Roman Judges, Case Law, and Principles of Procedure

Law and History Review, Vol. 22, pp. 243-75, 2004

33 Pages Posted: 1 Nov 2008 Last revised: 18 Jan 2016

Ernest Metzger

University of Glasgow - School of Law

Date Written: November 1, 2008

Abstract

Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever relied on the decisions of other judges, has been largely ignored. The common opinion which today correctly rejects "case law" passes over "precedent" without comment. It does so because for many years an anachronistic view of the Roman judge was in fashion. This was the view that a Roman judge's decision expressed the people's sense of right about a specific set of facts. A decision, on this view, is simply a piece of information for an expert to examine; it has no value to another judge. With the passing of this view, however, the common opinion could accept the existence of precedent in Roman law.

Keywords: Savigny, Roman law, iudex, precedent, case law

Suggested Citation

Metzger, Ernest, Roman Judges, Case Law, and Principles of Procedure (November 1, 2008). Law and History Review, Vol. 22, pp. 243-75, 2004. Available at SSRN: https://ssrn.com/abstract=1293180

Ernest Metzger (Contact Author)

University of Glasgow - School of Law ( email )

Stair Building
5 - 8 The Square
Glasgow, Scotland G12 8QQ
United Kingdom

Paper statistics

Downloads
333
Rank
71,637
Abstract Views
2,167