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Ill Introduction to the Jurists' Treatment of Urban Leasehold WITHIN a system of private law, the law of procedure has the primary purpose of providing individuals with a mechanism whereby they may realize their legitimate claims against one another. Nonetheless, it is extremely probable (in the ancient world no less than in the modern) that many claims, and perhaps the great majority, never come to the attention of a court of law. A potential plaintiff may have a variety of reasons for not pressing a claim: (i) he may not realize that he has a claim;1 (2) he may lack access to skilled authority who can help him to formulate and pursue his claim, or who will represent or help him before a court of law;2 (3) he may be deterred from litigation by the initial outlay involved;3 1 On "legal insecurity" in Rome, see F. Schulz, Principles 243-247. Rather too trusting is C. A. Maschi, in St. Betti in 411-449. 2 These problems were briefly treated by J. M. Kelly, Roman Litigation (1966) 44-45, cf. generally 31-68; P. Garnsey, Social Status and Legal Privilege (1970) 218, questions the access to jurists; and P. A. Brunt, JRS 62 (1972) 169-170 (reviewing Garnsey), to orators. 3 See P. A. Brunt (cited n. 2) 169; also E. Parks, Roman Rhetorical Schools (1945) 5OfT., on fees to orators (and there were other costs); but also J. M. Kelly (cited n. 2) 84 n. 1. Note that the condemned defendant did not normally recompense the plaintiffs procedural costs: M. Kaser, RZ 288. 48 Jurists' Treatment of Urban Leasehold (4) he may be unable (or may fear that he is unable) to carry through a summons of the defendant; 4 (5) he may believe that pursuit of his claim would be in itself degrading to him personally, or an offense against social convention;5 (6) he may fear that pursuit of his claim would expose him to public humiliation of an unacceptable magnitude;0 (7) he may believe, with or without justification, that his claim would not be given a fair hearing due to the bias or corruption of the court system;7 (8) he may be indifferent or apathetic about courts in general;8 (9) he may have alternative methods of settling the claim, as for instance through self-help or private settlement;9 4 Cf. J. M. Kelly (cited n. 2) 7-12; substantially modified in P. Garnsey (cited n. 2) 187-194; and cf. A. S. Hartkamp, Der Zwang im Romischen Privatrecht (1971) 279-284. Critics of Kelly should read with care Apul. Met. 9.35-38. 5 Cf. J. M. Kelly, Studies in the Civil Judicature (1976) 95-111. Typical of classical views is Martial 10.47.5. 6 Cf. J. M. Kelly, Studies (cited n. 5) 98-102 (rhetorical vitupera­ tion). While private iudicia could take place in the homes of indices (esp. Vitruv. 6.5.2), we should not follow Kelly in thinking of them as therefore closed to the public; Vitruvius specifies the need of spacious halls, obviously to accommodate crowds. By ca. 70 A.D. most iudicia were held in auditoriums and registry offices, still not without orators though audiences dwindled: Tac. Dial. 39, with W. Kunkel, Kleine Schriften (1974) 249 η. 164. 7 In the work cited in n. 2, J. M. Kelly conducted a preliminary study of this problem, and his conclusions were extended by P. Garnsey. There is, however, much more work still to be done on the social patterns of Roman litigation. 8 J . M. Kelly, Studies (cited n. 5) 97-98, on this attitude in the late Republic. 3 On the frequency of resort to self-help, see above all G. Wesener, in Fs. Steinwenter 100-120; T . Mayer-Maly, RE s.v. "vis" (i960) 315323 ; A. W . Lintott, Violence in Republican Rome (1968) 6-34. A major study is needed. On arbitration: K. H. Ziegler, Das Private Schiedsgericht (1971). On settlement (esp. "out of court"): bibliog­ raphy in M. Kaser, RPRz 1 642-643; II 606-607; add J. M. Kelly, Litigation (cited n. 2) 132-152; P. Garnsey (cited n. 2) 195-197. The 49 Jurists' Treatment of Urban Leasehold (io) or, finally, he may believe that the reward he would be likely to obtain through a suit simply does not suffice to warrant his investment of the time, expense, or trouble required.10 Many considerations act to discourage litigation, today as in...

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Additional Information

ISBN
9781400855148
MARC Record
OCLC
55702269
Pages
288
Launched on MUSE
2015-01-01
Language
English
Open Access
No
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