PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
settlement of legal disputes; therefore, arbitration was the oldest form of civil proceedings. It must be mentioned here that in later editions of the aforementioned work, Jhering emphasised that his overview of the genesis of Roman civil proceedings, based on the idea of transcending self-help via the contractual settlement of legal disputes, represented only a hypothetical construction of legal prehistory. (“eine hypotetische Construction der Urzeit”). Jhering expressly stated that his observations did not refer to that historical period in which iurisdictio of praetor most certainly did not derive from contractual will of the parties to a dispute but rather was assigned to him.49 However, we do not find such reservations in the many later proponents of the theory of self-help, beginning with Wlassak50, who completely superimposed Jhering’s hypothetical construction upon ancient Roman reality. Since it is our intention to prove in this conclusion that Selbsthilfetheorie and the Schiedsgerichtstheorie based thereupon are, as “hypothetical constructions”, quite inapplicable when analysing the origin of Roman civil proceedings, we must briefly analyse the philosophical foundations of these theories. First of all, Jhering’s construction of the “zero point” of history when there was a war of everyone against everyone else and the power of the stronger represented the sole law, obviously drew upon the naturalistic theories of the second half of the 19th century, primarily on Darwinist evolutionary hypotheses. Jhering transferred Darwin’s principle of selection, i.e. the idea that only the hardiest species survived in a merciless and continual struggle for life, into the sphere of law (Kampf ums Recht), taking it as one of the basic starting points for his philosophical and legal observations. His legal thinking thus took on the contours of a sort of “social Darwinism”. In this respect, Jhering’s theses on the genesis of the law and legal proceedings, as presented in his work Der Geist des römischen Rechts obviously stemmed from the aforementioned Darwinist paradigm. However, by projecting the conclusions of natural science onto social reality, Jhering simultaneously lent a new form to some much older philosophical concepts containing analogous ideas. Here we are referring primarily to the ideas of the English philosopher Thomas Hobbes (1588-1679) according to whom the primary, i.e. natural human state (status naturalis) was a war of everyone against everyone else (bellum omnium in omnes).52 Prior to the emergence of the state, there reigned only the law of self-preservation and egoism. Every individual had a natural right to all things which obviously resulted in numerous conflicts. However, the fear of death and destruction gradually forced individuals to terminate this war. Hobbes was of the opinion that it was a basic law of nature and a general rule of the mind that everyone would strive for peace. However, this state of peace could only be achieved by creating state authority. Therefore, reason itself demanded the creation of the state which came into being on the basis of a social contract in which all individuals renounced a certain part of their natural rights and transferred them to the sovereign authority.53 Even this slight reference to some of Hobbes’ basic ideas on the origin of the state will suffice to show how Jhering’s thoughts on the origin of Roman civil proceedings had been permeated by such tenets to a considerable degree. It seems obvious that Selbsthilfetheorie is only one theoretical variation on the thesis of the natural human condition as “a war of everyone against everyone 51
R. von Jhering, op. cit. n. 28, at p. 169, fn. 71. On Wlassak's views, see amplius supra under II.
On Jhering's social Darwinism see, for example, F. Wieacker, Privatrechtsgeschichte der Neuzeit (unter besonderer Berücksichtigung der deutschen Entwicklung), (Göttingen 1967) at pp. 450 et seq.; F. Wieacker, Rudolph von Jhering, 86 ZSS/RA (1969) at pp. 9 et seq. and 25 et seq.; F. Wieacker, Jhering under der "Darvinismus", in: Paulus/Diederichsen/Canaris (eds.), Festschrift für Karl Larenz zum 70. Geburtstag, Munich, 1973, pp. 63 et seq.
Hobbes used the expression bellum omnium in omnes for the first time in his work De cive (1, 12) from 1642.
On Hobbes's phylosophical and political ideas see, for example, C.B. McPherson, Introduction,, in: T. Hobbes, Leviathan (Penguin Classics), Harmonsworth, 1986, at pp. 9 et seq., and the bibliography listed on page 65.