Favoritism in the rulings of the judge

Rome's legal system entrusted disputes to the judgment of men, none of whom had any specialized training to ensure the impartial application of the law to all who approached his court.

This layman's approach to justice meant that diverse forms of favoritism could influence a judge's rulings. For instance, connections based on friendships, even those that were not particuВlarly intimate, could result in a judge favoring one of the parties from the very outset of the case.¹³³ Fronto's letter to Claudius Severus, who was to hear a case involving his friend Sulpicius Cornelianus, shows Fronto's attempt to influence Severus before the case had even begun.¹³⁴ Conversely, Quintilian mentions a judge who was already hostile to one side before the hearing began.¹³⁵ Such hostility could be due to various circumstances. The judge could, for example, be hearing a case in which his own personal interests were involved.¹³⁶ Quintilian does not elucidate the full range these вЂњpersonal interВestsвЂќ could take (he mentions specifically only the case in which Queen Berenice was both the judge and a litigant in the case, which was made excepВtional already by the involvement of foreign royalty); perhaps a more commonly found interest was some sort of financial connection between the judge and one of the litigants. In addition, a judge apparently could hear an appeal of a case for which he had provided the initial ruling.¹³⁷ Surely it would be difficult for a judge to remain impartial toward the party who had appealed his decision. Pre-existing hostility could also be aimed at an advoВcate.¹³⁸ It would have been nearly impossible for judge, litigants, and advocates always to be completely unknown to each other, if the case took place in a prominent court and involved equally prominent litigants and advocates.

To a certain degree, such prejudices could not be helped. The other situations mentioned above, however, seem quite prejudicial to modern sensiВbilities, and yet none are described as being particularly rare in Rome's courts. A judge could excuse himself from a case if one of the two litigants stood in his higher opinion; surely he could do the same if he was financially linked to the case.¹³⁹ It appears, however, that no rule required his withВdrawal. Quintilian notes, though, that sometimes the favor of a judge could actually do more harm than good. In an effort to look impartial sometimes a judge would actually be tougher on those he favored.¹⁴⁰

Favoritism due to the character or status of the litigant is rarely found in the ancient sources.¹⁴¹ The best evidence for the role character could play in a judge's decision is found in Gellius' description of a case he heard in his early years.¹⁴² In this case litigant A made a loan to B but did not use witnesses or obtain a receipt. A tries to get the loan repaid, B claims the loan was never made and therefore he owes nothing, and the matter comes before Gellius for resolution. Gellius describes A вЂњvirum esse firme bonum notaeque et expertae fidei et vitae inculpatissimae", вЂњto be a steadfastly good man of well-known and tested trustworthiness and blameless lifeвЂќ and B вЂњhominem esse non bonae rei vitaque turpi et sordida", вЂњto be a man of ill-gotten gains and of a shameful and base lifeвЂќ.¹⁴³ While the facts of the case leave little room for unease вЂ” a fact which his assessors make very clear to him вЂ” Gellius feels that he cannot find in favor of B because A is the вЂњmeliorвЂќ (better) man, and finally takes the oath that he cannot come to a decision.¹⁴⁴ This account is interesting for two reasons. First, the assessors were not at all affected by the character issue. Their primary conВcern was a quick resolution of the case.

Second, the explanation Gellius provides for why he cannot rule in favor of A is unusual. He does not say that he just could not bring himself to it; rather, he says: вЂњmains ego altiusque id esse existimavi quam quod meae aetati et mediocritati conveniret, ut cognovisse et condemВnasse de moribus, non de probationibus rei gestae vidererвЂќ, вЂњI thought that I would appear more proud and haughty than was appropriate because of my youth and humble station, if I seemed to sit in judgment on and condemn a man based on the characters of the disputants rather than on the evidence of the case.вЂќ¹⁴⁵ Gellius here implies that status and reputation, auctoritas, gained by years of public involvement, could empower a judge to rule against the letter of the law.

Influence impacted on practically every aspect of Roman life and clearly, as Gellius reveals, its impact was felt within the courts. For this study, however, the problem is identifying when outside forces of varying types affected a decision. The only reason we know Gellius' decision was affected by the litiВgants' characters is that he admits it. Without such admissions the impact is very difficult to spot. Garnsey is right that the praetors, as the magistrates who decided whether a prospective litigant had a viable case, could reject a case without any explanation. Thus, even at a preliminary stage character, influence, and status could determine access to justice.¹⁴⁶ Garnsey is also probably correct in seeing a greater opportunity for a judge to rule by status in the cognitio system. The individual judge under this procedure was given far more latitude in determining the penalty. To a certain degree, favoritism was a normal, acceptable aspect of Roman culture and for that reason its appearance within the courts likely did not surprise anyone. All things conВsidered, however, a sense of impartiality was certainly viewed as a very favorable trait in a judge.¹⁴⁷

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Source: Bablitz L.. Actors and audience in the Roman courtroom. Routledge,2007. вЂ” 290 p.. 2007

Favoritism in the rulings of the judge

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