Contra 'Nemo Iudex in Sua Causa'
Harvard Law School
October 27, 2011
Harvard Public Law Working Paper No. 11-31
The maxim nemo iudex in sua causa – no man should be judge in his own case – is widely thought to capture a bedrock principle of natural justice and constitutionalism. The U.S. Supreme Court calls it “a mainstay of our system of government” and regularly invokes it in diverse contexts, and the principle has venerable roots in the common law. I will argue that the nemo iudex principle is worse than an outright falsehood; it is a misleading half-truth. Sometimes rulemakers in public law do and should design institutions to respect the value of impartiality that underlies nemo iudex principle. In other cases, however, they do not and should not. In many settings, public law makes officials or institutions the judges of their own prerogatives, power or legal authority. Officials or institutions may determine their own membership, award their own compensation, rule on the limits of their own jurisdiction, or adjudicate and punish violations of rules they themselves have created.
I will attempt to identify the general conditions under which rule-designers sensibly depart from, override or qualify the nemo iudex principle. In some cases there is no impartial official or institution in the picture, so that wherever decision-making authority is lodged, someone or other will have to be the judge in his own case. In other cases, even where it would be feasible to respect the nemo iudex principle, the costs of doing so will exceed the benefits. In general, this will be so when and because impartiality trades off against one of several competing considerations: the benefits of expertise, the value of institutional autonomy and independence, or the motivation and activity level of officials or institutions.
The upshot is that it is never sufficient to argue that a proposed institution, or a proposed interpretation of ambiguous constitutional rules or practices, would violate the nemo iudex principle or would “put the fox in charge of the henhouse.” One must go on to ask whether the conflict is avoidable or unavoidable, and if it is avoidable, whether it would be good or bad overall to avoid it.
Number of Pages in PDF File: 34Accepted Paper Series
Date posted: October 28, 2011 ; Last revised: December 13, 2011
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