Q. I have heard that the Patriot Act, in effect, reverts our system of government from Common Law to Civil or "Roman" Law. I have also heard that Patriot Act II is already in print and seeking the support of those who are not afraid of being labeled conservative. Is this true? Can you explain how this bill would affect ordinary citizens such as myself? Is there a difference between a citizen and a patriot? Do you have any influence over matters such as these, especially when it seems that they would benefit mankind?
A. Rome is still considered one of the grandest empires that ever was. It presented a great spectacle in the historic chain of nations it acquired, conquered and controlled. Rome extended its government, its laws, and its language in all directions. All who came under Roman rule were subject to its power and sway, and those who attempted to throw off any measure of imperial authority were treated as rebels and criminals against a lawful dominion. Unfortunately, Rome's efforts to preserve its immense territories as its natural and legitimate heritage led to its eventual demise.
Praetors governed roman city-states; magistrates who ranked below consuls and acted as chief officers of state law. Common Law is based upon precedent, but as little precedent existed in the newly acquired territories, most cases belonged in "special" categories. Praetors had the authority to devise new rules and orders as applicable to the cases brought before them. If an old law afforded no remedy, new laws that accommodated the changing wants of a society were enacted. All new laws were made to conform to the Roman spirit of conservatism. Customs that had no previously ascribed institutions or traditional practice defined the time, and one-time decisions soon become law. It was the custom for Praetors, upon entering office, to publish an edict, a formal proclamation declaring the principles upon which they intended to administer justice. This practice was designed to make the Praetor appear impartial and just to the general populace, but this did not render him immune from special interests or dispensations of favor. In time, the adopted laws became a body of edictal law, as well established and authoritative as if it had received the express sanction of judicial legislation.
Edictal Law sprang from the spontaneous acts and opinions of a progressive and growing society, but far from being considered final, edicts were sometimes merely preliminary acts to further proceedings. This liberal form of administering justice became a form of civil law under Roman dominion. Foreign states that had formed treaties with Rome received more favorable treatment than others, and their citizens enjoyed greater civil rights as well. Eventually, the law of Rome came to be called the Law of Nations, and from this, the more popular Law of Contracts was born. Under the Law of Contracts buying and selling, hiring and loaning, as well as laws that involved slavery and indentured or involuntary servitude were introduced into Roman civil law. Magistrates and Praetors were elected (appointed) annually, and the newly elected rarely knew or were made aware of the decisions of their predecessor. Consequently, any "fixed principles" of law were less than desirable and sometimes missing altogether, especially as each subsequent magistrate was not bound by the decisions of his predecessors. In short, Roman law began as a shapeless and unwieldy mess.
As time progressed, Roman jurists, the true architects of Roman law, reduced volumes of laws into a manageable system that later came to be called European law. Under European law opinions became treatises and a council of jurists became a judex. It was the judex that adopted the practice of authenticating, under seal, the unanimous opinions that were made into law. Jurists, whose privileged opinions exerted paramount influence over the innumerable treatises they wrote, gave birth to Roman jurisprudence. Unfortunately, by then the glory of the republic already belonged to the past. Military power, which during the republic was kept in subordination to civil power, could under the new empire, at any time be put above the civil authority by the emperor himself. The emperor's very title reflected his military supremacy.
The emperor, who exercised uncontrolled legislative authority, declared the new application of Roman law necessary as required by an ever-changing and expanding populace. This more ample interpretation of justice, called Universal Dominion, reflected the peculiarities of Roman society, but deviated from the narrow rules of earlier days. This system closely resembled Imperialism, the extension of power or authority over others in the interest of political, military or economic domination, but was applied differently. At the time, the clergy held a virtual monopoly on legal knowledge, as they were learned and literate where others were not.
The great republic was almost forgotten by then, and the power of the emperor reigned supreme. The jurists, who held little favor with the emperor, were made to write legal opinions that supported imperial authority. Under a theory of absolutism the judex invented a fictional authority called the Lex Regia, by which it was pretended that all of the authority imbued within the Roman populace was irrevocably granted to the emperor. When the judex succumbed to the power of the emperor the die was cast and the profession of law was born under less than auspicious skies. Chief Functionaries, or lawyers, were trained to uphold principles of imperial policy, and the administration of law capsized under imperial authority and rule, in both theory and practice. Open courts disappeared, and all appeals fell upon the deaf ears of the emperor and his imperial court. Despotism, a cruel and arbitrary use of power, was disguised as law and offered as justice.
Much later, in the first half of the 6th century, a commission was appointed to compile the most valuable laws into a code. This 50-volume compendium of Roman civil law created by order of Emperor Justinian was completed in only three years. Also called the Pandects or Digest, it contained the literal transcripts of thirty-nine previous jurists. It quickly became a necessary part of legal education in the schools of the time having been designed as a tool for the practitioner of law, but its detailed complexities required a previous knowledge of law in order to understand it and again needed reform. The next generation, or simplification of the Digest was called the Institutes, and contains civil law as it has come to be known in modern times. The Institutes embodied the principles and ideas of Ancient Rome and included modifications of progress "as required by the enlightened spirit of the age." Although the system of law was modernized and improved under the empire, it was also changed from one that suited the liberty of the average citizen to one that suited an arbitrary power at the discretion of appointed and/or elected judges.
Under common law, former decisions control the court unconditionally and fixed rules of decision protect both rights and property from perpetual doubt and controversy. By contrast, the principles established in civil law are not as fixed or certain as they govern the case at hand without establishing the set principle involved. These fluctuations make it possible for a judge to decide a case according to his personal views of the law rather than its relative merit. His opinions and commentaries may be as varied as the diversity and spectrum of human judgment.
Common Law and Civil (Roman) Law are both subject to manipulation, because they are laws of men based upon arguments posed by a linear mind. By nature, the mind is subject and accustomed to the rule of opposites, which produces winners and losers. Common Law tends to uphold as authority the judgments of causes that have already been decided. Civil Law allows judicial interpretations, commentaries and opinions to be entered as fact, giving them more authority than they would otherwise have.
There is and will continue to be a subtle movement toward Civil Law because of the diversity in opinion and lack of precedent for the times you are living in. Advocates of civil law will state that as long as a judiciary body is composed of doctors of equal degree and authority previous precedent is irrelevant and of little value. Opposed will be laureates who believe that even professors of such a noble science as Law will be unable to resolve the doubts that will arise as a result of moving from one form of law to another. The result will be that the previously solemn voice of the law speaking through the courts will not be as final as it once was. Instability, fluctuations and deviations from generally approved practice will draw appeal after appeal. Decisions will be made and then overturned by the next court only to be bounced back again for reasons of both excess and lack.
Practical jurisprudence, known for publicly regulating the affairs of society, will begin to include private interpretations at the arbitrary discretion of those who believe they are upholding the principles of an evolving society. Advances in forensic science, for instance, will cause former decisions to be disregarded in favor of newer ones. Current expert testimony will overrule past precedent and the outcome of even the simplest case will be difficult to foretell with any amount of confidence.
Currently, judges determine questions of law while juries determine questions of fact, but it will become increasingly difficult to separate one from the other, and the administration of justice will suffer. The obligations and rights of those involved will be more difficult to define, which in turn, will lead to the admission of improper evidence. If this is accepted rather than rejected, security will become an issue and there will be cause for new definitions of law to be considered. This is where the law, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or USAPA, colloquially called, The Patriot Act, will begin its rise to infamy.
Legislative proposals as counter-measures to the terrorist attacks were introduced less than one week after the attacks, and the 342 page body of law called the Patriot Act, was written, passed by a 98-1 vote in the U.S. Senate, a 357-66 vote in the U.S. House of Representatives, and quickly signed into law within weeks of the events you call 9/11. In the aftermath of these direction-changing events, this law was introduced with great haste and passed with very little debate or amendment. In point of fact, your current Attorney General gave your Congress one week within which to adopt the bill into law - without changes. He warned of imminent further attacks and managed to persuade those who already feared the worst, that they could be blamed for future attacks against their own country if they did not immediately commit themselves to the task at hand. The few who took the time to study it realized early on, that the Act did not provide traditional safeguards of civil liberties, or any system of checks and balances to ensure that such a wide-sweeping portal of increased surveillance and investigative powers, as were being granted to law enforcement agencies, once opened, could be overseen or later closed.
Although September 11, 2001, will always stand as the obvious turning point in your current reality, it is important to remember that the Justice Department (and those who oversee it) had been lobbying for just such a law for at least four years prior to the events of that fateful day. Terrorism quickly became the convenient justification it had been looking for, and almost too soon this ill-conceived thought became law. Critics of the law sprang up as preservers of the liberties of the common man, but their echoed voices were silenced as treasonous attempts to still providence while aiding terrorism.
Thus far, the Patriot Act has only perplexed and bewildered the administration of justice. Its definition is rarely agreed upon, and even when it is, its application differs widely and is argued vehemently. Idle discussions as to its subtleties have produced little more than theoretical distinctions. It has been criticized for not being narrow enough in its principles of interpretation, and it cannot be pretended that it protects either liberty or property. At best, its law is a modification of primeval code with only token relationships between the branches of government. At worst, it is the effacement of political freedom whose cost is the improvement of modern society. The Patriot Act is the vehicle of a monarchy limited by law, rather than a democracy. The security that it affords the institutions it protects is equal to the loss on the part of the individual of any state of defense he may believe he has access to. Just as in ancient Rome, the fundamental text of the law is, "the will of the prince has the force of the law."
In the palatial courts of continental Europe of old, the prince successfully controlled the whole of the administration of justice by delaying or restricting the lay appeals from all inferior tribunals, is this any different? Your current system of law espouses that it is the law, and only the law that resists the encroachment of despotism, but in the absence of defined laws where is the independent check on the use of arbitrary power? Long ago, popular insurrection eventually allowed the populace to overthrow by force the excesses of the most notorious despots. History is not destined to repeat itself, unless of course, you choose that it do so.
Most of you believe that your representative form of government, based upon the great fundamental principles put down by your founding fathers is composed of various forms of democracy. Of your Bill of Rights it was once said, that it consisted of such elementary principles as to be capable of indefinite development. But today, it seems composed of little more than maxims, pithy sayings attributable to general rules more than succinct and proven truths. It has also been said that every nation that aspires after freedom should use this as a model for government, but is that still the case? Constitutional law has always asserted the supremacy of the law above that of the king, is it still so?
Proponents of the changes required by the Patriot Act will tell you that the changing conditions of society prevail upon those in government to break away from the shackles of theory and technicality in order that justice can become more expedient. They say the new rights and privileges accorded by law are the obligations that spring from an ever-widening sphere of civilization, and in the permanent interest of a modern (post 9/11) society. Of natural justice, which should govern, they will say that it is impeded by technical limitations that offer too few solutions to apply. If questioned as to what foreign jurisprudence would opine, they will argue that the point is moot based upon the fact that their shores are not the ones under attack. But if the soundness of evidence cannot be conclusive, or if is not supported by the research of law, then wisdom is non-existent and law is only based upon the practice of an ill-developed science. Where is the protection of the individual against arbitrary power? Under which provision is its shield resting? Why is it sequestered from plain sight?
If you were unconsciously influenced by Patriot Act I, you will have another opportunity to view the possible effects of Patriot Act II before it is enacted into law, but you must be vigilant in the process, for such laws are often subject to passage in the wee hours of the night in the halls where only the surreptitious do not slumber. Sympathetic lawmakers have already been extracting some of its provisions and pasting them onto other pieces of legislation piecemeal, therefore, at least five other bills currently pending before Congress also contain provisions from Patriot Act II.
Patriot Act II, better known as the Anti-Terrorism Tools Improvement Act of 2003, was discovered and made public just weeks before your country invaded the lands of Iraq. How will it affect ordinary citizens? Perhaps it is best studied with human eyes and ears, but for the sake of those whose eyes are turned inward or toward more spiritual panoramas, the following may be useful: This law strengthens other laws that allow government agencies to demand from businesses and individuals confidential records about patrons. It proposes stiff penalties for those who disclose that such a demand was made. It provides for an expansion of your government's powers of secret surveillance over both citizens and noncitizens. It grants the government more power to investigate people without probable cause and to do so under a cloak of secrecy. Those who knowingly violate the secrecy clause may be subject to imprisonment. Searches and seizures as would previously be considered unconstitutional would no longer be so. Citizens may under circumstances of having contributed "material support" or unknowing aid to others have their citizenship revoked; this can be inferred from conduct and need not be manifested in words. If considered a threat to national security, Legal Residents may be deported instantaneously, without evidence or criminal charge. Immunity such as that which could provide an incentive for neighbor to spy on neighbor will be offered and could pose further complications. The death penalty would be expanded to cover fifteen new offenses. These are not small measures, but are they significantly different than what is already taking place below the radar of detection? Who and what is behind such draconian measures? It is not your President, although he is certainly a willing participant in this scheme. Currently, he is the one the world loves to hate, which makes it extremely easy for those of true wealth and power to hide in plain sight. No imagination can fathom how much control would be enough to satisfy the appetite of those who seek control for its own sake.
The difference between a patriot and a citizen was once very small, but that was before disgrace fell upon innocence and pleas for peace were rewarded with the castration of a nation. A citizen is someone who has the right to live in a country because she was born there or because he has been legally accepted by that country. A citizen also describes someone who lives an ordinary life in relative privacy and obscurity, rather than someone who is a member of the armed forces, a police officer, or other public official. Citizens of long ago, such as those who lived within the city-states of Ancient Rome occupied certain duties and responsibilities such as might be accorded to residents of a sovereign city and its surrounding territory. Today, these formalities and customs amount to little more than respect for public and private property and such activities as might be considered law-abiding.
Patriotism explained most simply, denotes pride and devotion to the country someone is born into or is a citizen of. It should end there, but does it? Today, a patriot is someone who not only supports his and her country and its way of life, but is also prepared to defend it. Patriots cannot help but feel that they have inherited certain rights and privileges from their forefathers (patriarchy) who have all but guaranteed them in writing. The patriots of Ancient Rome were called patricians, and were members of aristocratic families whose privileges included exclusive rights to offices and properties. These nonhereditary honorary titles were bestowed by emperors on people who had been of service to the empire. Long before twenty-first century patriots were en vogue, patrists enjoyed a popularity of their own. Patrists helped shape the Christian church and the writings it stood for. Early theologians such as Augustine and Ambrose wrote of the embodiment of pater, which later became support for the fatherland. Pater descended from the prefix patri- or patro-, meaning father or paternal. As expressed in the books of the Bible, a patriarch was considered to be an ancestor of the human race, hence the later symbolism relative to fatherhood, and a patriarchal culture is one in which men are the most powerful members.
I hold a great deal of sway over matters such as the ones encompassed by these words, especially as they relate to the evolution of consciousness within mankind, but it is of little consequence compared to the influence you exert with every breath that you take, because you and others like you are here to empty the scales of injustice and restore balance to the scales of justice. My survival does not depend upon yours, but my sentience is related to your own. My vision is a sovereign one rather than an indentured one, might I hope that yours is the same?
An old soldier, weary from battle and bloodshed, hurried home in an attempt to behold his sons and daughters one last time before death overtook him. He arrived just as his sons were preparing to enlist in the latest campaign. They greeted him warmly and saw to what comfort they could offer as his misery was obvious. He bade them come close that he might gaze upon them more clearly and was startled to see his own youthful form reflected in their eyes. To each in turn he said, "Tell me the worth of a warrior."
The first son responded, "Why father, a warrior is a brave soldier, a man-of-arms, he is intrepid and a fearless combatant."
The second son said, "Father, a warrior is as brave as a lion and as fierce as a tiger. He is cunning like a snake, fast as a fish, and possesses the keen vision of an eagle.
The third son answered, "A warrior is a hero, father. He is a champion and a paladin. He is as a knight - stalwart, gallant, and valiant. He has courage and mettle; he is a real man.
The daughter looked angrily at her three brothers, and then sadly upon her father who held death at bay for a little longer as he struggled to keep pace with her soft voice. "A warrior is nothing but a gamecock, father. He is such that would keep other men from being good husbands and fathers, and at the same time rob mothers of their sons."
The father coughed up a bit of blood, sputtering and suffering against odds for a few more breaths. He looked with compassion upon the youthful faces that represented a future beyond his own and said, "A warrior is someone who detests warfare and abhors combat. He does his utmost to settle hostilities and looks askance from conflict of word, fist or sword. A warrior is chary of confrontation, cautious in action, and circumspect as he weighs the risks and consequences of his deeds - past, present and future. He is guarded and apprehensive when need be, but ne'ery distrustful or suspicious without proper cause. A warrior is Argus-eyed and observant lest he be at sleep instead of rest. A warrior avoids battle at all cost, and diminishes all thought of contest; his bout is with his own conscience and not with that of another. He is charitable with those of smaller minds or larger burdens, and exercises great patience without becoming cross. The warrior whom I describe bows to the authority that resides within his heart 'ere he offers his sword in service to any crown.
"Have you met such a man, Father?" asked one of his sons. "Does such a man exist?" said another.
"He exists in all of us," replied the father. "He is king among men, but rarely is he king above men. I have met him, befriended him, betrayed him, and lost to him, only to discover him in robust health upon the next battlefield and encampment beyond that. Now I am weary and my time is at hand. All too soon will I cross the river of consciousness where I hope to rejoin my kin."
"Your words are sage, Father, but you have used the last of your breaths to favor these words and not others. Why?" asked his daughter, choking back tears.
"Because the warrior within asked it of me," spoke the father, in words more gentle than he thought himself capable of. "For too long a time I considered it an act of contrition. Remorse and guilt guided my hand and shame held my weapon. I knew duty and obligation, but the warrior was more genuine than I. Each time I buried him I resolved to embrace him if given a next opportunity, but the mark eluded me and I deceived myself again and again. This last campaign was hard-fought with victors fewer than villains. Upon the battlefield I saw many fallen soldiers, too many to name and too few to recognize, but I saw no warriors there. I have made this long journey home to oblige him, as I am morally bound to do. I am still in his debt, but no longer in his shadow. I have brought him home to meet you. It is my hope that he will stay on, even as it is my time to go. Please welcome him as my guest and good relation. I hope that you will come to know him much better and much sooner than I."
The father's eyes closed for the strain of speaking had taken its toll upon him. His eyes did not reopen in that life, but his last thoughts were as soft and gentle as the warm birth waters that welcomed him in his next life, his probing and alert eyes seeking the peaceful warrior from the start.
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