Civil Law and our Common Past

The law of Australia can only be understood insofar as we understand the law of England, as certain tenured professors like to proclaim. These learned scholars reveal hundreds of hardcover tomes which cover the laws of our intellectual forebears — from the fateful arrival of the Normans to the dissent of the great Enlightenment thinkers (among them the fathers of Australia). From Locke to Hobbes, from Hume to Bentham, from the common law to the rule of law — it is obvious, they declare, that our way of life is owed to our Enlightenment British providence.

From across campuses, a voice cries out demanding the recognition of the failures of English law in Australia. The Aboriginal Australians and Torres Strait Islanders, stuck in their limbo of land ownership; the classism rampant in the treatment of English convicts and officers; the political and religious conquest of the Indigenous and Irish alike — these moral failings of the British law, they assert, call for a critical analysis (and perhaps overturning) of this old world order.

These vignettes oversimplify many debates, but their simplification is matched only by their ubiquity. What is surprising is their recurring exclusion of pre-modern civil law — enlightenment thinkers viewing them as archaisms that were ‘de facto overturned’ by parliamentary sovereignty, while critical analysts consider them to be a carte blanche affront to modern tastes.

Now, whatever one’s views on the doctrines of tenure and estates are, one apparent paradox must have occurred to the reader. From these brutal and backwards societies which professed these ideas, it was none other than our own society which proceeded from it. From what we perceive to be a homogenous mass of convulsing barbarism and irrationality for two thousand years prior to the arrival of the Normans in England; stretching from Hammurabi’s Code to the Mitzvot, from the Twelve Tables to the Corpus Juris Civilis — it was from this lineage of error and mishap that our own reasonable civilisation was born.

Seeing as these two thousand years contain within them long-lasting orthodoxies and rebellions, it would therefore be within our best interests to see from whence our laws originated, to contextualise the debates that continue today, and to see what is good, true, and beautiful within them. The following three pieces of advice have helped in the discovery of these three qualities.

First, to commune with the minds of the past and meet them at their level. This means that we must not discard our logical faculties when we meet a sentimental law code, and that our emotions ought not to be quashed upon meeting a logical argument. The jurists of the past possessed both logic and pathos in spades, and it would be a dishonour to discredit them owing to our ignorance.

Second, remember that moral offences — murder, larceny, littering, genocide — were reviled as often as they were celebrated. To close off the past with a triumphalist lasciate ogne speranza, voi ch'intrate on the actions of a contemporaneous few would effectively excise every great thinker in our history, including ourselves.

Finally, question our own assumptions as often as our interlocutors. What are our moral callings? How do we ascertain human rights? Why do we exist? Call these assumptions into the dock, wherein they are strengthened or otherwise crumble to dust. Humanity’s intellectual errors and anagnorises are not a reflection of an absence of morality, nor are they indications of unworthiness; they are merely stepping stones to that most beautiful of mysteries — the common good of humanity, the truth.