Annual Survey of International & Comparative Law


An explanatory note on the structure and limits of the present essay may be useful. In studies which also have a historical character. it is customary to present the subject matter in chronological order, first outlining the more ancient legal system, following then as far as possible its evolutionary steps, finally to end with the analysis of existing legal systems. In this article, however, in order to place the reader in medias res he is presented with modern legal systems with which he is already familiar: in such systems it is practically inconceivable that the judge should refuse to give judgment in case of doubt. After the arguments adduced in justification have been discussed, the author turns to the problem in the context of Roman law, reaching some conclusions de lege ferenda. Neither the criminal aspect of the problem i.e., that of the penalty incurred by a judge for omitting to perform his duty of pronouncing judgment, nor the problem of nonjusticiability which as recently been the subject of intense controversy, is dealt with in this article.

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