Monday, May 31, 2010

29th May 2010

A ‘bonfire of laws’! How agreeable! But European law is sacred; government will make the final decision, whatever we say; and it cannot be sensibly done without a far more demanding operation.

The Lex Aquilia (after its proposer Aquilius, c. 287 BC) dealt with unlawful killing, and one section is devoted to ‘four-footed beasts of the class of cattle’. So which animals – apart from cows and bulls – are those? The Roman jurist Gaius (c. AD 160) attempted to answer. Sheep, goats, horses, mules and asses were indeed ‘classes of cattle’, he decided. Pigs? Yes, just. But not dogs, much less bears, lions and panthers. Elephants and camels? Wild they may be, he mused, but they were used as draught animals. So, on balance, yes.

This is, in fact, an extract from an amazing work, the Roman legal Digest ordered by the emperor Justinian and published in AD 533. It was condensed from the two thousand legal volumes written between the 1stC BC and the 3rdC AD by thirty-nine Roman jurists, including Gaius; compiled in three years by sixteen legal experts from all over the Roman world; and published in fifty volumes. The result was the definitive account of the whole of Roman private law. Further, Justinian realised that students would need a dumbed-down version to guide them through the big one. He therefore commissioned a digested Digest, the four-volume Institutes.

Practical people, the Romans. But a vital feature of the Digest is that, as Justinian said in his sonorous introduction, ‘in these books the law previously in force is briefly stated, as well as that which had fallen into disuse but has now been brought to light by the imperial authority’. And that is the point. Romans knew of the law’s tendency to lose itself in its own thickets. Even the famous XII Tables were originally X. Julius Caesar wanted to shrink the statute book, but was assassinated. The historian Tacitus wondered, since there were so many laws, why society was so corrupt; or was it that the more corrupt the society, the more laws were needed?

So before we make a bonfire, we need first to establish what is available for burning and what the implications are. Only a Digest will allow us to do that intelligently.

Saturday, May 22, 2010

15th May 2010

Paul Johnson recently wrote about the use of Athenian-style ostracism to send bores of one’s choice into exile. The device would better serve a hung parliament.

The point about Athenian ostracism is that it was not a random way of exiling anyone that any Athenian felt like, at any time. Had that been the case, Athens would have been emptied very quickly. It was purely political. Just once a year, the question was put to the sovereign decision-making assembly (all Athenian male citizens over 18) whether they wanted an ostracism. To judge from the very few that actually took place, it seems mostly to have been triggered when the assembly felt that its very existence was threatened (e.g. by advocates of tyranny) or its ability to reach important conclusion hampered by strong, rival factions. It was not, in other words, a judicial but an administrative act. The person so ostracised lost no property or rights; he was just asked not to come back for ten years.

But then the system failed. When the Athenians were discussing the invasion of Sicily (415 BC), there were deep divisions between the pro faction (youthful Alcibiades) and the anti (cagey Nicias). One Hyperbolus therefore proposed an ostracism, expecting (according to the historian Plutarch) that he would be a match for the one left standing. But Alcibiades and Nicias joined forces, and Hyperbolus was ostracised! It was never deployed again.

The relevance of the device to a hung parliament is obvious. The point of elections is to allow us our only chance to say who should govern us. It is clear that on this occasion, however, we do not want one party to do so. But we did not thereby give the major parties the right to engage in horse-trading: it is our right to choose our government, not theirs. So we should have the right, in a hung parliament, to vote immediately on which of the parties (from the three with the most seats) should not be permitted to help form the parliamentary majority. This ostracism would, for the life of the parliament, metaphorically exile from power whichever party we chose, and compel the others to get on with it. The people will have spoken.

Monday, May 3, 2010

1st May 2010

After failing to lay a glove on David Cameron in his pre-election interview, the professional personality Jeremy Paxman is said to have called him a ‘smooth bastard’, an admission of failure if ever there was one.

Paxman’s problem is that, being merely an interviewer, he is master of none of the technical problems on which he was challenging the Tory leader. It is a subject on which Socrates was eloquent. A principle that lies at the heart of Socratic thinking is that the precision with which one can describe the technical knowledge required in the practical business of e.g. pottery or carpentry should be applicable to talking about moral conduct too. So, we know precisely what goes into a good shoe and how it is made: what precisely goes into a good man, and how is he made?

In one dialogue he subjects the working of the Athenian Assembly to this style of analysis. When it dealt with technical matters, he says, the Assembly summoned technicians: building problems required builders, shipbuilding shipwrights, and so on; ‘and if anyone whom they do not regard as an expert tries to give them advice, they will have nothing to do with him, but will shout him down until he either gives up of his own accord or is dragged away by officials.’ But, Socrates goes on, when it is a matter of general policy, anyone can give his opinion, ‘carpenter, smith, cobbler, merchant or ship-owner, rich or poor, noble or low-born, and no one objects’. But what do they know to make them experts in this area?

Whither, then, Paxman? The fact is that his particular brand of bluster can no longer match the expertise of the party briefing machines. There are two possible solutions. Either Paxman yields place to a master of the technicalities to probe e.g. the economics of any proposals; or he goes into full Socratic overdrive, asking how one can tell what is good or bad in a policy, and how the interviewee can demonstrate that his policies in any area are good. Who knows, Paxman might even reach the agreeable Socratic conclusion that he was wiser than the interviewee to this extent that, unlike the interviewee, he knew he knew nothing. But somehow one doubts a professional personality could ever make such an admission.