The Law

The following is largely stol….I mean borrowed from Wikipedia with some additions and slight revisions by Win Lose or Draw. References to other scholarly works are also made.

Main Wikipedia article:  Legal History (http://en.wikipedia.org/wiki/Legal_history)

The SPD (Stupidest Possible Definition or Simplest Possible Definition, your choice): Law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Ideally all are equal before the law.

Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history.

Here are some famous quotes on the topic of law followed by brief commentary: 1. The author Anatole France said in 1894, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.” Apparently Anatole France suffered from a myopic vision when interpreting the necessary scope of equality before the law. 2.Writing in 350 BC, the Greek philosopher Aristotle declared, “The rule of law is better than the rule of any individual.” The modern Jaycees have, as one line of their eight line creed, “Government should be of laws rather than of men.” The main idea is that men should not be able to reinterpret the laws to fit their own personal and financial needs. 3. Mikhail Bakunin said: “All law has for its object to confirm and exalt into a system the exploitation of the workers by a ruling class”. If Mikhail Bakunin sounds like a radical socialist, that is because he was a radical socialist. Win Lose or Draw believes that all social changes should be more or less agreed upon by all parties. Win Lose or Draw rejects the need and/or advisability of social warfare except where no other recourse is available. 4. Cicero said “The more law, the less justice”. Cicero was born 2119 years ago, yet his ideals have been transferred very directly to modern America. European philosophers of the 1700’s, like John Locke, admired Cicero’s sentiments, and those, in turn, were the ideals adopted by Thomas Jefferson and the Founding Fathers. 5. Marxist doctrine asserts that law will not be required once the state has withered away. Win Lose or Draw believes that some laws should be reformed or repealed and that there will always be a role for the state.

Ancient world in the West

Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma’at, characterised by tradition, rhetorical speech, social equality and impartiality.

Win Lose or Draw Commentary inserted here: It is worth noting that the earliest known laws were designed to level society and preserve or promote equality. It is also worth noting that Ancient Asian and Islamic law echo these sentiments and overall goals.

 By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first law code, consisting of casuistic statements (“if… then…”). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae (large inscribed stones), for the entire public to see; this became known as the Codex Hammurabi.  An edited excerpt appears here: In the criminal code, the ruling principle was the lex talionis – Eye for eye, tooth for tooth, limb for limb. A sort of symbolic retaliation was the punishment for the offender. For instance, if anyone struck his or her father ancient Babylonians would have cut off his or her hand. Anyone who denied his or her father or mother or committed perjury would have forfeited his or her tongue. An eye that pried into forbidden secrets would have been removed. The slave who struck a freeman or denied his master lost an ear, the organ of hearing and symbol of obedience. A person who brought another into danger of death by false accusation was punished by death. Marriage contracts specified death by strangling, drowning, precipitation from a tower or pinnacle of the temple, or by the iron sword, for a wife’s repudiation of her husband. However, the commonest of all penalties in the ancient Sumerian world was a fine.  The restoration of goods appropriated, illegally bought, or damaged by neglect, was usually accompanied by a fine, giving it the form of multiple restoration. This might be double, treble, fourfold, fivefold, sixfold, tenfold, twelvefold, or even thirtyfold, according to the enormity of the offence or the prevailing sentiments of the judge.

Spoiler Alert: Win Lose or Draw advocates a broader application of fines as an option to be rejected or chosen by the victims, or surviving families of victims.

Ancient Athens, the small Greek city-state, was the first society based on broad inclusion of the citizenry, excluding women and the slave class. Ancient Greek has no word for “law” as an abstract concept, retaining instead the distinction between divine law (thémis), human decree (nomos) and custom (dík?). Yet Ancient Greek law contained major constitutional innovations in the development of democracy.

Several hundred years later the Eastern Roman Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before. This became known as the  . As one legal historian wrote, “Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before.”

Middle Ages

King John of England signs the Magna Carta

The two main traditions of modern European law are the codified legal systems of most of continental Europe, and the English tradition based on case law.

As nationalism grew in the 18th and 19th centuries, each country’s local and common laws began to be incorporated into that country’s civil codes. That trend continues today.

United States

The United States legal system developed primarily out of the English common law system.

Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government.

In Theocratic countries, such as many of the Islamic countries, religious laws have played a significant role even in settling of secular matters. Other countries have adopted the concept of Separation of Church and State.

Win Lose or Draw advocates the abolition of crimes without victims. So Win Lose or Draw agrees with the Libertarians on one (but not all) very important issue.

You have every right to swing your fist around as long as your fist does not impact anyone’s nose. That concept of freedom of action (and its restraints) is attributed to various famous people. Win Lose or Draw believes it was first formulated in the late 1700’s and early 1800’s by the philosopher Jeremy Bentham and his student, John Stuart Mill. If not “first” formulated at that time, then most significantly formulated in terms of the legacy of this concept and its direct impact on the thoughts of the American Founding Fathers.

What would happen if all criminal law could be reduced to one law: Thou shalt not do harm to any other, intend to do harm to any other, or be incapacitated so as to present the state of imminent danger to any other? The judges could hand out sentences based on years of established precedents, and, as I said above, they could give the victims (or surviving family) the choice between sending the perpetrator to jail or collecting a fine from the perpetrator.  

In a scholarly work entitled The End is Near and it’s Going to be Awesome, (pages 169-176) Kevin D. Williamson cites some scholars and their research. The point of these researchers (W. Eugene Hollon, Ronald Coase, and others) is that the wild, wild West was not as wild as it is usually portrayed, because people took care of their own problems. They had the force of Cultural Norms on their side. For instance, if Rancher A’s cattle trampled Farmer B’s crops, Farmer B might run the cattle up a remote canyon and leave them there. Most people would side with Farmer B. Eventually disputants would calm down and work out a mutually agreeable solution.

Win Lose or Draw Commentary: The point is that most conflicts are the result of misaligned self-interests. We do not need to rely on Courts full of money hungry lawyers to resolve these issues.  Suppose, instead, the Courts emailed disputants the relevant case law. Suppose the Courts set a meeting date after the disputants had time to review the relevant laws. Suppose the disputants met online on the set date and time. Suppose these online conversations were on the record and no name calling was allowed. Suppose a Court appointed clerk reviewed the transcripts to determine if a mutually acceptable agreement had been reached. If not, the Clerk would underline the relevant sections of the case law and set another date. A Judge might intervene by imposing a fine, and this process could go on Ad Infinitum. Eventually the disputants would calm down and agree to something in order that they could stop wasting their time or stop paying fines. We do not need to pay lawyers to resolve our disputes for us. Today (11/11/2013) there is a huge conflict brewing in the National Football League. One player quit the Miami Dolphins because of Bullying and Name calling by another player. The Commissioner, the Commentators, and the Players are all involved with this dispute, but they shouldn’t be. This is misaligned self-interests. One player wants to get more out of his teammates so his team can win more. The other player wants to be treated with more respect. Let those guys work it out themselves, and let the rest of us enjoy a cold beer and a good game.