Predictability of judicial decisions and foundations of European law: legal security in Roman law beyond the subjection of the judge to the statute

It is believed that in the post-modern age the legal security and the predictability of judicial decisions have entered a crisis because the principle of the judge's subjection to the statute is also in crisis. The Roman law could teach us that the legal security and the predictability of judicial outcomes have experienced a pre-modern age where they were not linked to the modern principle of the judge’s subjection to the statute but were instead linked to the principle of unambiguous, clear and precise wording of the legal paradigms which the judge was subjected to in order to deliver his judgment. According to the Roman foundations of the European law, the institutions of the European Union have drawn our attention back to the necessity of unambiguous, clear and precise legal text. The Latin sources analysed here show the use of the formulae («precise, strict, and simple») and not of the statutes as a guarantee of predictability of judgement outcomes and as a control of the sentences of the judges. We may say that the judge in the Roman formulary procedure was subject to the magistrate's formula and not to the statutes, because the relationship was between the judge and the formula and not between the judge and the statute. In conclusions, the current crisis of the statute should not necessarily lead us to abandon the need to guide the judges’ decisions with clear, precise and unambiguous legal paradigm.