Changing of the Guard: Law following Civil War

Abstract

There are few more dramatic periods of transition than that which follows a civil conflict. If the conflict has been prolonged, there is a strong possibility that both sides will have acted to ensure the administration of law in any territories that they control. This presents Ihe victorious regime with a question: to what extent should the legal and administrative acts of the defeated regime be treated as valid? This issue becomes acute as the victory of one side could 'ipso facto' be regarded as representing a successful challenge to the legitimacy of the defeated regime. A tension thus exists between the political drive to discredit the past regime, and the legal necessity for stability and continuity in legal matters. This paper adopts a historical perspective, using a particularly long lens, to examine the approach taken in Roman law to these Issues as preserved in the Roman legal Code the 'Codex Theodosianus'. This Code is a useful document for examining legal history as it served not only to codify the law, but also to preserve past laws. The paper will argue that in laws from the early Fourth Century CE we see a strongly political approach to the problem, with sweeping invalidation of a previous regime's laws and actions, followed by ad hoc measures attempting to address the instability thus created. As time progresses, however, we see the Imperial Court's lawyers learning from past errors and the increasing domination of what may be termed a 'legal-rational' approach. In accordance with this approach a distinction is made between 'public' acts, such as political appointments, which are invalidated and acts pertaining to private law, such as wills, which are preserved. This movement represents, in one sense, a victory of law over politics.