“Nemo contra se tenetur edere”: The curious case of discovery in civil law, especially in Italy

Abstract

Like many legal principles we rely on daily, “Nemo contra se tenetur edere”—meaning no one can be compelled to give evidence against themselves—does not have noble Roman origins. In fact, the Romans were quite accustomed to disclosure. Nevertheless, this principle dominates within civil law systems.

A quite recent article by a prominent Italian scholar of Roman law has once again demonstrated that secrecy in ancient Rome was not considered a virtue, but rather the opposite. For example, the confidentiality of a will was an exception, intended to protect its integrity from tampering and falsification.

In this editorial, I will briefly examine this principle in the context of obtaining documentary evidence from the opposing party.