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1977 Acta Juridica 149 (1977)
Iudex Qui Litem Suam Fecit

handle is hein.journals/actj1977 and id is 157 raw text is: IUDEX QUI LITEM SUAM FECIT It is a delight to be enabled to join in a tribute to Professor Ben Beinart and, in so doing, to attempt to solve a riddle in Roman law, a riddle which very appropriately to his other interests has a strong jurisprudential flavour. The riddle is a simple one. Various texts in effect tell us that si iudex litem suam fecerit, he shall be liable to a penalty. There were some things that at some stage in Roman legal history a judge could do wrong, thereby rendering himself liable to an action by a dissatisfied litigant. But what things? At what time? What does litem suam facere mean? And why was the judge's liability categorized among obligationes quae quasi ex maleficio nascuntur? These questions define the riddle. No satisfactory answer has yet been given. This paper sets out a new and, it is submitted, a satisfactory solution. In outline it is as follows: (I) The action in question originated in, and was particularly appropriate to, the formulary system of litigation which had died out by the late third century AD. (2) The grounds of judicial liability certainly included 'patent errors', ie some ex facie obvious failure by the judge to decide a case according to the express terms of the praetor's formula. (3) The grounds may also have included wilful (dolo malo) misjudgment motivated by favour to or spite against one of the parties, or bribery, provided such could be proved by clear evidence extrinsic to the judg- ment itself. (4) The action probably became a dead letter with the development of a system of appeals within the Imperial system of adjudication (the so- called cognitiones extraordinariae). (5) Litem suam facere means 'to make one's own lis' either in the technical legal sense of 'lis' or in the popular sense of 'a dispute' (or perhaps both senses were embraced). (6) The obligatio, at least in the case of 'patent errors', was established without proof of any dolose or culpable act on the part of the judge; but his conduct manifested a failing in the virtue proper to his role. Similar criteria apply to the other cases of obligationes quae quasi ex maleficio nascuntur. I shall attempt to establish these points in that order. I THE FORMULARY SYSTEM The outlines of the formulary system of actions are well known. Aulus, having a grievance against Numerius, summons him to proceedings 'in iure' before the praetor (in ius vocatio). On the basis of averments by each of the parties, the praetor grants a formula defining all the issues at stake between the parties, naming a judge, and instructing the judge to grant adjudicatio or condemnatio in favour of'Aulus, or to absolve Numerius, according as he is satisfied by the evidence one way or the other. The adjudicatio or condem- 149

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