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The Roman tradition of Western law

Western law is considered a tributary of Roman law primarily because Roman legal principles, codified notably in the Corpus Juris Civilis under Emperor Justinian in the 6th century AD, were rediscovered in Western Europe during the 10th-12th centuries, sparking a legal renaissance that formed the foundation of continental European civil law systems and influenced common law traditions.

This rediscovery integrated Roman concepts into medieval canon law (the Catholic Church’s legal system) and secular jurisdictions, emphasizing rational, systematic jurisprudence that prioritized written codes, equality before the law, and structured legal reasoning.

Roman law’s emphasis on private rights, such as contracts and property, contrasted with earlier Germanic customary laws and provided a sophisticated framework that spread through universities (e.g., Bologna) and influenced nation-states during the Renaissance and Enlightenment.

Even in common law countries like England and the United States, Roman influences appear in legal terminology, procedural elements, and concepts borrowed via canon law or scholarly works.

Examples of Institutions Common to Roman and Western Law

Roman law’s enduring legacy is evident in several core institutions that were adopted and adapted in Western legal systems, particularly in civil law jurisdictions (e.g., France, Germany, Italy) but also influencing common law. Here are key examples:

• Property Law: Roman law distinguished between ownership (dominium) and possession, with concepts like usucapio (acquiring ownership through long-term use, similar to adverse possession in modern law). This framework underpins Western property rights, where individuals hold absolute title to land and goods, transferable via sale or inheritance, as seen in the French Civil Code (Napoleonic Code) of 1804, which directly drew from Roman principles.
• Contract Law: Romans developed doctrines like pacta sunt servanda (agreements must be kept) and types of contracts (e.g., stipulatio for formal promises, emptio venditio for sales). These form the basis of Western contract law, emphasizing mutual consent, consideration, and remedies for breach, as reflected in modern codes like the German Civil Code (BGB) and common law principles in the U.S. Uniform Commercial Code.
• Tort Law (Delicts): Roman law categorized wrongs like furtum (theft) and iniuria (personal injury), requiring compensation based on fault or negligence. This evolved into Western tort systems, such as negligence and strict liability in English common law or delictual liability in civil law countries, focusing on restitution and damages.
• Inheritance and Family Law: Romans outlined testamentary succession (wills) and intestate rules prioritizing blood relatives, alongside marriage as a civil contract. These institutions persist in Western law, e.g., probate systems in the U.S. and Europe, where freedom of testation is balanced with forced heirship in some civil law nations.
• Legal Procedure and Evidence: Roman inquisitorial processes, with judges investigating facts and using praetorian edicts for remedies, influenced Western civil procedure, including burdens of proof and appeals, seen in both civil and common law trials.

Legal Roman Brocards Brocards, also known as legal brocards or maxims, were concise, proverbial statements of legal principles, often formulated in Latin during ancient Roman times and later compiled in medieval legal texts (such as those by Burchard, from whom the term “brocard” derives). They served as foundational rules or axioms to guide legal reasoning, interpretation, and decision-making in Roman and early European law systems. Today, brocards continue to be invoked in modern Western legal systems, including those of the US, UK, and Brazil, as shorthand for established doctrines. In common law jurisdictions like the US and UK, they are frequently cited in judicial opinions, precedents, and advocacy to support arguments or clarify legal standards. In civil law systems like Brazil’s (which draws heavily from Roman law traditions), they appear in statutes, court rulings, and legal scholarship to interpret codes and ensure consistency in application, often integrated into constitutional, criminal, and civil proceedings. Here are 10 Latin brocards still commonly used in these jurisdictions, along with their meanings: Actus non facit reum nisi mens sit rea – “An act does not make a person guilty unless the mind is also guilty.” This underscores the requirement of both a guilty act (actus reus) and guilty intent (mens rea) in criminal law. Ignorantia juris non excusat – “Ignorance of the law excuses no one.” It holds that individuals are presumed to know the law and cannot claim ignorance as a defense. Nemo judex in causa sua – “No one should be a judge in their own cause.” This promotes impartiality and prevents conflicts of interest in judicial proceedings. Pacta sunt servanda – “Agreements must be kept.” This principle emphasizes the enforceability of contracts and the obligation of parties to fulfill their contractual duties. Res ipsa loquitur – “The thing speaks for itself.” This doctrine allows courts to presume negligence based on the mere occurrence of certain types of accidents. Stare decisis – “To stand by things decided.” This supports following judicial precedents for legal stability. It’s a pillar of common law systems, and increasingly influential in Brazil through the Supreme Federal Court’s binding precedents (súmulas vinculantes). Volenti non fit injuria – “To a willing person, injury is not done.” It serves as a defense where a plaintiff consented to a risk. Caveat emptor – “Let the buyer beware.” This places responsibility on buyers to inspect goods before purchase. Though tempered by modern consumer protections, it’s still referenced in US and UK property sales, and in Brazilian contract law with caveats from the Consumer Defense Code. Ubi jus ibi remedium – “Where there is a right, there is a remedy.” This maxim asserts that legal rights must have corresponding legal remedies available. In dubio pro reo – “When in doubt, for the accused.” This favors the defendant in ambiguous criminal cases, aligning with the presumption of innocence.

Differences Between Western Law and the Laws of the Former Soviet Union and Modern-Day China

Western law, encompassing common law (e.g., U.S., UK) and civil law traditions, emphasizes individual rights, rule of law, judicial independence, private property, and separation of powers, rooted in liberal democratic principles. In contrast, the former Soviet Union’s law (1917–1991) was a form of socialist law derived from Marxism-Leninism, viewing law as a tool for class struggle and state control, with no genuine separation of powers—the Communist Party dictated legal outcomes.

Modern Chinese law, while incorporating civil law elements from Western and Soviet influences post-1978 reforms, remains under Communist Party supremacy, blending socialist principles with Confucian traditions of harmony and collective interests over individual ones, often prioritizing state stability and economic development.

Key differences include:

Aspect	Western Law	Soviet Union Law	Modern Chinese Law
Philosophical Basis	Individual liberty, equality before the law, and natural rights (influenced by Enlightenment thinkers).	Marxist-Leninist ideology: Law as an instrument of proletarian dictatorship to eliminate class enemies and build socialism.	Socialist rule by law with Chinese characteristics: Party-led, emphasizing social harmony (Confucian influence) and state sovereignty over individual rights.
Property Rights	Strong protection of private property as a fundamental right (e.g., U.S. Fifth Amendment takings clause).	Abolition of private ownership of means of production; all land and major industries state-owned (e.g., collectivization of farms under Stalin, leading to famines).	Limited private property rights since 2007 amendments, but state ownership dominates land; expropriation for “public interest” often favors development (e.g., forced evictions for infrastructure).
Judicial Independence	Courts independent from executive/legislative branches (e.g., lifetime U.S. federal judges).	No independence; judges subservient to the Party, with show trials and purges (e.g., 1930s Great Terror where law justified mass executions).	Courts controlled by the Communist Party; judges appointed and influenced by local Party committees (e.g., politically sensitive cases like dissident trials decided by Party directives).
Human Rights and Freedoms	Protected by constitutions/bills of rights, with enforceable freedoms of speech, assembly (e.g., European Convention on Human Rights).	Subordinated to state interests; dissent criminalized as “counter-revolutionary” (e.g., Gulag system for political prisoners).	Rights exist on paper (e.g., 1982 Constitution), but curtailed for stability; e.g., internet censorship and “re-education” camps in Xinjiang vs. Western free speech protections.
Legal Procedure	Adversarial (common law) or inquisitorial (civil law) with due process, presumption of innocence.	Inquisitorial but biased toward conviction; confessions extracted via torture (e.g., NKVD interrogations).	Hybrid inquisitorial system with Party oversight; limited defense rights in national security cases (e.g., secret trials for activists).

Soviet Justice System: Examples Contrary to Western Traditions The Soviet justice system, particularly under Stalin, operated as an extension of Communist Party control, prioritizing political loyalty and state security over individual rights, due process, and judicial independence—core elements of Western legal traditions derived from Roman law. This contrasted with Western emphases on impartial trials, presumption of innocence, and protection from arbitrary state power. Below are key examples: Show Trials During the Great Purge (1936–1938): These public trials, such as the Moscow Trials, were staged for propaganda, with outcomes predetermined by the Communist Party. Defendants like Grigory Zinoviev, Lev Kamenev, and Nikolai Bukharin—prominent Old Bolsheviks—were accused of treason, sabotage, and conspiring with foreign powers. Confessions were extracted through torture, including beatings, sleep deprivation, and threats to families, violating Western prohibitions on coerced evidence and fair hearings. For instance, in the first trial (August 1936), 16 defendants confessed to plotting against Stalin, leading to immediate executions despite fabricated evidence. This served to eliminate rivals and instill fear, unlike Western adversarial trials where evidence is contested independently. Arbitrary Punishments Based on Class or Perceived Threats: Soviet law allowed “criminal repression” without proof of guilt, determining fate by social background rather than evidence. Cheka leader Martin Latsis instructed: “Do not look in the file of incriminating evidence… Ask him instead to which class he belongs… These are the questions that will determine the fate of the accused.” This led to mass executions and Gulag imprisonments during the Purge, where over 680,000 were killed in 1937–1938 alone, often without trials or based on quotas. This negated Western principles like equality before the law and burden of proof. Lack of Due Process and Prolonged Detentions: Accused could be held up to 10 days before charging and 9 months during investigations, with counsel only available late in the process (post-1958 reforms). Force was nominally prohibited but commonly used, leading to indefinite isolation and coerced confessions. In military purges (1937–1938), closed trials eliminated thousands of officers like Mikhail Tukhachevsky without public evidence, weakening the Red Army—contrary to Western rights to speedy trials and counsel. Party Control Over Judiciary and Defense: Courts were subordinated to the Supreme Soviet and Communist Party, with judges and lawyers required to assume guilt and advance party goals. Defense attorneys, who had to be party members, treated clients’ guilt as given, turning trials into political agitation rather than justice. This eroded judicial independence, a Roman-derived Western cornerstone. Gulag System and Mass Repressions: Millions were sent to labor camps without fair trials, based on secret police (NKVD) decisions. From 1936–1938, purges targeted “enemies of the people,” including intellectuals and minorities, with death tolls estimated at 950,000–1.2 million, including camp deaths. This system prioritized state terror over individual protections, unlike Western habeas corpus and anti-arbitrary detention norms.

Chinese Justice System: Examples Contrary to Western Traditions Modern China’s justice system remains under Communist Party dominance, emphasizing state stability and collective interests over individual rights, judicial independence, and due process—diverging from Western traditions of impartiality, adversarial proceedings, and rule of law. The CCP’s control often leads to politicized outcomes. Key examples include: The 709 Crackdown (Starting July 9, 2015): Authorities detained over 300 human rights lawyers and activists in a coordinated nationwide operation, charging many with “subversion of state power.” Detainees like Wang Yu, Zhou Shifeng, and Li Heping endured torture, including beatings, sleep deprivation, forced medication, and solitary confinement, to extract confessions. Trials were closed or unfair, with sentences up to 8 years (e.g., Wu Gan). Post-release, survivors face surveillance, disbarment, and family harassment, undermining Western fair trial rights. Party Interference via Adjudication Committees and Political Control: Courts lack independence, controlled by the CCP’s Central Political and Legal Affairs Commission. Adjudication committees—party-appointed—review cases and bind judges, allowing interference in politically sensitive matters. The “Three Supremes” doctrine (2007) subordinates law to CCP interests, contrasting Western separation of powers. Suppression of Lawyers and Revocation of Licenses: Human rights lawyers face license revocation for challenging the state, e.g., Sui Muqing and Zhu Shengwu disbarred for rights defense. All lawyers must pledge CCP loyalty, and departments of justice target those handling sensitive cases like Falun Gong or dissidents. This criminalizes advocacy, unlike Western protections for legal representation. Inquisitorial Trials and Lack of Adversarial Process: Trials follow an inquisitorial model where judges actively question witnesses, often biasing outcomes toward conviction in sensitive cases. Defense rights are limited, e.g., in national security trials like Yu Wensheng’s (2020, 4 years for inciting subversion via advocacy). Closed proceedings and denied counsel violate Western due process. Purging of Western Legal Concepts and Arbitrary Detentions: In 2023, the CCP ordered removal of “Western erroneous views” like judicial independence from legal education. Practices like “residential surveillance at a designated location” enable secret detentions with torture, as in 709 cases. Mass detentions in Xinjiang (e.g., re-education camps) occur without trials, prioritizing party stability over rights.

The Left’s Quest to Bring Western Law Closer to Chinese-Soviet Law

We will see in the following chapters how the radical left works to undermine basic principles of Western law by seeking to eliminate judicial independence (turning the Judiciary into a mere appendage of the Executive Branch and ensuring that the Legislature does not impose its decisions), using the law to eliminate enemies (political opponents), slowly reducing property rights, eliminating fundamental rights and freedoms (human rights) for enemies (while maintaining them only formally in law), and transforming the process from accusatorial to inquisitorial.

Supreme Courts of Brazil and China Sign Agreement for Cooperation Between the Judiciaries of Both Countries According to news from 03/30/2015 on the website of the STF itself (Supreme Court in Brazil): “The Chief Justice of the Federal Supreme Court (STF), Justice Ricardo Lewandowski, and the Chief Justice of the Supreme People’s Court of China, Zhou Qiang, signed a Memorandum of Understanding for cooperation between the two Supreme Courts this Monday morning (30). The goal is to exchange experiences that will help modernize the judicial systems of both countries and strengthen cooperation between the two Supreme Courts. The bilateral meeting took place in Haikou, capital of the Chinese province of Hainan. During the ceremony, Justice Lewandowski highlighted the importance of the BRICS Judiciary Forum (a bloc of countries comprising Brazil, Russia, India, China, and South Africa) and stated his conviction that, in a globalized world, partnerships between friendly countries are essential to achieving common goals. He stated that the 21st-century Judiciary has a significant national and international role to play, acting on issues of great political, social, and economic relevance, in harmony with the Executive and Legislative branches of each country. The Chief Justice also highlighted the new level of relations between the Brazilian and Chinese judiciaries and stated that he will strive to implement, as quickly as possible, the actions discussed during his visit to China. Mentioning the exchange between judges from the two countries, as provided for in the memorandum of cooperation, the Justice emphasized that Brazil is ready to welcome Chinese judges and share Brazilian experiences. He added that China’s ancient culture will certainly contribute to the training of Brazilian judges. The Chief Justice of the Supreme People’s Court of China, in turn, said that the Judiciaries of the two countries share several common challenges to be resolved, so that cooperation between the two, boosted and renewed by Minister Lewandowski’s visit to China, has broad potential for intensification and diversification. President Zhou highlighted the reforms being implemented in the Chinese Judiciary, aiming to make it more dynamic, open, and transparent, for the benefit of the Chinese people. The reforms aim to provide greater guarantees for the performance of judicial activities and to build a cadre of more qualified and professional judges. According to Zhou Qiang, the Judiciaries must adopt a global vision to adequately address issues such as cross-border international crime, environmental protection, legal security of investments, and exchanges between different peoples. In this regard, the Chief Justice of the Supreme People’s Court of China proposed intensifying not only the exchange of judges between Brazil and China, but also training and the sharing of best administrative practices through the rapid and effective implementation of the Memorandum of Understanding signed today between the two countries. Case Law Database Lewandowski and Qiang agreed to establish, in the short term, a common BRICS environmental case law database, available to all online, as well as to hold a seminar on law and development in Brazil in 2016, with the participation of judges and legal experts from Brazil and China.” (Source: https://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=288413&ori=1)

Questions for Reflection

• What kind of experience do you think the Brazilian Supreme Federal Court would like to learn from the Supreme People’s Court of China?
• In Brazil, there is a Labor Court that adopts the following principles, among others:
  The principle of worker protection, which establishes that the system’s objective is to protect the weaker party in the employment relationship: the worker (this does not necessarily do justice to the specific case and often contradicts it).
  The principle of in dubio pro operario, which establishes that in cases of doubt about the facts, the interpretation that most benefits the worker should be applied (e não a mais beneficia o acusado ou a que melhor se aplica ao conjunto probatório).
  The principle of the most favorable norm, which establishes that, in the event of a conflict between two or more norms applicable to the same situation, the legal norm most advantageous to the worker should be applied (removing methods of legal interpretation such as literal, historical, or teleological).
  To what extent do these principles resemble Sino-Soviet law?
• Justice Alexandre de Moraes of the Federal Supreme Court, according to some legal experts (https://www.cnnbrasil.com.br/politica/juristas-divergem-sobre-papel-de-moraes-em-investigacao-de-golpe/), has acted inappropriately by simultaneously acting as victim, accuser, and judge. To what extent does this conduct resemble Sino-Soviet law?
• According to the press (https://www.gazetadopovo.com.br/vida-e-cidadania/moraes-mantem-jornalista-preso-por-mais-de-um-ano-sem-denuncia-por-criticas-ao-stf/), the Brazilian Supreme Court kept a journalist imprisoned for over a year, without formal charge, for criticizing the Supreme Court. Furthermore, he authorized police to remain on former President Jair Bolsonaro’s property to keep him under constant surveillance in his own home (https://www.diariodocentrodomundo.com.br/moraes-ve-risco-de-fuga-autoriza-policia-a-ficar-dentro-do-terreno-de-bolsonaro/). How close is the Brazilian system to Chinese and Soviet law?

The Institutionalization of Lawfare in Brazil Cristiano Zanin Martins (1975) is one of the authors of the book Lawfare: An Introduction (2019) and one of the founders of the Lawfare Institute, which describes its activities as follows: “Lawfare does not pursue illegitimate ends solely in the political sphere. On the contrary, it can reach other spheres, such as business, military, and financial.” (http://lawfareinstitute.com/pt/home-2/). As for what lawfare is, the institute explains (http://lawfareinstitute.com/about-the-institute/): “Lawfare is the misuse and abuse of law for political and military ends. It is the injunction of the words law and warfare for it is a legal war. (…) The idea is to embarrass the enemy to the point where they become extremely vulnerable to the baseless accusations. once weakened, they lose popular support and any power of reaction. To destroy someone, lawfare is using the following tactics: abuse existing laws to delegitimize and harm the adversary´s public image; use of legal procedures to restrain their freedom, to intimidate them; to silence them; influence public opinion negatively to anticipate judgments and curtail their right to an unbiased defense; constrain public agents and bring retaliations against the politicians to hamper legal defense mechanisms; tactical manipulation of a false cause and attempt to harass and embarrass defense lawyers.“ Furthermore, Zanin was the personal attorney for Luis Inácio Lula da Silva, elected by the Workers’ Party (a radical left-wing party) in the Petrolão scandal. Petrolão was a corruption scheme uncovered by Operation Car Wash in 2014, in which Petrobras executives received bribes from major construction companies in exchange for inflated contracts. The scheme involved a cartel of companies that rigged bids and inflated construction costs, embezzling billions of reais from the Brazilian state-owned company. The investigation revealed a network of corruption that extended to politicians from various parties and businesspeople from major construction companies such as Odebrecht (a company controlled by the holding company Novonor). As a result of the investigations and the resulting legal proceedings, Luiz Inácio Lula da Silva, the current Brazilian president, was sentenced in 2017 to 9 years and 6 months in prison, a sentence later increased to 12 years by the Regional Federal Court of the 4th Region. The former president served 580 days in prison between 2018 and 2019. However, curiously, after the election of President Jair Messias Bolsonaro and several clashes between him and Supreme Court justices, especially Justice Alexandre de Moraes (but also Justices Gilmar Mendes, Dias Tófoli, Luiz Roberto Barroso, Carmen Lúcia, Luiz Fux, and Rosa Weber), in March 2021, the Supreme Federal Court (STF) decided to overturn all convictions, alleging territorial incompetence and bias on the part of the judge. Interestingly, with the annulment of his convictions, Lula had his political rights reinstated, making him eligible again and, in fact, having been elected in an election contested due to the use of electronic voting machines without printed ballots and accusations of bias on the part of the Electoral Court, which was responsible for conducting the process. (During the 2022 electoral process, there was a proposed constitutional amendment, PEC 135/2019, which provided for the implementation of printed ballots starting in the 2022 elections, but it was rejected. On the other hand, there are records that Supreme Federal Court justices—such as Luís Roberto Barroso, then also president of the Electoral Court, Edson Fachin, and Alexandre de Moraes—were allegedly acting politically against the amendment’s approval). As a reward for his performance, President Lula appointed Cristiano Zanin as a justice of the Supreme Federal Court (STF). Subsequently, Cristiano Zanin was one of the judges responsible for sentencing former President Bolsonaro for facts related to the 2022 elections.