nature. It implies that the law was not necessary in controlling the marital ceremony. Therefore, it can be argued that in Rome the intervention of the legal authorities was insignificant in the formation marriage. From the main difference between cum manu marriage and sine manu marriage, it is quite clear that cum manu was a form marriage that required the wife to take some legal considerations prior to entering her husband’s family. It is notable that the wife was legally related to her husband and their children. Furthermore, the wife did not have rights of intestate inheritance within her original family instead this right was extended to her in the husband’s family. On the other hand, the sine manu marriage required the wife to stay within her natal family, and thus she could be permitted to take intestate inheritance from her father. This means that although the wife was not provided with the rights from her husband’s family to take intestate inheritance, she had the right to own property in her natal family. Unlike in cum manu marriage where a woman could be legally accepted in her husband’s family, in the sine manu marriage there was no legal requirement for the wife prior to joining the husband’s family (Gabriel 54). This clearly indicates that there were no practices of Roman law in sine manu marriage regardless of whether the children were involved or not. Question three: What were the legal constraints on marriage and divorce in ancient Rome? Cum manu marriage and 'free' or 'sine manu' marriages were the two main forms marriage under the Roman law. Studies indicate that cum manu marriage was commonly practiced in early Rome, while sine manu marriage gained popularity during Republic period (duPlessis 122-132). It is important to note that in an ancient Roman marriage, the position of a woman was largely limited in the entire aspects of the Roman society. A case for cum manu marriage, once a woman was permitted by her father to get married she was subjected to the full control of her husband. This implies that once a woman was authorized by her father to get married, her entire properties or possessions were controlled by her husband. Under the contracted law, it was a legal requirement for woman to handle all the household duties as well as those assigned by the husband (Rawson 64). Under the Roman law, however, a man had the right to divorce his wife particularly if she was proved of adulterous activities. It is relevant to point out that for divorce to be accepted the law required both the husband and wife to publicly announce that they had the plan to divorce, an agreement that was substantiated by seven Roman witnesses. However, the jurists were required to remain silent on the various grounds that could influence divorce though the parties’ was to be taken into consideration to ensure that the two apart permanently (Bradley 161-162). It could be argued that a woman faced various drawbacks in her marriage since she was placed under the full control of her husband. To a larger extent the subordination of a woman to man in Roman marriage, deprived of her legal rights to be considered equal to men (Treggiari 125). The institution of guardianship also created the legal independence of Roman women because in case she outlived the father, the Roman law required her to have a guardian to represent the already passed on father. In the case of sine manu marriage, a woman was subjected to the power or commonly referred to as potestas of the father ort her paterfamilias. However, upon marriage the woman could be handed over legally to the manum or full control of her husband. Therefore, it was a legal constraint for women to surrender all of her present and other properties acquired in the future to the paterfamilias where she had married (Gardner 11). The fundamental question to be considered in this case could be what was the legal requirement in a situation where a woman’s husband died? It is notable that in such circumstances the Roman matron or Sui iuris took over the power, and thus she could be permitted to own properties. A man who decided to divorce his wife, he was required to surrender the dowry to the paterfamilias of his wife or the dowry was to be divided so that part it could be given to the ex-husband (James 16). In case the paterfamilias of the wife did not exist, it was the requirement of the law that the dowry would be held by the wife. However, in situations where the husband managed to prompt divorce proceedings due to the wife’s wrongdoings or they had children, the husband was permitted to retain part of the dowry. According to Grubbs, Evans (2002, p.349) since the early time of Rome, the law required that women who had not married in manu could be allowed to divorce. The paterfamilias or father of the wife could instigate the demand to own back the dowry or divorce on behalf of the daughter (Newton 28). Works Cited Bradley, Keith. Establishing the Roman Family. New York. Oxford University Press. 1991. Brennan, Corey. The Praetorship in the Roman Republic. New York: Oxford University Press. 2000. Pp.354. Borkowski, Andrew & Du Plessis, Paul. Textbook on Roman law. Oxford University Press. 2005. Grubb, Evans. Women and the Law in the Roman Empire. A Sourcebook on Marriage and Divorce. Routledge.2002. Gardner, Jane. Women in Roman law and Society, First Midland Book Edition, 1991, P.11. Gabriel, Asandului. The organization of marriage in Old Romanian Law.2009. Herbert, Felix & Barry, Nicholas. Historical Introduction to the Study of Roman law. CUP Archive. 1972. P. 528. James, Bryce. Marriage and Divorce under Roman law. American Law Schools. 1990. Metzger, Ernest. Litigation in Roman law. Oxford University Press. 2005. Newton, Gill. Could Women be allowed to Divorce in Ancient Rome? 1994. Olga, Eveline & Tellegen-Couperus. A Short History of Roman law. Routledge. 1993. P. 174. Rawson, Beryl. Marriage and Divorce within the Ancient Rome. New York. Oxford University Press. 1991. Treggiari, Susan. Women in Roman Society. Extracted from Kleiner, Diana E. E. and Susan B. Matheson (eds.). 1996. A discussion on I Claudia: women in ancient Rome, pp. 116-125. Thomas, Watson. Textbook of Roman law.1976, p. 419. William, Burdick. The Principles of Roman law and their Relation to Modern Law. The Law book Exchange, Ltd. 2004. Read More