Cognitive method

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The cognitive process ( cognitio extra-ordinem , abbreviated ceo , also cognitio extraordinaria or extraordinaria cognitio ) was in the Roman Empire civil procedure developed lawsuits .

Development history

After the procedural forms of legislative action and form process that were effective around the time of the Twelve Tables in the early Roman Republic and especially during the early Principate had been replaced in the 3rd century AD, the two-part process before the magistrate ( in iure ) to determine the formulas and then to the judge ( apud iudicem ) to collect evidence and form a judgment. Instead, the process procedure was standardized and transferred to the magistrate. These were publicly appointed to negotiate and resolve the pending case. The change from the republican constitution to the official state of the principate brought with it far-reaching encroachments on the judiciary.

The cognitive procedure was able to prevail, because already in the times of the republic some disputes in the administrative area were decided unified by only one judge by way of the eponymous cognitio extraordinaria , which had proven itself. Since the number of disputes due to newly created claims (e.g. maintenance claims) increased significantly and the form process had not even been introduced in some Roman provinces because decisions had been made there by the civil servant judge of the military administration, the civil process form process became in 342 AD ultimately abolished. In addition, the appeal of the courts found its way into the judiciary, meaning that an appellate or appellate judge, but primarily the Princeps , could review the judgments that were objected to, so that, according to today's understanding, the process logic could be upgraded. Even the initially celebrated legal creation power of the form process in relation to the archaic legislative procedure could not "save" the process type, especially since the formula inventory was largely completed before the final editing of the Edictum perpetuum under Emperor Hadrian and did not result in excessive flexibility.

Legal proceedings

The cognition process was no longer invited privately by the parties themselves, but ex officio. The legal consequence in the absence of the parties to the litigation ( contumacia ) was the newly introduced default judgment . The once procedural way of thinking based on action law gave way to a uniform procedure in which actiones and exceptiones recurred as substantive claims and defenses .

Originally, the cognitio was located in the provinces in civil proceedings. There it was often problematic to find enough Roman citizens as jury members. Therefore, the praetor naturally took over the tasks assigned to them in the core kingdom. Ever since the legislative procedure was replaced by the form process, the praetor's trial was called cognitio causae . It preceded the granting of a lament. In other cases, the term cognitio was also used to describe the conduct of negotiations by the judge himself, who instead of the jury appointed by him had to bring a case to a decision. Under Emperor Augustus , the Advanced cognititio to cognitio extra-ordinem in which the magistrate no iudex privatus began (Private as a judge), but chose itself or by imperial officials. The principles found for this procedure shaped the late Roman process after the abolition of the form process. In criminal proceedings, too, a newer cognitio gradually supplanted the older quaestiones .

The judgment already anticipated the modern understanding of law in that it had to be drafted and justified in writing. In particular, decisions about the surrender of movable property (chattels) deviated from the principle of every conviction is money ( omnis condemnatio pecunaria est ), which resulted in a change in enforcement law. Now there was a foreclosure against the object to be surrendered. Judgments were fully verifiable ( appellatio ) in the instance of courts , whereby no new facts could be presented.

The Roman canonical procedure of medieval courts is based on the cognitio extra ordinem .

literature

Web links

Individual evidence

  1. ^ Gerhard Köbler: Legal dictionary. 15th edition Munich, 2012
  2. ↑ Christian Reitzenstein-Ronning: The Roman Senate in the Imperial Era ( Memento from March 4, 2016 in the Internet Archive ) LMU Munich, Dept. of Ancient History
  3. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 1 no. 22nd
  4. ^ Max Kaser , Karl Hackl: The Roman civil procedure law . 2., completely revised and exp. Edition / re-edit by Karl Hackl. 2nd Edition. Beck, Munich 1996, ISBN 3-406-40490-1 .
  5. ^ A b c Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 386–388.