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Law and Rights

How does democracy relate to law?

In Athens the citizens were directly involved not only in the making of law but in running the courts. Their normal court consisted of 501 citizens, chosen at random. This was not an enormous jury; they were the judges and the jury. In our courts the jury decides what happened: did the accused commit the deed (the facts of the case)? The judge decides on the law: whether the law has been broken; what evidence can be given to establish the facts; what penalty the guilty should suffer.
Athenian courts

In the Athenian courts, the citizens decided on the facts and the law and did not worry much about the distinction. The courts heard the evidence and then voted on whether the accused was guilty or not. The number of citizens making up the court had to be an odd number so there would not be a tie. You could be found guilty by 251 votes to 250.

There were no lawyers in the court. No experts of any sort. The citizens brought and defended their own cases against each other. The man who presided over the court was simply the chairman of the meeting. The accusing citizen spoke; the defending citizen spoke; they each had a right of reply and then the vote was taken. If the accused were found guilty, the court then decided the penalty.

Is maximum popular involvement the standard for democratic justice? In our courts the jury provides a democratic element, but the judges are appointed by the government. In some of the American States citizens directly elect the judges. Parties run candidates so you can vote for a Democrat judge or a Republican judge. In 1986 in California the Republicans campaigned against the re-election of a Democrat judge because she was reluctant to use the death penalty. She was defeated and the new Republican judge condemned more people to death. If you don’t think justice should be this democratic, try the ancient Roman legal system instead.
Elected judges

Rome was never a democracy. It began as a small city-state like the Greek city-states. There were popular assemblies, but the controlling body was the Senate, made up of men from old noble families and new wealthy families. The Greek city-states stayed small and wanted to stay small. Rome expanded to include all of Italy and then countries all around the Mediterranean Sea.
Ancient Rome

Romans were great fighters and intelligent rulers of the people they conquered. But conquest changed Rome itself. It was no longer a society of small farmers who took time off to serve in the army. Men made rich by the conquests bought out the small farmers; generals with huge permanent armies became powerbrokers. The generals fought amongst themselves until one of them emerged as the chief ruler and first emperor. He was Caesar Augustus who took power about twenty years before Jesus was born. As the Bible records, it was his ordering of a census of the whole Empire which took Joseph and Mary to Bethlehem.

The Romans brought order and a single system of law to their Empire. The law changed as their conquests grew. The scholar lawyers who were chiefly responsible for developing the law were very interested in the laws of the conquered people. Comparing laws helped them to establish broad principles of justice which they then applied to particular situations. Greek philosophers had thought about justice in the abstract while the Athenian democracy was administering justice in a rough and tumble way. The Roman scholars thought about justice so they could develop rules for all situations; they were practical philosophers. Here are some examples of their work.

If you hire a horse, do you have to compensate the owner if it is stolen? Yes – because you should have looked after it. But if it was stolen by violence? No – because you don’t have to risk your life for a hired horse. However, if you’re late in returning the horse and it’s stolen, you must compensate the owner even if it has been stolen by violence.

If you ask a jeweller to make you a gold ring, are you buying a ring or hiring the service of the jeweller? It’s important to know because contract of sale and contract for hire have different rules. The answer depends on who supplies the gold. If you do, it’s a contract for hire. If the jeweller does, it’s a contract of sale.

When your will speaks of your property, does this include property acquired after the will was made? Yes. If you leave property to your nephews does this include nephews born since the will was made? Yes. Do the heirs of a nephew who has died since the will was made inherit his share? No. The principle was that the will speaks from the time of death.

In 530 AD the Emperor Justinian ordered that all the laws and the works of the greatest scholars be brought together and their differences and contradictions ironed out so that the law would be fixed for all time. Justinian was establishing a code of law, which is the whole law written down in one place. The minister of justice and sixteen scholars and experts were given ten years for the job; they had it done in three. This magnificent intellectual achievement drew on the work of many minds over several centuries, but what made it law was the emperor’s command. What the emperor wills has the force of law: this was the fundamental legal principle of the Roman Empire.
Justinian’s code

In the later Roman Empire court procedure changed. The judge, a servant of the emperor, was in full charge. Juries, which had existed in Rome’s early days, had disappeared. The judge conducted an investigation to find out what had happened, questioning the plaintiff, the defendant, and the witnesses. This is known as the inquisitorial method. The judge made a decision on the facts and the law.

Justinian was emperor of a much reduced Empire. The Empire in Western Europe had collapsed one hundred years before. He was emperor of the eastern Empire which had its capital at Constantinople (now Istanbul). In the west his code was unknown. The German invaders of the Empire brought their own laws with them. In some places they completely replaced Roman law; in other places German and Roman law became mixed. Though some Roman law survived, it was cut off from the Roman learning which had created it.

In the eleventh century, five centuries after it was written, a copy of Justinian’s code was discovered in Italy. It caused a sensation. Here was something which dealt with everything you might ever want to know about law and more, which was not a series of laws but a whole system of justice, and which made the existing laws look so primitive. Thousands of scholars, royal officials and students travelled to Italy to study and debate it in the law schools of the new universities.

Over the next few centuries European law was refashioned according to the Roman model. In parts of Germany Roman law was adopted completely and local customary law wiped out. This was a great loss to the peasants because in Roman law landed property can have only one owner. By customary law peasants had collected wood in the lord’s forests and grazed their cows on his meadow. Under Roman law he could now keep them out; everything was his.
European ‘civil’ law

This refashioning was conducted by the kings and princes. It was part of the process by which they were turning themselves into absolute monarchs. They were very much attracted to the principle that the word of the emperor makes law. They also changed their courts over to the Roman system of the judge as sole inquisitor.

A democrat can’t be drawn to this model. For the third attempt, try the English system. At least it will be familiar since it is our own. Roman law had very little influence in England. Just as England did not follow the path to royal absolutism, its legal history took a different course.

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