What it was
The praetorship was the second magistracy with imperium. The urban praetor administered justice between citizens; a second, the peregrine praetor, handled cases involving foreigners from the mid-third century BCE.
Praetors also commanded armies and governed provinces, and their number rose as the empire grew.
How it worked
On entering office each praetor published an edict setting out the actions he would grant and the defences he would allow. In principle it was his own; in practice each largely repeated his predecessor's, with additions.
That accumulation is the mechanism. Roman private law developed less by legislation than by praetors adding remedies where the existing law produced results they judged unjust, and the accumulated edict was eventually consolidated into a fixed form under Hadrian.
Powers and limits
The praetor did not decide cases. He framed the issue, granted or refused an action, and appointed a private judge to hear it — a division between the magistrate and the trial that has no modern equivalent.
He could not repeal statute. His power was to supplement and to obstruct: to grant a remedy the law did not provide, or to refuse an action the law technically allowed.
How it changed
The office was created in 367 BCE on the traditional account. Numbers rose from one to two to four and beyond as provinces multiplied.
Hadrian had the edict codified in a permanent form, which ended its development as a living instrument and turned it into a text for jurists to comment on.
What the evidence supports
The praetor's edict was a principal source of legal development.
Attested by the jurists themselves, who describe the honorary law as that introduced by the praetors to aid, supplement or correct the civil law.
Magistrate and judge were separate functions.
The two-stage procedure is set out in Gaius's Institutes, the one classical legal textbook preserved substantially outside the Digest.
The edict's text is reconstructed, not preserved.
The consolidated edict does not survive as such; it is reconstructed from quotations in the jurists and in the Digest.
Terms
- ius honorarium
- The law introduced by magistrates through the edict, as opposed to the ius civile.
- formula
- The written statement of the issue the praetor sent to the appointed judge.
Primary sources
Gaius, Institutes 4
The formulary procedure and the praetor's role in it.
Papinian, in the Digest, Digest 1.1.7
The definition of praetorian law as aiding, supplementing and correcting the civil law.
How to read the evidence labels
- Evidence level: Documented
- Supported by a named primary text or by excavated material evidence.
- Evidence level: Probable
- Supported by strong inference that most specialists accept.
- Evidence level: Disputed
- Substantial specialist disagreement exists; competing readings are stated.
- Evidence level: Literary
- Belongs to poetic or mythological construction rather than to history.
- Evidence level: Mythological
- Belongs to shared religious or mythic tradition rather than to any single text.
- Evidence level: Unknown
- The available evidence is insufficient to decide.
These labels describe the status of the evidence, not our confidence in a conclusion. A claim marked Literary is not a claim we doubt; it is a claim about what kind of thing a poem is.