Roman Law and the Legal World of the Romans

Legal (In)equality

could not throw the case altogether. But note that there was no general rule automatically barring the conflict of interest, and the thought of recusing himself from the case entirely seems out of the question. (Formal connections such as kinship or membership in the same fraternity could bar a judge in certain kinds of suits.) Note that the bias involved in selecting judges meant that only the wealthy would benefit from personal con nections. Gellius could not find a way to decide his case the way he wanted (i.e., in favor of the “good” man) and so looked for (and found) a way to get out of the whole thing. Such “moral” bias would, as we have noted earlier, tip heavily in favor of the wealthy and powerful. Both writers probably go further in allowing their personal preference to influence decisions than we would allow today. But even more striking is the fact that both do so in idealizing contexts. Cicero is writing philosophi cal advice, and Gellius is almost smug in describing how he got out of an ethical conundrum. Both are telling their own stories, so they can adjust them for maximum advantage in publicity. They are not “confessing” anything; they are boasting. That suggests that in practice, the level of favoritism in the Roman system must have been quite high. We have noted already that the Roman courts were weak on mechanisms to compel attendance and obedience to judg ments. They seem to have been thought of (at least ideally) as venues for arbitration between more or less willing partners. Between rough equals, this may or may not have worked well, but in circumstances of inequality it would have benefited the stronger party even when no specific favoritism was in play.

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