Ricardo Duchesne by





Corpus Juris Civilis

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Roman Legal Rationalism

the Digest, a collection of several centuries of legal commentary on Roman law the Code, an outline of the actual law of the empire, constitutions, pronouncements the Institutes, a handbook of basic Roman law for students

it became necessary to use ordinary words and formulas without reference to the religions or institutions of specific ethnic groups so that they could be understood by everyone. This, in turn, encouraged the formulation of an increasingly abstract legal vocabulary.3

Romanitas

True law is right reason in agreement with nature; it is of universal application...And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is God, over us all, for he is the author of this law...4

The Roman Empire at its greatest extent

[1] Harold Berman, Charles Reid, "Max Weber as legal historian", in The Cambridge Companion to Max Weber, Ed. Stephen Turner, 2000

[2] Philippe Nemo, What is the West?, 2006: 17

[3] Ibid. 19

[4] Cited by Nemo: 21

[5] Bill Warwick, Rome in the East, 2000: 443

he claim that the Roman empire was a legally sanctioned multiracial state is another common trope used by cultural Marxists to create an image of the West as a civilization long working itself toward the creation of a universal race mixed humanity. This is a lie to which patriots of Western Civ must not yield to.The majority of scholars agree that Rome's greatest contribution to Western Civilization was the development of a formal-rational type of legal order characterized by the logical consistency of its laws, the precise classification of its different types of law, the precise definition of its terms, and by its method of arriving at the formulation of specific rules wherein questions were posed, various answers from jurists were collected, and consistent solutions were offered. It was a legal order committed to legal decisions based on fairness and equity for all citizens. The early Romans, before the Republic was established in 509 BC, lived according to laws established through centuries of custom, much like every other culture in the world, each with their own traditions, each ruled by what Max Weber called "traditional law", a type of authority legitimated by the sanctity of age-old practices. Traditional law tended to be inconsistent and irrational in its application. During Republican times, the Romans created, in 451 BC, their famous Twelve Tables, which established in written form () their centuries-old customary laws (). The Twelve Tables covered civil matters that applied to private citizens as well as public laws and religious laws that applied to social fields of activity and institutions. These Tables were customary but they also constituted an effort to create a code of law, a document aiming to cover all the laws in a definite and consistent manner.Weber associated "formal-rational authority" with the rise of the modern bureaucratic states in the sixteenth century, but legal historians now recognize that he understated the "formal-rational" elements of both medieval Canon Law and Roman Law.By the time we get to the writings of Q. Mucius Scaevola , who died in 82 BC, and his fellow jurists, we are dealing with attempts to systematically classify Roman civil law into four main divisions: the law of inheritance, the law of persons, the law of things, and the law of of obligations, with each of these subdivided into a variety of kinds of laws, with rational methods specified as to how to arrive at the formulation of particular rules. These techniques to create and apply Roman law in a rationally consistent and fair manner were refined and developed through the first centuries AD, culminating in what is known as Justinian's Code, a compilation of all existing Roman law into one written body of work, commissioned by the emperor Justinian I, who ruled the Eastern side of the empire from 527 to 565 AD. Initially known as the, it consisted ofA fourth part, the, was created a few decades later to update the Code.This legal work is now known, considered to be one of the most influential texts in the making of Western civilization. More specifically, some see it as the foundation of the "Papal Revolution" of the years 1050-1150, which Harold Berman has identified as the most important transformation in the history of the West. The ecclesiastical scholars who made this legal revolution, by separating the Church's corporate autonomy, its right to exercise legal authority within its own domain, and by analyzing and synthesizing all authoritative statements concerning the nature of law, the various sources of law, and the definitions and relationships between different kinds of laws, and encouraging whole new types of laws, created not only the modern legal system, but modern culture itself. This is the thesis of Berman's book,(1983).There are flaws with Berman's great book (simply stated, he underestimated much of what was accomplished before and after 1050-1150), but he is right to emphasize not just this Papal revolution but thelegal heritage of the peoples of Europe neglected by the nationalist historians of the nineteenth century, and, of course, by some New Right intellectuals who prefer "pagan" law.Here I want to criticize recent works which argue that the Roman legal system broke decisively with any notion of ethnic identity by formulating a legal system "for all of humanity". This is not easy; there is a universalizing logic inherent to Western civilization, which becomes all the more evident in the development of Roman law, which deliberated and encoded legal principles in reference to all human beings as possessors of reason in common and as inhabitants of a multiethnic Roman community. I don't intent to fabricate arguments about the racial self-awareness of Romans and the particularistic language of Roman law. But I will nevertheless try to show that Roman legal ideas cannot be used to make the claim that they invented a legal system for a "multicultural and a multiethnic state" — teleologically pointing towards the creation of our current immigrant state in which racial identities are abolished and a race-less humanity is created. There is vast temporal and cultural space between Rome and our current state of affairs.This argument will come in two parts, with a second part coming later, focusing on the Stoic idea of the "world citizen". Now I will focus on Philippe Nemo's argument on the "Invention of Universal Law in the Multiethnic Roman State", presented in his book,(2006). As I said in my last essay, Nemo is a French liberal right political philosopher. In the chapter on Rome, he contradicts his earlier assertion that Greek citizenship was "regardless of ethnicity", as he admits that Greek city-states were "ethnically homogeneous".But Nemo now thinks he has a tight case to persuade us that with their contribution to law "the Romans revolutionized our understanding of man and the human person" wherein all reference to ethnicity was disregarded. His first line of argument is that, as the Romans expanded beyond Italy and created a multiethnic empire, and foreign subjects came under their sovereignty,I would express the implications of this expansion across multiple ethnic lands as follows: with non-citizens inhabiting the empire, to whom the current laws for citizens did not apply, jurists developed "laws of nations" or laws that applied to all people, foreigners and non-citizens as well as citizens. In connection to this they also began to reason about the common principles by which all peoples should live by, the laws that should be "natural" to all humans (rooted in "natural law"). But this form of reasoning about law was not merely a circumstantial reaction to the problem of ruling over many different categories of people; it was a form of reasoning implicit in the process of reasoning itself. The development of an increasingly abstract vocabulary resulted from the application of reason (as opposed to customary thinking) to the development of law; abstraction is inherent to the process of reasoning and results from the process of generating definitions, classifications and concepts, recognizing common features in particular instances and individual cases, and generating different types of laws and different terms. As Aristotle writes in his, inductive reasoning "exhibits the universal as implicit in the clearly known particular" (Book I: Ch.1).Essentially what the Romans did was to apply Greek philosophy, particularly the Aristotelian inductive logic of moving from experience to certainty or probability by coalescing together in one's mind the common elements in the particular cases observed. Romans jurists were trained to be very practical about their legal reasoning, and rather than debating ultimate questions about justice, they went about deciding what was the best legal course of action in light of the stated facts, and, in this vein, they classified Roman law into different kinds of law in a systematic fashion, as was evident in the treatises of Q. Mucius Scaevola. The point I am driving at is that just because the Romans were developing legal concepts that were increasingly abstract and without reference to customs by particular groups, it does not mean they were trying to create a multiracial state with a common system of law, or a nation dedicated to racial equality.There is clearly a connection between rationalization and universalization which engenders an abstract language that bespeaks of a common humanity. That is why Western thinkers always write in terms of "man", "humanity", "mankind" even if they are really thinking of themselves, be they Greeks, Romans, or Germans. Westerners created a universal language in the course of becoming the only people in this planet — as I will argue in a future essay — self-conscious of the "human" capacity to employ its rational faculties in a self-legislating manner in terms of its own precepts, rising above the particularities of time, custom, and lineage and learning how to reason about the universal questions of "life" and the "cosmos". Europeans are the true thinkers of this planet, the only ones who freed their minds from extra-rational burdens and requirements, addressing the big questions "objectively" from the standpoint of the "view from nowhere", that is nobody's in particular. But we should realize that it is the view of European man only.Now, it is also the case, as Nemo points out, that with the emergence of the Hellenistic world after Alexander the Great's conquests (323-31 BC), Greek Stoics philosophized about a common humanity (in the context of the combination of Greeks, Persians, Syrians, Egyptians and other groups within this world) with a common nature. It is also the case that Stoicism was very influential among Romans, who produced their own Stoics, Marcus Aurelius and Seneca. Influenced by the Stoics, Roman jurists developed the idea of natural law, which, in the words of Cicero, means:How can one disagree with Nemo that the Romans bequeathed to us the idea that we should envision a New World order in which all the peoples of the earth are ruled by universal laws regardless of ethnicity and other particularities? Add to this the fact that with the Edict of Caracalla issued in 212 AD, all free men in the Roman Empire were give Roman citizenship. Citizenship had long been reserved for the free inhabitants of Rome, and then extended to the free inhabitants of Italy, but this Edict extended citizenship to multiple ethnic groups.Still, it would be a great mistake to envision Roman citizenship as a conscious effort on the part of ethnic Romans to recognize the common humanity of all ethnic groups. Firstly, the extension of citizenship was part of the process of Romanization , of acculturation and integration of conquered peoples into the empire; it was intended as a political measure to ensure the loyalty of conquered peoples, and the acquisition of citizenship came in graduated levels with promises of further rights with increased assimilation; and, right till the end, not all Roman citizens had the same rights, with Romans and Italians generally enjoying a higher status.Secondly, it is worth noticing that this process of Romanization and expansion of citizenship was effective only in the Western (Indo-European) half of the Empire, where inhabitants were White; whereas in the East, in relation to the non-Italian residents of Egypt, Mesopotamia, Judea and Syria, it had only superficial effects.It has been argued, to the contrary, that Roman political culture itself fell prey to "orientalizing" motifs coming from the eastern side. Bill Warwick's book,(2000), shows that Roman rule in the regions of Syria, Jordan, and northern Iraq was "a story of the East more than of the West", and states flatly that these lands were responsible for the "orientalizing" of Rome.We would be way off, then, saying that Rome became a civic polity devoted to a trans-racial order as a result of extending citizenship to non-Romans.Thirdly, keep in mind that, before Caracalla's edict of 212 AD, the vast majority of those who held Roman citizenship were from Italy; in other words, Romans only agreed to grant citizenship to non-Italians close to the last period of their empire; and historians agree that the only reason Caracalla extended citizenship was to expand the Roman tax base. In fact, it took a full scale civil war, or, as it is known by historians, a Social War or Marsic War [Lat. socii=allies], 91–88 BC, for Romans to agree to share citizenship with their Italian allies who had long fought on their side helping them create the empire. It is no accident that the roots of the word "patriot" go back to Roman antiquity, the city of Rome, expressed in such terms asand, which indicate city, fatherland, native, or familiar place, and worship of ancestors . Roman ethnic identity was strongly tied to the city of Rome for centuries, and when it did extend beyond this city, it did so almost exclusively in relation to closely related ethnic groups in Italy and southern Gaul. G. Mousourakis writes of “a single nation and uniform culture” developing only in the Italian peninsula as a result of extending citizenship, or naturalizing non-Roman Italian residents.Therefore, it would be anachronistic to project back to the Romans a program akin to our current immigration/diversity reality, implemented with the conscious purpose of undermining European pride and identity and creating a race-mixed population. The cultural Marxists in control of our universities are simply using deceptive arguments to make Europeans think that what is happening today is part of the natural course of Western Civ. This form of intellectual manipulation of students is now rampant in academia.In a second part of this essay, I will question some of the incredibly absurd lengths to which the Stoic ideal of a cosmopolitan citizen has been willfully misinterpreted and misapplied by our "major" scholars as a "program of education" to be implemented across the West in order for white children to overcome their racism and sexism and accept mass immigration and matriarchy.