Legal Expenses and the Right of a Pauper to Sue in Romano-German Legal History

Abstract

Many Scholars have argued about whether the low level of legal conflict in the Far East is due to its "duty-centered culture" or whether it is due to "imperfections" in Far Eastern legal institutions (such as high legal expenses). It is well known that in pre-modern Japanese courts (Bugyo-sho) citizens could use the courts without paying anything. According to recent research by T. Yoshida, the "Kuji-sen", which was levied for only a short time during the 17th century, was aimed at punishing litigants for initiating inappropriate suits. This, however, was only a brief exception to the rule, for to impose a fee for using the courts was thought to be injurious to the traditional ideology; judgment by the courts was then regarded as an act of grace performed by the government.In the history of European legal proceedings we see another interesting aspect which contrasts sharply with the notion of a Far Eastern legal culture. An ancient Rome the so-called "Principle of gratis action" was long applied. However, some late Roman imperial regulations allowed petty officials of the courts to impose fees (sportula). The idea of free trials, neverthless prevailed, made possible by both by the character of Roman jurists (Weber's "Honoratioren") and by the officials in the imperial regime. In various courts of law in the European Middle Ages magistrates and court officials stood in need of financial payment. What is more, trying cases became a feudal privilege which brought to the legal authorities gains (Gerichtsgefälle) of all kinds. Church courts, patterned after the model provided by Roman Law, developed rational procedures, appellate systems, and the like. The Church courts were in turn followed by secular courts and the needed imposition of legal expenses (Spoltern, Gebühren, Tax).After 1495 judges in the Supreme Court of the Holy Roman Empire were salaried by a special imperial tax (Kammerzieler). Absolute monarchies tried to integrate their courts with full salaried judges and officers under state control. The monarchies' attempts to integrate often failed, however, and thus the "standisch-patrimonial" bureaucrats remained. The right of a pauper to sue (Armenrecht) was first proposed by medieval Christian clerics. That right then developed into two distinct types of legal aid, free lawsuits (in Germany) and special lawyers for the poor (in Italy and France), though everywhere the right was tested by official measures designed to prevent the so-called "malicious misuse of the right".The old European courts demanded considerable payment, but they also provided a greater chance of dispute settlement than was the case in the Far East. In my view this occurred not only because the "rule of law" and "maintenance of justice" were, in the classic and Christian conception, tasks of every governor, but also because of the "ständisch-patrimonial" the system with "pluralistic" political and social structure, in contrast to the "patriarchal-patrimonial" system of the Far East.