PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
explain the genesis of law and legal proceedings just as, for example, was the Marxist utopian vision of an original genteel order, a classless society of free and equal individuals whose decay resulted in the creation of the state as an expression of the class society and an organ of class violence. As opposed to Jhering and Wlassak, and contrary to the Selbsthilfetheorie and Schiedsgerichtstheorie, which are based on assumptions regarding the ostensible “progressiveness” and “rationality” of the Romans who, it is claimed, were the only people capable of transcending self-help in such a way that the parties to a dispute freely contracted private arbitration, more recent romanistic studies have advocated the idea that the ancient Romans, like all other peoples, were wont to settle disputes in their community by turning to the supernatural powers of their deities, in the form of various types of trials by ordeal or prophecies.63 However, as we have seen, the contemporary studies of civil procedural law have followed Schiedsgerichtstheorie as a paradigm of the origin and development of civil proceedings even in recent times.64 Thus, in the opinion of this author, it is also necessary that contemporary civil procedure scholarship abandons this obsolete romanistic theory and takes into account the more recent romanistic reconstructions of the origin and development of Roman civil proceedings. 62
Cf. M. Kaser – K. Hackl, op. cit. n. 17, at pp. 28 et seq.
See, for example, P. Noailles, op. cit. n. 39, at pp. 72 et seq.; G. Broggini, op. cit. n. 24, at pp. 29 et seq.; M. Kaser - K. Hackl, op. cit. n. 17, at pp. 29 et seq., with the reference to supplementary literature. It is interesting to note how the idea that the most ancient Roman civil proceedings originated from trial by ordeal (Gottesurteil) had also been briefly discussed by Rudolph von Jhering in his incomplete and posthumously published work entitled Die Vorgeschichte der Indoeuropäer; see R. von Jhering, Die Vorgeschichte der Indoeuropäer (Leipzig 1894), at p. 436. Unfortunately, Jhering did not have time to develop this idea in more detail or to incorporate it into his theory of the origin and development of Roman civil proceedings. For this idea might have encouraged him to revise some of the basic theses presented in his Der Geist des römischen Rechts, above all his view that the Romans, unlike some other peoples, had not transcended self-help by turning to the supernational powers of their deities in the form of various trials by ordeal, prophecies, casting lots, and so on. but rather by means of the contractual settlement of legal disputes (vetragsmäßige Entscheidung der Rechtsstreitigkeiten).
See supra under II a).