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synthetic account of the ideas about the development of Roman civil proceedings of that time. However, Schiedsgerichtstheorie also had a fundamental impact beyond the sphere of Roman legal studies. Some important authors believed that the stage of self-help was replaced by private arbitration as the primary form of proceedings in other ancient bodies of law as well – such as, for example, ancient Babylonian and ancient Greek law. Moreover, it is important to emphasise in this context that, as we have seen, contemporary civil procedure scholarship also followed Wlassak’s paradigm of the origin and development of civil proceedings. This is very obvious from, inter alia, the aforementioned brief overview of the development of the various forms of legal protection by Triva. b) Litis contestatio as the contractual basis of Roman civil proceedings? The validity of this paradigm basically depends only one key issue: can we really regard the litis contestatio of the legis actio proceedings as representing, in its essence, a formal act of a contractual nature, and is it a direct descendant of those primary contracts on private arbitration which supplanted self-help? The first Romanist who presented this thesis in nuce was the famous German lawyer Rudolph von Jhering (1818-1892). In his opinion, briefly outlined in the first part of his epochal work Geist des römischen Rechts28, the origins of legal proceedings among the ancient Romans were completely different than in the case of all other civilisations. Namely, some peoples had initially transcended self-help and settled the disputes in their communities by resorting to the supernatural powers of their deities in the form of different types of trials by ordeal, prophecies, casting lots, and so on. Others had replaced self-help by appointing authorities to settle disputes in their communities. In both cases, the parties to the dispute had to appear before the court of some superior authority, either divine or human. Jhering, however, was of the opinion that this had not been the case during the ancient Roman period. The Romans 25 26 27

differed from all other contractual form of

peoples in resolving

having legal

transcended the self-help stage by introducing a disputes (“vertragsmäßige Entscheidung der

Rechtsstreitigkeiten”) (Schiedsrichter) or an

through the institution of a defence judge, i.e. an arbitrator extrajudicial oath taking.29 Therefore, Jhering argued that the primary


See: M. Horvat, Savremeni nazori o postanku i značaju dvodiobe rimskog privatnog procesa (Contemporary Opinions on the Existence and Significance of the Bipartite Division of Roman Private Proceedings), 64 Law Society Paper (1938) at pp. 149 et seq.; B. Eisner – M. Horvat, Rimsko pravo (Roman Law) (Zagreb 1948) at pp. 541 et seq.


For ancient Babylonian law see Lautner, Die richterliche Entscheidung und die Streitbeendigung im altbabylonischen Prozeßrecht (Leipzig 1922); for ancient Greek law see A. Steinwenter, Die Streitbeendigung durch Urteil, Schiedspruch und Vergleich nach griechischem Rechte (Munich 1925). It is worth mentioning that Steinwenter came to the conclusion that private arbitration litigation represented the original form of the ancient Greek proceedings. Such a conclusion was based on an analysis of the court scene depicted on Achilles's shield which Homer described in the Iliad, Canto 18, verses 497-508. According to Steinwenter's interpretation, the person called istor mentioned in these verses, whom the parties to the dispute had turned to, was actually a private arbitrator. Therefore, according to this author, the court scene was likewise an ancient confirmation of the correctness of the Schiedsgerichts-theorie; see A. Steinwenter, ibid., at p. 36 et seq. A different explanation of the word istor was once given in Croatian literature by L. Margetić, Pokušaj pravne interpretacije sudbene scene na Ahilovu štitu (An Attempt to Interprete the Court Scene on Achilles' Shield), Collected Papers Dedicated to A. Vajs, Belgrade, 1966, at pp. 51 et seq. According to this author, the istor was not an arbitrator, but rather a person of public trust who registered relevant legal events in his memory. However, Margetić did not analyse this specific problem within the context of the origin and development of legal proceedings. In conclusion, it must be emphasised that the authors who have analysed this court scene recently (e.g. H. J. Wolf, G. Thür), have, for valid reasons, abandoned the Schiedsgerichtstheorie as an interpretative paradigm; see amplius G. Thür, Artur Steinwenter als Gräzist, 115 ZSS/RA (1998) at pp. 432 et seq. On the Romanist criticism of this theory see amplius infra under II c).


See supra, under 1; cf. also J. Juhart, Civilno procesno pravo FNRJ (Civil Procedural Law of the FPR Yugoslavia) (Ljubljana 1961) at pp. 1 et seq.; L. Ude, Civilni pravndi postopek in samoupravni sudski postopek (Ljubljana 1980) at p. 41.


See R. von Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung (Leipzig 1878) at pp. 108 and 167 et seq.


R. von Jhering, op. cit. n. 28, at p. 167.

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