The Judge Who Made the Case His Own
In a system of litigation, some individual[2719] is empowered by the state to determine the rights of disputing parties. Inevitably, at least one party is going to be disapÂpointed by the decision reached.[2720] On occasion, that party will have good reason to be disappointed, because the judge, whether through corruption, carelessness or inadvertence, has reached the wrong decision.
Mistakes are inevitable in any human system, and the most that can be done is to minimise how often they occur. One way of attempting to do this is to have a system of appeals, whereby a judge's decision can be reviewed by a higher court.At the same time, though, in the interests of certainty and finality, there must be some limitation on the review of judges' decisions. In particular, there are dangers if the whole merits of the case can be reargued:
To have allowed any reopening of a case on the pure merits of the matter would have been to destroy the system. We can be clear about that. To have done so would necessarily have been to pave the road to infinite rearguing of effectively the same point before a series of different judges.[2721]
It is largely for this reason that the modern law on the whole excludes appeals on questions of fact.[2722] Given that perfection cannot be attained by any human efforts, any system of review of judicial decisions must balance these considerations: the search for truth on the one hand, and certainty and finality on the other.
Under the legis actiones system of procedure, and subsequently the formulary system, used through the Republic and into the Early Empire, there was no sysÂtem of appeals againstjudges' decisions.[2723] Indeed, as we saw in Chapter 2,[2724] judges under the legis· actiones and formulary systems were not professional judges or (normally)[2725] trained lawyers; instead, they were private individuals chosen by the parties to arbitrate on their dispute.
As we also saw in Chapter 2, a disappointed litigant could not bring further proceedings against the same person on the same facts.[2726] Accordingly, defeat in litigation was final.The solution adopted during the Republic was to allow the disappointed litigant to sue the judge who, by giving the wrong decision, had ‘made the case his own'. A new judge would be appointed who would, if the original judge was found liable, award damages according to his own discretion.[2727]
Was the judge liable for any mistake, or was it necessary to show some degree of fault? The scope of this quasi-delict has long been a matter of controversy.[2728] It seems certain at least that, in classical law under the formulary procedure, a judge would be liable for exceeding the authority given to him by the formula approved by the praetor, which gave the judge his instructions on what he was to decide.[2729] An example might be awarding 50 or 150 when the formula directed the judge either to award 100 or to absolve the defender, or else failing to give a valid decision at all. Equally, it seems probable that the judge would be liable for actual corruption, on the basis of this comment attributed to Ulpian:
A judge is understood to make himself liable, when he deceitfully [dolo malo] gives a decision in fraud of the law (he is seen as having done this deceitfully if he is clearly shown to be guilty of bias, enmity or even corruption), and he is held liable for a fair estimation of the value of the action.[2730]
By implication, though, this excludes liability for mere negligence. Partiality is one thing; a litigant who complained of judicial incompetence would likely be met with the retort that he or she had agreed on the identity of the judge, and should have picked better. In any case, the question of liability for negligence would generally be academic: as judges did not have to give reasons for their decisions, there would be no basis for attacking their findings of law or fact. The position may have been different under Justinian, though. He refers to judges incurring liability per impruÂdentiam, in other words by ignorance or carelessness,[2731] though that may simply be intended as a reference to carelessness in understanding the extent of their authorÂity rather than carelessness in applying the law or determining the facts.
It is likely that this quasi-delict declined in importance once a system of appeals was developed. This is certainly true in modern Scots law: while there are some older cases establishing the principle as applicable,[2732] none is later than 1712.[2733] A disappointed litigant would nowadays appeal rather than attempt to sue the judge.
C.