Duhaime's Law Dictionary


De Fide et Officio Judicis non Recipitur Quaestio, sed de Scientia Sive sit Eror Juris sive Facti Definition:

Latin: The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error of law or of fact.

Edward Coke noted the existence of this Latin maxim in the common law in his Institutes.

This is one of the basic protections judges have against litigants displeased with judgment, especially to ward off legal action against the judge.

But, historically, it has cut both ways in insulating judges from their judicial decisions that are suspect for reasons other than of fact or of law (eg. bias or conflict of interest).

In Phillips v. United Service Automobile Association, Justice Lopez of the Court of Appeals of New Mexico deferred to this rendering of the maxim De Fide et Officio Judicis non Recipitur Quaestio, sed de Scientia Sive sit Eror Juris sive Facti to defeat an application that the fact of an eight month delay by the trial judge to render judgment was in and of itself an abuse of discretion and grounds for appeal:

"The bona fides and honesty of purpose of a judge cannot be questioned, but his decision may be impugned for error of law or of fact."

 

The maxim was a favorite of Herbert Broom who was the original author of the words used by Justice Lopez.

In the Illinois Law Review, circa 1915, Henry Schofield, then professor of law at Northwestern University wrote:

"The old and familiar maxim in Bacon's Legal Maxims - De fide et officio judicis iton recipitur quaestio, sed de scientia, sive sit error juris, sive facti - expresses the distinction with reference to "due process of law" in the fourteenth amendment between the right of litigants in state courts in cases arising under the local state law to have the local state law administered judicially and not arbitrarily, and their right to have free, fair and impartial state tribunals.

"The maxim marks and preserves a great advance in the judicial administration of law from the days when a defeated litigant's appeal from a judicial decision was a challenge to the judge to fight a duel. The maxim expresses the essence of the "fair forensic trial" secured by "due process of law."'

"Observance of the maxim in the judicial administration of law is essential to sound and useful legal reasoning, to impersonal, virile and dignified debate and orderly procedure, and to preserve the principle of the supremacy of law, conceiving "law" as a just and reasonable expression of the will of the community. The scientia of the decision, and not the bias of the tribunal, is the test of "due process of law" when applied to restrain the exercise of judicial power."

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