Absent Parties and Bloody-Minded Judges
MAPPING THE LAW. ESSAYS IN MEMORY OF PETER BIRKS, A. Burrows & A. Rodger, eds., pp. 455-473, Oxford, 2006.
20 Pages Posted: 15 Jan 2016
Date Written: June 2006
This is an article about judges' liability.
The single judge who presided over the standard civil trial in classical Rome was instructed by a short statement ('formula') as to how he should proceed. The formula told him what to consider and (with various allowances) how much to condemn the defendant to pay in the event the plaintiff prevailed. An obvious misstep (e.g., exceeding the allowances) could bring liability on the judge himself. One type of misstep, however, requires special treatment in the law: there were instances in which a judge should not adjudicate at all. This occurs when some unforeseen event intervenes which renders further adjudication undesirable. The best known example of such an event is absence. If e.g. a party is absent because he is seriously ill, the trial is said to be interrupted by a so-called 'dividing of the day' (diem diffindere). Moreover, if a judge, whether innocently or not, gives judgment notwithstanding the absence, the judgment is of no effect, and indeed the judge puts himself in jeopardy of liability.
The example given ('excusable absence') is an expression of the commendable principle to 'hear both sides'.
Keywords: Roman law, Roman civil procedure, Litem suam facere
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