JUSTICE AND DEMOCRACY SERVED BY CELEBRATING OUR HERITAGE

By,

Peter W. Agnes, Jr.*

"The Heritage of the past is the seed that brings forth the harvest of the future"

Inscription on the National Archives Building in Washington, D.C.

We pride ourselves on our commitment to the rule of law. Even in the aftermath of the slaughter of thousands of innocent people on September 11th, Americans insist on due process of law. We will not tolerate the suspension of the Constitution to achieve security. We will not tolerate the detention or punishment of individuals on account of their race, ethnicity or religion. Even the President, who as Commander and Chief of the Armed Forces has a constitutional duty to defend the nation, prudently sought and obtained the approval of the Congress for the use of force against the terrorists. What is the source of this deeply held belief in the rule of law?

One of the principal architects of this American ideal was John Adams who, in the midst of the Revolutionary War and his weighty diplomatic responsibilities, almost single handedly wrote the Massachusetts Constitution of 1780. In the Preamble, Adams enshrined the concept of the rule of law when he wrote that the Constitution is "a social compact, by which the whole people covenants with each Citizen, and each Citizen with the whole people, that all shall be governed by certain laws for the Common good." While best known for its powerful expression of the doctrine of separation of powers, the Massachusetts Declaration of Rights authored by John Adams makes several other influential statements about the rule of law including a promise in Article Eleven that "every subject ...ought to obtain right and justice freely, and without being obligated to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws." Justice, according to Adams, is not only for the rich and the powerful, but for all.

John Adams had an extensive knowledge of the legal institutions of the ancient and modern world and of biblical tradition, and was schooled in the common law history of England. He was familiar with the struggle that produced the Magna Carta in 1215, the works of Bract on who asserted that even the King was subject to the law, and was painfully aware of the fate of Sir Thomas a Becket and Sir Thomas More each of whom gave his life in defense of the same principle. But the evidence is overwhelming that the English tradition (and the German as well) embodying the supremacy of law was inspired by the Roman legal tradition.

For example, consider the contributions of Papinian and Ulpian. Few of us know anything about them. They were Roman jurists who lived during the end of the second and the beginning of the third centuries. Yet, they were well known to English common law lawyers and judges, and as late as the nineteenth century their writings were part of the law school curriculum. John Adams read their works, and his writings suggest they had a significant influence on his political philosophy.
Aemilius Papinian is regarded by scholars as the greatest figure in Roman law. He wrote more than fifty law books and is quoted extensively throughout Emperor Justinian's famous collection of classical writings known as the Digest published in 533. Parisian, whose marble bas relief adorns the Chamber of the United States House of Representatives in our nation's capitol, was so respected that an imperial edict published centuries after his death declared his works to be one of five authoritative sources of the law, and that his opinion on a disputed question of law would control whenever the others were evenly divided. Papinian is believed to have been murdered by the emperor Caracalla because he refused to justify the murder of coemperor Geta.

Dometius Ulpianus had a close relationship with Papinian and may be regarded as his pupil. He eventually succeeded Papinian as the chief magistrate of Rome. He also wrote extensively about the law including a famous work, constitution Antoniniana, that reduced one thousand years of Roman law to a practical guide accessible to all citizens. His writings also form the basis for Justinian's Digest. Like Papinian, Alpine believed strongly in the rule of law. Many believe that Alpine is the author of one of the greatest declarations of this principle that appears in the first line of Book I, Title 1 of Justinian's Institutes: "Justice is the constant and perpetual desire to give to each man his due right." This, of course, is the same legal principle that is at the core of Thomas Jefferson's Declaration of Independence and John Adam's Declaration of Rights.

An understanding of the Roman contribution to our legal tradition and to the American passion for justice according to the law, leads to an important insight about heritage-an appreciation of one's cultural heritage serves to bind us together because it leads us to an understanding that every culture has roots in the cultures of other people or other times. Papinian and Ulpian, for example, were born in what today is Syria. They were Arabic. Justinian was born in Asia Minor, probably Greece. As Professor Edward D. Re has observed in his study of the Roman Contribution to the Common Law, "The Roman mind was a composite of the genius of many lands. Greatness can only come from participation in the culture of other people, and no nation can attain the highest civilization except by participation in the civilization of the world."

Totalitarian regimes and fanatics like those responsible for the recent terrorist attacks seek to establish societies without cultural roots. They substitute ideology for culture, and teach their followers to deny the values common to all civilized people. We are a country whose strength lies in the realization that while we are comprised of people with many different heritages, we are much more alike than we are different. In this way our commitment to cultural pluralism reinforces our commitment to the rule of law.

It is with this profound sense of indebtedness to the past and an appreciation for the universality of culture that we celebrate the month of October as Italian-American Heritage Month. To learn more visit us on the web at www.italianheritagemonth.com.


*Peter Agnes is a justice of the Massachusetts Superior Court and the Chairman of the October as Italian-American Heritage Month Committee.