Ernest Metzger, University of Glasgow School of Law, has posted two items from his backlist. The first is
Agree to Disagree: Local Jurisdiction in the Lex Irnitana, which appeared in
Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry, ed. A. Burrows, D. Johnston, R. Zimmermann (Oxford University Press, 2013), 207-225:
The lex Irnitana (AD 91) is one of our principal sources for Roman civil procedure during the classical period. In character it is a municipal charter for a municipium in Baetica. It contains extensive provisions on the conduct of civil lawsuits, and among its most contested provisions is Chapter 84 on jurisdiction.
The main point of disagreement: was it possible only to have 'small lawsuits' heard locally, or might the parties, by agreement, consent to have lawsuits of substantial value heard also? The disagreement is of much greater significance than this single inscription might suggest: Roman civil procedure underwent revolutionary reforms in 17 BC, and 'consent to jurisdiction' was one of these reforms. This inscription is the most important clue to these reforms.
This article argues that local litigants, by consent, might indeed have significant lawsuits heard locally. The article examines the construction of Chapter 84, and concludes (1) that Chapter 84 has suffered from an error in redaction, specifically, that a large section of text was inserted by the draftsman in the wrong place, and (2) that one portion of Chapter 84 was poorly restored by its earliest editors, in such a way that the printed text makes no sense.
The second is
Absent Parties and Bloody-Minded Judges, which appeared in
Mapping the Law: Essays in Memory of Peter Birks, ed. A. Burrows and A. Rodger (Oxford University Press, 2006), 455-473:
This is an article about judges' liability. The single judge who presided over the standardcivil 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.
