Chapter 17 Part III

Law is Written in Blood

Links to Part I and Part II

Was fear of lawlessness the reason Greek society, including women, the enslaved and the lower social classes, accepted the laws? Surely there must be something other than the bribe of safety causing people to acquiesce to a terribly unfair situation.  

Victoria sensed this missing factor in her father’s lectures and that history books came close to acknowledging it but refusing to openly state it. She could feel the form of the answer interwoven among the laws themselves, like a blind man fingering an object without knowing its purpose.

Whatever it was, it must be so powerful for man to substitute justice for it, or to shape the laws to protect this factor and call it justice. 

“The Twelve Tables, an early codified Roman law, was directly inspired by Greek laws,” the judge continued. “Roman law became highly sophisticated to address a complicated civilization with a much more sophisticated economy than the Greeks. The law code underwent further codification under the Byzantine emperors, especially Justinian I, and held sway over the old Eastern Roman empire for centuries, but in the aftermath of the collapse of the western empire, the system of precedent and tradition came to replace codified laws in the varying European kingdoms.” 

“Were the Roman laws forgotten?” 

“Not exactly. Medieval law was an amalgamation of cultural practices inherited from the invading German tribes and the remaining Roman traditions. Much was preserved by the Church, and in the 11th century, the rediscovery of the Justinian Code revived interest in an established system of laws, which in turn led to two different systems for enforcing laws.”  

“Yes, Father. Common Law and Civil Law,” Victoria shortly said, remembering earlier lessons on his knee.  

“Common Law was generally uncodified,” the judge said. “It has its origins in the English kings issuing orders called ‘writs’ as judicial decisions. Courts of equity were founded to settle complaints and to determine appropriate rulings based on multiple sources, including the rediscovered Justinian Code, rather than a single codified set of laws.” 

“Doesn’t the Common Law system allow different rulings based on different opinions over the same set of facts?” Victoria asked. “There is a risk in it.” 

 “Common Law derives its authority from judicial decisions that have already been made in similar cases, which we call precedent. As these decisions came to be published, it became possible for courts to look up previous decisions and apply them to new cases. Common Law remains a living system of laws, evolving with changing opinions and adaptation of precedents to better suit the current times and needs, rather than a rigid system of laws which can become obsolete and yet difficult to change, as happened with earlier codified laws.” 

“How did Civil Law differ from Common Law?” 

“Civil Law is a legal system based on codified law. You might say the modern origins rests in increased trade among the continental kingdoms, for merchants needed a stable set of laws to trade with one another and to agree to contracts based on standards of practice. This became known as the Lex Mercatoria, or the Law Merchant, a forerunner to modern commercial law. The Law Merchant became incorporated into new civil codes by various European governments, of which the Napoleonic Code is the most famous. Countries with civil law systems have comprehensive legal codes, the applicable procedure, and the appropriate punishment for each offense.” 

“Like marking off a list.” 

“Very much so. In a Civil Law system, the judge’s role is to establish the facts and to apply rulings derived from the correct code. The judge’s decision is less crucial in shaping civil law than the decisions of legislators or the monarch who draft the codes. But in Common Law, judges have an influential role in shaping law for the system functions as a contest between two opposing parties with each side trying to persuade the judge and jury their argument is the most correct application of both the facts and any previous precedents.”  

But the judge wasn’t finished. He tapped his fingers together, a sure sign he was to speak to something serious in his mind. 

“What most people do not recognize is that in Common Law, everything is deemed permitted unless it is expressly forbidden by the law. Common Law reacts as it is needed and societies that operate under Common Law readily understand there does not need to be a law for everything. If anything, laws are often treated suspiciously as restrictions on your freedoms and new laws are created judiciously and with care. But Civil Law, by contrast, seeks to prescribe and proscribe everything by means of ex ante legislation, with its lawmakers anticipating potential problems to be prevented.” 

“In a Common Law society, it is the law that says you are free rather than a free man agreeing to be governed by laws,” Victoria suggested.