Fortuna versus Justitia – Preliminaries to a Genealogy of European Private Law

Abstract

This article intends to lay the ground for a genealogy of European private law, in the sense that its purpose is not to follow a mere chronological development of legal rules, notions or institutions, but to organize certain practices employed in the European culture for settling private disputes under the conflicting symbolic patronage of two mythological figures: the Greek goddesses Tyche and Themis, or their Roman equivalent, Fortuna and Justitia. It is a genealogy insofar as it follows the traits of certain practices, such as vindicta, donum, lex talionis, judicium Dei, trial by ordeal or the duel in a lineal descent from a similar mythological ancestor, Fortuna. Although some of these practices were also employed within a certain historical legal framework, enforced by the political authorities through legislation and judiciary courts, and, as such, appearing to be under the patronage of Justitia, they remained fundamentally irreducible to the spirit of justice, which has its roots in ancient Greek philosophical thought and Roman law and which can be expressed through the latin phrase “suum cuique tribuere”. From this genealogical perspective on European private law, Christianity played an ambiguous part: although it contributed to the development of the private law, with regard to both substantial and procedural rules, it also introduced certain asymmetries in the administration of justice, such as forgiveness, or it fully supported certain practices which belong to the realm of Fortuna, such as the inquisition, trial by ordeal or the witch hunt.