Arbitration and the ecclesiastical courts
Roman law recognised arbitration (arbitrium) as an extra-judicial method for resolving legal disputes. This was based upon a formal agreement (compromissum) between the parties to submit their dispute to an arbitrator (arbiter) for resolution.
The person who was to act as an arbitrator was chosen by the parties themselves and the scope of his authority was prescribed in the compromissum. The formal agreement by which the person nominated as an arbitrator assumed the task of handling the dispute was termed receptum arbitri. The person who had thus undertaken the role of arbitrator was under an obligation to carry out his duties and might be compelled by the praetor to do so, unless good reasons were obtained for92
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The Post-Classical Period of Roman Law 375 releasing him from this obligation.[1227] The decision of the arbitrator (pronuntiatio arbitri) was not binding unless the parties had undertaken, through mutual consent, to abide by the decision. Such an agreement, which was included in the compromissum, usually provided for some form of penalty (poena compromissi) to be imposed on the party who failed to abide by the arbitrator's decision.[1228] Under the legislation of Justinian, the decision of the arbitrator was binding if it had been signed by both parties, or if neither party expressed his disapproval of the decision to the arbitrator or the other party within ten days from the announcement of the decision.[1229]
The institution of the arbitration furnished the basis for the development, in the later imperial period, of the jurisdiction of the ecclesiastical courts over private disputes. The early Christians, following the exhortation of apostle Paul not to submit their disputes to the secular courts,[1230] often resorted to arbitration proceedings before local bishops.
After the recognition of Christianity in the early fourth century, Emperor Constantine confirmed and expanded the jurisdiction of local church authorities over private disputes (episcopalis audientia), proclaiming their decisions to be legally binding.[1231] As was noted earlier, Constantine also ruled that a dispute might be submitted to an ecclesiastical court at the initiative of one of the parties concerned.[1232] But by the end of the fourth century the consent of both parties was recognised as a necessary condition for a case to come under ecclesiastical jurisdiction.[1233] Although decisions of ecclesiastical courts could not be appealed against, this form of procedure became very popular because proceedings were simpler, faster and less costly than those followed by the regular courts.[1234]
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