Comments on the Origin of the Legis Actio Sacramento in Rem

Abstract

The legis actio sacramento in rem belongs to the most debated issues of specialised literature on Roman Law up to the present day. The literature on the subject would fill a whole library, only its approximative treatment would require a separate monography. When explaining the origins of the legis actio sacramento in rem one can distinguish several, more or less clearly isolated trends. The present study will regard the theory of oath and the theory of personal fight as the two most important. The fundamentally sacred character of the legis actio sacramento is emphasised by the theory of oath, according to which the principal aim of communal control could be the expiatio of the divinity retaliating the perjury, the sacramentum of the defeated party. This theory is also corroborated by the text of the vindicatio, appearing as the strictly formalised, religious-magical carmen. Although it is much older, the theory of personal fight is traced back to Jhering, and its essence is that in the beginning the parties actually fought against each other for the thing constituting the object of their controversy, but the community (the state), in order to preserve internal peace, brought the fight under its own control. Therefore, the fight, in the form of the legis actio sacramento in rem, as it is known today was enacted only symbolically, by employing the rod (festuca) instead of the spear (hasta). The aim of the present study is merely to highlight a possibility-based mainly on the primary sources and partly on the findings of the literature on the subject-which will not consider the motifs of sacrality and private fight contradictory in the structure of the legis actio sacramento in rem but will mingle them as organically complementing components.