PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
proceedings, i.e. in their bipartite division into proceedings before the state magistrate or praetor (in iure) and proceedings before a chosen judge (apud iudicem).19 Wlassak calls this form of proceedings “semi-state proceedings” (der halbstaatliche Prozeß).20 However, the contractual basis of the proceedings as their oldest element could still be recognised in this stage of development. The contractual basis of the proceedings was recognised by Wlassak in the act of litis contestatio. Generally speaking, only several sources referring to litis contestatio in the legis actio proceedings have been preserved. From these it may be seen that the act of litis contestatio took place before a magistrate, i.e. praetor (in iure) in such a way that the parties to the dispute would call in several Roman citizens to witness the presentation of the matter in dispute (lis),21 so that later, if necessary, they could testify in the proceedings apud iudicem regarding the dispute between the litigants.22 Based on these facts, Wlassak contended that litis contestatio was essentially a contract between the litigants made before the praetor and in the presence of the summoned witnesses. In this contract, the litigants set forth the matter in dispute, chose a judge (iudex) to settle their dispute and agreed to abide by the decision of judge. The contents of litis contestatio were particularly discernible in the structure of the formulary proceedings which were devoid of the strict formalism of the preceding period.23 In the last stage of development of Roman civil proceedings, i.e. in the period of cognition (extraordinary) proceedings, there was no bipartite division of the proceedings and no contractual appointment of a iudex. The iudex became a state official who conducted unified proceedings, from filing a civil suit to pronouncing a judgement. Therefore, according to Wlassak, the introduction of cognition proceedings marked the introduction of purely state proceedings. This interpretation is based on an assumption of the “strict gradual development” (streng stufenmaßige Entwicklung) of Roman proceedings. As we have seen, the stages of this development were as follows: 1) self-help; 2) private arbitration; 3) semi-state proceedings; and 4) purely state proceedings. Wlassak’s reconstruction of the origin and development of Roman civil proceedings had a significant impact on the study of Roman law during the first half of the 20th century and virtually became communis opinio doctorum. In Croatian studies of Roman law, Wlassak’s views were followed in particular by Marijan Horvat’s early works. This may be easily recognised in Horvat’s Savremeni nazori o postanku i značaju dvodiobe rimskog privatnog procesa (Contemporary Opinions on the Origin and Significance of the Bipartite Division of Roman Private Proceedings) from 1938, a detailed 24
For a general discussion of the basic characteristics of legis actio proceedings see more in Talamanca, op. cit. n. 17, at pp. 4 et seq.; M. Kaser – K. Hackl, op. cit. n. 17, at pp. 34 et seq.; H. Honsell – Th. Mayer-Maly – W. Selb, Römisches Recht (Berlin 1987) pp. 506 et seq. with references to extensive bibliography; for a general discussion of the origin, structure and basic characteristics of the formulary proceedings see in more detail in Talamanca, op. cit. n. 17, at pp. 25 et seq.; H. Honsell – Th. Mayer-Maly – W. Selb, ibid., at pp. 524 et seq.; M. Kaser – K. Hackl, op. cit. n. 17, at pp. 151 et seq., with detailed references to extensive bibliography on these issues.
M. Wlassak, op. cit. n. 18 (1921), at p. 247.
The very name litis contestatio was given due to the presence of witnesses in the process of presenting the disputed matter (contestari litem); M. Kaser – K. Hackl, op. cit. n. 17, at pp. 75 et seq.
In his analysis of the process of legis actio proceedings, Gaius does not mention the act of litis contestatio but one definition of the term "contestari litem" is preserved in Festus' extracts from the dictionary of rare words (De verborum significatu) by the grammarian Verrius Flaccus; see Festus, s.v. contestari litem (ed. Lindsay, 50): “Contestari litem dicuntur duo aut plures adversarii, quod ordinato iudicio utraque pars dicere solet: 'Testes estote'"; for the Croatian translation, see A. Romac, Izvori rimskog prava (Roman Law Sources)(Školska knjiga, Zagreb, 1973) at p. 559; on Festus see D. ŠKILJAN (ed.), Leksikon antičkih autora (Lexicon of Ancient Writers) (Zagreb, 1996), at p. 205, and on Verrius Flaccus, see Festus, op cit. at p. 603.
M. Wlassak, op. cit. n. 18 (1899), at pp. 59 et seq.; idem, Anklage und Streitbefestigung, Abwehr gegen Phillip Lothmar (Vienna 1920), at pp. 9 et seq.
Koschaker, Rabel, Biondi, Mazeaud, Betti, Heuss, Bozza, Carreli, etc. followed Wlassak’s interpretation; for information on the works of these and other authors who followed Wlassak see G. Broggini, Iudex arbiterve, Prolegomena zum Officium des römischen Privatrichters (Cologn/Graz 1957) at p. 7, fn. 14.