Roman Empire Code of Civil Law

Between A.D. 529 to 534, Emperor Justinian of the Roman Empire organized commissions of legal scholars. These scholars were ordered to codify the legal opinions of Roman jurists, which had accumulated over the course of several centuries. The result of this monumental undertaking was the Corpus Iuris Civilis, otherwise known as the Roman Code of Civil Law.

The Code was divided into several volumes, including: Codex Justinianus, Digest, Institutes, and Novels. Justinian considered the code to be comprehensive and unified, and forbade further development of legal precedent through judicial rulings or scholarly commentary. Justinian's approach precluded judicial expansion of civil rights, curtailed a check against executive power, and permitted differential treatment of similarly-situated defendants by discouraging judicial reference to precedent. Of course, there was no written constitution, and Justinian's legal system included few rights or limitations upon governmental power. Justinian's effort had a profound impact upon world history.

Rome's Code of Civil Law was influenced by Greek legal principles, including Spartan culture (which permanently removed all boys over age six from their families for military training) and Platonic philosophy (which shared historical links to the Spartan tradition). Book I, Title III of the Institutes stated that "The chief division in the rights of persons is this: men are all either free or slaves." Parental prerogatives of parents received little protection against interference by the Roman government, but were entitled to enforcement against private third-parties: "The power which we have over our children is peculiar to the citizens of Rome; for no other people have a power over their children, such as we have over ours." Institutes, Book I, Title IX, Paragraph 2.

In contrast to Roman citizens, "children of the unfree" were consigned to bondage. "Slaves are in the power of masters, . . . [who] have the power of life and death over their slaves, and . . . everything acquired by the slave is acquired for the master." Institutes, Book I, Title VIII. Roman law created a state religion and imposed various legal disabilities upon Jews and others of non-Christian persuasions. For example, Roman law forbade study of the Mishnah and other unapproved religious texts.

The Code exerted a profound impact upon legal systems around the world. After the French Revolution, Napoleon utilized the Roman Code as the basis for his own Napoleonic Code. The Code of Civil Law and the Napoleonic Code spread across Europe, and provided the foundation for Prussian (German) civil law. Prussian legal tradition, in turn, influenced the formulation of Adolph Hitler's Mein Kampf and Karl Marx's Communist Manifesto.

Socialist law emerged as a distinct, academically-recognized sub-category of the civil-law tradition. Benito Mussolini's Fascist Italy borrowed from the Roman and German National Socialist legal traditions. Indeed, the epicenter of this political and legal tradition was Humboldt University, the oldest university in Berlin and an intellectual ally of the compulsory-attendance and eugenics initiatives championed by Harvard and the Ivy League. Karl Marx, Friedrich Engels, Otto von Bismarck, W.E.B. Du Bois, Georg Hegel, Max Planck, and Arthur Schopenhauer studied or taught at this crown jewel of German education, and Adolph Hitler conducted his book-burning rituals in the same place. Russia adopted a civil-law system designed to effectuate the precepts of the Communist Manifesto. The Soviet Empire spread the Russian civil-law model to Eastern Europe, North Korea, Vietnam, Mongolia, Cuba, and other Communist countries.

Wherever a nation was colonialized by a European power other than England, a version of the Code of Civil Law was permanently imposed upon the local population. Italians, French, Portugese, Spanish, Dutch, Belgians, Greeks, Germans, and Russians all contributed to the dissemination.

Today virtually all nations are governed by law derived from one or more of the world's three overarching legal traditions: Roman Civil Law (including its socialist variants), British Common Law (including the derivative United States constitutional system), and Islamic Law (consisting of the Koran, Shari`ah, and Fiqh).

Islamic Law, a civil-law system rooted in Muslim (rather than Roman) precepts, is primarily found among the nations of North Africa, the Middle East, and the Asian Near East. Globalization and international law have increased the practical impact of Islamic Law upon non-Muslims. Islamic Law precepts of most importance to alternative education include Koran s2:v256; s17:v23-24; and s109:v6. The meanings of these provisions are debated by Islamic scholars and often disregarded by monarchs and dictators who harbor motives ulterior to Islamic observance. When taken together, however, the actual meaning of the passages appears to favor parental control over the upbringing of children.

The rise of the European Union is a second recent, dramatic development in the evolution of jurisprudence at the global scale. Unsurprisingly, EU law is primarily influenced by the Roman Code of Civil Law, rather than British Common Law or United States Constitutional Law. In terms of parental rights, Article II-24 of the current Draft Treaty Establishing a Constitution for Europe provides that a child may be removed from his parents whenever the Union determines that such a step would be in the child's "best interest". Likewise, Article II-14 provides for a child's "right . . . to receive free compulsory education." The Draft also authorizes its member nations to enact laws "governing the exercise" of "the parent's right to ensure the education of their children in accordance with their religious, philosophical, and pedagogical convictions."

Underscoring its Code of Civil Law origin, the Draft was signed by twenty-five European leaders on October 29, 2004, at Capitoline Hill in Rome, Italy. Capitoline Hill was where ancient Roman laws were passed and enforced (dissenters from the Roman Empire were tossed to their deaths from the top of Capitoline Hill). To take legal effect, however, the European Union Constitution must still be ratified by each European nation, requiring a "Yes" vote in several nations by means of a popular referendum. If even a single nation refuses to ratify, the European Union Constitution cannot become binding law. Because French and Dutch voters voted against ratification in referendums held on May and June of 2005, the European Union Constitution has suffered a major setback.

One of the most important recent developments in Europe occurred in the case of Konrad and Others against Germany, Application No. 35504/03, European Court of Human Rights (Fifth Section), (Sep. 11, 2006). In Konrad, the European Court of Human Rights considered a string of incidents in Germany involving about forty families engaged in alternative education. German officials acted to enforce German laws and policies that had been established during the era of National Socialism by imprisoning and fining home-educating parents. German officials seized home-educated children who refused to attend German public schools. Alternative educators referred to the campaign as "Hitler's Ghost" and some of them fled to other countries or went underground in Germany. The Konrad family and others brought a case to the European Court of Human Rights to stop the German persecution, but the Court essentially decided that each European nation has power to either allow or disallow home education by means of national law. Germany has continued its long-standing tradition of hostility to alternative education (including persecution of Mennonites, Jews, Gypsies, Catholics, and other demographic minorities who gravitate toward alternative education), while nations such as Ireland, the United Kingdom, and Poland have laws allowing alternative education. The Konrad opinion applies throughout the European Union and is essential reading for anyone who wishes to understand the laws that pertain to alternative education in Germany and other nations of Europe.

Another major effort to implement similar civil-law principles for child raising includes the United Nations Convention on the Rights of the Child. Many legal scholars believe that the Convention is an attempt to create a set of legal norms (sometimes described as a "Law of Nations," see United States Constitution art. I, sec. 8, cl. 10), which would then be incorporated by court rulings into the national case law of various nations, including even nations with elected officials who have refused to directly ratify the treaty. In the United States there is an emerging controversy about whether any court has constitutional power to "define and punish . . . Offences against the Law of Nations" in any manner not affirmatively and explicitly authorized by prior positive legislation enacted through Congress. This is a legal question of great importance, because the United States has a common-law heritage but many international legal norms (and most national governments around the world) are derived from the civil-law tradition. Citizens of the United States could thereby be subjected to alien family law principles that have not been approved by either elected representatives or popular referendum.


Sources include: Medieval Sourcebook: The Institutes, 535 CE; Medieval Sourcebook: Codex Justinianus: Children of the Unfree, c. 530 [Xl.48.xxi.]; Draft Treaty Establishing a Constitution for Europe 1 2; Islamic Law (Koran) -- Electronic Text Center, University of Virginia Library -- s2:v256 s17:v23-24 s109:v6.