PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
else”.54 Moreover, Jhering’s thesis that the Romans, unlike other peoples, had transcended the stage of self-help in a rational way, i.e. by contractually settling disputes, is obviously nothing other than an application of the concept of the social contract to a discussion of the genesis of Roman civil proceedings. In order to additionally support this statement, we shall mention that in his Der Geist des römishen Rechts, Jhering also advocated the view that a social contract had been the basis for the creation of the state.55 Therefore we may conclude that Hobbes’ concept of the social contract constituted the deepest philosophical root of Wlassak’s Schiedsgerichtstheorie. On the basis of a detailed analysis, we have already established that the latter theory, according to which self-help was replaced by the contractual settlement of disputes, does not correspond to historical truth.56 What then is the status of the other tenets of which the theory of self-help consists? Leaving aside the most recent scientific insights that completely challenge the Darwinist paradigm57 as well as the question whether such a paradigm may be applied to an analysis of interpersonal relations,58 we shall confine ourselves to the conclusion that this picture of the hypothetical “zero point” of history where total chaos and anarchy reign and wild individuals wander around brandishing sticks, desperately struggling for survival, is utterly ahistorical. There are simply no sources and no evidence on whose basis one might establish that such primordial and “natural” conditions characterised by the absence of any community, authority or rules, and in which naked physical strength was the only law, and self-help the only protection, ever existed, even in prehistory.59 The evidence we possess on Palaeolithic peoples, thanks primarily to the discovery of their cave drawings, has shown that prehistoric man lived in organised communities bound by numerous commands and religious taboos. In addition, contemporary ethnological discoveries regarding “primitive” cultures have resulted similar findings.60 These facts undeniably speak in favour of the thesis that Hobbes’ status naturalis or Jhering’s stage of self-help were only rationalist speculations devoid of any essential compatibility with (pre)historical reality.61 In any case, this paradigm is, due to its ahistorical nature, inapplicable as a methodological model in attempting to
On Hobbes philosophical and political tenets as one of the forerunners of Jhering's Selbsthilfetheorie see Staszkow, Vim dicere im altrömischen Prozeß, 80 ZSS/RA (1963) at pp. 86 et seq.; cf. also M. Kaser, Vom Ursprung des römischen Rechtsgedankens, in: Moschietti (ed.), Atti del Congresso internazionale di diritto romano e di storia der diritto in Verona (1948), II, Milano, 1951, 27 sq.
See R. von Jhering, op. cit. n. 28, at pp. 209 et seq. and 216 et seq. See supra, under II c). See, for example, M. Lings, Ancient Beliefs and Modern Superstitions (Cambridge 1991).
Having analysed the (in)applicability of the Darwinist paradigm in analysing the oldest Roman legal rules, the Roman and civil law expert from Göttingen, Okko Behrends, rightly emphasised that “the legal rules valid among people are something completely different from the stereotypes of animal behaviour acquired by natural selection”; O. Behrends, La mancipatio nelle XII Tavole, IURA, 33 Riv. int. dir. rom. ant. (1982) at p. 73, fn. 57.
For example, even Eisenhart, in his work Statum naturalem Hobbesii ex corpore iuris civilis profligatum et profligandum from 1744 categorically stated in connection with Hobbes's idea of the natural conditions that "statum illum generis humani quem Hobbesius fingit nunquam fuisse" ("the state of the human race which Hobbes imagined never existed") and that Hobbesi doctrina veterum iurisconsultorum philosophiae plane contraria ("Hobbes' doctrine is completely contrary to the philosophy of the ancient lawyers"); cit. according to Staszków, op. cit. n. 54, at p. 87. The same statements are completely applicable to Jhering's theory of self-help. Thus, for example, Behrends, in his work of 1982, noted that the mentioned theory was una construzione puramente astorica; see O. Behrends, op. cit. n. 59, at p. 75; cf. also G. Broggini, Vindex und Iudex, 76 ZSS /RA (1959) at pp. 113 et seq.; M. Kaser – K. Hackl, op. cit. n. 17, at pp. 28 et seq.
See, for example, Th. Mayer-Maly, Gedanken über das Recht (Vienna/Cologn/Salzbug 1985) at pp. 9 et seq.
It may be correct to say, as has often been empasised, that Hobbes's construction of man's "natural state" (status naturalis) was only a speculative reflection of the England of his era, which was torn by the civil war (1642-49) and general anarchy and lawlessness; cf., for example, J. Hampton, Hobbes and the Social Contract Tradition (Cambridge 1986) at p. 5. If we accept this view, we might draw the conclusion that the status naturalis was by no means man's primary condition but rather the very opposite, i.e. "anti-evolutionist" view, according to which "there have been no barbaric conditions which did not result from some collapsed culture", was correct; cit. F.W.J. Schelling, Philosophie und Religion, Sämtliche Werke, I, 6, (Stuttgart/Augsburg 1860) at p. 12.