ЧАСТНО ИЛИ ПУБЛИЧНО ПРАВОРАЗДАВАНЕ? СЪВРЕМЕННО РАЗГЛЕЖДАНЕ НА ПРОИЗХОДА НА ГРАЖДАНСКИЯ ПРОЦЕС В РИМСКОТО ПРАВО
PRIVATE OR PUBLIC JUSTICE? MODERN DISPUTES ON THE ORIGIN OF CIVIL PROCEDURE IN ROMAN LAW

Summary/Abstract: The aim of this paper is to analyse the most important modern attempts to reconstruct the origin and development of civil procedure – particullarly in ancient Roman law – and try to answer the vexed question of whether the earliest Roman civil procedure is one type of private justice or whether it has the characteristic features of public justice from its inception. Cotemporary studies of civil procedural law still follow the theory of private justice (Schiedsgerichtstheorie) in the form of arbitration as an explanatory paradigm for the origin and development of civil procedure. However, the Schiedsgerichtstho-rie did not originally emerge and develop within the field of civil procedural law, but in the writings of Roman law scholars during the first half of the 20th century. More recent romanistic studies, on the contrary, have refuted the Schiedsgerichtstheorie and advocated with convincing arguments the idea that the ancient Romans, like all other peoples, settled disputes in their community by turning to the supernatural powers of their deities in the public manner. The author is of the opinion that it is about time that contemporary civil procedure scholarship abandoned this obsolete theory of private justice and took into account more recent Romanist reconstructions of the origin and development of Roman civil procedure, starting from the insight that the religious based rituals of public justice represented the very first beginnings of that procedure.

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