Reviews of Case-Based Reasoning and Formulary Procedure

A guard against individual emotions
by Marco Gardini
(3 reviews)

Review by Luca Nogler on 11-10-2015

The quality of the contribution
The article provides interesting information about the Roman formulary procedure, analyses the potential impact of emotions in Roman civil law and advances an original idea about how Roman legal reasoning could currently influence the general method of private law. The author’s commendable choice to review two contemporary cases (the El Aofir and the Stamina cases) both illustrative of The role of emotions in law, assists this outcom. These cases, as the author compellingly argues – are emblematic in demonstrating how difficult it is, in the absence of a rigorous and shared context for the case, to separate law from individualities, with the result that the concrete decisions tend to be founded on grounds that are “other than intellectual ones”. Therefore the submitted article conforms without any doubt to the technical and scientific standards suited for the specific type of the contribution.

The relation between the article and the research question
Marco Gardini’s article is founded on the same premise as argued by Paul Scholten: “it is an illusion” that the legislator “has sufficiently regulated the subject-matter on which he is focusing”. As Gardini explains, “the primary element of legal experience is to be found in the process of setting and solving problems posed by real situation”. These issues may present a combination of interests which have not been taken into account by the lawmakers and precisely for this reason, to use Scholten’s words again, – “ [it] is “not always easy” [to] extrapolate the rule from the law”, In such cases the court must strive to establish cooperation between reason and emotion.
From this perspective, Gardini’s essay contributes to the research question. It shows how the Roman law formulary procedure identifies in advance the importance of emotions, thus helping to channel their impact on the Court’s decision-making process. This has the effect of avoiding the disruptive force of emotions. The modern challenge thus lies in managing to reinstate the setting phase of the dispute.

Recommendations for improving the article
The essay identifies an issue in contemporary law very well. From that point of view, there is no necessity for me to formulate any recommendations. If anything, I could wish that the author would submit another article in the future, dealing with how this fundamental problem might be resolved.

Review by Carel Smith on 11-10-2015

-the quality of the contribution.
The article definitely conforms to the technical and scientific standards for this type of contribution. I am not an expert in Roman Law, and even less than that, so I cannot judge whether or not his interesting argument—that the formulas in Roman Law served as an impediment for individual (or collective) emotion—is correct or new, but at least I found it convincingly stated.
As to the connection with Scholten’s work, I think this connection is rather thin. The author could leave Scholten out of the article, and it would still be the same article with the same arguments. But that doesn’t change, of course, the quality of the article as such.
-the relation between the article and the research question. Yes. A minor remark: in the abstract the author states that this paper investigates the struggle between individual emotion and rationality, but at least the El Aofir case is an example, not of individual emotion, but collective emotion that might have directed the decision. Does the author hold his conclusion also for the struggle between collective emotion and rationality?
-recommendations for improvement of the article.
Again a minor remark: on p. 4 the author states that, if the law depends on the facts, it should follow that the more facts are taken into consideration, the more accurate the decision becomes. I don’t see that this follows from the proposition. One can also understand the proposition the other way round: that without facts it is impossible to say what is law (justice). Rather than stating that from this proposition follows &c., the author could state: One shouldn’t infer from this proposition that the more facts are taken into consideration &c.

Review by author's response on 02-02-2016

Answer by Marco Gardini to his reviewers
First of all I would like to thank both reviewers for the comments and suggestions given on my paper. I will try to act in accordance with the encouragement given by Luca Nogler.
With regard to the first remark made by Carel Smith I would only like to point out that, in the scope of the paper, collective emotions are important because they tend to have the strongest impact on the individual emotions of the judge, who, when he finds himself alone, will be inclined to bend to them.
I have decided to accept the second remark because it captures more clearly what I intended to convey when I wrote «This is however only partially true». I would therefore change the text in paragraph 4 as suggested:
«One, however, shouldn’t infer from this proposition that the more facts are taken into consideration, the more accurate the decision becomes. From a disorderly or excessive amount of factual details…».

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