The Justinian Model of Lawmaking
How the Emperor goes from living honestly to killing the Jews
No law code relies on substance for its power. It is the structure that fosters credibility and compliance. Almost every law code on earth uses a proven structure: it starts by codifying familiar social custom and mixes in new laws that benefit the lawmakers in the form of power and revenues.
The Russian philosopher Peter Kropotkin narrates the strategy this way:
In another article we briefly examine how the Jewish Torah is drafted using this structure. One thousand years later, the Byzantine Emperor Justinian wrote his Body of Civil Law using the same foolproof method.
It proved a shrewd decision. Some writers claim that, after the Jewish law and the Christian Bible, no other book has had greater impact on law and society than Justinian’s law. For hundreds of years, it has influenced jurisprudence, governance, and civil law throughout the Western world.
Getting tacit consent to the lawmaker’s authority
Written between 533 and 576 CE, Justinian’s Corpus applies the neat piece of trickery with finesse. It is prefaced by these wonderfully agreeable statements:
Nobody can disagree with that. Throughout the code appear well-placed apologies for the code’s validity such as:
It is very evident that the law of nature, established by nature at the first origin of mankind, is the more ancient, for civil laws could then only begin to exist when states began to be founded, magistrates to be created, and laws to be written.
In other words, our civil laws are based on natural law. Nobody could easily disprove that either, and it sounds benign enough. The code also establishes the author’s authority, to prepare the reader for any laws that may seem new:
That which seems good to the emperor has also the force of law; for the people, by the Lex Regia, which is passed to confer on him his power, make over to him their whole power and authority. Therefore whatever the emperor ordains by rescript, or decides in adjudging a cause, or lays down by edict, is unquestionably law, and undoubtedly binding on all.
Like the first of the Ten Commandments (“Thou shalt have no other gods before me”), any law-abiding citizen of the Eastern Roman Empire would be willing to accept that. There may be no proof that the people conferred power on the Emperor, but there is no way of disproving it, either. If the people did confer on him his power — an odd statement in itself — then they apparently have conferred on him the power to tell them what to do. Once this claim has been presented, most people would feel compelled to grant the author respect.
The laws of nature, which all nations observe alike, being established by a divine providence, remain ever fixed and immutable. But the laws which every state has enacted undergo frequent changes, either by the tacit consent of the people, or by a new law being subsequently passed.
Tacit consent. There’s a powerful phrase. And indeed, as I read on, I am compelled to donate my consent. Sure enough, the Corpus codifies obvious social rules regarding incest, public “property,” and private property. Even though it refers to “natural law” and “natural reason,” the code must document them if it is going to be successful. Nobody can disagree with these common rules:
You cannot marry your daughter, granddaughter, son or grandson, mother or father, aunt or uncle, niece or nephew.
Air, running water and the sea are common to everyone, so you are not forbidden to approach the seashore.
If you find any treasure on your own land, you are allowed to keep it.
If you capture or kill a wild animal, it becomes your property.
If you sell or give your land to someone, it becomes their property.
If one of your farm animals gives birth, their offspring becomes your property.
If you purchase land from someone you thought was the owner but who turns out not to be the true owner, you can still keep the fruits you harvest on that land. If you purchased the land from someone you knew was not the true owner, you owe the harvest to the true owner.
If someone unwittingly drops something from their carriage, and you take it, it is theft.
Commands disguised as permissions
Notice here that Justinian’s scribes have woven another neat trick into their codified customs: they confuse permission with commands. You are not forbidden from walking along the beach, you can keep what you find on your own property, and you are allowed to keep the fruits of your own harvest as long as you act in good faith.
On any given line of legal code, something is either prohibited or commanded, at least by implication. If it is a positive command — “You must do this” — you can be punished for not doing it. If it is a negative command — “Don’t do this” — you can be punished for doing it. Anything not prohibited or commanded is, by implication, up to the discretion of the subject, or “permitted” by the authorities.
The goal of Justinian, and every lawgiver, is to cover as much ground, as many situations, as much of the economy, and as many people as possible. No ruler wants to leave anything outside the realm of his control. If something is neither commanded nor prohibited, it must be included in the laws as “allowed.” And it must be specified.
This explains why the Corpus, and so many codes of law since, have mushroomed to unfathomable volume. It took awhile for scribes in other empires to catch on to this subtle element, but today, vast pages of federal and local laws are taken up with permissions.
Look at the federal laws for debt collections, telecommunications, banking, traffic, policing, food regulations, health care, tax collections, government agencies, you name it: these laws stipulate not only what the players must do and must not do, but also what they are allowed to do.
When we consider doing anything not clearly specified in our local laws, we ask, “Is this allowed?” or “Are you allowed to do that?” There is effectively no difference between commands and permissions when it comes to law.
Hence the whole notion of “rights.” When you speak of rights, you are not speaking of your sovereignty over your own actions. You are identifying what the government has specifically authorized you to do without penalty. The converse of a right is whatever is not permitted. As Stanley Diamond puts it, what the king does not permit, he prohibits, and “what the king permits, he commands.”
Enter the arbitrary rules
Justinian then introduces innovative and arbitrary new laws. These new laws form the bulk of the Corpus. In many cases, they seem to consist of judgment calls by self-appointed umpires, as if they are applying reasonable decisions to ordinary situations. For example:
If you find something of value on the Emperor’s property, you can keep half.
The rest belongs to the Emperor.If you have geese or fowl on your farm, and they take flight for some reason,
they are still yours even though you may have lost sight of them. So whoever takes them commits a theft.The same does not apply if you own bees. If a swarm of bees flies from your hive, and you lose sight of it, it becomes the property of the first person who takes it.
These judgment calls are as good as any. They could just as well have granted the same rights to beekeepers as to fowl farmers, but there is no obvious violation of justice. Again, the operative factor here is not the content of the rule. It is the fact that the authors have appointed themselves the arbiters of these scenarios. In the very act of writing the laws, they have presumed their audience’s consent to their authority.
Like all the scribes before them, Justinian’s committee does not stop at relatively ordinary scenarios and reasonable judgment calls. They fabricate rare scenarios and weird acts of God:
When an island is formed in the sea, it belongs to the first occupant.
When an island is formed in a river, it belongs to the landowners on either
side of it.When a river switches the direction of its flow, its previous bed belongs to the landowners whose land adjoined its banks.
If a person has painted on the tablet of another, some think the painter takes ownership of the tablet while others think the owner of the tablet then takes ownership of the painting. We think the painter should own the tablet.
The offspring of a female slave belongs not to the female slave but to her owner.
Sneaky. While these judgment calls may draw controversy, they are not outside the bounds of reasonable. The authors have already claimed their authority, affirmed universal custom, and demonstrated apparent wisdom, so they can more successfully slip in arbitrary rules.
And now for the ridiculous regulations
By this time, the Corpus has succeeded in codifying customs and mixing them up with new laws. This lays the table for a whole host of laws completely unhinged from normal human activities — arbitrary laws that address only the control of power:
Only 1100 shops in Constantinople are appointed to perform liturgies for the dead.
All official documents shall begin with: “In the — — year of the reign of — -, most holy Augustus and Emperor.”
It is forbidden to have any chapels in your house in which to “celebrate the holy mysteries and do things not in accord with the catholic and apostolic precepts.” If you violate this rule, your house will be “confiscated and added to the imperial treasury.”
Jews who openly espouse Jewish beliefs or deny pillars of Christian faith “shall be put to death, and thereby the Jewish people shall be purged of the errors which they introduced.”
So much for living honestly and harming no one. These regulations have nothing to do with “natural law” and common custom. But since the code lays out all the accepted customs, “allows” people to do things, and makes reasonable judgments about disputes, it lays the foundation for any ridiculous and tyrannical regulation the scribes can come up with in order to maintain their authority, protect the power of the king, and collect fines.
Which is why so many rulers since then have copied Justinian’s model.
