Midterm Outline

Theme:  The Ascent of Justice  –  Comparative Law – The development of legal systems over time and geography.

I can ask a question about any movie we have seen in the classroom:

  1. First half of Dead Poet’s Society
  2. Dances With Wolves
  3. Apoclypto
  4. But not GoodFellas (that will be in the final exam)

“The arc of history is long, but it bends towards justice” – Martin Luther King

“Law is experience”  – Oliver Wendell Holmes (paraphrased)

“Law is structure” – Hans Kelsen (paraphrased)

 

“We shape structures, and in turn, the structures shape us”

– Winston Churchill, (paraphrased)

 

“Institutions evolve out of shared belief systems [(‘shared belief systems’ = ‘culture/tradition’)], shared belief systems evolve out of a shared historical experience. The creation of new institutions, then, is a function of new beliefs.”

–  Nobel Laureate Douglas C. North (paraphrased)

“Poverty is a kind of violence, the worst kind”. – Gandhi (paraphrase)

“Humans are at their worst when they are least accountable for their actions.” – M. Scott Peck, M.D. – (paraphrased) “People of the Lie: The hope of Curing Human Evil”

“…But experience is accumulating that remoteness between ownership and operation is an evil in the relations between men, likely or certain in the long run to set up strains and enmities…”          – John Maynard Keynes, “National Self-Sufficiency” – 1933.

Just / Justice Hunt Law
Fair / Fairness Gather Dispute
Decency Hunting and Gathering Societies Dispute Resolution
Liberty Agriculture Property
Free / Freedom Industry Property rights
Democracy Agricultural Revolution Contract
Ethics Industrial Revolution Torts
Elites Axial Crime
Peasants Axial Age Constitution
Merit Modern Procedure
Meritocracy Modernism Civil Procedure / Legal Procedure
Tyranny Fact Harsh (or brutal)
Society Value Brittle
Senior / Seniority Structure State Societies
Trust Mohammed City – States (see Ancient Greece)
Rome (+ Roman Empire) Jesus of Nazareth Nation-States
Greece Pythagoras, Socrates, Plato Empires
East Asia Confucius, Lao-tzu (Lao-zi) Asia
South Asia / India Buddha Europe
Iran Zoroaster Eurasia
Israel (Judea) Isaiah (Deutero-Isaiah) Political Fragmentation
Metaphore Composite Continent
Bargain / Bargaining Power Organic Evolution
Tension Pressure Narrow vs. Wide
Philosophy Ideology Transcendent
General  vs. Specific Intellectual / Intellectualism Academics
Jurisprudence Bargain / Bargaining Power Free Contract
Feudalism Compression Effect
The Golden Rule Pragmatic (common sense) Pragmatism
Vendetta Might makes right Primitive
Tit-for-tat Game Theory Harsh / Harm / Oppressive
Patrician Plebian Slave
Norm (formal versus informal) Hierarchy  
Decline Collapse Organized
Civilization Settlement Plague
Maize / Maze/ Corn Rice Wheat
Distant Remote  

Early Human Social Existence:  

  • Humanity is born into hunting and gathering social arrangements.  This arrangement was fairly natural occurrence.  These arrangements were born out of the advantages that come from individuals cooperating to improve their own material security.
    • Mutual dependency created the mechanism for cooperation within a small group
      • Because the group is small and mutually dependent upon each other there is built in accountability and reasonable amount of trust facilitating ownership, exchange, and dispute resolution, fairness in relations.  A hunting and gathering group might have some hierarchy, based primarily on seniority, for facilitating decision making, adjudicating disputes and whatever crime or wrongs might come up..
  • – reviewed social hierarchy in pre-agricultural Hunting and Gathering society (Dances With Wolves and the first part of Apocalypto). This society is mostly equal but can be short of food.
  • – Reviewed social hierarchy in post-agricultural revolution but pre-axial age society  (second part of Apocalypto) .  This society is very unequal but has lots of food. However, being unequal

The Invention of Agriculture (“the Agricultural Revolution” – or – “The Neolithic Revolution”): ” Pre Axial Age Crisis”

  • After the agricultural revolution – but before the Axial age, there was a strong tendency for hierarchical inequality that provided a few elites with the massive benefits of civilization but made life hard, brutish and short for most of the people who were either peasants or slaves.
  • The effect on civics meant that these societies were often brittle:  Generally they were either very small, or they lasted a very short time (Egypt and perhaps China were exceptions to this).  They were highly unstable.
  • The reason for the instability is:  the work and output of the peasants is what civilizations were founded on. However when elites take too much of the surplus, making life very hard for the peasants,  they undermine the foundation upon which their civilization rests – and so the societies and the states created after the agricultural revolution are very unstable, brittle, etc…  They either do not last very long, or they do not get very big.
  • This is the tension that the axial age addresses and attempts to solve in the area of civics. Eventually we will be interested in only one, small particular response to the pre-axial age tension or crisis – perhaps from the poorest place that managed a response to this pressure of Rome which turns out to be our big concern.
  • Apoloclypto Demonstrates an extreme example of the “Pre-Axial Age Crisis”. 

The Mayan’s were a people  living in post agricultural revolution society, they had agriculture, corn, which was a very productive food crop  – more productive than anything in Europe at the time.  Perhaps, not as productive as rice, but easier to grow.

 

Because the Mayan’s were in the New World of the America’s they did not have access to any of the Axial Age Sages (sage = wise man) or teachers.

 

So the Mayan’s in Apocolypto provide us with a vivid example of life in a “Post Agricultural Revolution” society that is having a “Pre-Axial Age Crisis”.   And it is very harsh and inhumane.

 

Why does society become harsh after the invention of agriculture?  There was a division of labor.  Farmers farm the land. Warriors protect the land from outside groups. Eventually warriors become a higher class in society. Eventually that class oppresses the Farmers.

The Mayans were a well developed civilization in some spheres of life: 

Mayan’s strength:

  • Mathematics, Engineering, Medicine, Astronomy,  The only society with a complete writing system in the Americas. 
  • Next time show the Mayan society using upside down semi-pyramid  – then Mayan ‘s react to crisis by killing and overworking slaves and peasants, undermining the pyramid – then the Mayan’s react to this by further undermining their resource base.
  • Mining stucco raw ingredients – creating stucco – required destroying massive amounts of forest. They were stripping their resource base for ornamentation enjoyed only by elites. 

Summary of topic so far:

1)      Hunting and Gathering societies: can be very good life for humanity – nice trade off between freedom, justice and  economic and political security.  The greatest weakness is in economic security, and perhaps military/political security.  These communities were resource poor, and could easily starve if not successful at hunting and gathering. When not successful .

2)      Agricultural societies’ developed hierarchies, elites take the benefits, peasants and slaves do all the works. The more top heavy the elites, the more unstable these societies can become because they depend upon the peasants and the peasants wilt under the strain of the hardness (also they have no insentive to perpetuate their society).  Generally this limits their success – they seldom last long or become very large. Neolithic states were generally small. When they got large, they have a tendency to collapse – they are brittle. They look strong but can easily collapse.

3)      The Pre-Axial Age Question is: How can humanity have all the benefits of the agricultural age (civilization) but minimize the negative aspects of the agricultural age? Slavery, cruelty, tyranny, harsh existence, existence prone to collapse  etc…,

  1. Elites want to keep as much power and wealth as possible but that creates unsustainable societies
  2. so societies around the world experiment with various models.

i.      How to be inclusive but not too inclusive

ii.      The best models eventually prevail.

The Axial Age: The creation of intellectual thought, the beginnings of academia – (학원/대학).

It’s called the axial age – because at almost the same time in separate, isolated parts of Europe and Asia (what we can call the Eurasian Periphery)  – 5 or 6 distinctly different civilizations began to develop ideas and mechanisms to address the Pre-Axial Age crisis.

  • Humanity cannot go back to Hunter and Gathering societies: we are “East of Eden”  because there are too many people.

The first great academic subject, then, is ethics, or the creation of a system of ethics. The idea was to define ethics and then teach ethics to a wider audience.  The main ethic that the great men of the Axial age defined was fairness  – which is very close if not the same thing as the legal principle of Justice.  Confucius first states: “Do to others as only you would have them do to you.”  (In the west this is called “The GOLDEN RULE”) – this is the essential ethic first manifested in the axial age and necessary as at least an informal norm.

The narrow definition of the Axial Age is around 500 b.c.e.  – maybe from 600 b.c.e to 400 b.c.e.

A wider definition of the Axial Age would include ALL of the great Greek philosophers, and then follow through to Jesus of Nazareth (Christ) and Mohammed.  Mohammed was the last great creator of an ethical system before the beginning of the Modern Age (post agricultural age).

(Modernism is generally agreed to have begun around 1500 in Europe – this is the time that Spain began conquest of the America’s, Portuguese discovered water route to Southern and Eastern Asia, and Germans begin the Reformation which modernized Christian religious beliefs, eventually separating it from Civics and Science).

What makes the Axial age profound is it occurred simultaneously in separate centers of civilization throughout Eurasia (Europe + Asia) at a time when there was no contact between these places: East Asia , South Asia, Southwest Asia + West Asia, in South East Europe (Greece) and Rome.

In regard to this we are concerned about two things:

1) The general effect the Axial Age had on Civics overall, and

2) The specific effect the Axial Age has on the formation of Law.

Point: We are working towards a fundamental understanding of the practical purpose of law. 

Soon we will be running through the history and geography of legal systems (positive law). There are two globally prominent, secular, legal traditions (systems) today:  Civil Code and Common Law.

The first big question is “why are the two major legal traditions BOTH from Europe?”   What is it about these systems that make them attractive for a society to adopt?  What purposes must law serve? Why do these two systems serve this purpose?  When we study a nation’s laws does it serve that purpose?

So now we are exploring the practical imperatives that impel the adoption of the specific types of law the modern world has come to embrace.

 

 

Summing up the Axial Age and humanities general response to the Pre-Axial Age Crisis:

 

4)      The Axial Age Answer

  1. Intellectual pursuit è Ethics
  2. Define Ethics è Fairness/Justice
  3. Disseminate/Implant ethics

i.      Approach………………………………………………………..Method of Disseminating/Implanting

PRACTICAL APPROACHES TO ETHICS METHOD OF DISSEMINATING/IMPLANTING
Philosophy Teach  (mostly carrot, little stick)
Religion Preach  (use both carrot and stick)
  1. d.      Philosophy route:  Great Civilizations with great resources (a very broad definition of ‘resources’)  to draw upon

                                                   i.      Resource equal historical development as well as material substance, human resources, etc….

                                                 ii.      China – Philosopher Confucius –The Golden Rule:  “do to other’s as you would have them do to you”

                                               iii.       Greece – wealthy but politically fractured had the most sophisticated response – the Sophist tradition of philosophy –

  1. 1.       particularly Socrates, Plato, Aristotle:  “Ask Questions – to seek truth.” Very abstract
  2. 2.       Solon – Creator of Laws in Athens that lead to establishment of Democracy
  1. Religious route: Great Civilizations, but with lesser resources to draw upon, or history, perhaps smaller states, etc.. .

i.      India – Buddha: Basic thesis/message: Elimination of (human) Suffering through ethical behavior

ii.      Israel – One God over the entire universe – seeks justice – the Torah (1st 5 books of the bible):

  1. Book of Deuteronomy
  2. Book of Leviticus
    1. Love God, Love Neighbor, Don’t eat pork.

iii.      Iran – Zoroaster:  Good versus Evil is an eternal struggle – fight evil through ethical behavior

iv.      Later Ethics

  1. Jesus: God loves creation. Love God, Love Creation,  What Confucius said, but if people don’t treat you well, forgive them anyway, because God Loves them and so should you.
  1. Mohammed: if you don’t do what Confucius says you might be punished, but then again, God is beneficial and merciful.  Oh, and don’t eat pork.  His system is LEGAL system and PYRAMID structure
  • Compare and contrast these with the Mayans:  they believed there was a god, or many gods.  They believed that God’s bring suffering to humans.  So to ‘control’ and limit the suffering, the Mayan elite attempt to preempt the Gods by delivering up suffering to them.
  1. So axial age ethics attempt to make life better for ordinary people and thus societies more stable through ethics. The practice of ethics have to forms

i.      Cultural norms – Informal Norms

ii.      Legal norms – Formal Norms

  1.  in almost all cases, these are more limited penetration of axial age ethics

5)      Axial Age is only partially successful .

  1. Where axial age is implemented, states/societies of great complexity and size develop –

i.      China Empires, straight through to the present:

ii.      India (Asoka) (great empires off and on)

iii.      Iran – Persian Achaemenid, then Parthian, then Sassanian, then Safavid. Achaemenid is the first truly great super power Empire: enormous size and increadibly stable but…

iv.      Greece – Extremely sophisticated response to Axial age problem (Sophist philosophy: Socrates taught Plato, Plato taught Aristotle, Aristotle taught Alexander, Alexander conquered the Achaemenid Empire, the laws of Solon). Systematic questioning of everything to get at truth

v.      Israel is an exception: stays small, but does manage to gain independence from Greek Seleucid Empire

  1. But eventually these societies enter into a period of decline as well.  Axial Age ethics then help build better, more stable societies, but eventually these societies become too big so that the ethics are not sufficient to keep them functioning and from keeping elites from taking too much from the peasants.

                                                   i.      Part of the reason for this is ethics creates only informal Norms – eventually members of the elite learn that they can violate the norm created by ethics without being punished for the violation.

6)      The Roman Response to the Pre-Axial Age Crisis: Law – Specifically the invention of Private Law

  1. The Axial Age:

i.      Great Civilizations in Asia and Europe responded to the tension of the Pre-Axial age by the creation of various schools of ethics – mostly done through philosophy or religion – thus created informal norms that would help stabilize these societies for longer periods of time, thus creating greater civilizations still

ii.      Europe versus Asia

  1. Conditions in Europe were different than

iii.      At the time of the Axial Age – Rome was a fairly new, but rapidly growing City State in Italy.

  1. It  had the same pressures of the Axial Age

The Jurisprudence of the Carrot and the Stick”

Reminder Principle: We shape structure and in turn, structure shapes us – Winston Churchill’s principle. Today we are going to see one example of this.

To understand Churchill’s principle better we need to learn a new principle:  The Jurisprudence of the Carrot and the Stick.

The question this principle helps us answer is: why did both of the prominent legal systems in the world emerge in Europe?  The short answer is prolonged Political Fragmentation is why.  The Jurisprudence of the Carrot and the Stick shows us why prolonged political fragmentation created unique legal systems.

The Jurisprudence of the Carrot and the Stick”

The Jurisprudence of the Carrot and the Stick.

Definitions:

Jurisprudence = Philosophy of Law  (philosophy = 철학; Law = 법)

Carrot = Moral Authority (도덕적 권위) / Perceived Legitimacy (인식 정당성)

Stick = Coercive Authority/Coercive Force (Coercive =강제적 인; Authority=권위;

Force=강제)

Function:

Stick:

Coercive authority or force is highly expedient – meaning it works effectively and quickly.  It is extremely expensive (매우  싼) to use – and so over the long term, is not sustainable (지속 가능하지).

Carrot:

Moral Authority/Perceived legitimacy takes a long time to acquire – but it is very inexpensive to use and therefore it is sustainable. (sustainable=지속)

The more competition for a regime, the more it needs to have moral authority.

All legal systems and political regimes must constitute some combination of these two authorities – but some regimes are ineffective because they have poor balance.

North Korea relies almost completely upon stick – and as a result has a big military but a very poor country and therefore the regime’s sustainability is always in question.

United Nations relies almost completely upon carrot – and as a result has legitimacy, however, it cannot bring about enforcement of its rules quickly or easily.

 

(One question that lingers before us – why does Western law dominate the fields of law everywhere? – The answer has to do with political fragmentation.  Since 476 (the end of the Western Roman Empire)  The answer: Europe has been politically fragmented. This created political competition reducing Kings bargaining power with his people. As result Western Law developed private law.

Public Law:  Relationship between people and the state (emperor)

Private Law: Relationship between people.

In East Asia, South Asia, and the Middle East – these area’s were typically dominated by one great power. Therefore Public Law was more important and sometimes highly developed

The Emperor of China has no great competition. He is not worried about threats posed by other emperors or kings. Most Chinese dynasty’s end because of internal overthrow – so the field of law is dominated by rules governing the relationship between ordinary people and the state (which means, the Emperor).

 

The Jurisprudence of the Carrot and the Stick”

In the west, fragmentation created competition between Kings. Kings need money to fight and they need cooperation from their people to fight wars.

It is important to remember, in the balance of power between king and commoner or (elite’s and peasants),  political fragmentation gave commoners more bargaining power in their relation to the king. One result of this is that western law deals with relations between common ordinary people, which we call “private law.”  Private law helps society run more efficiently and the kingdom or nation to run smoothly. A well run nation or kingdom creates more tax money for the king to help build his army.

Because these conditions prevailed in Europe, in ancient as well as medieval and modern times, the legal systems in Europe were more comprehensive (public and private law) and more refined in the area of private law. For these reasons, the two predominant legal traditions around the world have come from Europe.

Specifically, political fragmentation gave the people bargaining power with the King or the aristrocracy.

In the case of Rome – the role of the king is replaced by the Senate and the class of people called Patricians (elites)

The common people were called Plebians.  Because Rome was, in the beginning, small and surrounded by enemies, the Patricians cut deals with the Plebians.  That deal was a social contract that included an reasonably inclusive constitutional system and reasonably progressive system of laws.

  1. b.       Rome’s response to the Axial age conditions:

i.      Italy at the time of Rome’s founding

  1. In Ancient Times – Italy was the “New World”
    1. Greeks established Colonies
    2. Etruscans were believe to come from the area of Greece in archaic times – maybe before 1200 b.c.e from the area of Greece or Turkey
    3. Phoenicians from theMiddle East
    4. In Central Italy were the latines.

ii.      Rome was new city – not great civilization. It lacked the resources to create a great religion or philosophy

  1. Rome was founded in only 750 b.c.e.  Fairly new with only 3,000 people.
  2. Rome was created to take economic advantage of trade routes running through the Italian peninsula – it controlled the cross of the Tiber River at a strategic point
  3. Surrounded by enemies and potential enemies.
    1. Coping mechanism: Assimilation –  동화하다
    2. Invite foreign people to live there – grant them citizenship
    3. Conquer Neighbors – then grant them citizenship
    4. Creates a type of Pyramid Scheme for Organization

iii.      NOTE – Italy has more rainfall, and thus higher agricultural productivity. Eventually when fully settled it will have a greater population than the other great centers of the Mediterranean Sea.

 

  1. c.       Why Rome was so successful – How they assimilated new people into their own society

                                                   i.      Society Organization

  1. 1.       King – and after  509 b.c.e – Dual Consuls
  2. 2.       Patricians – top 10% of society – membership was a matter of LAW.
  3. 3.       Plebians
  4. 4.       Slaves

 

                                                 ii.      Government Organization – The Roman Constitution (Informal)

  1. 1.       EXECUTIVE: 
    1. a.       King – Selected by Assembly then – Often Foreigners
    2. b.      after 509. B.C. E.  Two Consuls – Patricians –  who rule for a year

                                                                                                                           i.      Can Veto Each other.

  1. 2.       Legislature
    1. a.       Senate – Creates Legislation, Advi ces Executive: only Patricians
    2. b.      Assembly – Can Veto Legislation

                                                                                                                           i.      Dominated by the Wealthy

  1. 1.       Majority Rule
  2. 2.       Richest vote first
  3. 3.       Poorest vote last
  4. 4.       Most decisions made before the poorest people get to vote.
  5. Rome’s situation around 509 b.c.  – revisited.
    1. a.       Rome surrounded by Enemies

                                                                                                                           i.      Powerful Etruscan Confederation of City States to the north (at one time ruled over Rome)

                                                                                                                         ii.      Powerful Sabine Tribes / City States to the East

                                                                                                                       iii.      Other Latin City States to the South

                                                                                                                        iv.      Greek City State (colonies) to the South and East

  1. b.      Rome needs Rich + Patrician people to help Fund the Army
  2. c.       Rome needs  LOTS of People to man the armies
  3. d.      Patricians have to cut a deal with the Plebians

                                                                                                                           i.      Creation of Tribunes

  1. 1.       Immune to punishment
  2. 2.       Selected by Plebians in assembly
  3. 3.       Veto Power over legislation

                                                                                                                         ii.      Creation of the 12 Tables of Law


 

 

  1. Introduction to the 12 Tables – how it settled Plebians desires
    1. Romans visit Greeks around 490 b.c.e and study the legislation (laws) of Solon – Athens, his laws created total, complete democracy.  Romans say, that will never do for us – it is too generous
    2. Romans don’t want to give away too many rules on how to become Patricians – instead
    3. In general,
    4. Defined Crimes – and Civil Procedure

i.      Rule by Law, and not by arbitrary behavior

  1. Defined Rights between People

i.      (Rich Plebians gain the right to marry)

  1. In 367 – Tribunes manage to pass laws limiting the amount of land one person can own.  This is effective for about 150 years, after which Rome’s foreign provinces allow Generals and Senators and rich people to aquire massive amounts of land. This eventually leads to concentration of power that will lead to Rome’s down fall.

7)      Most primimitive to least primitive type of Legal Systems

  1. a.       Pre-Axial Age

                                                   i.      Might makes Right

                                                 ii.      Vendetta Law – Justice based upon revenge: violation of generally accepted rule of fairness brings

 

First legal systems – reflect primitive, if any, ethics:

8)      Important difference between Public Law and Private Law

  1. a.       Public Law governs the relationship between people and the State
  2. b.      Private Law governs the relationship between people

9)      Pre-Axial Age Legal Systems

  1.  Vendetta:  Revenge
  2. Earliest Legal Codes

i.      Code of Ur-Nammu, king of Ur 2050 BC

ii.      1772 BC Hammurabi’s code:  “eye for an eye”

iii.      10 Commandments: basically – don’t lie, cheat, steal or kill

10)   Compare to …

  1. Confucius: Do to others as you would have them do to you.
  2. Jesus:  Treat others the way you would have God treat you. Please note, God loves you,  you should love him back, but also God loves the other person, so out of love for god, treat the other person they way you would expect a loving god treat you. the reverse of Hammurabi
  3. Mohammed: What Confucius said,  but if you don’t you might be punished, however, God is just merciful and giving.
    1. First possible code:
      1. Ur- Nammu 1750 b.c.e
      2. Hamarubi – 1200 b.c.e  – “eye for an eye” –> Vendetta based.

 

11)   Back to Rome – One more time – Context of Rome in 500 b.c.e.

i.      In 500 b.c.e. Rome is relatively New (but successful) city state, relatively small (but growing), remote (at the far west of the Eurasian periphery)

  1. Little history, little (but growing) resources.  Kind of “new rich” – Fast growing combining trade with conquest (+ assimilation)
    1. Pyramid structure – assimilation + participation of new tribes .
    2. Everything was new – existed to get rich and powerful
    3. Economics supporting Early Roman Growth

i.      On a plain in central Italy – perhaps the most productive land in Italy

  1. Italy was more productive than Spain, Greece, North Africa, and Eastern Mediterranean sea because it receives more rain – thus could support larger populations than any other area.

ii.      Located – on west side of Apennine mountains on a plain with the lowest ford (crossing of the Tiber River – navigable to the sea) thus a trade route up and down the Italian peninsula –

  1. for movement of metals extracted from the appenines, and metal based products
  2. Salt production at the mouth of the Tiber river.

12)   Small City but good location for agriculture and trade – however surrounded by all kinds of adversaries

  1. Grew threw conquest and assimilation
  2. Constitutional make up of early Rome:

i.      King

                                                 ii.      Patricians (aristocracy = 10%) à Senate 300 to 800 (legislate and advise King)  – this is a class established by matter of law

                                               iii.      Plebians – everyone else – including  newly  Rich.

 

  1. Assembly à could veto legislation
    1. Every class represented

i.      But dominated by the rich

ii.      How? è Simple majority rule, the rich got to vote first, the poorest got to vote last, so most decisions made before the poorest groups got to vote. .

  1. In 509 King is replaced by twin Consuls – rule for one year – each can veto the other
    1. 2.       Doesn’t have the experience, depth of history as a resource, depth of human resource,  or material resources à borrows much of its culture from Greeks – whom they admire greatly (Greeks think of Romans as barbarians).
    2. 3.       Still Rome faces all the tensions of thePre-Axial age. .. Elite (called patricians) and peasantry (called plebians) and even has slaves,  and it is surrounded by potential enemies.

 

 

 

 

 

 

  1. c.       Lacking the resources of the great civilizations, Rome’s reaction to the Pre-Axial age tension is a very unique solution to the Pre-Axial Age problem – it is Axial age solution done on the cheap (and shallow).  No Great Philosophers available, no great religious leaders available, no great ethicist and no great ethics.  Rome developes an axial age solution on the cheap: Roman Law.

                                                   i.      The Roman response to the pressure of the Axial Age tensions is Roman Law.

  1. 1.       Very pragmatic
  2. 2.       Not as democratic as Greece

13)   Formation of Roman Law

  1. Plebians want to know what the law is… (rich plebians want to know how to become patricians) – threaten to leave Rome… exposing the Patricians to the loss of everything they own.

i.      Patricians have to cook up some kind of legal system

ii.      In 490 Romans visit Solon in Athens  – decide that it won’t work – it’s too generous (democracy)

iii.      In 450 they promulgate the 12 tables

  1. Mostly Private law – relations between Romans
  2. Civic Matters:
    1. Plebians get to elect Tribunes
    2. Tribunes can veto legislation – and are not subject to coercive force
    3. Right to marry Patricians – Originally denied, later allowed
    4. Tribunes able to pass laws limiting the amount of land one can own!!!!!. 

iv.      Roman expands quickly after 450 b.c.e

v.      By 300 b.c.e. controls most of Italy

vi.      By 150 controls Italy, Greece, Spain, North Africa and Western Turkey

  1. Size eventually destroys the balance needed to perpetuate Rome’s constitutional system
    1. Control (ownership) of foreign lands by “generals” causes wealth to concentrate and poverty to spread. Poor begin to basically sell their votes for money.
    2. So Republic effectively ends shortly after 150 because of dominance of Dictatorships (successful Generals).
    3. Formally ends in 40 b.c.e
    4. Roman law keeps evolving until about 200 c.e.
    5. 12 tables

i.      Originally very strictAs context changes with the growth of Rome – the law and legal institutions begin to evolve

14)   Compare Roman Law to the other Axial age solutions:

  1. Roman law is more primitive. Not as progressive. Not as equal.  Not as fair.

i.      But it is powerfully effective anyway – Rome quickly grows into a great empire.

ii.      Why?

  1. Ethical systems of Confucius, Buddha, Socrates, etc… can only produce informal norms.
    1. Informal norms are not mandatory
    2. Roman law is less just, less ethical, but effective because it is:
      1. Positive law
      2. Formal Norms
      3. If you do not abide by Roman law you go to jail

iii.      Roman law’s effectiveness  at dealing with the Pre-axial age is only temporary. When Rome becomes big enough, the Elite eliminate the Social Contract, however, the law itself keeps evolving.

Why The Need for Law?:

Towards understanding the purposes of law, why it was invented and perpetuates

Questions:

  • How can a society as simple, such as the one in “Dances with Wolves”,  be so just? 
  • How can a society as advanced as the Mayans be so unjust/unfair?

 

The answer can be explained by Game Theory – which we have discussed once before but is so important I must repeat the explanation to ensure that you understand the point. 

 

Game Theory (게임 이론)

Game theory tells us that cooperation relies on an iterative game that seemingly will go on forever. In other words: The end of the game is not foreseeable.

  • Seemingly = 겉으로는
  • Forever =영원히
  • Iterative (반복의)

 

The Game – using the Barber (and/or the Desert Island analogy)  – explain the evolution of cooperation

Game:  I go to the barber shop near my home every 2 weeks for a haircut. I pay money and the barber cuts my hair. This is “the game.”   My move is to pay money, the barber’s move is to cut hair.  This is a fair and just exchange.

Iterative Game (반복의) (iterative = ‘repeat’ or “repetitive” =반복적 인)  

This means:  This “game”  repeats every time I go to the barber shop.

Seemingly Forever  (without end):   (Seemingly = 겉으로는); (Forever =영원히)

I go to the same shop for hair cut every day for 20 years – I can foresee that I will go to that shop for another 20 years. Maybe more years after that.  We cannot see an end to when the game will end.   I pay money and the barber gives me a hair cut – this is a fair exchange.  In the 19th year, I forget my wallet. The barber says, just pay me next time.  This is iterative game.  If the game appears to have no exit, it pays to cooperate, be civil, be fair, be just. The barber knows my hair will grow back and I will return for hair cut in 2 weeks – so he TRUSTS to pay him then.

 

Early Exit Phenomena   (Also known as the Prisoner’s dilemma):

  • Early =초기의
  • Exit =출구 or
  • Phenomina  =현상의 복수형

Principle:  Once you realize that the game is going to end, it pays to stop cooperating immediately !!!

In the 24th year I learn that I will move to another city in 3 weeks. I know that the next time I go to the barber is the last time.  I leave my wallet at home. After the hair cut, I tell the barber I forgot my wallet so I cannot pay him. I tell him I will pay him next time. The barber trust me because he does not see the end of our relationship. I do see the end. So I profit by cheating him.

Do you remember the quote I gave you from M. Scott Peck, M. D. ?  How about John Maynard Keynes?

 

  • “…But experience is accumulating that remoteness between ownership and operation is an evil in the relations between men, likely or certain in the long run to set up strains and enmities…”
  • “Humans are at their worst when they are least accountable for their actions”       

Who said which one of the above?    What does it mean?

Sample laws from Code of Ur-Nammu

                                                iv.       If a man commits a murder, that man must be killed.

                                                  v.       If a man commits a robbery, he will be killed.

vi.       If a man commits a kidnapping, he is to be imprisoned and pay 15 shekels of silver.

vii.       If a man knocks out the eye of another man, he shall weigh out ½ a mina of silver.

viii.       If a man has cut off another man’s foot, he is to pay ten shekels.

Sample Laws from Hamurrab – know only that it is famous for “Eye for an Eye, Tooth for a tooth.”

Sample Laws from Roman 12 tables:

  1. Where anyone commits a theft by night, and having been caught in the act is killed, he is legally killed.
  2. If you are called to go to court, you must go. If you don’t show up, you can be taken to court by force.
  3. 3.       A father shall have the right of life and death over his son born in lawful marriage, and shall also have the power to render him independent, after he has been sold three times
  4. 4.       Marriages should not take place between plebeians and patricians. (As time went on, this law was changed. When the tables were first written, this was the law.)

 

The 12 Tables 450 b.c.e:

TABLE I. — Concerning the summons to court.

TABLE II. – Concerning judgments and thefts.

TABLE III. Concerning property which is lent.

TABLE IV. concerning the rights of a father, and of marriage.

Law I.

A father shall have the right of life and death over his son born in lawful marriage, and shall also have the power to render him independent, after he has been sold three times.[2]

TABLE V. concerning estates and guardianships.

TABLE VI. concerning ownership and possession.

TABLE VII. concerning crimes.

 

TABLE VIII. concerning the laws of real property.

TABLE IX. concerning public law.

TABLE X. Concerning religious law.

TABLE XI. supplement to the five preceding ones. (449 b.c.e)

Law II.

Those who belong to the Senatorial Order and are styled Fathers, shall not contract marriage with plebeians.

TABLE XII. supplement to the five preceding ones. (449 b.c.e)

 

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