La costruzione teorica dei poteri dell’arbitro nell’età moderna

This paper on La costruzione teorica dei poteri dell’arbitro nell’età moderna, in Historia et ius. Rivista di storia giuridica dell’età medievale e moderna, 2 (2012), 35 p.; ISSN 2279-7416 - Peer Review - focuses the various outcomes of legal science in the modern age with reference to the theoretic qualification of the arbitrator’s powers. This analysis takes origin from the different classifications operated by the Italian legal doctrine in the 9th century. In contrast with the legal pattern of the unified Italy in 1865 and the related case-law and legal doctrines, two opposite definitions were developed: ritual and non-ritual arbitration, respectively, implying a different qualification of the arbitrators’ powers and the activities assigned to them by the parties. This classification is due to the process of, systematically, reorganizing and re-elaborating the sources of Roman law. This process lead to conceptual dogmatization and to the German Pandettistica resulting into a new notion of “compromissum” and necessary proceduralization of the arbitration, including development of the related public law provisions on arbitration. In contrast with the German legal tradition developed between the end of 6th century and the first half of the 8th century, within the European legal context, the size of this abstraction process is evidenced by some exponents of the Seconda Scolastica movement (which elaborated a new general category of contract) and of the “Scuola Culta” movement influencing the legal French contributions in 17th and 18th centuries and the interpretation of the Napoleonic legal pattern.