PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
we may conclude, in accordance with all of the existing sources that litis contestatio in legis actio proceedings did not by any means represent a contract between the parties to the dispute. Thus, there was no historical connection between litis contestatio and its ostensible predecessor, the private arbitration agreement. This statement refutes Wlassak’s entire theory of arbitration as the primary form of Roman civil proceedings (Schiedsgerichtstheorie). Therefore, legis actio proceedings cannot be regarded as a form of “semi-state proceedings” in which private arbitration was placed under the control of the state judiciary. This also annuls Wlassak’s interpretation of the origin of a bipartite division in legis actio proceedings. Finally, if litis contestatio was not a procedural contract, then there is no proof whatsoever for the statement that private arbitration represented the oldest procedural form for settling disputes in ancient Rome, one which, at some point in time, had replaced self-help and was in turn later transformed into the legis actio proceedings, thus becoming partially “state controlled”. Based on these arguments, Romanists gradually abandoned Wlassak’s views during the second half of the 20th century.46 The original form of Roman civil proceedings was decidedly not a private arbitration whose partial “state control” had subsequently given birth to legis actio proceedings.
Proceeding from this Romanist criticism of conclude that, as a result, Jhering’s basic
the nature of litis contestatio, it is not difficult to insight that the origins of ancient Roman civil
proceedings were completely different from those of other peoples - on which Wlassak’s Schiedsgerichtstheorie was later based - also becomes highly questionable. According to Jhering, as we have already emphasised, only the Romans had transcended the stage of self- help by introducing the contractual settlement of legal disputes (“vertragsmäßige Entscheidung der Rechtsstreitigkeiten”), whereas other peoples had abandoned self-help by either turning to the supernatural powers of their deities in the form of various types of trials by ordeal, prophecies, casting lots, and so on, or empowering certain authorities to settle disputes in their community. Jehring’s thesis and Wlassak’s theoretical interpretation based thereon undoubtedly represent extremely lucid and inspired attempts to explain the origin and development of Roman civil proceedings. However, we believe that their explanations are inconsistent with ancient Roman
reality as we shall try to elaborate briefly in the conclusion to this paper.
First of all, it must based on Jhering’s presented in the first
be emphasised that Wlassak’s Schiedsgerichtstheorie was completely theory of self-help (Selbsthilfetheorie). The core of this theory, as part of Jhering’s capital work entitled Der Geist des römischen Rechts, 47
consisted self-help conclude era, there
of the propositions that self-help was the primary form of settling disputes and that had been supplanted by private arbitration. Consequently, it is not difficult to that Jhering’s Selbsthilfetheorie was based on the presumption that, in the pre-state existed a situation in which everyone was at war against everyone else, unhindered
by any rules. Therefore, divine revelation nor in
according to Jhering, the the will of the state but
primary source of law resided neither in was to be sought in primordial physical
power, in the power of the individual.48 In (ius) emerge, with self-help as the primary
ancient times, only from power (vis), could law form of the protection of rights. At that time an
of his own body (Faustrecht). (Recht des Stärkeren), until
Therefore, the only law that existed was the law of the the self-help phase was replaced by the contractual
Cf. M. Talamanca, op. cit. n. 17, at pp. 6, 22 et seq.; M. Kaser – K. Hackl, op. cit. n. 17, at pp. 29 et seq. and 79 et seq. See R. von Jhering, op. cit. n. 28, at pp. 108 et seq. and 167 et seq. Ibid., at p. 107 et seq.