Saturday, 9 November 2013

A Classical View of Queensland's New Anti-Bikie Legislation

A marketing study in the UK earlier this year declared that a majority of Britons would prefer live under Roman rule.  It was a gimmick, but it isn't as crazy as it might at first seem.  The point being made would have been truly ironic if it had been performed in continental Europe where all law codes evolved from those of ancient Rome.
All western law codes owe something to the laws of ancient Rome.  According to one legal historian, "in western, southern, and central Europe, Roman law has always been a subject taught by our faculties of law because it provides the necessary background for interpreting our own civil law." (Wieacker, 279).  The study of Roman law applies a little less to English Common Law, which forms the basis for Australian law, because it is further removed from its Roman forebears owing to the pesky Anglo-Saxons, who took over the island when the Romans declared they couldn't be bothered defending it in 410 AD.
That said, the English legal system has been influenced by Roman law. The Norman Conquest of England in 1066 reintroduced the influence of Roman law to the island.  The right to appeal to the king was introduced, and this court brought with it continental principles of equity which had developed in part from Roman and natural law.  The relationship between Common Law and Roman law is confusing, and I do not consider myself an expert - I'm an ancient historian, and as such I know a great deal more about ancient Roman law than the legal history of England.  I base my statements regarding the influence of Roman law on English Common Law in two articles you can look at if you wish:  "The Relations between Roman Law and English Common Law down to the Sixteenth Century:  A General Survey" by T. F. T. Plucknett and "The Importance of Roman Law for Western Civilization and Western Legal Thought" by Franz Wieacker.
Regardless of the degree to which Roman law influenced English Common Law, I like to view the law as an ongoing development.  I believe, and some legal historians agree, that the legal process is an ongoing action of development and evolution.  The law makers of today are influenced by law makers of the past, and in the western world, such links can be found in the development of law back to codification of Rome's first laws, the Twelve Tables in the mid fifth century BC.  Therefore the laws enforced in our courts today, and by extension, the laws passed in today's various legislative bodies, developed from those which ruled the people who threw criminals to the lions.  Understanding that legal codes are not static documents, but have grown and developed over millennia gives us a better appreciation of those masses of black books which often feature in the backgrounds of legal dramas, fill the shelves in law libraries and act as the backdrop of innumerable election campaign addresses and interviews.  (Not all politicians follow this suit - my favourite recorded interview of former Australian Prime Minister Gough Whitlam prior to his winning the 1972 election features a large volume of Ovid's Metamorphoses prominently in the bookcase behind him).
So if we look at current legislation with a mind to the Roman past, what does it tell us?
I intend to look in this way at Queensland's new "anti-bikie" legislation, the Vicious Lawless Association Disestablishment Act 2013, or VLAD, as it has become known known among Queensland's legal fraternity.  All jokes relating to Vlad the Impaler, Dracula, vampires and Vladimir Putin aside, this law is being promoted by the Queensland Government as a solution to what it has called the "outlaw motorcycle gangs."
The law states its purpose as follows:
to disestablish associations that encourage, foster or support persons who commit serious offences...
So while advertising states that the law is against bikies, the legislation states that it is against associations.  Associations were the subject of a great deal of legislation by the Romans, but the earliest Roman legislation, the Twelve Tables, did not seek to ban them:
Table 8. 27. – "These guild members shall have the power . . . to make for themselves any rule that they may wish provided that they impair no part of the public law . . ."
The full text hasn't survived, but what we have does not suggest that associations were seen as threats.  The earliest reference to a law I have been able to find which sought to limit associations was introduced by the emperor Augustus.   Like the Queensland Government, Rome's emperors, who worked externally to the political system, believed associations were dangerous.
The first emperor, Augustus, had a law passed which made all associations seek the approval of the Senate to convene.  We know this because an inscription states "that the Senate permitted to join as an association  and assemble, in accordance with the Lex Julia, and by the authority of Augustus..." (CIL VI 2193).  This association appears quite harmless, it was an association of musicians who performed at public sacred rights (the ancient equivalent to a church organist and choir), but they still needed permission to associate.  
In addition to this, more legislation was passed by subsequent emperors limiting associations.  The evidence for this comes from the law codes which have helped shape laws and legal practice across the western world:
The Digest of Roman Law, Book 47 Title 22. "Concerning Associations and Corporations."
1. Marcianus, Institutes, Book III.
By the Decrees of the Emperors, the Governors of provinces are directed to forbid the organization of corporate associations, and not even to permit soldiers to form them in camps. The more indigent soldiers, however, are allowed to put their pay every month into a common fund, provided they assemble only once during that time, for fear that under a pretext of this kind they may organize an unlawful society, which the Divine Severus stated in a Rescript should not be tolerated, not only at Rome, but also in Italy and in the provinces.
1. To assemble for religious purposes is, however, not forbidden if, by doing so, no act is committed against the Decree of the Senate by which unlawful societies are prohibited.
2. It is not legal to join more than one association authorized by law, as has been decided by the Divine Brothers. If anyone should become a member of two associations, it is provided by a rescript that he must select the one to which he prefers to belong, and he shall receive from the body from which he withdraws whatever he may be entitled to out of the property held in common.
2. Ulpianus, On the Duties of Proconsul, Book VII.
Anyone who becomes a member of an unlawful association is liable to the same penalty to which those are subject who have been convicted of having seized public places or temples by means of armed men.
3. Marcianus, Public Prosecutions, Book II.
If associations are illegal, they will be dissolved by the terms of Imperial Mandates and Constitutions, and Decrees of the Senate. When they are dissolved, the members are permitted to divide among themselves the money or property owned in common, if there is any of this kind.
1. In a word, unless an association or any body of this description assembles with the authority of the Decree of the Senate, or of the Emperor, this assembly is contrary to the provisions of the Decree of the Senate and the Imperial Mandates and Constitutions.
In a nutshell, associations had to be given permission to form, either by the emperor or the Senate; they could only meet once a month unless it was for religious purposes; and you could only be a member of one association.  In a sense it makes the new VLAD laws look like a normal progression, thoroughly understandable even, but in fact they are a huge step back in time.  At least the Romans allowed you to dissolve your association.  VLAD includes no way for members to disassociate themselves.  
Legal historians have noted that the evolution of legal thought which led to the creation of humanist natural law during the Enlightenment owes a great deal to Roman law.  Such humanist theory has led to the United Nations Universal Declaration of Human Rights which states in relation to associations:
Article 17.1:  Everyone has the right to own property alone as well as in association with others.
Article 20.1:  Everyone has the right to freedom of peaceful assembly and association.
So while the laws of today evolved from the laws of the past, the UN's Universal Declaration of Human Rights has shifted a long way from its origins; association is freely allowed.  The Roman emperors would never have allowed it!  But then the Romans were feeding their criminals to the lions.  All I can say is I hope Australia's federal customs laws never allows a pride of lions to be delivered to Queensland Attorney-General's office.

No comments:

Post a Comment