Revolutionary Reform

A History of Law Reform through Codification

‘Do you want to have good laws? Burn yours and make new ones.’

Naturally, owing to a justified dislike of the way that lawyers operate, many have found this sentiment appealing. This has been attested to throughout history. Let us assess two of these cases.

The Law to Surpass all Laws — Constantinople, AD 529 Roman law is a unique beast. Although her first laws — the Twelve Tables — appear simple to the modern student, one must not forget the phrase prima facie (at first sight) comes from Latin. The reach of Rome’s borders, the multitudes of local and customary legal codes, and the collapse of her western half each mounted a challenge to lawyers in the monolithic Byzantine East and the newly fashioned barbarian kingdoms of the West. By the sixth century, Byzantine jurists had over a thousand years of contradictory pagan, Jewish, and Christian laws to reference when deciding on cases.

It was at this point that Justinian, the Byzantine Emperor, formed a commission to establish the Corpus Juris Civilis: the Body of Civil Law. Comprising a codex, a jurisprudential encyclopaedia, and a textbook, the

Corpus claimed to be complete; commentaries and sources not found within the Corpus were held to be illegal interpretations of the law. However, Justinian soon found the rigidity of the code to be a boon to effective leadership, and new laws were published as the Novellae Constitutiones; the fourth arm of the Corpus.

Above the reconquests of Rome and Carthage, Justinian’s rule is remembered for his unprecedented consolidation of a thousand years of law and jurisprudence into one body of work. Requiring almost no external sources, the Corpus provided a revolutionary basis for civil law — it alone would stand as a basis of Western law for a millennium.

The Law to Surpass all Laws (to Surpass all Laws) — Paris, AD 1804

As time went on, elements of the Corpus rubbed jurists the wrong way. Some scholars found Justinian’s dependence on Catholic Christianity anathema to their own ways of life. Others questioned the authority of man before God to make universalist laws. The rebellious barbarian kingdoms of the west had proven their might as Byzantium was relegated to Ottoman territory.

By the nineteenth century, a bourgeois revolution against the French monarchy had succeeded in causing unfettered chaos. Napoleon Bonaparte, soldier and first consul of the French Consulate, sought to remedy this outburst with legal reform. Viewing the piecemeal local and customary law of France as insufficient, and having read the textbook portion of the Corpus, Napoleon sought to create a new code — the Code civil des Français; or the Civil Code of the French. It experienced a similar reception to the Justinian code: initially promulgated as a self-sufficient legal code with prohibitions on commentary and external sources, with later amendments demonstrating the folly of such claims.

Following its promulgation in 1804, Napoleon’s Code would become the legal basis of modern France and its overseas territories. It remains active in these territories to this day.

The Lessons of the Past

As Voltaire quipped, the old laws went up in a blaze, and two codes replaced them. However, this fire was not destructive but rather purifying. Both parties saw certain values embodied in the laws of the past: capable jurists, respectable opinions, and a coherent philosophy. But both sought to tie what had come to pass to a higher philosophy: Justinian had discovered Jesus of Nazareth, and Napoleon had discovered Caesar of

Rome. This was no creation of law from the ground up; it was the import of an ancient truth.

There are countless examples of revolutions attached to an ancient truth: the Jews under Josias recognised the supremacy of the Temple and the attached laws as Moses did; the founders of the United States desired freedom and its corollaries; and the Soviets and Nazis found the object of their affections in the manner of Narcissus.

Each revolution is founded on a philosophy, and every law comes from a revolution.

The Law to Surpass all Laws to Surpass all Laws (to Surpass all Laws) — Australia, AD 1986

It is here that the English-speaking tradition of common law makes its great debut. For what is common law but a wholehearted acceptance of revolution; an unparalleled trust in populations to govern through democracy and novel precedent? Our legislators, the laws’ executors, and those who judge the laws — each group is composed of revolutionaries. They bring with them their philosophies and their claims to reality, and they seek to set the law aflame with that same Voltairean spark.

Under the first Australian legal case — Kable v Sinclair — prisoners were found to possess rights under the rule of law. Governor Arthur Phillip wrote memoranda detailing his desire to abolish slavery in Australia, contrary to the law of the greater British Empire. Royal assent was granted to locally written constitutions. Following Federation in 1901 and the excision of future British law in 1986, Australia became a de facto independent state. The laws in Australia have broken away from our civil law antecedents, and the heightened roles of the parliament and judiciary has been affirmed time and time again.

The changeable legal institutions and the common law of Australia entrusts the power to shape the law to its citizenry; powers once held exclusively by emperors. The purpose of the law has never been as relevant to as many people as it is today.

Justinian was an Illyrian peasant, who was raised in the boonies of a dying empire and secured his polities for a thousand years. Napoleon hailed from the backwaters of Corsica and leapt into the thick of revolutionary Europe. Both believed in something greater than themselves and left a legal legacy a thousandfold greater than their contemporaries could have ever imagined. With the revolutionary powers of emperors in our hands — what is to be our common legal legacy in Australia?