The contractual nature of the classical litiscontestatio and the theory of the judicial contract. The dawn of the public conception of the process and of the social function of justice

Abstract

The theory of “judicial contract”, which has prevailed until the beginning of the 19th century in most European court systems and in canon law, characterises trials as an agreement where the parties submit their conflict to the judge and settle upon accepting its solution. This theory originated from the allegedly contractual nature of Roman litiscontestatio, which was based upon various peculiar interpretations by the scholars who glossed and commented upon a famous passage by Ulpian-Marcellus-Papinian found in the Digest. The misunderstanding convinced Medieval and Early Modern scholars to conceive the trial as a phenomenon that is ruled by a conventional element, thus characterising it as a private matter between parties. Such concept was made obsolete by the rise of two theories: that of action, and that of the procedural relationship. By stressing the crucial role the public judicial body plays in bringing justice, the State’s interest in how the litigation is administered was underlined at the beginning of the 20th century. Thus, the modern concept of jurisdiction was born, as was the trial’s public-law and social role in its articulate features.

Keywords: judicial contract; classical Litiscontestatio; public law concept of the trial; The social role of civil justice.