Does the New Always Prevail? Parallel Modes of Procedure in the History of Procedural Transformations

Abstract

This contribution provides a historical-comparative analysis of the phases of certain relevant civil procedural reforms in which for a certain period of time the old and the new mode of procedure existed in parallel, with the possibility of the parties’ choice between the two. In the analysis, a threefold perspective is assumed, and the issue is approached from the perspective of Roman law, historical English common law and procedural law reforms in the lands of the Habsburg Monarchy in the 19th century. In the analysed periods, contrary to expectations, the parties disregarded the general evaluation of a new procedure’s efficiency. Instead, they were inclined to prefer the procedure that suited their immediate interests the best, even if it was generally considered to be outdated. The presence of this phenomenon throughout millennia and in disparate jurisdictions indicates the necessity to calculate its effects in scholarly and practical assessments of any given procedural reform.