PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
interpretation, litis contestatio in legis actio proceedings consisted of solemn acts of the parties to the dispute before the praetor and the witnesses whereby the matter in dispute was defined.39 There are, in fact, a number of arguments, related to both form and content that run counter to Wlassak’s interpretation and these are advanced today to deny the contractual character of litis contestatio in legis actio proceedings. From the formal point of view it has been argued that the solemn acts making up litis contestatio did not correspond to any known Roman contractual forms, and that in ancient times, there was no general concept of a contract under which such an act could possibly be subsumed.40 In terms of content, it is completely disputable whether the choice of a iudex formed part of litis contestatio or not. Moreover, the question arises of whether there was even the possibility for the parties to choose a judge in legis actio prodeedings. Thus, for example, the Croatian Romanist Horvat, in his work entitled Deux phases du procès romain of 195941, in which he abandoned the Wlassak’s i n t e r p r e t a t i o n o f t h e o r i g i n a n d d e v e l o p m e n t o f t h e s e p r o c e e d i n g s , t h u s a l s o s i g n i f i c a n t l y
revising his own former views,42
emphasised that there had been no room in legis actio
proceedings for any agreement among the litigants regarding the choice of a judge. For, as was obvious from Gaius’ statements on legis actio per iudicis arbitrive postulationem, the plaintiff made a request to the praetor (postulatio) in a strictly prescribed form, whereupon the praetor would assign (datio) the judge.43 Gaius also mentions this idea of assigning a judge in connection with legis actio sacramento.44 The plaintiff’s unilateral request is completely incompatible with any notion of the contractual appointment of a judge. Moreover, it is obvious that praetor had the final word in assigning the judge and that the datio iudicis constituted first and foremost an act of the praetor’s authority.45 Bearing all of this in mind,
Arangio-Ruiz, III, Napoli, 1953, at pp. 461 et seq.; A. Biscardi, Esquisse d'une critique de la litis cotestatio, 33 Rev. hist. dr. fran. étr. RH (1955) at pp. 1 et seq.
See M. Kaser – K. Hackl, op. cit. n. 17, at pp. 75 et seq. As we have already said (supra, n. 35), older Romanist doctrine, following Keller, held that the witnesses appeared before the praetor only after the parties had mutually and ritually summoned them: "Testes estote". The witnesses were thus called in at the very end of the proceedings in iure, in order that the content of the hearing could be restated before them. Therefore, according to this view, only the final stage of the in iure proceedings constituted an act of litis contestatio; see F. Keller, op. cit. n. 35, at. pp. 1 et seq.; I. Baron, Institucije rimskog prava (Institutions of Roman Law) (Zagreb 1893) at p. 419: B. Eisner – M. Horvat, op. cit. n. 24, at p. 556, fn. 2. Contrary to this older interpretation, the prevailing opinion among Romanists today is that several Roman citizens of legal age (Quirites) were summoned as witnesses in advance, at the very beginning of the in iure proceedings, in order to be present during the entire solemn acts by the parties to the dispute (e.g. vindication, counter-vindication, etc.) in presenting the disputed matter (lis). However, the ritual exclamation "testes estote" was directed to the Quirites by the parties to the dispute only at the end of the in iure proceedings, thereby bidning them to their legal duty to testify about what they had seen and heard (cf. Lex XII Tab. 8, 22 where it is prescribed that a witness to an act, who later refuses to testify about it, is punished by being made inprobus intestabilisque). It is worth mentioning that this reconstruction has been made on the basis of some content-related similarities in content with Gaius, Inst. 2, 104, which concern the composition of a testament per aes et libram. The testator summoned five Roman citizens of legal age to be present at the ritual of composing a solemn testament, yet only at the end of this ritual, i.e. with the final words of the nuncupative act, would he solemnly bind those five Qurites to be the witnesses to his testament: " ... itaque vos Quirites, testimonium mihi perhibetote" (cf. M. Kaser – K. Hackl, op. cit. n. 17, at p. 76, fn. 40; on the original meaning of the nuncupative act see amplius P. Noailles, Du Droit sacré au Droit civil, Cours de Droit Romain Approfondi 1941-1942, Paris, 1949, at pp. 300 et seq. Bearing all these facts in mind, it should be emphasised once again that litis contestatio in legis actio proceedings consisted of the litigants' solemn acts before the praetor and the witnesses in presenting the matter of the dispute.
See M. Kaser – K. Hackl, op. cit. n. 17, at p. 79.
M. Horvat, Deux phases du procès romain, in: Droits de l'antiquité et sociologie juridique. Mélanges Henri Lévy-Bruhl, Paris, 1959, at pp. 163 et seq.; M. Horvat, O dvodiobi u najstarijem rimskom civilnom procesu (On the bipartite division in the oldest Roman civil proceedings), Zbornik Pravnog fakulteta) 8 Zbornik Pravnog fakulteta u Zagrebu (Collected Papers of the Faculty of Law in Zagreb) (1958) at pp. 137 et seq.
On Horvat's earlier views see supra, under II a).
See Gaius, Inst. 4, 17 where it is said that the plaintiff, were the defendant to deny his claim, was obliged to direct the following words to the praetor: "Quando tu negas, te praetor iudicem (sive arbitrum) postulo uti des" ("Since you have denied, I request of you, praetor, to assign a judge /or arbitrator/").
See Gaius, Inst. 4, 15, where we find the expressions like «iudex daretur», «dabatur iudex», or «quam iudex datus esset». M. Horvat, op. cit. n. 41, at p. 139 et seq.: cf. M. Kaser – K. Hackl, op. cit. n. 17, at p. 79.