Ius Aelianum

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).

So what is the reservation? Well, Canon Law is not derived from human nature because man’s supernatural end is not proportionate to his nature but is gratuitous. It is not possible through self-knowledge or introspection to discover what the precepts of the Divine Law might be. “[F]aith is not a blind sentiment of religion welling up from the depths of the subconscious under the impulse of the heart and the motion of a will trained to morality; but faith is a genuine assent of the intellect to truth received by hearing from an external source”. Canon Law is grounded not in Natural Law but in Divine Positive Law, known through faith. It is thus fitting that Canon Law be statutory and codified. It is good for the Pope to associate with him in judgment and in legislation those (the bishops) who share with him care for the end for which the Divine Law is instituted. The positive promise that the Deposit of Faith will not perish applies to the episcopate as a whole not to the Pope in particular. It is good that the Bishops be elected by the clergy and faithful of their see “he who rules over all should be chosen by all” as St Leo says. For the faithful as a whole enjoy the same positive guarantee as the episcopate. There is, however, no need for precedent to play the same role in the Canonical legal system as in the temporal order. Certainly, the doctrinal judgments of the supreme authority in the Church are irreformable and the strictures against changing even a bad law still apply, but we have no direct access to the Divine Nature from which we might draw through accumulated precedent. Thus, the ‘Roman’ Law of Justinian (fittingly, given its divine pretensions) does indeed play a providential role in the elaboration of the science of Canon Law and was transplanted to the West just in time for St Gregory VII and his disciples to make use of it in this way. In those matters where the Spiritual Power properly holds sway we may consequently rejoice in the imperium sine fine of the Roman Pontiff (while praying he will use it in moderation and with good counsel); but in regard the temporal power we can only pray of the Ius Anglorum that “wider still and wider shall thy bounds be set; God, who made thee mighty, make thee mightier yet”.

 

Real Romanitas

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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