The Two Stages
The two-stage proceeding is striking and, not surprisingly, has invited scholars to consider and describe its general character.17 An enduring description (or at least an enduring point of departure) is Moriz Wlassak’s from the nineteenth century: a voluntary submission to state- sanctioned arbitration.
His description drew of course on the largely unregulated second stage, but also on the relatively ‘light touch’ exercised by the magistrate in the first stage, and on the seemingly contractual nature of the event (litis contestatio) by which the second stage was set in motion. But, if litigation was at the outset a species of arbitration, then it could not have been unitary in origin, with a single figure (king, then magistrate) exercising full judicial powers. Thus, writers after Wlassak, such as Leopold Wenger, sought to disprove Wlassak by showing that the Roman kings did indeed possess full judicial powers, a proposition for which there are a few (though suspect) sources. Others, such as Kaser, have criticised Wlassak’s view directly on the argument that even in the earliest period of litigation, that of the legis actio, state compulsion was present and the parties were undeniably at odds.At bottom the answer turns on the (conjectural) origins of the judge: where did the impetus come from to create a separate decision-maker? The arbitration theory makes him the creation of the parties; the unitary- in-origin theory makes him a ‘state concession’ to, for example, democratic pressures or the magistrate’s burdens of office. A further state-concession explanation, put forward by Kaser, was influential for many years. This was the explanation that all judicial duties may originally have been concentrated in a king, but this would only be the case so long as lawsuits were decided by, for example, magic and ritual. When lawsuits came to be decided by law, this effected a division of responsibility: the magistrate (or king) performed acts of will, such as orders to act or refrain from acting, and these are distinct in character from decision-making, which relies on knowledge of the rights that obtain in a particular case.
Thus, the divided procedure would reflect a new-found desire of two contesting parties to find an impartial decision-maker with knowledge of the relevant rights.18color=black face="Book Antiqua">Yet newer studies, and new evidence, have perhaps revived the arbitration model somewhat. The judicial selection procedures, now visible in great detail in the lex Irnitana, reveal themselves to be strikingly consensual (Birks). A study of editio, a form of pre-trial notice (Bürge), though revealing litis contestatio to be less ‘contractual’ than Wlassak believed, ironically shows it to be more consensual. And a comparison of the procedures of the Twelve Tables with other primitive modes of litigation suggests that early Roman litigation may have been more concerned with keeping the peace among members of a close community than with parsing every grievance into legal claims (MacCormack). The consensual features now appear so prominent that we are perhaps justified in giving the arbitration theory a second look. Jolowicz’s view — that early Roman litigation was arbitral even in the face of a hostile party and a measure of state compulsion - now seems quite plausible. 19
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