A Boring History Spiel
8/4/12 01:22![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
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talkpoliticsSome recent conversations and issues pertaining to law and the Constitution got me thinking about some stuff that had come up in my leisurely studies of ancient human history and custom. Not that anyone cares, but here is some boring stuff having to do with our monthly topic:
What is the law? People have many different answers. How many? I don't know, I haven't counted, but it isn't terribly important right now. Why did you even ask that question? It has nothing to do with it really... but I digress.
While I am sure there are many fascinating conceptual and philosophical answers to the question, I present merely the actual history of what law actually is, in history, as I said. Didn't you hear me? Come on, you've got to listen to me when I'm speaking. But I digress...
Anyways, back in the olden days, when I was a lad about yea-high to a stick, we had elders. Some might call them tribal leaders. And these wise men and elders settled disputes and judged among their people the proper resolutions to various conflicts and contentions. As society grew, the burden of such administration grew too onerous for the leaders, chieftans and kings, so they delegated. What the king said for one thing could actually apply to many different situations. The appointed helpers, we shall call them "lawyers", would astutely deduce the will of the sovereign King through ingenious use of precedent and reason.
So in this way we see how "law" became a time-saving, labor-reducing, stream-lining of the hard work of going through and sitting there and listening to every schmuck and schmoe with a jerk neighbor who tilled his field across the line. It's all just so boring and dull and I don't really give a shit, I'm the King and I got wars to fight dammit.
A way to explain it simply: in the beginning, "lawyers" deduced the will of the King in any given situation by reviewing what the King said before about that one thing that kind of is the same as this other thing.
The form of the "law" in these days was simply the recordings of oral judgments uttered by the sovereign heads of state, duly guided by the Divine, and emanating from the proper and righteous authority therein. That is, law had it's entire basis in the fact that The Guy In Charge Said It. This is simply the actual, historical, origin of "law".
It was not an abstract thing, or really all that philosophical. Sure, a king here or there was worried about truth, or ethics or some fuzzy idea called "justice", but for the most part, the Law was simply What The King Said And That's Final. All justification and authority derived from a person who had authority.
But, as we all know, this is not the case today, now is it? No it isn't. Today we are very much enamored of this idea that the law is some kind of ethereal, metaphysical equation involving a search for truth and good. That there exists in the great ether some sense of What Is Just, and we just have to figure it out. The modern application of this concept is "The Rule of Law". It is in this modern concept that the law becomes divorced from any given authority, and is left to grasp about in metaphysical speculations and abstract justifications.
The American Constitution somewhat straddles these ideals. Implicit within our Constitution is the idea that it's authority is derived not from a person or authority per se, but from "The People", who are the sovereign agents, properly guided by the Divine, and blah blah blah. But there remains a tension between our Platonic sense of The Law and our Authoritarian sense of The Law. For we have come through many eras of history and have learned that we can't really trust anybody with The Power To Say So, so we'll all just pretend that our Laws are actually Really Very Good And True In The Pure Objective Sense.
A way to explain it simply: Now lawyers deduce what is right by the cunning use of disputation in the belief that whomever wins an argument determines the just decisions by way of reason and argumentation. No longer do we ask, "What Would The King Do?" We ask, "What kind of crazy abstract principle can I conjure forth from the void to back-up my arguments?"
The problem is, however, that without a clear, accountable, known and actual authority, law soon loses any sense of accountability, and the aforementioned "lawyers" take advantage of that fact. Soon the law simply becomes grounded in whatever ass-picked justification we can successfully leverage against our opponent. Or the law becomes the de facto province of specialized "lawyers" who control all the avenues of redress. Either way, a system of law without an actual Authority is little more than a game of Sophistic contests and power plays.
So in a sense, our modern world is at the crux of the worst of both worlds. All the uncompromising and arbitrary tyranny of I Said So, along with all the bureaucratic, arcane, opaque gamesmanship of professional practice. The point is, we don't really have anyone or anything in charge, no King or person to blame, to hold accountable or do anything with really, and soon enough what started out as the honest attempt at maintaining communal harmony is just a game of power and influence.
This, in a nutshell, is what the Old Testament is about.
What is the law? People have many different answers. How many? I don't know, I haven't counted, but it isn't terribly important right now. Why did you even ask that question? It has nothing to do with it really... but I digress.
While I am sure there are many fascinating conceptual and philosophical answers to the question, I present merely the actual history of what law actually is, in history, as I said. Didn't you hear me? Come on, you've got to listen to me when I'm speaking. But I digress...
Anyways, back in the olden days, when I was a lad about yea-high to a stick, we had elders. Some might call them tribal leaders. And these wise men and elders settled disputes and judged among their people the proper resolutions to various conflicts and contentions. As society grew, the burden of such administration grew too onerous for the leaders, chieftans and kings, so they delegated. What the king said for one thing could actually apply to many different situations. The appointed helpers, we shall call them "lawyers", would astutely deduce the will of the sovereign King through ingenious use of precedent and reason.
So in this way we see how "law" became a time-saving, labor-reducing, stream-lining of the hard work of going through and sitting there and listening to every schmuck and schmoe with a jerk neighbor who tilled his field across the line. It's all just so boring and dull and I don't really give a shit, I'm the King and I got wars to fight dammit.
A way to explain it simply: in the beginning, "lawyers" deduced the will of the King in any given situation by reviewing what the King said before about that one thing that kind of is the same as this other thing.
The form of the "law" in these days was simply the recordings of oral judgments uttered by the sovereign heads of state, duly guided by the Divine, and emanating from the proper and righteous authority therein. That is, law had it's entire basis in the fact that The Guy In Charge Said It. This is simply the actual, historical, origin of "law".
It was not an abstract thing, or really all that philosophical. Sure, a king here or there was worried about truth, or ethics or some fuzzy idea called "justice", but for the most part, the Law was simply What The King Said And That's Final. All justification and authority derived from a person who had authority.
But, as we all know, this is not the case today, now is it? No it isn't. Today we are very much enamored of this idea that the law is some kind of ethereal, metaphysical equation involving a search for truth and good. That there exists in the great ether some sense of What Is Just, and we just have to figure it out. The modern application of this concept is "The Rule of Law". It is in this modern concept that the law becomes divorced from any given authority, and is left to grasp about in metaphysical speculations and abstract justifications.
The American Constitution somewhat straddles these ideals. Implicit within our Constitution is the idea that it's authority is derived not from a person or authority per se, but from "The People", who are the sovereign agents, properly guided by the Divine, and blah blah blah. But there remains a tension between our Platonic sense of The Law and our Authoritarian sense of The Law. For we have come through many eras of history and have learned that we can't really trust anybody with The Power To Say So, so we'll all just pretend that our Laws are actually Really Very Good And True In The Pure Objective Sense.
A way to explain it simply: Now lawyers deduce what is right by the cunning use of disputation in the belief that whomever wins an argument determines the just decisions by way of reason and argumentation. No longer do we ask, "What Would The King Do?" We ask, "What kind of crazy abstract principle can I conjure forth from the void to back-up my arguments?"
The problem is, however, that without a clear, accountable, known and actual authority, law soon loses any sense of accountability, and the aforementioned "lawyers" take advantage of that fact. Soon the law simply becomes grounded in whatever ass-picked justification we can successfully leverage against our opponent. Or the law becomes the de facto province of specialized "lawyers" who control all the avenues of redress. Either way, a system of law without an actual Authority is little more than a game of Sophistic contests and power plays.
So in a sense, our modern world is at the crux of the worst of both worlds. All the uncompromising and arbitrary tyranny of I Said So, along with all the bureaucratic, arcane, opaque gamesmanship of professional practice. The point is, we don't really have anyone or anything in charge, no King or person to blame, to hold accountable or do anything with really, and soon enough what started out as the honest attempt at maintaining communal harmony is just a game of power and influence.
This, in a nutshell, is what the Old Testament is about.
(no subject)
Date: 8/4/12 06:57 (UTC)Although the OT does present an ultimate authority above the King.
(no subject)
Date: 8/4/12 07:02 (UTC)(no subject)
Date: 8/4/12 07:33 (UTC)(no subject)
Date: 8/4/12 07:38 (UTC)(no subject)
Date: 8/4/12 14:49 (UTC)1 Samuel 8:6,7: But the thing displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the LORD. And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.
Isaiah 29:13: Wherefore the Lord said, Forasmuch as this people draw near me with their mouth, and with their lips do honour me, but have removed their heart far from me, and their fear toward me is taught by the precept of men
(no subject)
Date: 8/4/12 18:21 (UTC)(no subject)
Date: 8/4/12 20:55 (UTC)(no subject)
Date: 8/4/12 12:13 (UTC)What you've done here is taken a kind of Austinian/Hobbesian view of what the law is and posed a hypothetical history that's consistent with this view of what the law is. But in fact - at least if you're looking to the legal traditions that ultimately helped to determine English law, which is American law's immediate forebear - law in Europe was, for a period of time, a realm of overlapping sovereigns. Kings weren't, generally speaking, much interested in the day-to-day lives of their peasants; law, as far as they were concerned, had to do with determining matters of statecraft - funding the monarchy, raising armies, and the like. As the Church became more powerful, it became responsible for matters relating to the family - recording births, authorizing marriages, etc. - religion, and increasingly what we would consider the realm of "criminal law." And then local communities were primarily responsible for what we would consider the day-to-day matters of governing behavior, resolving disputes, righting wrongs, and so on.
That picture started to change as kings and emperors became more interested in systematizing their rule and, partly by doing so, defining their realms as of a single, homogeneous legal jurisdiction. This was done both to consolidate power and to counteract the growing power of the Church. That continued until about the 19th century, when (along with the wave of revolutions that occurred in continental Europe in that century) there was a general move toward codification of the law - massive projects that placed Europe firmly in what we now call the "civil law" tradition, modeled after ancient Roman forebears. Why England never went that route, I don't know.
Now lawyers deduce what is right by the cunning use of disputation in the belief that whomever wins an argument determines the just decisions by way of reason and argumentation. No longer do we ask, "What Would The King Do?" We ask, "What kind of crazy abstract principle can I conjure forth from the void to back-up my arguments?"
I don't think this is right. As a descriptive matter of American law, it's simply wrong - lawyers and people trying to conform their behavior to legal standards don't just come up with "crazy abstract principles" that justify their behavior; they develop those principles and evaluate their worth in a dialectic with the explicit legal standards of the system. To put it in Dworkin's terms, they think and care about "fit," because that is partly how their "crazy abstract principles" would ultimately be evaluated by the courts.
It is true that unsettled areas of law are often disputed by way of making ingenious arguments, which can sometimes result in unforeseen legal developments over time as courts pick and choose which ingenious arguments have the most merit. But once announced, once "settled," so to speak, by the courts, the legal pronouncement becomes a part of our law and so satisfies exactly that condition you think our system lacks. That is, it becomes the authoritative pronouncement of a legal system that we can hold accountable and reform, to the extent desired. A judicial decision can be revised via the legislative process, on matters of statutory law, on via the constitutional process, on matters of constitutional law.
(no subject)
Date: 8/4/12 18:20 (UTC)I'm not very interested in European history. It is far too recent and modern to be very interesting. I'm talking about thousands of years BC mostly, from the earliest sources and research we have available, about how law came to be in human society utilizing the work of Assyriologists and such.
What you've done here is taken a kind of Austinian/Hobbesian view of what the law is and posed a hypothetical history that's consistent with this view of what the law is.
Nah, I don't really care about the philosophical stuff here. I've taken introductory history of ancient Sumer, Babylon and Assyria and rehashed it, because I found it interesting, and believe that the patterns of known Western society were largely laid down during these times. Like I said, I skipped the European part because it is uninteresting and is the same sort of evolution as American stuff. I haven't looked much into the Far Eastern evolution and their Neolithic counterparts either, most just because there is less easy access to such. It's a bitch trying to find good parallel histories about Indian and Chinese Neolithic eras.
I don't think this is right. As a descriptive matter of American law, it's simply wrong - lawyers and people trying to conform their behavior to legal standards don't just come up with "crazy abstract principles" that justify their behavior; they develop those principles and evaluate their worth in a dialectic with the explicit legal standards of the system.
Oh I'm sure they do, but these explicit legal standards themselves are just sort of crazy random anyways.
To put it in Dworkin's terms, they think and care about "fit," because that is partly how their "crazy abstract principles" would ultimately be evaluated by the courts.
Right. They care about fit and other weird stuff. Or "how the courts would evaluate it", but this isn't a counter-point to what I've said at all. It neatly demonstrates, in fact, that it is no longer about the will of a sovereign or anything, its just about how it fits with what the bureaucracy has accumulated over time.
(no subject)
Date: 8/4/12 19:21 (UTC)Well, then, you're not really interested in talking about American law. Whether we can really trace a single legal tradition from Assyria to the United States is beyond my expertise, but certainly the European legal tradition is a link in any such possible tradition, and can't be just ignored as "uninteresting" or irrelevant to the hypothetical history you've drawn up.
I've taken introductory history of ancient Sumer, Babylon and Assyria and rehashed it, because I found it interesting, and believe that the patterns of known Western society were largely laid down during these times. Like I said, I skipped the European part because it is uninteresting and is the same sort of evolution as American stuff.
Again, this is a kind of strange far-sightedness. Are you saying that the United States' legal system owes more to ancient Sumer, Babylon, and Assyria than it does to the last thousand years or so of European legal history?
Oh I'm sure they do, but these explicit legal standards themselves are just sort of crazy random anyways.
I'm not sure that they are, but recall that your argument is that contemporary U.S. law simply lacks anything we can properly describe as "authority." If the legal system turns out to be explicit in what it requires, despite being somewhat random, how can it lack such authority?
It neatly demonstrates, in fact, that it is no longer about the will of a sovereign or anything, its just about how it fits with what the bureaucracy has accumulated over time.
Well, it's wrong to distinguish between "the will of a sovereign" and "what the bureaucracy has accumulated over time." In a legal system such as our own, these things are essentially the same.
(no subject)
Date: 8/4/12 19:28 (UTC)Oh sure it is strange. I tend to view history at sub-glacial timescales. It annoys me when people ask what I'm interested in for Christmas, and I say "history", and they get me another book about the 18th century. That is like, yesterday people, that ain't history!
To answer your question, I'd say that the last thousand years of European history is a variation on a theme, or an iteration of a logic, that is interesting in its own right, but we're all babies of the same mother.
I'm not sure that they are, but recall that your argument is that contemporary U.S. law simply lacks anything we can properly describe as "authority." If the legal system turns out to be explicit in what it requires, despite being somewhat random, how can it lack such authority?
Sure it is a kind of authority, but it's not actual authority. It makes as much sense as fundamentalists calling the Bible and "authority". No, it's not an authority, it's friggin book. People have authority. Books are just reflections of that. But you take away the people, and you replace the real thing with the reflection, and you've got hilarious theological hermeneutics that give us crazy things like snake-handling.
Well, it's wrong to distinguish between "the will of a sovereign" and "what the bureaucracy has accumulated over time." In a legal system such as our own, these things are essentially the same.
Functionally they're the same. But they're not really the same. One is pretending to be something it isn't. That is, an actual person from which authority derives... not a book.
(no subject)
Date: 8/4/12 18:35 (UTC)(no subject)
Date: 8/4/12 20:58 (UTC)