The Judge and his Conscience:

A Sixteenth-Century ‘Dialogue on Justice’ (1541)*

 

cecilia natalini

University of Trento

 

 

CONTENTS: 1. Introduction. – 2. The decretal Quoniam contra falsam of Pope Innocent III and the sollicitudo of the judge. – 3. Sansovino and the organization of the legal proceedings. – 4. Between Bartolus and Sansovino: ‘iudicare secundum conscientiam’.

 

 

1. – Introduction

 

The conscience of the judge plays an essential role in the development of the legal procedure of all times. We can say that the historic development of legal thought has fostered a broad range of meanings of the term ‘conscience of the judge’. The historical sources and the scientific literature have employed the conscience in explaining many legal concepts: primarily the personal knowledge and the discretion of the judge, the bribery of the judge and his incompetence. So – as has been said – the «conscience appears to be a privatized or subjective notion»[1]. Instead my concern in this paper is a further sense of the conscience of the judge, i.e. the ‘duty of care’ (sollicitudo), according to the content developed in a Dialogue on Justice written in the early forties of the 16th century by the Italian jurist Francesco Sansovino.

Francesco Sansovino was educated in law in Venice, Padua and Bologna. He drew up the Dialogue by rendering in a dramatic form and in Italian vernacular some important treaties by the great 14th century jurist Bartolus of Sassoferrato (1313-1357): the ‘Tractatus de ordine iudiciorum’ (a treaty on legal proceedings), the ‘Tractatus testimoniorum’ (on witnesses) and the ‘Tractatus de regimine civitatis’ (on city government)[2]. Therefore Sansovino captures our attention because his renewed presentation in vernacular of Bartolus’s texts suggests continuity between the middle ages and early modernity. Well, in what does such continuity consist in relation to the conscience of the judge?

The question becomes more important because of the very probable misattribution to Bartolus of the ordo Haec sunt, largely translated into vernacular in the Dialogue: an ordo, i.e. a treaty, in the words of the German historian Linda Fowler, «dealing with judicial procedure from the beginning of the trial to the sentence, appeal or execution»[3]. The ordo Haec sunt was attributed to Bartolus and edited by Gustav Adolph Martin in 1826 with the title of Tractatus de ordine iudiciorum[4]. However in the second half of the 19th century it was already assumed that the work was one of the re-editions of the ordo Ad summariam notitiam (written after 1234) and attributed to Petrus Hispanus Portugalensis, who was active in the first half of the 13th century[5]. Especially Carl Ferdinand Reatz (1864) considered unlikely that a jurist such as Johannes Andreae ignored Bartolus’s treaty on legal proceedings without mentioning it in his works: an oddity and an eloquent authoritative omission[6]. So it is still possible to give credit to Reatz’s observation. Therefore, Bartolus’s authorship of the Treaty on legal proceedings still remains unlikely.

In reality Sansovino was not interested in the authorship of the ordo Haec sunt: probably, he reviewed one of the print editions of his time, intentionally responsible for the misattribution to Bartolus, which was aimed at increasing the circulation of the work[7]. The authenticity of the sources, which is so important for humanists, is overshadowed by the need – also typical of the humanistic method – to conceive a work on legal practice free from ancient authorities. Consequently Sansovino does not declare the background of his Dialogue[8]. Therefore, it is not appropriate to discuss here the authorship of the treaty. I intend instead to discuss the essential reasons that stimulated a translation into vernacular of a treaty of law proceedings attributed to Bartolus. In other words, why did Sansovino use the ordo Haec sunt in outlining his Dialogue? An answer to this question can be attempted first by observing that the ordo Ad summariam notitiam, from which the ordo Haec sunt derives, contains some remarkable innovations. One of these consists in numbering the proceedings in ten steps: (quote) «Ad summariam noticiam consueti cursus causarum distingue decem tempora circa totalem causam» (end of quotation)[9].

 

 

2. – The decretal ‘Quoniam contra falsam’ of Pope Innocent III and the sollicitudo of the judge

 

A closer inspection reveals that the numbered order of proceedings derives from the decretal Quoniam contra falsam of Pope Innocent III [10], that is from canon 38 of the Fourth Lateran Council (1215)[11]. This is important because that decretal was crucial in refining the legal procedure of the time, as confirmed in the latter humanistic interpretation[12]. Therefore we need to go back to the Quoniam contra falsam in order to appreciate the originality of the ordo Ad summariam notitiam. The decretal establishes the presence of a public servant (publica persona, i.e. a notary), or of two qualified subjects, to record in writing the proceedings, classifying each individual stage of the proceedings. The purpose of the decretal is to prevent the prevarication of unfairness (iniquitas) on fairness (aequitas) and thus prevent the judge from unfairly condemning an innocent litigant who is in difficulty in proving the judge’s false statement[13]. The records have to be delivered to the parties. So, if the judge is accused of any false statement (falsa assertio), some other fair and reasonable judges (honesti et discreti) will seek the truth in order to prevent injustice. Therefore, the accused judge will be prosecuted by a higher judge, who will adjudicate not according to the conclusive presumption of the judge’s fairness (officium iudicis), but according to the judicial records. Therefore, without such records, the judge’s statement will be unfounded because unprovable. As you can see, this provision enhances the medieval guarantees: it does not focus on a lack of jurisdiction or on bribery, but rather on the responsibility of the judge who punishes the innocent litigant superficially (improvidus) and therefore unfairly (iniquus). The use of the term fair, opposed to superficial and unfair, is highly relevant with regard to the false statement of the judge: the uprightness (honestas), the ability to discern (discretio) are opposed to the recklessness (improvidentia) and unfairness (iniquitas): they are sources of liability because they are typical of an inert, negligent and superficial professional conduct. So the uprightness includes the judge’s duty of care (sollicitudo ut iudex). Therefore, the judge’s conduct is appreciated on the basis of the willingness to do justice and implement whatever is in his power of adjudication: of course ut iudex.

Therefore, the decretal Quoniam contra falsam prevents and punishes the subjective omission, i.e. the false and unfounded statement made by the judge who did not collect and sufficiently ponder upon the evidence on which his judgment should rest.

 

 

3. – Sansovino and the organization of the legal proceedings

 

As we can see, the numbered order of the proceedings configures some procedural principles, each susceptible of separate assessment. All this occurs in the ordo Ad summariam notitiam, which uses the novelties of the decretal Quoniam contra falsam in structuring rhetorically the ordo iudiciorum. All this brings us to the opening question more consciously: Bartolus’s treaty on legal proceedings, that incorporates the procedural steps, according to Innocent III, and the treaty on witnesses where Bartolus provides details of witnesses’ examination are consistent with each other. So Bartolus’s authorship of the first of these treaties appears consequential. Through the sequential presentation of Bartolus’s treaties, Sansovino responds with originality to the scientific organization of the legal proceedings. In this regards I believe that the decretal Quoniam contra falsam becomes crucial not only in relation to the new system of the procedural treaties as formulated in the vernacular doctrine of jus commune, but also in relation to the inner disposition accompanying the judge in his adjudication. The decretal – as noted above – tackles this problem when it blames the hasty, superficial, unwise judge; and when it establishes a paradigm of the judge’s duty of care very close to the humanistic representation of the diligent judge (prudens activus). The decretal tends to 'objectify' the legal proceedings, but it does not expel the discretion employed by the judge as judge.

 

 

4. – Between Bartolus and Sansovino: ‘iudicare secundum conscientiam’

 

These developments of legal thought which occurred between the middle ages and early modernity are attested in a short passage within the Dialogue, where Sansovino chooses a vernacular translation not perfectly adherent to the lexicon of Bartolus’s text. Sansovino focuses his attention on the consciousness of the judge and so, when he presents the question of the witnesses’ examination, he translates Bartolus freely.

 

Bartolo, Tractatus de ordine iudiciorum[14]     Hic annotandum est piissimum principem (Dig. 22.5.3.1) non in sola iudici potestate hec potuisse, sed ei quattuor consideranda iniunxit...

Sansovino, Dialogo della pratica della ragione[15]   Voi potete vedere la licenza che concede il pio prencipe (Dig. 22.5.3.1) al giudice, rimettendo la credenza alla coscienza dell’esaminatore, onde noi dobbiamo considerare intorno i testimoni quattro cose...

 

Bartolus reverts to the Digest (Dig. 22.5.3.1)[16] in giving the necessary qualities of the person called to witness and the requirements of the witnesses. So Bartolus points out the extension to which the judge can admit evidence (quanta fides habenda sit testibus). The judge is limited by some objective requirements obtained from the Justinian allegation. Sansovino, in his vernacular form, does not use the term ‘power’ (potestas) which is found in the Tractatus. He expresses the judge’s limit in examining witnesses with the new phrase ‘the conscience of the examiner’ («rimettendo la credenza alla coscienza dell’esaminatore»). In this way Sansovino highlights the provisions of the Hadrian rescript, recalled shortly after in the same fragment of the Digest (Dig. 22.5.3.2 in fi.)[17] and he invokes the sententia animi quoted in this Hadrian rescript. In the vernacular translation the animus becomes the conscience, i.e. a judgment, a belief that the iudex reaches carefully by rightfully using all tools provided by the law. The essential meaning of the expression ‘the examiner's conscience’ is increased and not reduced, even though it is not an authentic expression of Sansovino. Over three centuries earlier, the canonist Alanus Anglicus, commentator of the dictum Gratiani where the same passage of the Digest (Dig. 22.5.3.2 in fi.) was repeated[18], expressly states that the judge non iudicabit secundum allegata, set secundum conscientiam[19]. Alanus does not believe this legal principle is in opposition to the other iudicare secundum allegata et probata: each one corrects the other, in order to avoid that the strict application of either one could derail justice[20]. So it is true that Sansovino translates into vernacular the concept of the conscience of the judge on which the medieval doctrine had been working for a long time. Although the judge cannot use his personal knowledge and cannot abandon himself to personal extravagances, he is however obliged to weigh honestly and diligently the effective evidence of the parties’ pleas[21]. In essence, the medieval lesson on the conscience of the judge, largely developed by Bartolus, responds to the need to elude a previously fixed hierarchy of proofs, which tended to reconstruct a procedural truth far off or even opposed from the historical truth. Instead the hierarchy of proofs is made by the judge in each individual trial. Therefore, the judge must strive to adhere to the rule of evidence, since he is the main partner in the dialogue opened by the dialectical ability of the parties and their defenders in representing the truth. The notorious medieval definition of the trial as actus trium personarum lies in this dialectical relation between the judge and the parties. So the conscience of the judge developed from medieval doctrine and repurposed by Sansovino in the 16th century ends up with a flexible hierarchy of proofs: the hierarchy is not established a priori by the legal system but time to time and case by case by the judge, under the detailed guidance provided by the legal doctrine[22].

Well, it now becomes clear why Sansovino uses the ordo Haec sunt of the pseudo-Bartolus: because it was inspired by the decretal Quoniam contra falsam and therefore by the judge’s duty of care (sollicitudo ut iudex). There is a common thread in both the choice of the sources to translate and the terms used in the translation.

To conclude, Sansovino outlines the judge’s conscience not as a privatized or subjective notion, but as an objective professional consciousness. He still believes that the conscience of the judge is the only antidote to the false statement (falsa assertio) as captured by Dante, symbol of the medieval thought, in these words: «Della falsa oppinione nascevano li falsi giudicii, e de’ falsi giudicii nascevano le non giuste reverenze e vilipensioni: per che li buoni erano in villano despetto tenuti, e li malvagi onorati ed essaltati. La qual cosa era pessima confusione del mondo»; that is, «From the false opinion sprang false judgments, and from false judgments sprang unjust reverence and unjust contempt; wherefore the good were held in vile disdain, and the evil were honoured and exalted. This was the worst confusion in the world» (The Banquet IV I 7).