Rules on Liability for Damage Caused During the Service Relationship of Judges I

Abstract

For many centuries, liability for damage caused in the exercise of public authority – including judicial powers – was an unknown concept in highly organized societies. An exceptionally long historical process was required to move from lay adjudication – which demanded no specialized legal expertise – to the establishment of the judicial institutional system as it is known today. Given that judges initially exercised their functions within the framework of the administration of justice regarded first as a royal prerogative and later as a privilege of the state, the exercise of judicial power and its origins were consistently shaped by prevailing ideologies. These ideologies determined whether judges could be held accountable for their actions or liability was excluded altogether. The concept of judicial liability first emerged in the Ancient Roman Empire during the imperial period, recognizing the personal responsibility of judges for damage caused in the course of judicial proceedings. Both in the general
medieval development of tort law and Hungarian law in particular, it can be stated that the possibility of imposing personal liability on judges for damage caused in the exercise of judicial authority was recognized only within a narrowly defined scope. The modern legal framework governing liability for damage caused in the exercise of public authority was first articulated in the nineteenth century, notably in the French Civil Code, followed by the Austrian Civil Code (ABGB) and the German Civil Code (BGB). Judicial power, as a constituent prerogative of royal authority, preserved its inviolability and immunity from liability for centuries. It was only the profound social and jurisprudential transformations of the eighteenth and nineteenth centuries that succeeded in breaching this protective shield. Nevertheless, it was in the twentieth century – through the broad acceptance of the general principles of compensation – that the gradual dismantling of judicial immunity truly began.