Brevi note in tema di «arbitrium iudicis». A proposito di Ulp. D. 47.10.17.4-6

This study focuses on the meaning of the expression arbitrium iudicis in the context of the actio iniuriarum noxalis. As Ulpian reports (D. 47.10.17.4-6), where somebody’s slave commits iniuria to somebody else, his master can offer in iure to the offended party eum verberandum. The presence of this clause generates a kind of actio arbitraria, an action depending on the discretion of the judge. In fact, the servi dominus can choose only the usual alternative between noxae dedere and litis aestimationem sufferre, if the iudex privatus does not hold as satisfying the verberatio. His autonomy of choice, codified as arbitrium iudicis, represents a cornerstone of the trial and it suggest that, despite the formula, the judge still possesses a degree of autonomy, conceptualized within a frame composed by the expression quasi vir bonus.