There is something very creepy about Civilian countries. Perhaps it is the ID Cards which it is an offence to leave home without, or the registration at the local state offices, the persecution of home-schooling parents, the massive rates of tax, or the ability of the police to stop and question you without reasonable grounds of suspicion. This is not just a matter of taste. Continental Europeans are harmed spiritually by the psychological slavery to the state this induces. This tyranny-lite dignifies itself by tracing its origins to ‘Roman Law’. In truth it is an effect of the re-discovery of Justinian’s proto-Byzantine codified law not the classical law of the Republic (which eluded codification for many centuries after the Caesars had seized de facto royal power). One wonders sometimes if the codification of canon law did not introduce a similar spirit into the curia, bearing bitter fruit in the nineteen sixties.
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It was not until the reign of Hadrian that Emperors presumed to legislate in their own ‘right’ and not until Justinian that the sinister lex regia was invoked to justify this usurpation. “The pleasure of the emperor has the vigor and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty.” Here we see revealed in full for the first time the blasphemous claims of Leviathan, claims which live on the ID Card and the school inspector. Conversely, the Common Law tradition has been parochialised by the label ‘Anglo-Saxon’ and fantasies about Germanic ‘folk-right’. From the moment of his conversion St Aethelbert of Kent promulgated laws ‘according to Roman models’. St Isidore of Seville has nothing to say about the lex regia in his section on Roman Law in the Etymologies, which until Tribonianisation in the eleventh century was the West’s standard introduction to law. Alfred the Great’s ‘works which it is most necessary for all men to know’ breathe the republican latinity of Late Antiquity in Italy and North Africa. Fittingly, Alfred was the last Roman Consul appointed in the West. Perhaps even more fittingly, Charles Martel turned the honour down. In the eleventh century Justinian’s code accomplished what his generals could not and permanently subjected the western half of continental Europe to Byzantine autocracy. And yet, as many conquerors before and since, he failed to cross the Channel. As a result the English legal tradition remains in spirit far more authentically Roman than the wretched continental codes that go by that name.
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Laodicea 
October 5, 2013 at 7:35 pm
“Ipsa autem aversio a Deo habet rationem finis inquantum appetitur sub specie libertatis, secundum illud Ierem. II, a saeculo confregisti iugum, rupisti vincula, dixisti, non serviam.”
October 5, 2013 at 11:32 pm
Which rather implies that liberty is a good if the Devil seeks to deceive us with its counterfeit. Indeed, the evil one has made this attempt nowhere more effectively than with the application of the contract theory implicit in the lex regia to Baroque and Revolutionary tyranny. As Leo XIII points out “If when men discuss the question of liberty they were careful to grasp its true and legitimate meaning, such as reason and reasoning have just explained, they would never venture to affix such a calumny on the Church as to assert that she is the foe of individual and public liberty. But many there are who follow in the footsteps of Lucifer, and adopt as their own his rebellious cry, ‘I will not serve’; and consequently substitute for true liberty what is sheer and most foolish license. Such, for instance, are the men belonging to that widely spread and powerful organization, who, usurping the name of liberty, style themselves liberals.” For the liberal obedience has no justification as all and therefore it must be total for the only alternative in anarchy. For (Bolt’s) More the law is objective and grounded in Nature and so even the one who will not serve must enjoy its benefit or we will become like him. Isonomia as a term perfectly summarises the authentic notion of rational freedom. As Leo says later in the same Encyclical in praise of the Italian Mediaeval City-States (valiant allies of the Papacy and opponents of the German Emperor’s attempts to apply Justinian’s law to their liberty) “The Church has always most faithfully fostered civil liberty, and this was seen especially in Italy, in the municipal prosperity, and wealth, and glory which were obtained at a time when the salutary power of the Church has spread, without opposition, to all parts of the State.”
October 6, 2013 at 7:18 pm
Ah, but Leo XIII does not define liberty as the absence of subjection to “de facto royal power.” He thinks subjection to rulers is a good thing: ..the dignity also of the citizen is best provided for; for to them it has been permitted to retain even in obedience that greatness which conduces to the excellence of man. For they understand that, in the judgment of God, there is neither slave nor free man; that there is one Lord of all, rich “to all that call upon Him,”(21) but that they on this account submit to and obey their rulers, because these in a certain sort bring before them the image of God, “whom to serve is to reign.”
October 6, 2013 at 7:36 pm
Nor did I define it as “the absence of subjection to de facto royal power”. The problem with the exercise of royal power by the Emperors was that it was illegal. The Emperors were not kings but magistrates of the Republic and they had the legislative power of tribunes only. I assume you do not approve of the criminal usurpation of legislative power by military dictators? In the abstract it is also not desirable that a monarch should wield dominium tantum regale as this is wide open to abuse. It is much better that the senate and the people should legislate in indifferent matters with the monarch able to propose and veto only (dominium politicum et regale). This certainly seems more consent with the teaching of the Angelic Doctor.
October 7, 2013 at 2:30 pm
On military dictators usurping legislative power my thoughts depend on circumstances–I approve of Napoleon usurping power from the “restorers of republican liberty” who preceded him.
Perhaps you are right though that dominium politicum et regale is better than dominium tantum regale. Which kind of dominium do you think that a bishop has over his church, or the Roman Pontiff over the Church?
October 7, 2013 at 8:30 pm
Dominium tantum regale, for reasons I ought to post about in the next few days.
October 8, 2013 at 6:10 am
OK, so if the Roman emperor was (in some ways) a type of the Pope, and the Pope’s ought to have dominium tantum regale, then wasn’t the development of the emperor’s power providential?
October 8, 2013 at 8:37 am
Well the destruction of the Temple and the Great Schism were providential that does not mean they were good things in themselves.
October 9, 2013 at 6:33 am
Fair enough. Types seem to me to be in a different category of providential things. A sign through which God positively signifies Christ or His Church, or the ruler of that Church Christ’s Vicar, seems to me to be good in itself.
October 9, 2013 at 1:28 pm
“I saw in the visions of my head as I lay in bed, and behold, a watcher, a holy one, came down from heaven. He cried aloud and said thus, `Hew down the tree and cut off its branches, strip off its leaves and scatter its fruit; let the beasts flee from under it and the birds from its branches. But leave the stump of its roots in the earth, bound with a band of iron and bronze, amid the tender grass of the field. Let him be wet with the dew of heaven; let his lot be with the beasts in the grass of the earth; let his mind be changed from a man’s, and let a beast’s mind be given to him; and let seven times pass over him. The sentence is by the decree of the watchers, the decision by the word of the holy ones, to the end that the living may know that the Most High rules the kingdom of men, and gives it to whom he will, and sets over it the lowliest of men.'”
October 8, 2013 at 8:25 pm
[…] Having roundly denounced codified Roman Law I ought to make one reservation. The problem with codification is that only God can know Human Nature comprehensively and thus only God can legislate for men in a way that will provide exceptionless norms that will apply in all times and places. Our knowledge of our nature is finite and non-exhaustive. Consequently, if we attempt to transcribe the natural law in statutory form either serious injustices will follow or so many exceptions and reforms will have to be made that respect for the rule of law (and ultimately the rule of law itself) will be jeopardized, leading to tyranny or anarchy. The Common Law is built on precedent and thus the Natural Law is transcribed into human law progressively by analogy. In a healthy Common Law system the Ius Gentium (those precepts of human law directly transcribed from the natural law) is entirely based on precedent. The human legislator reserves statute for the Ius Civile, the indifferent matters in which man himself genuinely legislates. This respects the origin of the civil authority in God and His law and excludes, from the very nature of the case, the lie that the powers that be are ordained by contract. In the light of these considerations we see that codified law implies a divinisation of the human legislator and imputes to the state a totalitarian authority over man and his destiny (see: CCC2244). […]
January 8, 2014 at 8:07 am
[…] Love of liberty is a beautiful thing when rightly ordered, and that is what makes it so dangerous when it is disordered. […]