April 29, 2022
Diversity of the Law Revisited: Cicero to AI
by Gus Bequai, Editor
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
-George Orwell (“Animal Farm”)
Taking Root
Together with religion, the law is one of humanity’s oldest achievements. Its history dates back more than 5,000 years. The word “law” in English- (“lagu” in Old English)- derives from the word “log” in Old Icelandic. The Ancient Greeks viewed the law (“nomos”) in terms of legislative enactments, divine and human, which held members of the community accountable. The concept of natural law-(the idea that there are universal principles that govern human behavior)-was a central tenet of the Ancient Greeks view of the law. The concepts of justice, equality, and freedom, enshrined in Western legal systems, were central to their perception of the law.
For the Ancient Egyptians, likewise, the law consisted of rules (mostly divine) for the efficient and just governance of society. The Pharaoh, who represented Egypt’s deities on earth, ensured that it was conducted justly. If Pharaoh failed to do so, he faced the wrath of the deities. The Kushite rulers of Ancient Nubia (Northern Sudan), under the pretext that Egypt’s 24th Dynasty had incurred the wrath of the gods for failing to administer the law justly, invaded Egypt and established the 25th Dynasty (750-666 BC).
The 13th century Italian Dominican friar Thomas Aquinas would expound a similar theme; writing that the law is a rational ordering of things, promulgated for the common good of the community. In the early 20th century, a New York court would define the law in similar terms; rules that must be followed by citizens, subject to sanctions, for the common good. See Koenig v. Flynn, 258 N.Y. 292 (N.Y. 1932).
The U.N. Global Compact views the role of the law as ensuring that institutions and processes in place account for stability, equality, and equal justice for all. While regimes have come and gone, and buggies have given way to AI, the perception of the role of the law in society has remained consistent.
The Divide
Law and religion went hand in hand in Antiquity; distinguishing one from the other was frequently no easy task. At its inception, the law was largely the province of clerics; viewed as the edict of the deities. To violate it was heresy; punishable by damnation. Once governmental bureaucracies grew in strength, the latter came to share responsibilities for enforcing and promulgating the law with their clerical counterparts. Thus, kings and the Inquisition came to work hand-in-hand. Lawyers as professionals, and the law schools to formally train them, did not take shape in the West until the legal reforms of Byzantine Emperor Justinian the Great (482-565 AD).
While Europe’s Renaissance and Reformation (1330-1550 AD) brought about dramatic changes in Europe’s socio-economic and political fibers, they also set the groundwork for the divorce of law from religion. The American Revolution (1775-1783) was the first to institutionalize the divide between law and religion with the enactment of the Bill of Rights in 1791; followed by the French Revolution (1789-1799) which largely finalized the divide of the two in Europe.
The secularization of the law in the West would not have taken hold without these two seminal revolutionary events. Lest we forget, that in many parts of the world law and religion, with variations, still go hand-in-hand. For example, Iran, Saudi Arabia, and Pakistan.
A Long Road
How and who would enact the law has proven both difficult and divisive throughout history; giving rise to vitriolic debates and armed confrontations well into the present. To cite examples of the latter, the Puritan, American and French Revolutions in the West; the Abbasid, Almoravid, Almohad, and Fatimid Revolutions in North Africa and the Middle East. Followed by the Bolshevik and Fascist revolutions of 20th century Europe and Asia. The road of the law has been a rocky one.
Neither have the violent conflicts over how and who should write and enforce the law been lacking in martyrs. Among the earliest, that of Ancient Rome’s Gracchi brothers-(Tiberius, 163-133 BC; Gaius, 154-121 BC). Born and raised in the upper class (Patricians) of Rome, they opted to serve the needs of the lower strata (Plebians). Whiles serving as tribunes for the latter- (Tiberius, in 133 BC; Gaius, in 122-121 BC respectively)- the two brothers introduced legal reforms that aimed to curtail the power and legal abuses of the Patricians. Demonized as traitors to their class, both brothers were assassinated.
When Julius Ceasar (100-44 BC), likewise from the ranks of Rome’s upper class, sought legal reforms that would have curtailed the power of Rome’s Senate which was largely controlled by the Patricians, he too was assassinated (44 BC). Resulting in civil war and the end of Rome’s Republican Age. When Octavian, Ceasar’s nephew, became Rome’s first emperor (27 BC-14 AD), he was quick to ensure that the law was applied equally and justly to all Roman citizens. Those emperors that followed him and failed to do so, paid the ultimate price.
The law, like religion, has its own lengthy history of schisms, turbulence, and Pantheon of martyrs. Like religion, when abused and applied unjustly, it often invites rebellion. Leo Tolstoy (The Kingdom of God is Within You, 1893) said it best, “laws are the offspring of party conflicts, false dealings and the greed for gain.”
The law has its failings, but these are tolerated as long as the public continues to believe in its legitimacy. Ineptness in its application is often tolerated, provided it is not long lasting. However, when the public sees it as favoring one segment of society over the other, the law faces a challenge to its legitimacy; if not remedied, instability will follow, especially if the dissatisfied segment of the populace is sizeable.
Cynics Abound
The law, like all human institutions, has not lacked in critics throughout its turbulent history. Cicero (Pro Milone) wrote, “Laws are dumb in the midst of arms.” For W.S. Gilbert (Utopia, Limited) the law, “Depends on whose solicitor has given me my brief.” Aristotle (Politics) viewed the law as “a political animal.” While Niccolo Machiavelli (The Prince) advised rulers that, “it is much more safe to be feared.” A view shared by Vladimir Lenin (Proletariat Revolution and Renegade Kautsky, 1918) who advised his followers that, “The revolutionary dictatorship …is unrestricted by any laws.”
When Stalin assumed power after Lenin’s death, he ingrained those principles in the Soviet Union’s DNA to such an extreme, that they would influence the likes of Fidel Castro, Che Guevara and the other Marxist revolutionaries that followed well into the 21st century.
However, revolutionaries, no less than religious zealots, have long since learned that the law cannot be openly presented as subservient to their dogma. It must be presented as primarily serving the needs of the community. Their cynicism is often confined to the upper strata of their revolution. If the masses learn of the facade, as with Robespierre, the guillotine stands in the ready.
Loss of Mandate
The concept of revolt in the face of unjust laws is as old as human history. Ancient China’s Mandate of Heaven doctrine (“Heaven’s Command”), first employed by the Zhou dynasty (1046-256 BC) to legitimize its rule, was used throughout China’s history as the basis for removing rulers who failed to administer the law justly; in line with Heaven’s Command. They were said to have fallen out of favor with the deities for their corrupt practices and unjust application of the law. They had lost the Mandate of Heaven to govern, and their removal from power was deserved.
Every regime in the last 3,000 years of Chinese history has sought to enroll the Mandate of Heaven to legitimize its rule. Whether they came from the lower strata of Chinese society via revolt (Han) or via invasion (Manchus), they all referenced the Mandate of Heaven.
The concept that a corrupt regime loses its right to govern is no stranger to human history nor confined solely to Chinese history. Marquis De Lafayette (To the Constituent Assembly, February 20, 1790) wrote, “When the government violates the people’s rights, insurrection is, for the people…the most sacred of the rights.” For the masses at large, justice and the law go hand-in-hand. Those that abuse the law pay the ultimate price. History is replete with examples.
Traditional Models
Many of the current secular legal systems trace their roots to either the English Common Law or Continental Europe’s Civil Law. The former is found largely in the former British colonies; for example, Australia, United States, New Zealand, and Canada. The latter permeates Continental Europe’s legal systems, and those of the former African, Asian, and Latin American colonies of France, Holland, Spain, and Portugal.
While in Common Law systems judicial decisions often enjoy equal footing with statutory enactments, the opposite is the case in Civil Law systems. In the latter, judicial decisions are nearly always subordinate to legislative and administrative enactments.
However, even the current legal systems of former European colonies have cherry-picked from both the Common Law and Civil Law systems. India and South Africa are two such examples. While others that were never colonies of Europe-(i.e., Japan, South Korea, and Thailand)-have also cherry-picked.
Revolutionary Law
Legal scholars often bypass, especially since the collapse of the Soviet Union, a third legal model that came into fruition in the 20th century; best described as Revolutionary Law. Largely espoused by Communists, social revolutionaries, anarchists, Fascists, utopian nationalists, and other groups of the extreme Left and Right. While dominant in the former Soviet Union, it continues with variations to permeate the legal systems of Cuba, Peoples Republic of China, North Korea, Viet Nam, and Laos. It has also won adherents in the West; especially with Leftist students and faculties in the universities and law schools. Secular utopian myths have an allure of their own.
Unlike the Common Law and Civil Law models, in the Revolutionary Law model dogma trumps the law; the latter is to be employed as a tool of the former. For adherents of Revolutionary Law, the other two legal models are viewed as tools of the ruling elite; employed to oppress the lower strata of society. To quote Karl Marx (The Communist Manifesto), “Law, morality, religion are to him (the proletariat) so many bourgeois prejudices.”
Revolutionary Law, like the other two legal models, is rooted in Western philosophy. Primarily an outgrowth of Europe’s Age of Enlightenment (1685-1815); propelled into the limelight of history by the French Revolution (1789-1794). Revolutionary Law is an amalgamation of the utopian dogmas that emanated from the French Revolution and those of 19th century Europe; among these, socialism, Marxism, nationalism, and other utopian dogmas. These utopian dogmas metastasized and made their way into the 20th century; giving rise to Communist and Fascist regimes in Europe, Latin America, and Asia.
The Aftermath
The collapse of Communist and Fascist regimes during the course of the 20th century did not extinguish their dogmas. Communism and Fascism merely mutated into hybrids; making their way into the 21st century with new names and slogans. Employing 21st century technologies to augment their reach; especially with students in universities and colleges. Making Leon Trotsky envious had he been alive to witness it. Quoting Mao Tse-tung, “A revolution is not a dinner party.” It lives on long after its founders and disciples are dead; with an uncanny ability to adapt like an amoeba.
While the Revolutionary Law model is anchored in secular dogma, it bears more semblance to the more extreme forms of religious law. Like the latter, its objective is to advance the tenets of its core beliefs; to use traditional law as needed to advance its tenets. The legal rights of the individual are irrelevant when weighed against the public good. Quoting Joseph Stalin (Speech, April 24, 1924), “the dictatorship of the proletariat is….untrammeled by the law.” For Eric Hoffer (The True Believers), secular dogmatists and religious fanatics are two sides of the same coin.
Closing
The West’s traditional legal models, with their safeguards for freedom and human rights, find themselves under attack in the 21st century from both technology and utopian ideologies. Freedom is under attack as never before since the collapse of the Soviet Union. The 21st century will assess the mettle of the law and determine whether Cicero and AI can accommodate each other in the service of freedom. Lawyers need to help meet the challenge. To cite the late Professor Anthony C. Morella, a true disciple of the law, “without just laws there is no freedom. (Editor's Corner, 12/16/22 issue).”
*The views expressed are solely those of the author.