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Criticism of the theory of self-help as a primal form of legal protection (Selbsthilfetheorie)
Marko Petrak
Sažetak
The concept of self-help as an original and the oldest form of legal protection is usual in contemporary science of civil procedural law. However, the Selbsthilfetheorie was not originally created and developed within the framework of this discipline, but it was formed in the science of Roman law in the second half of the 19th century - primarily in the work of the eminent German Romanist and philosopher of law Rudolf von Ihering (1818-1892) - as a response to the complex questions on the origin and development of Roman civil procedure. According to Ihering, the original source of law is neither the revelation of gods, nor the will of the state, but it should be found in the physical force (vis) of individuals. Since in the pre-historic period there existed "the war against all", self-help was the oldest form of settling disputes. The mentioned theoretical concepts made an exceptional impact on Romanistics in the 20th century and almost became communis opinio doctorum, penetrating into other legal disciplines as well, especially civil procedural law. Starting from the analysis of relevant legal sources, the author rejects the Selbsthilfetheorie as an a-historic construcion based on rationalistic and naturalistic presumptions on the genesis of the state and law of modern times, concluding that the fundamental postulates od the theory of self-help particularly correspond with the observations of the English philosopher Hobbes (1588-1679) according to whom the primal, i.e. natural human condition (status naturalis) is the war of all against all (bellum omnium contra omnes). On the basis of the stated conlusion, the author shoes on concrete examples the way in which the application of the theory of self-help have caused the wrong interpretation of the structures of the oldest Roman civil procedure as as system of ritualised acts of physical coercion. Contrary to the postulates of the theory of self-help, in the final part of the article the author emphasises the fact that the crucial value of the archaic Roman life was "God's peace" (pax deorum) between the Roman community (civitas) and its gods (dii). Therefore, according to his opinion, every new attempt to reconstruct the origin and development of Roman civil procedure should start from the assumption that this procedure originally represented the system of ritualistic acts aiming at the protection of the state of "God's peace".
Ključne riječi
Selbsthilfetheorie; Roman law; legal protection
Hrčak ID:
5050
URI
Datum izdavanja:
20.10.2006.
Posjeta: 3.015 *