Other cultures had rules, of course. All societies establish social order based on codes of behaviour. But in other cultures, these codes were loose and subject to the whims of the powerful.
Civil law is different. It assumes that the law is supreme and that everyone, rich or poor, is equal under the law.
Civil law matters because it’s a public endorsement of, and social defender of, individuals’ rights. The existence of civil law has differentiated western nations and facilitated the rise of the West over many centuries.
Why did economic prosperity evolve so much faster in the West than in other parts of the world?
Civil law protected rights of property, first from medieval church leaders who saw trade as evil, then from nosy levellers and today from activists of various creeds.
Why did democracy take hold in the West?
Citizens’ civil and human rights were protected by the law, first from monarchs who imagined themselves as demigods, then from abusive industrialists and today from all those fanatics who believe they know what’s best for us.
But where did civil law come from?
Westerners owe a great debt to the early Roman Republic. It was there in those far-off days that civil law was born.
According to legend, twin brothers Romulus and Remus founded Rome in BC 753. In its early days, Rome was a smallish city-state with a typical monarchial social structure. But then something quite remarkable happened:the desire for democracy and individual rights began to unravel this hierarchical social system.
The last Roman king, Tarquinius Superbus, was expelled from Rome in BC 510. After the king departed, republican Rome implemented democratic reforms, replacing the kingly power with two elected praetors (soon to be consuls).
What caused this sudden change in Roman life?
Bryn Mawr College Prof. Tenney Frank (1876 to 1939) believed economic changes forced social change: “at the end of the regal period, Rome was a large and busy commercial city.”
The need for civil law grew out of the political reality of democracy (protecting rights of the person) and the need for formal laws to govern the vast and growing commercial interests of Rome (protecting rights of property).
In the early republic, Roman plebeians complained that knowledge of the law was still being withheld from them, and that its administration by patrician consuls was arbitrary and tyrannical. In BC 462, Gaius Terentilius Arsa, one of the peoples’ tribunes, proposed a formal codification of the laws, which until that point had been open to interpretations by priests, who became self-appointed guardians of law.
The resulting Laws of the Twelve Tables was the first codification of Roman laws. Gnaeus Flavius popularized the laws and vastly increased their importance by publishing his Tripartita. This treatise was a written document in three parts: the Laws of Twelve Tables, an interpretation of the same and agreed statutes of action.
Roman law was transformed by this process from a narrow, secretive system interpreted by priests into a formal public system fit to meet the demands of a growing civilization.
What’s unique about Roman civil law?
It was formally defined, systematic and public. Roman law consisted of enacted statues (lex) and various popular initiatives (plebiscita) that emerged from tribunes of the people and other magistrates.
The Laws of Twelve Tables was looked upon by the Romans of later ages as the starting point of their legal history. “The fountain,” Livy calls it, “of all public and private law.”
This is history’s earliest systematic legal treatise. It laid the foundation of jus civile, which presided supreme in the Roman Republic.
Although Rome lost its democracy when it became an empire in BC 27, the idea of civil law had become so deeply embedded in the consciousness of the Roman world that it laid the cornerstone of all subsequent civil law traditions in modern western nations.
Civil law has withstood many challenges over its long history. Today, it faces challenges from a new and powerful enemy.
The rise of social media has given voice to many activists with passionate causes. Their disproportionate impact could swamp legally-held rights and trample on centuries of legal history.
It’s time to halt the rise of a new self-appointed priesthood and, once again, rally behind the solid foundations of civil law.
Robert McGarvey is an economic historian and former managing director of Merlin Consulting, a London, U.K.-based consulting firm. Robert’s most recent book is Futuromics: A Guide to Thriving in Capitalism’s Third Wave.