The founding of Roman law was influenced by the ethnically Eastern Etruscans,15 whose religion possessed typical Levantine attributes:
The Roman formalistic and fatalistic view could not originate from...Indo-European religion...because Diaus-Pitar (Zeus-Iuppiter) represented an active force. However we know Etruscans respected highly the power of the Fate, and their oracles prophesied among others the decline of Etruscans themselves by strictly determined processes.16
A submissive, fatalist acceptance of the positivistic legislation of a state power was of course not the habit of Indo-European peoples. Equilibrium formed between public and private law, between the patrician rulers, influenced heavily by the Etruscans, and the mostly Latin and Greek population:
The patrician law involved and preserved a fatalistic-formalistic morale, but the ideas about justice remained in non-formal condition in the plebeian cultural area. For example, Roman law only developed the concept of equity through the influence of the Indo-European Latins and the Greeks.17
The greatest evidence of this is the development of the Twelve Tables (Leges Duodecim Tabularum), the legislation which founded Roman law in the Republic (450–449 B.C.). After the expulsion of the last king of Rome, a Republic governed by magistrates was established by patrician rulers who denied the plebeian class access to the magistracy. According to Roman tradition, after a long social struggle between the two, with threats of secession by the plebeians, the Twelve Tables were produced. These visibly contained two influences: the Etruscan, ritualistic influence continued by the patrician class, i.e. various rituals required for certain formal transactions; and the desire to ensure that private property rights remained essentially unmolested, which was the main thrust of its diverse and disorganised content, revealing the influence of the natural-law style of thinking of the predominantly Indo-European plebeian class. So, public and private law developed as one mixed legal system; as in Greece, private rights only had force under the auspices of the public law, yet there was no direct-governance undertaken by all free men.
Of course, it may be countered that, in Roman history, the State interfered to a minimal degree in private disputes and private courts thus provided the required judicial services for resolution despite the State’s legislative powers, as expounded by philosopher and lawyer, Bruno Leoni:
A large part of the Roman rules of law was not due to any legislative process whatever. Private Roman law…was kept practically beyond the reach of legislators during most of the long history of the Roman Republic and the Empire… Statutory law for the Romans was mainly constitutional law or administrative law (and also criminal law), only indirectly relating to the private life and private business of the citizens.18
Nevertheless, as Prof. Hans-Hermann Hoppe predicts, in such circumstances,
the definition of property and protection will be altered continually and the range of jurisdiction expanded to the government’s advantage…[and] eternal and immutable law that must be discovered will disappear and be replaced by the idea of law as legislation — as flexible state-made law.19
This is precisely what happened in the later development of Roman law and through the later history of Western law, as influenced by it. During what is called ‘The Crisis of the Third Century’, the over-militarised Roman economy was weakened through donatives to a conditionally loyal and expansive army. Prof. Joseph R. Peden explains the deterioration of individual liberties during this period, as the public law expanded to extort greater taxes from the people, encroaching more heavily on citizens’ rights until they preferred life under the barbarians to the oppression of the imperial rule:
Rome had basically a laissez-faire concept of state/economy relations. Except in emergencies, which were usually related to war… But now under the pressure of this need to pay the troops and under the pressure of inflation, the liberty of the people began to be seriously eroded — and very rapidly…
The early 5th century Christian priest Salvian of Marseille wrote an account of why the Roman state was collapsing in the West…. [B]ecause it had denied the first premise of good government, which is justice to the people. By justice he meant a just system of taxation. Salvian tells us, and I don’t think he’s exaggerating, that one of the reasons why the Roman state collapsed in the 5th century was that the Roman people, the mass of the population, had but one wish after being captured by the barbarians: to never again fall under the rule of the Roman bureaucracy. In other words, the Roman state was the enemy; the barbarians were the liberators…. Rome continued to use an oppressive system of taxation in order to fill the coffers of the ruling bureaucrats and soldiers.20
Thus, St. Augustine could make this observation in the shadow of a moribund Western Rome:
Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on. If, by the admittance of abandoned men, this evil increases to such a degree that it holds places, fixes abodes, takes possession of cities, and subdues peoples, it assumes the more plainly the name of a kingdom, because the reality is now manifestly conferred on it, not by the removal of covetousness, but by the addition of impunity.21
To explain why, as Lord Acton put it, ‘Power tends to corrupt, and absolute power corrupts absolutely’, would take an entire book. What’s more, I’m not qualified to write it. But we can conclude, as Prof. Frank van Dun does, that either natural law rules, or some ideologue — either there is natural order, or unnatural disorder/chaos.
The word ‘law’ has Germanic roots and essentially means order. When we speak of a natural law we are thus talking about the natural order of rational agents with free will, in the same sense as Aristotle. Likewise, justice simply meant respect for this natural order and agreement between similarly natural persons. Today, however, law and justice are understood as being synonymous with state legislation and consequent legality.
All of this goes under the academic label of ‘positive law’, which covers any one of the many particular imposed (“posited”) systems of regulation by legal rules that we find in various politically organized societies…. Justice, then, is only an accidental and often marginal concern of the state. On the other hand, legality or conformity to the rules it imposes or wants to be obeyed is its central concern. (The word ‘legality’ derives from the Latin lex, which denotes a general command issued by a public authority, which originally was a military authority.)…
The positive law is not the natural order of the human world. It is the artificial order that some powerful people (individuals and groups) in a particular society currently try to impose on others. It is an order, not of relations among human persons as such, but of relations among social positions, roles and functions. Thus the positive law of a particular country tells us what powers, immunities, rights, duties, claims and liabilities legally attach to the social positions, roles and functions of a general, a minister, a representative of the people, a citizen, a registered alien, a pensioner, a police man, and so on. In the same way, the rules of chess tell us what a king, queen, knight, pawn or other piece is or can or cannot do.22
Whilst not necessarily answering why power corrupts, we might at least conclude that positive law is an excuse to use natural persons as a means to achieve ends which may have nothing to do with the natural order of the human world. If, as Prof. Duchesne concluded, ‘the West is the story of the realization of humans who think of themselves as self-determining and therefore accept as authoritative only those norms and institutions that can be seen to be congenial with their awareness of themselves as free and rational agents’, it is clear then why such a civilisation developed natural law.
Christianity Takes Up the Torch of Hellenistic Natural Law
The notion that the same rules apply to all men later found a home with the kings of Northern
Europe. These tribes still possessed that Indo-European culture of the rule of an, albeit, customary law and the right to resist tyrants, with kings being answerable to the rulings of another lord’s court. Therefore, the European Christendom of the Middle Ages presented a rather unique situation in which there was no state per se. This continued throughout the period primarily because natural law teachings of the Church largely comported with and developed the customary laws of the Germanic tribes, which, as Prof. Gerard Casey eloquently notes, always tend to the natural law anyway, being its ‘local concretization’.23
In Kingship and Law in the Middle Ages, Fritz Kern explored the two major, similar concepts of law which the Church found among the Germanic tribes (the rule of law and the right to resist tyrants). The Church was able to exert a certain amount of influence in limiting the king’s dominium but expanding his imperium, that is, obliging him to ‘rule and defend this the realm which is vouchsafed to thee by God’, as the German coronation order of the tenth century provides. Therefore, he was not to exercise any supposed superior rights, as a tyrant. Otherwise, the king was not consecrated or was excommunicated by the Church; likewise, he would not be considered a valid king by the people, but rather a criminal who could rightly face justice. Therefore, Kern concluded that a legally absolute king was impossible in the earlier Middle Ages.24
It is certainly the case that the aristocratic heritage of the Indo-European civilisations provided a plurality of judges, with the king being merely a first among equals, each lord’s court exercising authority. Such an environment ensured (albeit imperfectly) competition in rationalising about resolutions to conflicts between parties and that no individual or group was beyond adjudication. Prof. Hoppe describes this non-exclusive territorial rule as an ‘aristocratic natural order’, when he expresses the attitude which allowed private systems of government and defied the creation of a state:
The king is supposed to only apply law, not make it. And to assure this, the king will never be granted a monopoly on his position as judge…. [E]veryone remains free to select another judge, another noble, if he is dissatisfied with the kin.…. If he is found to make law, instead of just applying it, or if he is found to commit errors in the application of law, i.e., if he misconstrues, misrepresents, or falsifies the facts of a given case, his judgment stands open to be challenged in another noble court of justice, and he himself can there be held liable for his misjudgment. In short, the king may look like the head of a State, but he definitely is not a State but instead part of a natural, vertically and hierarchically structured and stratified social order: an aristocracy.25
As for the influence of the Church, whilst she had freedom to choose her own leaders, aristocrats would secure bishoprics etc. for family and friends, including the accompanying privileges and lands. Certainly, competition prevented the later rise of constitutional monarchs and subsequent states who sought greater revenue from the gradual monopolisation of judicial services.26 But, as the emperor effectively hand-picked the pope, this allowed kings to corner the market on authority.
Pope Gregory VII understood this to be the source of corruption in the eleventh century and so, whilst still a cardinal-subdeacon, he established the College of Cardinals to elect the Pope; of course, they promptly elected him. The Gregorian Reform would furthermore establish judicial independence for the Church, producing the first proper system of law in the world — Canon law, built largely on natural law and various private law decisions from Roman and customary Germanic laws which accorded with it. This event would then secure similar self-determination for universities, guilds, merchants, entire cities etc.27 Of course, the battle was not over; this was the start of the Investiture Controversy which commenced the struggle for superior authority between the Church and kings, later resulting in the Reformation, the rise of the nation-state, the Enlightenment, the French Revolution and the modern liberal-democracies, which are ubiquitous today.
We can conclude that the ‘libertarian’ aristocracy of the Indo-European civilisations produced and was, in turn, preserved by the philosophy of natural law into the feudal period, ‘where no authority, not even the pope or the king, had complete political, religious, or intellectual jurisdiction.’28 Although imperfect in many ways, natural law could be said to rule during this period in a way we cannot say of ancient Rome or the West today. So, the role of the Church in the widespread teaching of natural law (particularly as developed by the Scholastics) and the preservation of this traditional European system of rulership should not be underestimated; rather, it should be celebrated.
Nevertheless, it has been argued by various modernists, especially New Right thinkers, that pre-Christian Rome and the revival of its more anti-Christian features during the Renaissance and Enlightenment is more in keeping with the ancient culture and principles of European civilisation; what’s more, that Christianity was essentially an alien, even subversive, Jewish ideological influence on European civilisation, and one which has been, at least in some ways, incompatible with the culture of Europeans.29 On the contrary, as shown above, the Roman state was a divergence from Indo-European ideas of rulership in significant ways, such as the Greek experiments in freedom and the kings of the Germano-Celtic tribes. Now, I shall argue that Christianity is Hellenistic, a rightful successor of the natural law tradition, and, therefore, that it lies at the heart of Western civilisation.
In his article of the same name, Prof. Duchesne argues that ‘Christianity is a Hellenistic Religion, and Western Civilization is Christian’, following the scholarship of Prof. Martin Hengel — still the best source for the study of the Hellenistic period of Second Temple Judaism, from which Christianity emerged. He concluded that because of the interchange between Judaism and Hellenism, it is impossible to define Judaism as separate from it:
It is too easily forgotten that in the time of Jesus Greek had already been established as a language for more than three hundred years and already had a long and varied history behind it…. The victorious Maccabaean revolt and the national and religious renewal associated with it had hardly changed anything in this respect.30
But, it was not simply popular language which was affected during this period. Remarking that Jerusalem had effectively become a Greek polis by 175 B.C., Prof. Hengel noted, ‘It is evident here that the Hasmoneans did not really slow down the “process of Hellenization” in Palestinian Judaism, but in fact continued it as soon as they themselves came into power.’31 The evidence for Greek being used as the lingua franca for trade, commerce and administration throughout Palestine has obviously increased since Prof. Hengel wrote those words, but he was still able to formulate an impressive list: Greek schools in Jerusalem as early as third century B.C.; bilingual coins (Herod produced purely Greek inscriptions on Jewish coins); borrowed Greek words to fill out the Jewish vocabulary (especially in Rabbinic literature); Greek architecture and public entertainment and Greek public inscriptions (some of the earliest evidence being in Jerusalem). Most significant, perhaps, is the development of individualism in the Second Temple Period literature as a result of this influence:
This point of the discovery of the individual before God is probably the greatest gain of that encounter between the Jewish and Greek spirits which was so influential and at the same time so passionate. The certainty of the overcoming of death and the stress on the value of the individual unite in the glorification of the martyr. The Old Testament could not yet know the praise of the hero who dies for his ancestral city and its gods, but we find this praise of heroes all the more, say, in Greek poetry during the period of the Persian war. Although there are many reports in ancient Israel of the death of prophets and their faithfulness to YHWH, the prophets are never transformed into martyrs: in contrast to Greece, in Israel before the Hellenistic period (apart from the enigmatic text Isa.53) there is never any mention of a heroic “dying for”…. That changes at a stroke in the Maccabean period.32
Prof. Hengel wasn’t surprised, as Jerusalem ‘
was…a metropolis of international, world-wide significance, a great “attraction” in the literal sense, the centre of the inhabited world.’33 Indeed, the number of dispersed Jewish pilgrims from all over the Roman Empire outnumbered the inhabitants of Jerusalem and brought with them that foreign cultural influence. Jews of the Diaspora had been slaves in Greek homes, soldiers in Greek armies and even held worship services in Greek. ‘The influence of Greek education and literature extends very much wider. We already find it in late Hebrew and Aramaic literature, for example in Koheleth, Ben Sira, Daniel or the Enoch writings.’34 Notably, of course, St. Paul of Tarsus had received a Greek education which coloured his thought throughout his New Testament letters.
Many of the early Church, composed largely of Gentiles, intuited this strong connection with the natural law tradition of the Greeks. For example, St. Justin (early second century A.D.), in his proselytising Dialogue with Trypho the Jew, developed the identification of Christ as the Greek notion of the logos in the opening of John’s Gospel. The logos is the ordering principle of the universe or ‘Divine Reason’, according to the Stoics. Therefore, St. Justin asserted that those Greeks who sought the natural order through reason had been led by God as much as the Old Testament figures, especially those who awaited the Messiah. ‘[Christ] is the Word [logos] of whom every race of men were partakers; and those who lived reasonably, are Christians, even though they have been thought atheists; as, among the Greeks, Socrates and Heraclitus, and men like them; and among the barbarians, Abraham, and Ananias’.
According to the data, St. Justin was right — there isn’t simply a bridge between the natural law of Indo-European thought and Christianity, but, as Prof. Hengel observed, these movements are historically impossible to separate for definition. What’s more, Christendom produced the personalistic form of individualism we know and take for granted as so typical of Western culture.35
The Uniqueness of Western Law Page 2