PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
proceedings in response to a joint ritual invitation by the parties: “Testes estote!”. Therefore, prior to Wlassak’s work, the prevailing view was that litis contestatio referred only to the act of summoning the witnesses before whom the content of the previous hearing was then recapitulated as the final stage of the in iure proceedings. In this way, the witnesses were in a position to testify, if necessary, in the apud iudicem proceedings as to what the matter in dispute between the parties was.35 However, as we have already seen, Wlassak interpreted the concept of litis contestatio in this oldest form of legis actio proceedings (legis actio sacramento) in a much broader way. According to him, the summoning of the witnesses was merely one phenomenon accompanying the procedure. The essence of litis contestatio consisted in the solemn appearance of the witnesses before the praetor, whereby the parties presented the matter in dispute and agreed that their dispute would be settled by a chosen judge, by whose decision they would abide.36 On the basis of this interpretation, Wlassak drew the conclusion that litis contestatio actually represented a contract between the parties to the dispute, concluded before the praetor and the witnesses via the strict forms of the oldest legis actio proceedings. By means of this contract, the matter in dispute was presented and a judge was chosen to settle the dispute. However, the contractual nature of litis contestatio is not easily recognisable in the solemn forms of legis actio proceedings. The very nature of litis contestatio, according to the aforementioned author, can fully be recognised only in the formulary proceedings, purged of the strict formalism of the preceding period. Regardless of the formal aspects, Wlassak argued, the content of this contract had always been the same. Moreover, this interpretation of litis contestatio was also crucial to understanding the oldest stage of Roman legal proceedings, i.e. that which had preceded the emergence of a state judicial authority. For if litis contestatio were a procedural contract between the parties, presenting the matter in dispute and choosing the judge by whose decision they would abide, then it would have the same content as a private arbitration contract. According to Wlassak’s historical reconstruction, it could be concluded that litis contestatio developed from private arbitration contracts, and that the Romans, prior to the emergence of the legis actio proceedings, had settled their disputes through private arbitration as the primary form of legal proceedings. Private arbitration was placed under the control of the state judiciary in the legis actio proceedings. This explains how the phenomenon of a bipartite division of the proceedings emerged, whereby the first part was conducted before a state magistrate (in iure)
and the second before a judge chosen by the parties (apud iudicem).
Criticism of Schiedsgerichtstheorie in modern studies of Roman law
As we have already said, Wlassak’s theory of arbitration as the primary form of Roman proceedings (Schiedsgerichtstheorie), which was based mainly on his interpretation of
contestatio as a procedural 20th century from where it scholarship. However, in the course of
contract dominated the Romanist penetrated to other disciplines as
literature of the first half of the well, above all civil procedure
the forties and fifties, significant
Romanist works, published by
Kaser and contestatio have been
Biscardi, completely refuted this thesis on the contractual character of litis in legis actio proceedings. Contemporary Romanist discussion of litis contestatio based on the insights of these authors.38 According to the currently prevailing
This interpretation was first developed in 1827 by a Swiss romanist F. Keller in his work Über Litis Contestation und Urteil (Zurich, 1827) and it eventually became generally accepted; see M. Kaser – K. Hackl, op. cit. n. 17, at p. 291; cf. also B. Eisner – M. Horvat, op. cit. n. 24, at p. 556.
See e.g., M. Wlassak, op. cit. n. 18 (1899), at pp. 81 et seq. and 81 et seq.; cf. B. Eisner – M. Horvat, op. cit. n. 24, at. p. 556, fn. 2; M.Kaser – K. Hackl, op. cit. n. 17, at pp. 291 et seq.
See M. Wlassak, op. cit. n. 18 (1899), at pp. 69 et seq. and 81 et seq.; cf. B. Eisner – M. Horvat, op. cit. n. 24, at. p. 556, fn. 2.; M. Kaser – K. Hackl, op. cit. n. 17, at pp. 291 et seq.
See M. Kaser, Zum Ursprung des geteilten römischen Zivilprozessverfahrens, in: Festschrift für L. Wenger, Vol, I, Munich, 1944, at p. 126; A. Biscardi, La litis contestatio nella procedura per legis actiones, in: Studi in onore di V.