PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
arbitration and state legal protection. In this context, Triva emphasises in particular the Roman system of legal protection where "in the first stage, the dispute was settled before the state judicial organs (in jure) with the purpose of formulating the content of hypothetical legal protection while in the second stage the admissibility of the request for legal protection was decided before a chosen judge in whom the parties had confidence (in judicio).14 Following the transitional period, the system of state legal protection prevailed, and in the final stage of development, the state "also took over the enforcement of its decisions". According to this reconstruction of events, the initial process emerged when self-help was superseded as a mode of protection by private arbitration which was then in turn replaced by the protection provided by the state judiciary. Self-help – private arbitration – legal protection by the state: these are the successive stages in the development of legal protection. 15
However, it must be emphasised that the theory of arbitration, Schiedsgerichtstheorie, whose basic tenets we have just presented based on Triva’s textbook did not originally emerge and develop within the field of civil procedural law. Rather, it developed within modern Roman law scholarship in response to complex issues regarding the origin and development of Roman civil proceedings and was adopted by other legal disciplines from there.
II. Schiedsgerichtstheorie in the Modern Science of Roman Law
The author of the theory of arbitration as the primary form of civil proceedings (Schiedsgerichtstheorie), was the famous Austrian Romanist Moriz Wlassak (1854-1939) whose works, written during the first quarter of the 20th century, gave this theory a systematic treatment. The following statement by Wlassak perhaps best describes the essence of his research on the origin of Roman civil proceedings: "My goal was and still is to create a firm foundation for the thesis that Roman private proceedings originated from arbitration”. Taking Wlassak’s statement as a starting point, it is not difficult to understand why his studies on the origin and development of Roman civil proceedings eventually became known in Romanist literature as Schiedsgerichtstheorie. a) Arbitration as the primary form of Roman civil proceedings According to Wlassak’s analysis of the origin and development of Roman civil proceedings, self-help was the primary form of dispute resolution. In the subsequent historical phase, the parties to a dispute agreed, on the basis of a contract, to entrust the resolution of their dispute regarding a certain right to an unbiased third party. Wlassak was of the opinion that in this manner, self-help had been replaced by a private process of arbitration.18 Further historical development of these proceedings was characterised by the state’s gradually assuming control over private arbitration litigation, i.e. its becoming subject to control by the state judiciary. This phenomenon can be clearly perceived in the basic structures of legis actio and formulary 16 17
Ibid., at p. 10. Ibid., at p. 10.
M. Wlassak, Der Gerichtsmagistrat im gesetzlichen Spruchverfahren, 25 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung (further: ZSS/RA/) (1904) at p. 139: ‘Mein Ziel war und ist es, eine haltbare Grundlage zu schaffen für die These: der römische Privatprozeß hat seinem Ursprung im Schiedsgericht’.
M. Kaser – K. Hackl, Das römische Zivilprozeßrecht (Munich 1996) pp. 29 et seq.; Talamanca, s.v. Processo civile (diritto romano), Enciclopedia del diritto XXXVI (Milan 1987) at p. 6.
See e.g., M. Wlassak, Die Litiskontestation im Formularprozeß, in: Festschrift für B. Windscheid, Leipzig, 1899, at pp. 54 et seq.; M. Wlassak, Anklage und Streitbefestigung im Kriminalrecht der Römer (Vienna 1917) at p. 222; M. Wlassak, Der Judikationsbefehl der römischen Prozesse (Vienna 1921) at p. 247: M. Wlassak, Die klasische Prozeßformel (Vienna 1924) Wien, 1924, pp. 147 seq.