Non Liquet: From Modern Law to Roman Law

Abstract

1.May a Judge Refuse to Pronounce Judgment?: In modern legal systems, the judge cannot as a rule evade his basic duty, that of adjudicating. He has the option of either allowing or of rejecting the plaintiff's claims. Under the rules of criminal procedure adopted by several countries, he may acquit for insufficient evidence. But he cannot be released from exercising his function as a judge, claiming either that the facts of the case are not sufficiently clear to him (factual doubt), or that the norm to be applied in the specific case cannot be determined (judicial doubt), or even that there exists no fixed norm for the determination of the case (lacunain the law).Thus theCode Civil des Français(orCode Napoléon) lays down explicitly: “A judge who refuses to decide a case, on the pretext that the law is silent, obscure or insufficient, may be prosecuted as being guilty of denial of justice”. This article is the outcome of a long evolutionary process. Prior to the French Revolution, before the separation of powers, the main question was not that oflacunaebut rather that of the directions given to the judge in order to help him carry out his functions.