In the Roman legal system, parties established liability based upon fault in a cause of action called the delict, which means "wrong." Generally, actions that arose ex delicto were civil as opposed to criminal wrongs and usually threatened the security of an individual's rights. Originally, a violent retribution requited a delictal wrong; eventually, less violent means, such as monetary recompense, satisfied requital for such a wrong. Significantly, the delict encompassed injury to an individual's rights as well as harm to the state, and thereby served both a civil and criminal function in society.
The ancient Romans also established tort-like judicial liability in actions that arose "as if from a delict" or quasi ex delicto. The quasi-delicts encompass liability for careless conduct including liability for judicial dishonesty. In Roman law, judicial liability was created by a quasi-delict termed the iudex qui litem suam facit, which translates as a judge who "make[s] a case his own.84 This legal action has garnered substantial scholarly recognition, but only in an attempt to reconcile it with the other three quasi-delicts.85 Scholars, however, have given less attention to a detailed study of the legal significance of the iudex qui litem suam facit, which merits a close examination. This Article analyzes this action as it developed from the Republican through the post-Classical Periods in Roman law. The scope of the iudex qui litem suam facit and its corresponding sanctions during each period will receive particular scrutiny.
A. Republican Period: A Focus on Intentional Misconduct
Dure autem scriptum esse in istis legibus quid existimaripotest? nisi duram esse legem putas, quae iudicem arbitrumve iure datum, qui ob rem dicendam pecuniam accepisse convictus est, capitepoenitur...?88The tone of this passage implies that the Romans considered capital punishment a suitable penalty for a judge who accepted a bribe. An understanding of the Twelve Tables in their entirety clarifies the appropriateness of the sanction during the Republican Period. Many of the customs codified in the Twelve Tables reflected a primitive culture that often used the death penalty as a means of retributive vengeance.90 The sanction of capital punishment against a misbehaving judge preserves this retributive purpose. As a legal penalty, it formally gave a wronged litigant the opportunity to requite an injury caused by a judge's misbehavior.
How is it possible that these laws be considered harsh? Unless you think that a law is harsh that punishes a judge or arbiter with capital punishment, if he had clearly been shown to have accepted money to influence his decision.89
Significantly, in the Twelve Tables, the sanction focuses on the manner in which the judge acted rather than the correctness of his opinion. The text does not discuss whether the decision of the corrupt judge is legally correct.91 Rather, the passage stresses the behavior of the judge by use of the Latin phrase ob rem dicendam accepisse convictus est. This phrase means that the judge took money "for the purpose of making a biased opinion." The Latin makes it very clear that the judge must have acted intentionally because the grammatical function of the gerundive clause, ob rem dicendam, indicates the purpose behind the verbal action of accepting money. Hence, by accepting the money with the purpose of favoring one party, the judge committed an intentional wrong.92 Thus, the Romans limited judicial liability during the Republican Period to the intentional deviation from judicial impartiality motivated by the acceptance of a bribe.
It is significant that the scope of judicial misbehavior subject to punishment during the Republican Period was so limited. No system of appeal existed during this period, and the alternative type of judicial review available was narrow in scope.93 The combination of these factors explains why a misbehaving judge endured such a severe sanction. By creating an action that harshly punished judicial misconduct, Republican Rome produced a strong deterrent against such misconduct while giving some means of recourse to litigants.
B. Classical Period: Judicial Liability Extended
Iudex tunc litem suam facere intellegitur, cum dolo malo in fraudem legis sententiam dixerit (dolo malo autem videtur hoc facere,si evidens arguatureius vel gratia vel inimicitia vel etiam sordes), ut veram aestimationemlitispraestarecogatur.96Of central importance to this passage is the fraudamsentientiam or the "fraudulent judgment" rendered by the judge. In the context of this passage, a fraudulent judgment is not necessarily a legally incorrect opinion. Rather, the Latin word fraudam implies that the opinion was in some way tainted or cheated of honest and impartial deliberation by the judge.
A judge makes the case his own when from evil intent, that is a bias due to friendship, hatred, or corruption, he gives a fraudulent judgment, and he is condemned to pay the market value of the thing in dispute.
Ulpian further clarifies the nature of the fraudulent judgment by stating that the judge must intentionally depart from his duty to judicial impartiality. Ulpian establishes this by the phrase dolo malo, which means injurious "evil intent."97 Dolus, a noun that refers to the judge's state of mind, is in the ablative case, which functions here to stress the conditions under which the fraud was committed. Thus, regardless of the legal correctness of the decision, the judge would incur liability if a deceitful or evil state of mind tainted his opinion.
To underscore the fact that the judge's perspective or evil intent is the gravamen of the offense, Ulpian lists particular circumstances that may have motivated the fraud: friendship (gratia),hatred (inimicitia),and corruption (sordes). For example, the judge's impropriety may have involved an affirmative action, such as the taking of a bribe. Under such circumstance, the presumption of dolus on the part of the judge would be great.98 Alternatively, the judge's behavior could involve a less obvious wrong, such as a narrow or harsh decision in a case due to a personal bias.99 Because Ulpian establishes dolus malus as the source of fault for the iudex qui litem suam facit, a number of different circumstances involving intentional judicial partiality may give rise to judicial liability. Consequently, the Classical Period witnessed a broader scope of judicial liability than the Republican Period, which limited the scope to intentional fraud, such as accepting a bribe of money.
Another passage of Ulpian speaks of the need for judicial liability due to the possibility of unfairness or unskillfulness of a judge.100 Still, Ulpian does not mention the necessity of dolus. This passage reveals that one should not read the foregoing passage of Ulpian as a definitional limitation upon the iudex qui litem suam facit as it was known during his lifetime. Rather the inconsistencies between the two passages evidence a transitional state of the law of judicial liability during the Classical Period.101
A passage in the Digest, attributed to Gaius, illustrates this fluctuation in the state of the law:
Debet autem iudex attendere,ut cum certaepecuniae condemnatio posita sit, neque maioris neque minoris summa posita condemnet, alioquin litem suam facit; item si taxatio posita sit, ne pluris condemnet quam taxatum sit; alias enim similiter litem suamfacit. Minoris autem damnareeipermissum est.102If a judge improperly set damages, the judge assumed liability for damages, which would be determined in accordance with the judge's degree of fault.103 Curiously, Gaius makes no mention of intent in this passage. Such silence as to the judge's state of mind would allow liability to attach whether the judge acted with dolus or mere negligence in the performance of his duty.
When a certain sum is laid in the condemnatio, a judge must be careful not to condemn the defendant in a greater or lesser sum, else he makes himself liable to damages: and if there is a limitation he must be careful not to exceed the maximum, else he is similarly liable.
Another passage attributed to Gaius, further defines the scope of the iudex qui litem suam facit. It reads:
Si iudex litem suam fecerit, non proprie ex maleficio obligatus videtur. Sed quia neque ex contractu obligatusest, et utiquepeccasse aliquid intellegitur licet per imprudentiam: ideo videtur quasiex maleficio teneri infactum actione, et in quantum de ea reaequum religioniiudicantisvisum fueritpoenam sustinebit.104The difficulty presented is that Gaius extends judicial liability to acts that occurred unintentionally (per imprudentiam). Because Ulpian and Gaius were contemporaries, it is unlikely that the former would limit judicial liability to intentional acts, while the latter would extend such liability to negligence. To reconcile this inconsistency, scholars have regarded the portion of Gaius' passage from "the obligation" to "quasidelict" as an interpolation, or an insertion of text from an outside source.105 Such reasoning is persuasive not only from a linguistic perspective, but also from an historical one.106
If a judge make a case his own, the obligation he incurs is not created by delict, nor yet by contract, but as he commits a fault, though it may be without intention, he is liable in an action in factum for a quasi-delict to such damages as may be assessed.
One scholar regards the interpolation itself as evidence of the transitional state of the law during the Classical Period.107 Nevertheless, even if one disregards the interpolated portions of the passage, Gaius still makes no specific reference to the necessity of dolus. The lack of such specificity leads to differing interpretations of the passage. One may read it with strict adherence to prior custom and argue that if the quasi-delict were to extend its liability to unintentional acts, the author would have mentioned it specifically. An alternative reading favors the trend of the law at that time and argues that because the quasi-delict broadened its scope over time, the vagueness of Gaius' passage intended to allow for broad interpretations including both intentional and unintentional acts.
Based on this passage of Gaius, however, the scope of judicial liability was probably the same during the lifetimes of Gaius and Ulpian because both authors of the Digest aimed to collect and interpret legal customs as they had developed up to the second century A.D. As the empire grew, a system of appeals began to emerge;108 Gaius and Ulpian wrote during a transitional period between the Republican Period, when there were no appeals, and the later empire, when a system of appeals was fully developed. A legal system that lacked a system of review, as in the Republican Period, posited greater power in the judiciary. Correspondingly, the legal system of that period provided an alternative to a right of appeal, the iudex qui litem suam facit, which provided a remedy for a specific judicial misbehavior, i.e., bribery. The death penalty sanction underscores the importance vested in this remedy during the Republican Period.
Similarly, during the Classical Period, the iudex qui litem suam facit existed as a remedy that served as an alternative to appeals. However, because a system of appeals began to emerge during the Classical Period, the pressure was not as great on that society to provide an alternative method of review. Thus, although the iudex qui litem suam facit was still a very viable action against a misbehaving judge, its symbolic value as the guardian of judicial integrity diminished. Reducing the sanction from the imposition of the death penalty to the assessment of a fine clearly illustrates this point.109
C. Post-Classical Period: Focus on Unintentional Misconduct
During that period, Roman law held the judge responsible for a maleficium although he was viewed as not having acted strictly from maleficium. The word maleficium is very close in meaning to delict, that is, a wrong or an evil deed. Because the "male" part of the word means evil, maleficium means a deed that is evil in and of itself. In the Institutes of Justinian, maleficium refers to judicial bias.113 Justinian introduces the idea of fault by use of the verb pecasse, which means to do amiss, to mistake, or to transgress. Thus, during the post-Classical Period, the judge was liable for an error that rose to the level of a maleficium even though he may have committed it through ignorance or imprudence.
Clearly, the scope of judicial liability broadened during the later empire. The phrase per imprudentiam (unintentionally), which is definitely a part of the Justinian passage and not an interpolation as it was during the time of Gaius, imposed additional liability on a judge for a good faith procedural error such as missing the day of trial or making a minimal error in setting damages.114 Because the law required neither proof of harmful intent (dolus) nor any mention of the degree of harm to a litigant, the judge's vulnerability to suit was great. Two developments during the later empire, however, balanced this vulnerability. First, litigants had recourse to an appellate court if they felt wronged by a decision.115 Such a development would reduce the number of actions for personal liability against a judge. Second, the sanction imposed upon the judge was a fine in the amount of the litigation (if caused by dolus) or set by the judge himself (if prompted by negligence).116 The lack of severity of this sanction is inversely related to the broadness of the judge's liability. Therefore, while the scope of judicial liability was broadest during the post-Classical Period, the penalty for judicial misbehavior was most lenient.
