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Representation in Procedure in Roman Law and ius commune

Taking into account general theme of this year’s session of SIHDA, the aim of this paper is to analyse one specific matter therein, namely the problem of representation in procedure, in Roman law as well as in ius commune. The issue is related to the origins and functions of advocates and procedural procurators (advocati, procuratores ad litem). Having their origins in older periods of Roman law, the function of both of them changed in the postclassical and Justinianic law. In their developed stage, advocates were generally educated legal experts, professionals with their associations, who provided legal help for their clients. Procurators, on the other hand, were procedural representatives whose main function was to act in the stead of one party in procedure. One specific matter with repercussions for the relationship between both of them and their clients or principals stands out, and that is a possibility of an error by an advocate (error advocatorum), and a possibility to revoke a procurator. Regulation of those matters reflects general attitude of Roman law in regard to the issue of representation. The aim of this paper is to analyse sources of Roman law that deal with this matter, and which form basis for its further treatment in ius commune. Representation being a very important matter in the medieval Catholic Church due to its complex organisation, there are numerous sources dealing with it in canon law, most importantly different ordines iudiciarii. In addition, similar regulation and legal reasoning may be found in sources outside canon law, example of which may be the famous Tripartitum of Stephen Werböczy from 1514., a legal codification relevant for a number of central European countries. With the analysis of all those sources, we hope to help to illuminate a matter not only in its original Roman legal setting, but also in the perspective of its legal development in various contexts and jurisdictions, thus contributing both to better understanding of a legal reasoning in Roman law and its transformations and vicissitudes throughout centuries.

advocatus, procurator ad litem, revocatio procuratoris, error advocatorum, Roman law

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