view considers the latter to be a component of the former. Another insists upon their conceptual independence. Thus, on the one hand: Engelmann, "Der Civilprozess: Allgemeiner Theil." "The principle of dispositive election consists in this, namely, that the party has the right, by means of jural declarations of will (immediate election) or by the doing or not doing of procedural acts (mediate election), to control the legal relation in controversy, while the judge is under the duty, so far as consistent with the aim of the judicial proceeding, of heeding these dispositive manifestations as declarations of the parties' will which are binding upon him . . . Of this principle of dispositive election the principle of party-presentation forms but one side and that, as it is said, the reverse. While the principle of dispositive election, as its name implies, characterizes the acts of the parties, the principle of party-presentation defines the scope of judicial action corresponding to the parties' freedom to dispose of their rights." What this view does, therefore, is to deny to the principle of party-presentation the double idea, which it involves according to what seems to be the common acceptation, of (a) party activity, and (b) judicial receptivity. That double idea the view in question expresses by the principle of dispositive election, confining the principle of party-presentation to the denotation of the second half, viz., judicial receptivity. If this position were sound, it is obvious that some term other than "party-presentation" would have to be sought as an English equivalent of 'Verhandlungsmaxime.' On the other hand: "The Kleinfeller, "Lehrbuch des deutschen Zivilprozessrechts."64 principle which assigns to the parties the free exercise of dominion over their substantive law rights is known as the 'principle of dispositive election.' This principle is not to be confused with that of partyrepresentation. The principle of dispositive election defines the range of action in assembling the cause-material; the principle of partypresentation, on the contrary, determines the subject and method of such action. The principle of party-presentation is the means which renders possible the parties' exercise of dispositive power, but it does not give the power itself. There are varieties of procedure where, in spite of the recognition of the principle of party-presentation, the parties are in whole or in part denied the free exercise of the dispositive power, where, thus, the controlling principle is the opposite of the principle of dispositive election, the principle of officiality (‘Offizialprinzip'). The principle of dispositive election grants the possibility of exercising dispositive power over both substantive and procedural rights 63. 159, 171. 64. 182. And again: Bunsen, "Lehrbuch des deutschen Civilprozessrechts."65 "With the principle of party-presentation the principle of dispositive election has per se nothing to do." The second view commends itself as the better. To treat the 'Verhandlungsmaxime' as a principle relating primarily to the scope of judicial action is, for one thing, at variance with its etymological reference to a supervised transactions of the parties. Moreover, as the conception exhibits the judge in a passive, the parties in an active rôle, it is the function of the parties rather than that of the judge which ought here to be stressed. In a sense it is true, as Engelmann maintains, that the 'Verhandlungsmaxime' is included within the principle of dispositive election, but it is not true in the sense for which he contends. It is true only to the extent that the former would be non-existent without the latter. The real state of the case appears to be that indicated by Kleinfeller. It is the principle of dispositive election which gives the party power to do or not do a given procedural act; it is the 'Verhandlungsmaxime' which enables him to exercise, in the judicial proceeding, the power thus conferred upon him. The exercise, under the 'Verhandlungsmaxime,' is thus always within the limits assigned by the principle of elective disposition. For which reasons, our translation of 'Verhandlungsmaxime' as "principle of party-presentation" may be left undisturbed. As to whether or not there has been recognized a conception precisely antithetical to that of dispositive election, the case is not clear. If there is, it is the one expressed by the so-called principle of officiality (Offizialprinzip'). Kleinfeller, as noted above, opposes the two. Later he says: "The principle of officiality is that principle which deprives the parties of their power over the subjectmatter of the proceeding, so that the official duty of the judge includes not only application of the law, but also the scope-determination of the cause-material. The principle of officiality thus is characteristic of a proceeding whose subject-matter, even outside the cause, is not within the dispositive power of the parties. As the dominant principle, it may lend to a civil proceeding the properties of an official proceeding, similar to a criminal cause, as [by the German law] in matrimonial causes, guardianship matters, affilia tion proceedings and proceedings to cancel a declaration of death."68 The difficulty presented, however, is that, as thus defined, the principle in question is simply the principle of judicial investigation as applied to a situation where the dispositive power of the parties is lacking "even outside the cause": it is not easy to see in it an exact correlative of the principle of dispositive election. For other authors, indeed, "principle of officiality" is merely an alternate means of designating the principle of judicial investigation.69 The principle of party-presentation (effectuating, as it does, the principle of dispositive election) has, in civil procedure, enjoyed almost uninterrupted dominance from the beginning. It characterized the Roman system in all its three stages, and, to the fullest extent, the primitive Germanic procedure, in which the court exercised the minimum of judicial function. It entered into the various systems arising from the fusion of Germanic and Roman elements, and, subject to more or less qualification, is paramount in all civil judicatures of the present day. The only example of a civil procedure wherein the opposite principle, that of judicial investigation, has been preponderant occurs in the Prussian legislation of the late 1700s, begun under Frederick the Great. Inspired in considerable 68. Op. cit. 184-185. 70 69. E. g. Stein "Das Civilprozessrecht" in Birkmeyer's "Encyklopädie der Rechtswissenschaft" 1180; Heilfron and Pick "Lehrbuch des Zivilprozessrechts" (2nd ed.) 449, note 2a; Kisch "Deutsches Zivilprozessrecht" I 105. 70. Germany: See e. g. Fitting "Der Reichs-Civilprozess" (12th and 13th ed.) 106; Planck “Lehrbuch des deutschen Civilprozessrechts" I 198; Heilfron and Pick op. cit. I 449. France: "Notre procédure civile est d'abord trop abandonnée aux parties, à leurs avoués et avocats on dit que les parties sont maitresses du procès, donc de la procédure, que c'est a elles à agir et à diriger leur procès, qu'elles disposent de leurs droits et par suite de la procédure qui permet de les faire reconnaitre et respecter, que le juge n'a d'autre function que de statuer quand l'affaire lui sera soumise: on en arrive ainsi à admettre que le rôle du juge est jusq'au jugement à peu pres passif." Tissier "Rôle sociale de la procédure civile" in "Les methodes juridiques" 120. See, also, by the same author: "Le centenaire du code de procédure," in "Revue trimestrielle de droit civil" V 647. Italy: "The sphere to which a judicial pronouncement may extend is determined absolutely by the demands of the parties." Moreover, "the judge should not ex officio seek the proof of the facts, nor guide the work of the parties in that search." Mortara "Principii di procedura civile" (4th ed.) 31, 35. Sweden: "If, in the ordinary procedure, the so-called 'principle of partypresentation' ('förhandlingsmaxime') is not everywhere a rule of rigid application, yet it predominates to so essential a degree that it may be said to be one of the bases of procedure in civil causes." Broomé "Allmänna civilprocessen" in Nordisk retsencyklopædi" IV (2) 46. Denmark and Norway: .. A second basic principle is that of party-presentation ('Forhandlingsmaxime'). The parties themselves, in all essentials-for no guidance from the judge is here to be counted upon or given-must set forth their claims and the points of fact which support them, must themselves select and assemble the proofs." Ipsen "Den danske og norske proces" in "Nordisk retsencyklopædi" IV (1) 38. measure by Frederick's obsession that the lawyers were to blame for the unsatisfactory condition of civil justice, the system which was evolved sought to minimize their influence by enlarging the functions of the court. Having its germ in a provisional code adopted in 1747 for Pomerania, which, as it is said, "anciently was called 'terra litigiosa'," the new scheme was made general law in 1781 and, finally, after the accession of Frederick William II, given perfected form by the General Judicial Ordinance ('Allgemeine Gerichtsordnung') of 1793-5. In this system, the pleadings of the parties were formulated, under the supervision of the court, by subordinate judicial officials known as "court commissioners" ('Justiz-Kommissare') who also appeared for the parties at the taking of proof. Representation by advocate was confined to the argument (in writing) of the questions of law upon which the case turned. Thus the assembling of the cause-material was under the control of the court. The change in fundamental principle is pointedly expressed in the Ordinance. While the parties are required to present the facts according to the best of their knowledge, it is the right and duty of the judge to be assured of the actual facts of the case and to make personal investigation to that end. One whose allegation is denied by his adversary is to acquaint the court with the means whereby the truth of the disputed point may be discerned; the judge, however, is not bound by these means, "but has the right and duty to employ, in the search for the truth, other means appearing from their statements or the connexity of their proceedings, even without the express request of the parties." This system remained intact only for forty years, when it began to succumb under adverse criticism. It was supplanted by legislation of 1833 and 1846, re-introducing in effect the principle of party-presentation.73 The experiment was a remarkable one and one whose failure makes evident a fact which zeal for procedural reform is, even with us, sometimes disposed to obscure, namely, that the interesting striving of two contending parties is, in the long run, an infinitely better agency for the ascertainment of truth than any species of paternalistic inquiry. Anglo-American civil procedure, naturally, conforms to the principle of party-presentation. "The battles of pleaders which 71. "A summary view of the King's plan for the regulation of judicial proceedings" by M. Formay, Perpetual Secretary to the Royal Academy of Sciences and Belles Lettres at Berlin, in "The Frederician Code" p. vi (Edinburgh, 1761). 72. Schwarz "Vierhundert Jahre deutscher Civilprozess-Gesetzgebung" 479-528. Engelmann "Der romanisch-kanonische Prozess" etc.. 203 et seq. 73. Engelmann op. cit. 207, 209. But see Schwartz op. cit. 576 et seq. were fought for six centuries before our lady the Common Law at Westminster," says Sir Frederick Pollock, "were true to an older tradition, and the tradition is still alive under all the changes of outward form. The rule that the court is not to dictate to the parties how they should frame their case is one that ought always to be preserved. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law." Even those rules are not generally enforced by the court, except on the application of a party. Pleaders may let a cause go to issue on demurrable pleadings if they choose, and there are, or under the old practice were, many reasons that might make such a choice prudent. . . According to the immemorial custom of Germanic procedure, the court will have nothing to do with making inquiries to find out things for itself. It is not there to inquire, or to do anything on its own motion, but to hear and determine between parties according to the proofs which the parties can bring forward.. Outside the bounds of manifest public knowledge, the court knows nothing but what is properly set before it by the parties and, except for quite recent statutory powers which in England are not much used, has no means of informing itself." And what was true of the common law court was true, although in lesser degree and in less spectacular form, of the court of chancery, from the time it became an organized tribunal. In saying this, we do not overlook Sir Frederick's observation that "our equity procedure. is in essence officious; it represents (though in modern times one cannot say that it actually has been) an active inquiry by the court, aimed at extracting the truth of the matter in the court's own way.' Unquestionably, as compared with those of the common law, its methods, in one sense, represented an inquiry, but it was an inquiry whose scope was determined and whose material, in general, was supplied by the party: it was not such an inquiry as is implied in the principle of judicial investigation. Whatever of investigative character manifested itself in the chancery procedure was borrowed from the canon procedure, and that the civil procedure of the canon law at all times yielded first place to the principle of party-presentation can admit of no doubt." In fact, the principle of party-presentation has been spoken of as "the canker of the canon procedure."78 The 74. Bowen L. J. in Knowles v. Roberts (1888) 38 Ch. Div. 263, 270. 75. "Expansion of the Common Law" 33-34. 76. Ibid. 15. 9975 77. See Endemann "Die Beweislehre" 21-22. 1976 78. Brieglieb "Einleitung in die Theorie der summarische Prozess" § 5 13 ff. cited by Wieding "Der justinianeische Libellprozess” 706. |