
Contradictions in Roman law left incurable headaches for its judges - diodorus
https://www.historytoday.com/history-matters/how-get-away-murder
======
hpoe
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.

~~~
cogman10
The law is less like source code and more like bytecode with the legal system
working as a constantly changing interpreter. Sure, the bytecode gets updated.
However, in this case, the interpreter is more often updated than the
bytecode.

Take, for example, the recent Title IX case in the US which ruled that someone
being trans is protected under title IX. When the law was first written, that
certainly wasn't the intention. Yet, the law was written in regards to sex.
Something that we as a society have had an evolving view on.

AFAIK, most legal systems (at least based on the British legal system) operate
in a very similar manner. Laws may be written, but ultimately the courts have
to decide what they mean. New laws can be written to correct for a courts
opinion, yet the courts are free to evolve what they think things mean over
time.

Laws are pretty much never as black and white as you might consider. There's
the text of the law, which matters, but theirs also the courts understanding
of the law, which also matters. In fact, prior court rulings on a law often
matter MORE than the actual text of the law.

~~~
crooked-v
I'd say the trans protections are one in a long-running series of examples of
US law being written in a clear-cut way that should have protected a given
group from the start, but nonetheless 'obviously' didn't at the time because
everyone knew what the lawmakers involved 'really' meant.

This dates all the way back to the Constitution, which from the very start had
a plain-text reading incompatible with slavery, and yet had a Bill of Rights
conveniently not applied to slaves because everybody knew what the writers
really meant by 'people'.

~~~
dragonwriter
> This dates all the way back to the Constitution, which from the very start
> had a plain-text reading incompatible with slavery,

Heh. No. Not only was it, from the start, not “incompatible with slavery”, but
it made direct accommodations for it and even explicitly protected the slave
trade _even against Constitutional amendments_ for a certain period.

From Art. I, Sec. 2: “Representatives and direct taxes shall be apportioned
among the several states which may be included within this union, according to
their respective numbers, which shall be determined by adding to the whole
number of free persons, including those bound to service for a term of years,
and excluding Indians not taxed, _three fifths of all other Persons_.”

Art. I, Sec. 9, cl. 1: “The migration _or importation_ of such persons as any
of the states now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not exceeding ten
dollars for each person.”

Art. IV, Sec. 2: “No person held to service or labor in one state, under the
laws thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but shall be
delivered up on claim of the party to whom such service or labor may be due.”

Art V: “…no amendment which may be made prior to the year one thousand eight
hundred and eight shall in any manner affect the first and fourth clauses in
the ninth section of the first article;…”

> yet had a Bill of Rights conveniently not applied to slaves because
> everybody knew what the writers really meant by 'people'

Every article in the Bill of Rights is a limitation on the federal government,
none protects against the states or against private parties, nor does any
contradict and thus overrule the direct and indirect protections of slavery
(including of the property interests of owners of fugitive slaves) and the
slave trade written in the plain text of the original Constitution. People
sometimes _now_ , after the 14th Amendment, casually make imprecise reference
to the Bill of Rights limiting the states, but it is actually the 14th
Amendments limitations on the states that courts have interpreted to apply
limitations equivalent to many of those in the Bill of Rights against the
States.

~~~
jandrese
Even back to the founding of the US slavery was a huge legal and moral
problem. It's pretty clear to a disinterested party that the entire system is
monstrous and incompatible with the concept of a free society, but at the same
time it's a huge industry with enormous political sway. Trying to form the US
without slavery means losing half of the states you are trying to pull into
the union.

------
solidsnack9000
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
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
You can still have a powerful enough state to enforce laws and not be a
dictatorship.

~~~
CameronNemo
The question is for how long. Many states have had a tendency to grow over
time.

~~~
greesil
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.

------
vmception
> 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
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.

------
ginko
>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
Roman Law is also the origin of the concept of the binding precedent: it is
known as _stare decisis_ (“remaining resolved”).

------
gumby
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.

------
supernova87a
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.

~~~
paganel
I used to be a great admirer of the US constitutional arrangements (even
though I'm not an US citizen and I've never been to the States), in fact I
have a paperback edition of the "Federalist Papers" on the bookshelves that
sit just behind me as I'm writing this comment, but lately I've come to see
things in a very different manner.

More exactly, I've come to realise that a legal/constitutional arrangement
that supports actual human slavery for 70-80 years after having been put in
place is maybe not that great to begin with, and I've also come to realise
that one of main reasons for its "PR success" during the last two centuries
was the fact that the US as a country got to be economically (and then
militarily) successful. It is a perfect example of "might makes right" (in
this case economic might). As a (failed) counter-example the legal system of
Haiti from the late 1790s-early 1800s was a lot more "illuministic" and "human
friendly" but because Haiti failed economically (and then politically) as a
state all that didn't matter in the end.

~~~
MockObject
> More exactly, I've come to realise that a legal/constitutional arrangement
> that supports actual human slavery for 70-80 years after having been put in
> place is maybe not that great to begin with

The alternative would have been forming the United States without the southern
states, because they would never have agreed to join. Then the Americas would
presumably have been too weak to win the War of 1812.

~~~
082349872349872
To be fair, the british had plenty of other things on their plate in 1812
(consider Tchaikovsky).

[https://en.wikipedia.org/wiki/Treaty_of_Ghent#Background](https://en.wikipedia.org/wiki/Treaty_of_Ghent#Background)

------
raister
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
> 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.

------
Areading314
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
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
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
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
Yep, you are right that the way our laws are enforced is irrational and
renders many of these concerns moot in practice.

------
asciimike
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_sy...](http://www.daviddfriedman.com/Academic/Course_Pages/legal_systems_very_different_12/LegalSystemsDraft.html)

------
emilfihlman
>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.

------
winrid
"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."

