Digesting Justinian

My last post went after some dumb lessons people were drawing from ancient Rome.  In the spirit of being constructive, here's a better lesson:

So for a long time Rome's legal system had these people called the jurists.  If you were in a lawsuit you would go to a jurist and tell him about your case.  Then he'd write a legal opinion applying the law to your facts (normally favorably), tell you exactly what to plead, etc.  He wouldn't actually argue the case -- advocates like Cicero were for that -- but he'd come up with smart reasons for why you should win, and would grapple in smart ways with any novelties or tough questions of law your case presented.

If a Jurist was particularly smart, his decisions would sort of take on an air of gospel truth, and eventually become law.  And this worked great.  Over time the Romans developed the most important legal system in world history, still the basis of the law in dozens of countries, exactly this way.  But as time dragged on more and more jurists kept writing.  By the middle of the empire, when jurists stopped being a thing, there was a *lot* of gospel truth out there, written by a *lot* of well respected jurists.

So it became a library sciences problem.  And, as they have so often in the past, the library sciences failed civilization.  Romans just didn't have the publishing industry or the filing skills to make sure anyone -- much less hick lawyers out in the provinces -- had access to what every jurist said ever.  So some lawyer in northern France would go on vacation in Spain and come back with a bunch of books he found (authentic? who knows!) from famous jurists.  Suddenly, he's throwing out established legal "facts" no one in the entire province had ever heard before.  Big problem!

So the emperor Justinian fixed all that.  First, he basically pruned the list of people whose writings were considered "canon."  Then, he went through the writings of the people who were left, cutting and pasting, arranging by topic, and throwing a lot of stuff out.  Only what he left in counted as law.  That became the digest, and it's the most important legal work ever in the history of animals.

So what can we learn from all this?  Well, sometimes perfectly good methods for generating law, if left on too long, generate too much law.  And sometimes going through all that big mess of law and throwing out the bad stuff and keeping the good stuff works wonders.

This has a huge bearing on our society.  We don't have jurists, but we do have the common law, and the most unique characteristic of common law legal systems is that judges can make law.  Full stop.  When Americans talk about "the law," they aren't just talking about all the bills passed in all the legislatures, they're talking about every word every appellate judge has said since the 1700's.  And that's a lot of law!

Fortunately, library science has kept up -- who knows where we would be without computers -- but while we are physically capable of managing all that law, you can't help but wonder if all the expense is worth it.  When you hire a lawyer you are paying for him to subscribe to a service that collects and annotates all those cases, paying for him to search through all those cases, and paying for him to try to make sense of all of them and how they affect you.  It ain't cheap!  Multiply that by hundreds of thousands of lawyers and you get a lot of money being thrown after this stuff.

People are cognizant of this  I think, though it's hard to separate complaints that the law is too complicated (in this complex a society, probably inevitable) from the complaint that there is just too much of the damn stuff.  But even though people are aware of it, you almost never hear anyone propose Justinian's solution: let's just throw out a lot of the common law.  People have codified the common law before, but that process, while radical, normally clarifies that anything not intentionally changed in the common law still matters, and normally allows for past common law to interpret the new code, so it's not as radical as what I am suggesting: put together some panels,  decide what cases count and what don't, and move on, the vast bulk of American common law gutted from the system.  Will it be a political process?  Probably.  Will it run into due process and contract clause problems if it tries to be retroactive?  Yup.  Is it still worth doing?  I don't know!  But it's worth thinking about.

I suspect your opinion on the indeterminacy of the law -- how capable the law if of "forcing" outcomes to legal cases on judges and juries -- affects how you think about the Justinian solution.  If you think the law is pretty indeterminate, then all that common law floating around doesn't do much but complicate the process of judges making pragmatic policy decisions.  If you think the law forces decisions on judges, then all that common law floating out there should make decisions more automatic and easy, since so many cases have already been addressed.

Short blogging, I an't good at it.

The Supreme Court did not Destroy the Roman Republic

This is maybe the worst article I've read on the internet in a month.  The article's argument goes something like this: the supreme court overturned some recent limits on campaign spending, and American campaigns might get more expensive as a result.  The Roman Republic also had expensive campaigns during the first century BC.  Therefor, campaign spending might destroy our republic, as it did Rome.

Lots of problems with that, but the biggest is that campaign spending had very little to do with the fall of the Roman Republic.  The decades before the empire are largely a story of private armies fighting civil wars: First Marius raised a private army loyal to himself and dominated politics, than Sulla did, then Caesar and Pompey did, then they fought with their private armies and Caesar won, then Marc Antony and Augustus took Caesar's private army and killed the people who killed him, then they fought each other.  Finis rei publicae.  And those were just the big names, plenty of other people tried this "raise an army and take over" shtick.  For example, the article mentions Cicero as a dude who hypocritically fought for less campaign spending.  Which I guess he did?  But his most important act as Consul was to put down the Catalinarian conspiracy, a plot to -- you guessed it -- raise a private army and take over Rome.

The Republic fell for a lot of reasons, and I don't want to oversimplify this.  Roman politics at that time was an eddy of factionalism, ambition, and ideology as aristocrats fought demagogues (the optimates vs the populares)  provincials fought citizens (the social wars), and patronage networks fought for dominance (see Cicero's entire legal career).   But at the end of the day the Republic fell because individuals kept raising armies, starting civil wars, and seizing power.  It's just not a story about messy political campaigns --Caesar and the senate didn't fall out over a super PAC-- it's a story about powerful generals with access to loyal veterans and large fortunes jockeying for power.   Unless you have a much lower opinion of our officer corps than the average American, that is not going to be a problem here any time soon.