29 ms·

Contradictions in Roman law left incurable headaches for its judges

172 points by diodorus 6y ago

solidsnack9000 6y ago
What I think is unfortunate is that the author doesn't compare the Roman system to that of other countries, and highlight an important underlying issue: state capacity. Early legal systems were not backed by capable and well organized executive branches. A huge range of things that now are a matter of law -- even contracts -- were basically left up to individuals to sort out for themselves. In tribal societies, all there was to settle differences was people's good credit with their neighbors; so you better be liked by everybody. But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime. What does the author want us to draw from this conclusion?
- hpoe 6y ago
  Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them. No need to go through a comitte or build consensus when there is only one person that needs to make a decision. On the other hand that often means the person making the decision doesn't need to consider the opinions of others when making decisions. EDIT To clarify my comment I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. Whether they make good or bad decisions is much more dependent on the leader. It is a common pattern in the world the more constraints on a position the less autonomy an individual has the less impact they can have either for good or bad. Probably is related to the fine line between idiocy and genius.
  - greesil 6y ago
    You can still have a powerful enough state to enforce laws and not be a dictatorship.
    - CameronNemo 6y ago
      The question is for how long. Many states have had a tendency to grow over time.
      - greesil 6y ago
        Nothing lasts forever, and not everything is a slippery slope. Historical context is also important. For example, some people have this notion that the Roman Republic was somehow "good" and the empire was "bad" solely because the Senate had power in the Republic, and voting = good. But in actuality it was a pretty messed up system of government because only Romans (literally people in that city) got a vote while the rest of the Italian peninsula got no say. And yes they fought a war about this and the "good" side lost. Voting was heavily weighted towards the upper classes, too. The empire wasn't all bread and circuses, but it did scale better, which had some pros and cons too :). But for your average inhabitant of the Italian peninsula you had no more or less say in how either government ran.
    - watwut 6y ago
      Dictatorships can be quite a mess when it comes to enforcing laws unrelated to keeping power. These laws tend to turn onto soft of weapon to be used or not depending on whether you want harass someone or not. This happened in both Nazi system and Communist system. Both were high corruption a lot of petty crime normalized society (and a lot of other petty crime severely punished depending who done it and what was done).
      - sokoloff 6y ago
        I think there’s a reasonable argument that street-level drug possession crimes during the “War on Drugs” had similar properties/effects.
  - eru 6y ago
    I am not so sure about that in the absolute. In eg a 'chaotic' market system, you can just go and buy a yacht. Very quick, very efficient. If you have an authoritarian dictatorship like eg Stalin's Soviet Union, good luck getting your yacht quickly. Even the most authoritarian dictator can not make all decisions on their own. There will always be delegation.
    - 082349872349872 6y ago
      My understanding of the mechanism for getting yachts quickly under Stalin is that if you gave someone a large pile of money, that was clearly bribery, Взятка. If you gave someone a large pile of money and a few bottles of vodka, then it was just a tip, merely Brassica oleracea. https://news.ycombinator.com/item?id=24176587 https://news.ycombinator.com/item?id=24176587
      - eru 6y ago
        A yacht was probably a bad example. A better example might have been to get an extension to your factory or a new machine. Something clearly more of a reasonable business investment than a yacht. If you got Stalin's attention, you might have been able to get it right away (or go to the Gulag right away..) But that's a very special case, and in general dictatorships don't lack for bureaucracy. For a more benign version, look at getting anything done in the military or a very big and very top-down company where in theory the CEO reigns supreme.
  - XMPPwocky 6y ago
    Perhaps - though notice that other systems have the same, or greater, simplicity - for example, when making a decision, choose randomly, or choose the option which sorts first alphabetically, or... When you don't have the constraint of making good decisions, or popular decisions, you can make decisions very efficiently!
  - tessierashpool 6y ago
    > Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them. this is one of those things which many people believe but which isn't actually true. authoritarian dictatorships are very often total chaotic shitshows. the old line about Mussolini making the trains run on time is a great example. Mussolini used propaganda to claim that he made the trains run on time, and he did drive a few improvements to high-profile train lines in Northern Italy that were used mostly by elites and tourists, but trains in Mussolini's Italy were not efficient, not well-maintained (and therefore not safe), and they didn't run on time. https://www.snopes.com/fact-check/loco-motive/ https://www.snopes.com/fact-check/loco-motive/ https://www.bloomberg.com/news/articles/2016-11-15/stop-saying-mussolini-made-the-trains-run-on-time https://www.bloomberg.com/news/articles/2016-11-15/stop-sayi... there's even an academic term for it: "the myth of fascist efficiency." Hitler's regime was also pure chaos, and he was largely regarded as a clown for most of his political career. authoritarian dictatorships lack legitimacy, so they're run by people who don't care if they're perceived as legitimate or not, which basically means fanatics and grifters. fanatics are too disconnected from reality to be highly effective, and grifters have a vested interest in chaos, since it makes their grift harder to detect.
    - thotsBgone 6y ago
      Have you considered that Mussolini didn't care about the trains which weren't high-profile trains for elites? The person you're responding to said dictators do what they want efficiently, but don't care about what others want. Was Mussolini even trying to genuinely improve the lower class trains?
      - bonzini 6y ago
        In Italy to this day the line about trains running on time is spoken with reference to lower class trains. So no matter what the fascist regime wanted to improve, the propaganda was about _all_ trains.
        thotsBgone 6y ago
  - watwut 6y ago
    > I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. I think that one comes with asterisks too. The cultures in dictatorship are often pretty good at avoiding decisions at all cost. The price can be high for making decision someone in power does not like, better to do nothing or appear to have no opinions. Moreover, you don't want to appear to be making decisions, so that you don't look like threat for people who could be jealous and destroy you. Communist system was largely characterized by passivity. Even if the dictator himself can make decision at whim, the structures around him tend to insulate him from the rest of world. Oftentimes simply to protect this or that real world interest. Which means they end up not making decisions.
- boomboomsubban 6y ago
  >What does the author want us to draw from this conclusion? That their book expanding on the topic is worth reading.
- mikece 6y ago
  > But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime. You would have to discount the entirety of Old Testament Judaic law, which goes back at least 5800 years, to make the claim that murder wasn’t a crime until the rise of the principate.
  - Fezzik 6y ago
    The oldest books of the Old Testament were written around 300-500 years BC... so many centuries after the events supposedly occurred. To say that those books are definitely indicative of what the law was 5,800 years ago seems like a bit of a stretch. Edit: spelling.
    - samatman 6y ago
      Murder is mentioned in the first clause of the Code of Hammurabi, in 1700 BC. So that gets us 3,700 years back. But it, and the Bible, are irrelevant to Roman law, which is what's being discussed here.
    - eximius 6y ago
      The OT was an oral tradition predating it's written recording...
      - deleted 6y ago
        [deleted]
      - Fezzik 6y ago
        I knew my grandfather, who in my eyes was a god, and I embellish everything about him. He died in 2010. Think how muddled, exaggerated, revised, and dressed-up stories get over centuries... especially when they are not written down.
        eximius 6y ago
        Somewhat different cultures, I think. There are oral traditions where we can compare the written and oral records and see less deviation in the oral records over even long periods of time. I acknowledge that requires examples and citations and at one point I knew where to pull them up offhand.
- eru 6y ago
  It is very interesting to look at the intersection of state capacity and legal systems. However, you don't need much government (nor state capacity) at all for legal systems to work. Some might even say the can work better without under some circumstances. See http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsContents.htm http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsCo... for many historical examples like Jewish law or Romani law or England in the Eighteenth Century.
- maze-le 6y ago
  Nothing, he is stating a historical fact, that's all. I found it interesting, because we sometime tend to think we kind of know how roman society worked -- a lot of our own institutions in the west are modeled on roman equivalents: courts, marriage, civil assemblies and we do live in democracies with a strong oligarchy. This example shows how strangely different the ancient society was compared to our own.
  - DFHippie 6y ago
    Off topic, but Emma Southon probably goes by "she".
- machello13 6y ago
  You seem to think the author is writing this paper with the goal of espousing a viewpoint or tying it back to current affairs. It's possible to write and read about history purely for the interest.
hpoe 6y ago
Laws are the source code of society; built up over dozens of generations by thousands of people who all had a different idea of what the finished product should look like and what algorithms to use. In addition most of these people never communicated and there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out. Beyond all of that bug fixes get pushed through without any real analysis and consideration for their consequences or to make the product better, but instead for the Project Manager to get a chance to show how great they are. Feel free to add to the analogy.
- rubidium 6y ago
  It’s just a poor analogy for the law. It’s what programmers turn to but it doesn’t work. The law is a fundamentally human executable. Code is fundamentally computer executable.
  - scollet 6y ago
    Is it wrong that my utopia includes a VCS where PRs are submitted by constituents and implemented by incumbents?
    - anticensor 6y ago
      You will need a TCP-like self-stabilising algorithm to rate-limit code changes.
      - scollet 6y ago
        Pushing the hypothetical, what does TCP have to do with this? I may be missing a joke.
        anticensor 6y ago
        It is designed to maximise the global packet flow while preserving reliability. A similar system for society would maximise the societal output while preserving conformity.
Oricle 6y ago
Roman empire never died,just Rome fell. They moved east creating the byzantine empire which again, never collapsed lol. Who am I on about who ruled and still does? Well it's been going on over 2000 years this was, they killed the man responsible for spreading knowledge, jesus. Yup, Christians vs Jews for over 2000 years, that's why the white European is been wiped out now. In 2066, the UK will be mostly foreigners. What UK people (and other white European countries) is when your not the dominate one you have no home! You don't see this happening to Muslim or black countries? Well, not until all the whites are gone! Isralites hate all gentiles! Educate yourself, before it's too late hey!
vmception 6y ago
> After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision. How delightfully unsatisfactory but a neat way to resolve it. If these things did get into history books, a consensus likely would have been reached in the collective minds by then.
- neilwilson 6y ago
  That technique still exists today. When justices reserve judgment you find there is no mechanism to require they pass judgement. The long grass is sometimes useful.
winrid 6y ago
"After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision."
raister 6y ago
I'm not a lawyer, but I guess a committee (don't ask me who or how many) should evaluate the 'justifiability' of a crime: Let's suppose: - random kill, no reason at all, psycopathy: 20 years in jail - justified kill: 5 to 20 years in jail I remember the dad that killed the Karate's instructor of his son, who was raping him during 'classes'. The dad killed the guy. For many people, it was a kill and he should be in jail. However, put yourself in his shoes, wouldn't you do the same (or near the same)? In this case, you couldn't say: "oh, that's ok, just go home, we'll sort things out", because a crime was committed. Maybe, and I'm being extremely naïve here, maybe, that could act as a deterrent when people are thinking on committing unjustified violence against others. Again, I don't know nothing, I'm no lawyer.
- Aachen 6y ago
  > For many people, it was a kill and he should be in jail. For who not? I get that you might get angry and do something regretful like beat them up, but the justice system is there for a reason. If you start killing whomever you feel justified to kill... You say "many", perhaps because you're in favor of capital punishment carried out by the assumed victim before any trial, but I sincerely hope that you're wrong or the countries we've been building for thousands of years are doomed.
- andylynch 6y ago
  This might well vary between countries, but passing sentence is typically the role of the judge or magistrate, and separate from determining guilt, which may be determined be a jury or lower court. e.g. in the UK & other common law states once a defendant is found guilty a judge or magistrate will determine sentence and consider these factors, among others. Depending on the severity of the crime, the sentencing may also be referred by a magistrate to a higher court able to impose a more severe penalty. (see https://www.judiciary.uk/you-and-the-judiciary/sentencing/ https://www.judiciary.uk/you-and-the-judiciary/sentencing/ for a good example)
- NolF 6y ago
  In NSW that example would fall under voluntary manslaughter (murder (s18 Crimes Act) plus a defence of extreme provocation s23) which carries up to 25 years of jail (like all manslaughters s24). In the state of Victoria this defence was removed entirely whilst NSW amended the section for the extreme provocation offence where one of the elements is that the conduct must be a serious indictable offence (i.e. an offence that carries 5 or more years). This amendment was largely because there had been instances of non-violent homosexual advances that had resulted in murder and the defence being applicable.
Areading314 6y ago
This reminds me of the eerie feeling of despair I get when thinking about Godel incompleteness. Any axiomatic, logical system will have true statements that cannot be proven. This implies that even a perfect system of laws would carry out injustice, whether they are false, or failed convictions.
- ivalm 6y ago
  That’s not what it means. It means there will be things not covered by law, which is probably fine. There is no need for law to be all covering. I posit that the set of things that is desireable for law coverage is finite.
  - Areading314 6y ago
    I think it raises a really interesting question. Since our legal system is based on rationalism and the scientific process, and we know that an axiomatic, logical system cannot completely describe all truths within its domain, then how can we hope to provide a fair judicial process, or to make sure that our collection of laws actually disambiguates rules in concordance with their supposed ethical justifications?
    - dodobirdlord 6y ago
      Our laws are not so rigorous a system that we need to be worried about how to handle determining whether or not a computer program halts for the purpose of enforcing a law against writing programs that don't halt. Enforcement frequently differs based on whether laws are even remembered, and the last time the US federal government attempted just to count the number of laws they failed and gave up. Remember, the incompleteness theorem says that a consistent system can't prove its own consistency. Amidst the mess and imprecision of any legal system there's no chance that consistency is preserved anyway.
      - Areading314 6y ago
        Yep, you are right that the way our laws are enforced is irrational and renders many of these concerns moot in practice.
supernova87a 6y ago
I'd love to discuss with others here something related. I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks. After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time. And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences. (Hence the connection to this OP's story + comments about law as source code.) This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example: If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do. Other unintended side effects may include: politicization of the judiciary, which we know all too well today. I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking. https://www.youtube.com/watch?v=Ggz_gd--UO0 https://www.youtube.com/watch?v=Ggz_gd--UO0 https://www.youtube.com/watch?v=TRS-jdgHok4 https://www.youtube.com/watch?v=TRS-jdgHok4 https://www.youtube.com/watch?v=fkChru9L3xA&t=4s https://www.youtube.com/watch?v=fkChru9L3xA&t=4s (skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government) https://www.youtube.com/watch?v=aXSGDXbc9ZA https://www.youtube.com/watch?v=aXSGDXbc9ZA (very entertaining) And besides all that, what a personality and entertaining figure, and powerhouse of knowledge. I wish I had appreciated more of this thinking earlier.
whackamole 6y ago
"For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere." I like to consider myself a Roman History fan but this is a fact that shocked me. On a fundamental level I cannot conceive of a state that would take this attitude, regardless of time period. I tend to think people across history are more or less the same; I cannot fathom how a society would work when the government has this sort of attitude. This is probably one of the few things I've read about Rome where my thought is "My God they were totally different than us" rather than "My God they were just like us".
gumby 6y ago
I believe the prescribed punishment for parricide was not the bizarre menagerie suggested by the author but simply a cat, a cock, and the convicted. And the purpose of the animals Was no mystery: in their panic at confinement and then inundation they would flail about with their claws or spurs shredding the murderer and making the punishment more agonizing.
ginko 6y ago
>Therefore, if he punished a woman who had acted, in the depths of her grief for her children, to justly avenge their murder, then he would be passing judgment on all such killings and suggesting that vengeance killings were criminal. Roman law was the precursor to civil law, so I wouldn't think a Roman judge's rulings would create precedent like it would in common law systems.
- qubex 6y ago
  Roman Law is also the origin of the concept of the binding precedent: it is known as stare decisis (“remaining resolved”).
deleted 6y ago
[deleted]
asciimike 6y ago
For those interested in different legal systems and how they operate, I really enjoyed "Legal Systems Very Different from Ours" (https://amzn.to/35r1ooP https://amzn.to/35r1ooP) Here's a draft version published online: http://www.daviddfriedman.com/Academic/Course_Pages/legal_systems_very_different_12/LegalSystemsDraft.html http://www.daviddfriedman.com/Academic/Course_Pages/legal_sy...
emilfihlman 6y ago
>For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere. This is absolutely beautiful.

172 points by diodorus 6y ago

What I think is unfortunate is that the author doesn't compare the Roman system to that of other countries, and highlight an important underlying issue: state capacity. Early legal systems were not backed by capable and well organized executive branches. A huge range of things that now are a matter of law -- even contracts -- were basically left up to individuals to sort out for themselves. In tribal societies, all there was to settle differences was people's good credit with their neighbors; so you better be liked by everybody. But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime. What does the author want us to draw from this conclusion?

hpoe 6y ago
Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them. No need to go through a comitte or build consensus when there is only one person that needs to make a decision. On the other hand that often means the person making the decision doesn't need to consider the opinions of others when making decisions. EDIT To clarify my comment I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. Whether they make good or bad decisions is much more dependent on the leader. It is a common pattern in the world the more constraints on a position the less autonomy an individual has the less impact they can have either for good or bad. Probably is related to the fine line between idiocy and genius.
- greesil 6y ago
  You can still have a powerful enough state to enforce laws and not be a dictatorship.
  - CameronNemo 6y ago
    The question is for how long. Many states have had a tendency to grow over time.
    - greesil 6y ago
      Nothing lasts forever, and not everything is a slippery slope. Historical context is also important. For example, some people have this notion that the Roman Republic was somehow "good" and the empire was "bad" solely because the Senate had power in the Republic, and voting = good. But in actuality it was a pretty messed up system of government because only Romans (literally people in that city) got a vote while the rest of the Italian peninsula got no say. And yes they fought a war about this and the "good" side lost. Voting was heavily weighted towards the upper classes, too. The empire wasn't all bread and circuses, but it did scale better, which had some pros and cons too :). But for your average inhabitant of the Italian peninsula you had no more or less say in how either government ran.
  - watwut 6y ago
    Dictatorships can be quite a mess when it comes to enforcing laws unrelated to keeping power. These laws tend to turn onto soft of weapon to be used or not depending on whether you want harass someone or not. This happened in both Nazi system and Communist system. Both were high corruption a lot of petty crime normalized society (and a lot of other petty crime severely punished depending who done it and what was done).
    - sokoloff 6y ago
      I think there’s a reasonable argument that street-level drug possession crimes during the “War on Drugs” had similar properties/effects.
- eru 6y ago
  I am not so sure about that in the absolute. In eg a 'chaotic' market system, you can just go and buy a yacht. Very quick, very efficient. If you have an authoritarian dictatorship like eg Stalin's Soviet Union, good luck getting your yacht quickly. Even the most authoritarian dictator can not make all decisions on their own. There will always be delegation.
  - 082349872349872 6y ago
    My understanding of the mechanism for getting yachts quickly under Stalin is that if you gave someone a large pile of money, that was clearly bribery, Взятка. If you gave someone a large pile of money and a few bottles of vodka, then it was just a tip, merely Brassica oleracea. https://news.ycombinator.com/item?id=24176587 https://news.ycombinator.com/item?id=24176587
    - eru 6y ago
      A yacht was probably a bad example. A better example might have been to get an extension to your factory or a new machine. Something clearly more of a reasonable business investment than a yacht. If you got Stalin's attention, you might have been able to get it right away (or go to the Gulag right away..) But that's a very special case, and in general dictatorships don't lack for bureaucracy. For a more benign version, look at getting anything done in the military or a very big and very top-down company where in theory the CEO reigns supreme.
- XMPPwocky 6y ago
  Perhaps - though notice that other systems have the same, or greater, simplicity - for example, when making a decision, choose randomly, or choose the option which sorts first alphabetically, or... When you don't have the constraint of making good decisions, or popular decisions, you can make decisions very efficiently!
- tessierashpool 6y ago
  > Authoritarian dictatorships are bad for many reasons. Ineffeciency when compared with more collaborative decision making processes is often not one of them. this is one of those things which many people believe but which isn't actually true. authoritarian dictatorships are very often total chaotic shitshows. the old line about Mussolini making the trains run on time is a great example. Mussolini used propaganda to claim that he made the trains run on time, and he did drive a few improvements to high-profile train lines in Northern Italy that were used mostly by elites and tourists, but trains in Mussolini's Italy were not efficient, not well-maintained (and therefore not safe), and they didn't run on time. https://www.snopes.com/fact-check/loco-motive/ https://www.snopes.com/fact-check/loco-motive/ https://www.bloomberg.com/news/articles/2016-11-15/stop-saying-mussolini-made-the-trains-run-on-time https://www.bloomberg.com/news/articles/2016-11-15/stop-sayi... there's even an academic term for it: "the myth of fascist efficiency." Hitler's regime was also pure chaos, and he was largely regarded as a clown for most of his political career. authoritarian dictatorships lack legitimacy, so they're run by people who don't care if they're perceived as legitimate or not, which basically means fanatics and grifters. fanatics are too disconnected from reality to be highly effective, and grifters have a vested interest in chaos, since it makes their grift harder to detect.
  - thotsBgone 6y ago
    Have you considered that Mussolini didn't care about the trains which weren't high-profile trains for elites? The person you're responding to said dictators do what they want efficiently, but don't care about what others want. Was Mussolini even trying to genuinely improve the lower class trains?
    - bonzini 6y ago
      In Italy to this day the line about trains running on time is spoken with reference to lower class trains. So no matter what the fascist regime wanted to improve, the propaganda was about _all_ trains.
      - thotsBgone 6y ago
- watwut 6y ago
  > I didn't say that dictatorships are better at making good decisions or result in a more efficient society simply that they are more effectient at making a decision. I think that one comes with asterisks too. The cultures in dictatorship are often pretty good at avoiding decisions at all cost. The price can be high for making decision someone in power does not like, better to do nothing or appear to have no opinions. Moreover, you don't want to appear to be making decisions, so that you don't look like threat for people who could be jealous and destroy you. Communist system was largely characterized by passivity. Even if the dictator himself can make decision at whim, the structures around him tend to insulate him from the rest of world. Oftentimes simply to protect this or that real world interest. Which means they end up not making decisions.
boomboomsubban 6y ago
>What does the author want us to draw from this conclusion? That their book expanding on the topic is worth reading.
mikece 6y ago
> But it was not until the principate, when the stability and power of the Empire rested on the shoulders of a single man, that murder truly became a crime. You would have to discount the entirety of Old Testament Judaic law, which goes back at least 5800 years, to make the claim that murder wasn’t a crime until the rise of the principate.
- Fezzik 6y ago
  The oldest books of the Old Testament were written around 300-500 years BC... so many centuries after the events supposedly occurred. To say that those books are definitely indicative of what the law was 5,800 years ago seems like a bit of a stretch. Edit: spelling.
  - samatman 6y ago
    Murder is mentioned in the first clause of the Code of Hammurabi, in 1700 BC. So that gets us 3,700 years back. But it, and the Bible, are irrelevant to Roman law, which is what's being discussed here.
  - eximius 6y ago
    The OT was an oral tradition predating it's written recording...
    - deleted 6y ago
      [deleted]
    - Fezzik 6y ago
      I knew my grandfather, who in my eyes was a god, and I embellish everything about him. He died in 2010. Think how muddled, exaggerated, revised, and dressed-up stories get over centuries... especially when they are not written down.
      - eximius 6y ago
        Somewhat different cultures, I think. There are oral traditions where we can compare the written and oral records and see less deviation in the oral records over even long periods of time. I acknowledge that requires examples and citations and at one point I knew where to pull them up offhand.
eru 6y ago
It is very interesting to look at the intersection of state capacity and legal systems. However, you don't need much government (nor state capacity) at all for legal systems to work. Some might even say the can work better without under some circumstances. See http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsContents.htm http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsCo... for many historical examples like Jewish law or Romani law or England in the Eighteenth Century.
maze-le 6y ago
Nothing, he is stating a historical fact, that's all. I found it interesting, because we sometime tend to think we kind of know how roman society worked -- a lot of our own institutions in the west are modeled on roman equivalents: courts, marriage, civil assemblies and we do live in democracies with a strong oligarchy. This example shows how strangely different the ancient society was compared to our own.
- DFHippie 6y ago
  Off topic, but Emma Southon probably goes by "she".
machello13 6y ago
You seem to think the author is writing this paper with the goal of espousing a viewpoint or tying it back to current affairs. It's possible to write and read about history purely for the interest.

hpoe 6y ago

Laws are the source code of society; built up over dozens of generations by thousands of people who all had a different idea of what the finished product should look like and what algorithms to use. In addition most of these people never communicated and there is a ton of legacy functionally that is still in there that needs to be gotten rid of, but nobody wants to go through the trouble of submitting a change request to get the old cruft out. Beyond all of that bug fixes get pushed through without any real analysis and consideration for their consequences or to make the product better, but instead for the Project Manager to get a chance to show how great they are. Feel free to add to the analogy.

rubidium 6y ago
It’s just a poor analogy for the law. It’s what programmers turn to but it doesn’t work. The law is a fundamentally human executable. Code is fundamentally computer executable.
- scollet 6y ago
  Is it wrong that my utopia includes a VCS where PRs are submitted by constituents and implemented by incumbents?
  - anticensor 6y ago
    You will need a TCP-like self-stabilising algorithm to rate-limit code changes.
    - scollet 6y ago
      Pushing the hypothetical, what does TCP have to do with this? I may be missing a joke.
      - anticensor 6y ago
        It is designed to maximise the global packet flow while preserving reliability. A similar system for society would maximise the societal output while preserving conformity.

Oricle 6y ago

Roman empire never died,just Rome fell. They moved east creating the byzantine empire which again, never collapsed lol. Who am I on about who ruled and still does? Well it's been going on over 2000 years this was, they killed the man responsible for spreading knowledge, jesus. Yup, Christians vs Jews for over 2000 years, that's why the white European is been wiped out now. In 2066, the UK will be mostly foreigners. What UK people (and other white European countries) is when your not the dominate one you have no home! You don't see this happening to Muslim or black countries? Well, not until all the whites are gone! Isralites hate all gentiles! Educate yourself, before it's too late hey!

vmception 6y ago

> After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision. How delightfully unsatisfactory but a neat way to resolve it. If these things did get into history books, a consensus likely would have been reached in the collective minds by then.

neilwilson 6y ago
That technique still exists today. When justices reserve judgment you find there is no mechanism to require they pass judgement. The long grass is sometimes useful.

winrid 6y ago

"After hearing the prosecution and the defence, they asked everyone to return to hear their judgment in 100 years’ time, neatly avoiding the need to ever make a decision."

raister 6y ago

I'm not a lawyer, but I guess a committee (don't ask me who or how many) should evaluate the 'justifiability' of a crime: Let's suppose: - random kill, no reason at all, psycopathy: 20 years in jail - justified kill: 5 to 20 years in jail I remember the dad that killed the Karate's instructor of his son, who was raping him during 'classes'. The dad killed the guy. For many people, it was a kill and he should be in jail. However, put yourself in his shoes, wouldn't you do the same (or near the same)? In this case, you couldn't say: "oh, that's ok, just go home, we'll sort things out", because a crime was committed. Maybe, and I'm being extremely naïve here, maybe, that could act as a deterrent when people are thinking on committing unjustified violence against others. Again, I don't know nothing, I'm no lawyer.

Aachen 6y ago
> For many people, it was a kill and he should be in jail. For who not? I get that you might get angry and do something regretful like beat them up, but the justice system is there for a reason. If you start killing whomever you feel justified to kill... You say "many", perhaps because you're in favor of capital punishment carried out by the assumed victim before any trial, but I sincerely hope that you're wrong or the countries we've been building for thousands of years are doomed.
andylynch 6y ago
This might well vary between countries, but passing sentence is typically the role of the judge or magistrate, and separate from determining guilt, which may be determined be a jury or lower court. e.g. in the UK & other common law states once a defendant is found guilty a judge or magistrate will determine sentence and consider these factors, among others. Depending on the severity of the crime, the sentencing may also be referred by a magistrate to a higher court able to impose a more severe penalty. (see https://www.judiciary.uk/you-and-the-judiciary/sentencing/ https://www.judiciary.uk/you-and-the-judiciary/sentencing/ for a good example)
NolF 6y ago
In NSW that example would fall under voluntary manslaughter (murder (s18 Crimes Act) plus a defence of extreme provocation s23) which carries up to 25 years of jail (like all manslaughters s24). In the state of Victoria this defence was removed entirely whilst NSW amended the section for the extreme provocation offence where one of the elements is that the conduct must be a serious indictable offence (i.e. an offence that carries 5 or more years). This amendment was largely because there had been instances of non-violent homosexual advances that had resulted in murder and the defence being applicable.

Areading314 6y ago

This reminds me of the eerie feeling of despair I get when thinking about Godel incompleteness. Any axiomatic, logical system will have true statements that cannot be proven. This implies that even a perfect system of laws would carry out injustice, whether they are false, or failed convictions.

ivalm 6y ago
That’s not what it means. It means there will be things not covered by law, which is probably fine. There is no need for law to be all covering. I posit that the set of things that is desireable for law coverage is finite.
- Areading314 6y ago
  I think it raises a really interesting question. Since our legal system is based on rationalism and the scientific process, and we know that an axiomatic, logical system cannot completely describe all truths within its domain, then how can we hope to provide a fair judicial process, or to make sure that our collection of laws actually disambiguates rules in concordance with their supposed ethical justifications?
  - dodobirdlord 6y ago
    Our laws are not so rigorous a system that we need to be worried about how to handle determining whether or not a computer program halts for the purpose of enforcing a law against writing programs that don't halt. Enforcement frequently differs based on whether laws are even remembered, and the last time the US federal government attempted just to count the number of laws they failed and gave up. Remember, the incompleteness theorem says that a consistent system can't prove its own consistency. Amidst the mess and imprecision of any legal system there's no chance that consistency is preserved anyway.
    - Areading314 6y ago
      Yep, you are right that the way our laws are enforced is irrational and renders many of these concerns moot in practice.

supernova87a 6y ago

I'd love to discuss with others here something related. I have lately (to my surprise) been drawn by some talks of Antonin Scalia on Youtube. Far from being repelled (or amused at his standing alone) as I was years ago by his coming down on the opposite side of judgements I thought were socially just and good, I now come to understand better what he was doing. At least if you believe his talks. After listening to his talks (and then thinking back to his opinions), I understand he was trying to make sure that the Constitution was followed to the letter of the law, and that if the people were unhappy with it, let them change it so that it reflected the popular desires. But let it follow that process. Not have social or political will creep its way in via individual judges' or courts' determination something was now "acceptable enough" that it could be ruled to have evolved and be constitutional at the present time. And that the writers of the Constitution were trying to prevent disaster as much as trying to enable progress -- and that we should be careful when we stray from the words encoding that goal, because when you do that it opens up all sorts of unintended consequences. (Hence the connection to this OP's story + comments about law as source code.) This really opened my eyes about what that aspect of judicial conservatism is about. Not that I agree with all of its philosophy or tendency (in politics) to court a certain sector of the vote, for example. But it did arouse in me a respect for the guy, to know that for example: If you start relying or putting upon certain institutions (the courts) in society responsibilities or goals to effect the change you want, that may not always be the right thing to do, although it may be the easy / politically expedient thing to do at the present time. Because there may come a day when that power might go opposite to what you wanted (or more importantly, what is right). And maybe what this country's founders set up was consciously a decision to keep things from going off the tracks when too many people thought some rules should simply be imposed by judges because it was the popular thing to do. Other unintended side effects may include: politicization of the judiciary, which we know all too well today. I would encourage anyone curious to listen to some of his talks (especially the Q&A). Honestly, it really did open my eyes to hear about it. Maybe I'm getting more conservative in my old age, but when you're a person responsible for others and some process, you start to appreciate this kind of thinking. https://www.youtube.com/watch?v=Ggz_gd--UO0 https://www.youtube.com/watch?v=Ggz_gd--UO0 https://www.youtube.com/watch?v=TRS-jdgHok4 https://www.youtube.com/watch?v=TRS-jdgHok4 https://www.youtube.com/watch?v=fkChru9L3xA&t=4s https://www.youtube.com/watch?v=fkChru9L3xA&t=4s (skip all the preface, to his speech at 4min, or skip to the Q&A as the talk is mainly about what the role of morals is in the judiciary/government) https://www.youtube.com/watch?v=aXSGDXbc9ZA https://www.youtube.com/watch?v=aXSGDXbc9ZA (very entertaining) And besides all that, what a personality and entertaining figure, and powerhouse of knowledge. I wish I had appreciated more of this thinking earlier.

whackamole 6y ago

"For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere." I like to consider myself a Roman History fan but this is a fact that shocked me. On a fundamental level I cannot conceive of a state that would take this attitude, regardless of time period. I tend to think people across history are more or less the same; I cannot fathom how a society would work when the government has this sort of attitude. This is probably one of the few things I've read about Rome where my thought is "My God they were totally different than us" rather than "My God they were just like us".

gumby 6y ago

I believe the prescribed punishment for parricide was not the bizarre menagerie suggested by the author but simply a cat, a cock, and the convicted. And the purpose of the animals Was no mystery: in their panic at confinement and then inundation they would flail about with their claws or spurs shredding the murderer and making the punishment more agonizing.

ginko 6y ago

>Therefore, if he punished a woman who had acted, in the depths of her grief for her children, to justly avenge their murder, then he would be passing judgment on all such killings and suggesting that vengeance killings were criminal. Roman law was the precursor to civil law, so I wouldn't think a Roman judge's rulings would create precedent like it would in common law systems.

qubex 6y ago
Roman Law is also the origin of the concept of the binding precedent: it is known as stare decisis (“remaining resolved”).

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asciimike 6y ago

For those interested in different legal systems and how they operate, I really enjoyed "Legal Systems Very Different from Ours" (https://amzn.to/35r1ooP https://amzn.to/35r1ooP) Here's a draft version published online: http://www.daviddfriedman.com/Academic/Course_Pages/legal_systems_very_different_12/LegalSystemsDraft.html http://www.daviddfriedman.com/Academic/Course_Pages/legal_sy...

emilfihlman 6y ago

>For most of Republican history there was no formal law criminalising homicide: the Roman government was so deliberately decentralised that it did not see itself as a state which was harmed by private homicide. The murder of a private person did not affect the various magistrates’ power, and therefore the state need not interfere. This is absolutely beautiful.