One of the pillars of Civil Law rules and principles is the maxim “Nemo iudex in sua causa”.
This legal phrase comes from Latin, and its literal translation is: nobody may be judge of his/her own case.
It refers towards a major legal principle, which states that no person can judge a case in which he or she participates as a party (i.e. pursues benefits).
In brief words it means that nobody can judge on their own lawsuit, otherwise there would be no fair justice.
The goal of the law is to secure the delivering of fair justice.
As a student it fascinated me both for the sense of search of fairness and for the necessity of cooling off any case from feelings. Hey, I am Italian…
It did fascinate me and it still does.
My thesis, final work of my Bachelor Degree in Law pointed me there: a further chance to investigate amongst a deeper sense of justice.
“Hermeneutics within the judiciary context” my ambitious title: a broad and extended work, which allowed me to get a taste and a sense of Common Law system.
In Civil Law system, justice is acknowledged confidently as far as a written rule, principle exists prior to the dispute.
What if no trace of same complaints exist in codes, Courts sentences, Constitution or sovereign legal hierarchic database etc…?
From a Civil Law student’s perspective, best area to investigate into was international law disputes, mainly family and commercial cases.
I had finally found grounds to enlightening my own doubts and uncertainties.
If disputants are from different Countries, not only they may speak different languages, they are brought up with different believes, different expectations and occasionally they may behave differently even when they mean to reach a common goal.
Bingo: in those (legal) cases, discarding emotions to be expressed, exchanged, considered, heard and worked at, it would just lead to a superficial agreement with little chance to endure at long term relationship.
During my legal practitioner experience in Italy, where Civil Law rules, I privately questioned this approach of ‘Straight to the facts. Objectiveness as the best way to deliver justice’ every and each time I was hearing a client’s complaint at the lawyers cabinet I worked at.
As legal representative, my duty was to translate clients’ requests into legalities, i.e. facts that can be brought before Court. No feelings allowed.
Each story ended up into legal papers and/or appearances to Court spoiled of the emotions from both disputants.
Litigations often appeared to me as if they were about to fail and to cause further damages as consequence.
I was often tempted by and considered inviting counterparty legal representative to look for some pre-judicial agreement, getting the disputants involved as well.
That personal approach to ideal justice never left me.
Times were not mature, neither was Civil Lay system.
I moved then to Ireland where Common Law represented a total new ground to me.
I learned (hardly at first) that a judge sentence is law. Each case may potentially become new justice rule or principle.
Courts decide on contemporary basis, not on millennial principles.
How much clearly I appreciated my Mediation course and practices…
Here I experienced evidences and tangible scenarios where my long-term dug approach to justice resuscitated and made sense.
What if the disputants get the opportunity to better understand each other requests, expectations, feelings?
What if before any legalities and technicalities the parties clear off the air from matters they may understand, hear and get to agree to?
What if, given the best circumstances and the professional assistance, the dispute becomes more and more a communication meeting, a parties’ strategy meeting?
What if thanks to the mediator I am today, I can see only the most complicate legalities brought to Court, while the parties stay in control of their own relationship?
May each disputant feel and be Iudex in sua causa after all?
By Debora Unali
3rd February 2015