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procedural form of settling disputes in ancient Rome had been private arbitration. Parties to a dispute would enter into a contract to appoint an arbitrator. That is, they did not submit themselves to an arbitrator as some sort of public authority, but rather voluntarily bound themselves to abide by his decision based on a private contract. According to Jhering, this primary contractual form of settling disputes was also preserved in the solemn forms of legis actio proceedings. While Jhering regarded primary private arbitration as having already been placed under state jurisdiction in the legis actio proceedings, it was possible to recognise the contractual basis of the entire proceedings in the act of litis contestatio. As we have already stated, it may be concluded based on the small number of extant sources dealing with litis contestatio in legis actio proceedings, that this act took place before a praetor (in iure) in such a manner that the parties to the dispute summoned several Roman citizens to serve as witnesses when the matter in dispute was presented (lis) so that in the subsequent proceedings apud iudicem, they could, if necessary, testify as to what the matter being disputed between the parties actually was.30 On the basis of the aforementioned sources, Jhering argued that litis contestatio was, in essence, a contract entered into by the parties to the dispute before the praetor and in the presence of the summoned witnesses. In this contract, the parties would define the matter in dispute, chose a judge (iudex) to settle their dispute and agree to abide by the decision of the iudex.31 Based on Jhering’s analysis, we may conclude that the contract by which the judge was chosen was the oldest element of legis actio proceedings. Jhering was of the opinion that private arbitration had been agreed upon by means of such contracts as the primary procedural form for settling disputes in ancient Rome. Over time, however, private arbitration came under the control of the state judiciary. This historical development can be demonstrated mainly by the fact that litigation was divided into two parts. In the first part of the proceedings, historically more recent and conducted before the praetor (in iure), the magistrate would examine whether all the prescribed preconditions for rendering legal protection had been fulfilled.32 If this were the case, the parties would, with the praetor’s consent, choose a judge who rendered a judgement in the second stage of the proceedings (apud iudicem). According to Jhering, the latter originated directly from private arbitration, as the oldest Roman form of litigation. Jhering believed that the state had taken over private arbitration without changing its basic features.33 In such a way, the earlier private arbitrator was replaced by a iudex chosen from an official list of judges (album iudicum); yet his role remained unchanged. However, in contrast to a private arbitrator, the judgement of iudex was authorised by the state due to the extremely important role of the praetor in the entire proceedings. Jhering’s understanding of the act of litis contestatio, as a contract on private arbitration replacing self-help was, as we have seen, adopted and elaborated by Wlassak as a sort of Archimedean point for his reflections on the origin and development of Roman civil proceedings from which his Schiedsgerichtstheorie was derived. It has already been pointed out that there are very few direct sources on litis contestatio in the legis actio proceedings. On the basis of the most important one, Festus’ previously cited interpretation of the concept “contestari litem”, we can see clearly only that the parties to the dispute summoned several Roman citizens to witness the presentation of the matter in dispute.34 According to the prevailing interpretation of Festus’ fragment among 19th century Romanists, the witnesses appeared before the praetor only at the very end of the in iure



Festus interpretation of the concept contestari litem cited op. cit. n. 21. R. von Jhering, op. cit. n. 28, at pp. 168 et seq.


Since the oldest legis actio proceedings was, as we have said, conducted in a strictly formal way, the praetor had to observe quite closely as to whether the parties were fully abiding by the prescribed procedural ritual.



R. von Jhering, op. cit. n. 28, at p. 172, fn. 73. Fest's explanation of the concept "contestari litem" cited op. cit. n. 21.

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