Posted by: ken98 | August 29, 2011

More Roman Law, Roman Pork Barrel Politics, and Incoherent Arguments For NOT Abolishing Slavery

Day 715 – Ken here (M)(8-29-2011)
(DEF II, v.4, Ch.44, pp.800-810)(pages read: 1860)

The 1804 Edition of the Code Civil - France's (published, not amassed by precedent) Law of Private Actions (also known as the Napoleonic Code) - This version of Justinian's Code went on to influence and regularize a great deal of Europe's Civil Codes - and it all started today - from the decade of the thirties - the 530's that is -

The 1804 Edition of the Code Civil - France's (published, not amassed by precedent) Law of Private Actions (also known as the Napoleonic Code) - This version of Justinian's Code went on to influence and regularize a great deal of Europe's Civil Codes - and it all started today - from the decade of the thirties - the 530's that is -

Today is a day of more law, more opinion, and more (sometimes unwelcome) invitations to view Gibbon’s soul.

We start with an opinion on the reliability and accuracy of Justinian’s Code (Gibbon impression is that it’s unreliable, inaccurate, opportunistic and cavalier with justice and truth).

We briefly review the Novels (The Novellae – Justinian’s new laws created after he published the Code – to alter and improve it – apparently the insertion of many carefully-crafted, minute loopholes and what we’d call a pork-barrel-politics into the Code, during the last 30 years of his reign).

Then we look in detail at the Institutes (the “official, imperial” textbook of Roman law that Justinian published at the same time as his new Code), starting with the first of the four divisions of the Institutes (Persons, Things, Actions, Private Wrongs and Criminal Law).

Note – in Roman Civil Law, what we call private civil actions are written out/down in a CODE, unlike our Common Civil Law in the U.S. (inherited from the U.K.) where Civil Law is developed by judges/juries over time and ruled by precedent – that is the opinions of the preceding judges are the law – not written words enshrined in a Civil Code (like Roman/European/etc Civil Law). That’s a strong difference between Criminal and Civil suits – in Roman Law its ALL written down).

Of course, reviewing Roman Law gives Gibbon an all-too-ample opportunity to comment on the sad state of affairs plebeian (read: the common people’s) control of government ALWAYS BRINGS. ALWAYS. Being a commoner, in a nation of commoners, in a Republic without titled gentry, I take some offense at these suggestions. In fact, his comments, spoken directly into the face of an American (this is after all, 1788 – the year he published Volume 4 – and some five years after the American Colonies gained their independence) would have resulted in a duel – I’m sure of it. Gibbon gets a little carried away. No, a lot carried away. You’ll see…

I now invite any interested readers to begin to vigorously wade with me deep into various and (what’s more the pity) unavoidable mud-puddles of Late Eighteenth Century Prejudice

The Story
 
Thoughts on the Code – Some Praise, Mostly Criticism
 
  • One would think that the CODE – a list (compiled by Tribonian’s Law Commission) of all NOW RELEVANT Roman Law (to Justinian’s time) would be an impartial, accurate list of laws made under the Republic and by previous Emperors – but apparently IT IS NOT
  • In comparison to ancient texts we have, Tribonian’s et al IMPROVED the wording of the laws, in addition to deleting useless, irrelevant, and duplicate ones – IN EFFECT, writing out the old laws with NEW WORDS
  • which on the face of it, is perfectly natural – this is after all Justinian’s Code – but it scandalizes Gibbon
  • Remembering Gibbon is English and has a NATURAL ENGLISH AVERSION to ROMAN CIVIL LAW – even tho he loves France and Switzerland – Eur countries that make use of Roman Civil Law
  • Gibbon denigrates the antinomies – ie contradictory laws – often found in contradictions between the Digest (Theory) and Code (List/Text of laws)
  •  

    Life of the Code – Its Subsequent History
     
  • All of our copies of Justinian’s Pandects (Digest) derive from ONE SOLE SURVIVING MANUSCRIPT – copied in Constantinople (by hand, onto parchement) in the beginning of the 600’s – then brought by war, etc to Amalfi (one of the early Italian naval-power-city-states, eg. Pisa, Genoa, Venice), then to Pisa (by war/conquest), then to Florence (by war, etc) where it became to MASTER COPY that all Europe used – how tenuous the survival of this manuscript, as if by a thread
  • Gibbon notes and hates the practice of taking old classics (Terence, Socrates), scraping the old (and very expensive) calf-skin parchments clean (think of books/book pages made out of leather/calfskin), and re-using them to write a modern (11th cent) romantic poem – this is a palimpsest – palin=again,psao=scrape – this is the interesting and obscure, and maybe painful title of Gore Vidal’s auto-biography – “Palimpsest”
  •  

    Inconsistencies in Justinian’s Code
     
  • The Novellae – the Novels (issued 534 – 565) or new laws were issued for the next 30 years
  • I’d always assumed these were just that – new laws – makes sense you’d need new laws after the initial Code was published
  • But these just weren’t always NEW, they were “CORRECTIONS” and in the U.S. we know what corrections are – its Pork Barrel Politics – ie private persons dining at the public trough through the means of “legal” laws – our tax code is an example –
  • Of course, tinkering with the tax code is also a way of legislating morality or leg. the public good – the mortgage deduction in the U.S. is an ex. of that – encouraging citizens to own property – so maybe not ALL the Novellae would be a bad thing
  • Gibbon gives the example of a monastery wanting to take back some property, (in Syria) and Syrian property owners protesting that a statute of limitations (40 yrs) was up, the monastery couldn’t sue for the property – Just. made a new law, church actions had a new, retroactive statute of limitations – 100 yrs – this is actually a law in one of the 168 NOVELS
  • Gibbon – in a fit of Justinian-hating (and admitting he’s getting all this from the Justinian-hating-historian Procopius) says he SOLD such new laws – he was bribed to do it – which sounds like a lot of hokey to me – why the lord of the known universe (Roman Emperor) would be capable of being bribed – I don’t know – or maybe Just is accused of a corrupt administration (a la Pres. Ulysses S. Grant) – who knows?
  •  

    The Institutes (Textbook) – Overview
     
  • A textbook, taken often line by line from a textbook (Institutes) of Gaius from the mid 100’s
  • Four Parts to INTRO TO ROMAN LAW (which is what the Institutes were)
  • (1) Of Persons
  • (2) Of Things
  • (3) Of Actions
  • (4) Of Private Actions and Criminal Law
  • Gibbon now gives a brief review of these things in the Institutes
  •  

    The Institutes (Textbook) – I – Persons: Slave, Freedman, Common, Patrician
     
  • Only distinction in Roman Law = Slave, Freedman, Citizen – all citizens were equal – supp. in the law
  • Freedman was a ONE GENERATION thing – you were a slave, then you were freed, thus a freedman, but your children were just citizens, not freedman – otherwise, citizens’ children were citizens, slaves’ children were slaves
  • Gibbon TAKES GREAT OFFENSE at the fact that Roman Law did not differentiate the GENTLEMAN (or patrician) from the COMMON HERD
  • in actuality – the old difference between non-citizen and citizen (ie like Paul in the Gospels, being a Roman citizen had definite benefits in the empire over being just a tribute-paying subject)
  • later, around 200 CE, ALL PEOPLE were made citizens, then the differentiation became beteween the BETTER sorts (those with titles – like Senators) and everyone else – you got much better treatment as a Senator than you did as a lowly goat-herd – later this would be even more pronounced – as under Diocletian – when the coloni – or man tied to the soil/jobs almost like serfs or slaves – had much less rights than the titled men (nobilissimi, etc) who were the upper class in the empire
  • so altho the LAW appeared blind, in actuality classes were treated differently
  •  

    The Institutes (Textbook) – I – Fathers and Sons
     
  • Roman Law – the sons and daughters of a man (and his wife) were THINGS – he could do with them as he wished – total control over their persons/wealth/life etc
  • This came from the center of the household with the household gods/ancestors being worshiped by the family – each family was its own religion and had ONE high priest – the father – so naturally, the basis of property was based on religion and gave the father responsibility for all things/persons under his care – the father alone could officiate at the household hearth – as the pater familias
  • Tho the religion was forgotten, the power of the father lived on – until it was gradually reduced under the later Republic
  • example – the father owned all of the property and all of a sons income and could sell the son into slavery if he wanted to make money – in order for a father to release a son from his control a son had to be sold into slavery and returned 3 times – the 3rd time he was his own person — this is the reason you sometimes hear (in a Nat Pub Tele special on Rome) a father sometimes saying he has to go thru the formality of “selling” his son to legally make him an “independent” man
  •  

     

     
     
     

    A Scene of Common-ality - William Hogarth's cartoon Gin Lane (1751 without its companion cartoon Beer Street - where life is beautiful all the time) - who in his right mind would WANT to be COMMON?

    A Scene of Common-ality - William Hogarth's cartoon Gin Lane (1751 without its companion cartoon Beer Street - where life is beautiful all the time) - who in his right mind would WANT to be COMMON?

    Last Word…

     

    Quotable Gibbon: The Common People are SO COMMON
     

     
    Which inevitably begs the question – How Common Are They? Gibbon has a lengthy, well-written, witty, but curiously, and ultimately self-fouling answer to the commonness of the Commons.

    I will leave Gibbon to speak for himself, with a few asides sprinkled betwixt and between.

    The Abuse Of Manumissions, and the Unhappiness of Masters Without Absolute Dominion Over Their Bondsmen
    Or
    Why Abolishing Class Distinctions and, well, Slavery Is Just NOT A GOOD THING

    The distinction of ranks and persons is the firmest basis of a mixed and limited government.

    In France, the remains of liberty are kept alive by the spirit, the honours, and even the prejudices, of fifty thousand nobles. Two hundred families supply, in lineal descent, the second branch of English legislature, which maintains, between the king and commons, the balance of the constitution.

    A gradation of patricians and plebeians, of strangers and subjects, has supported the aristocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens.

    In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth, or the memory of famous ancestors. He delighted to honor, with titles and emoluments, his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children.

    But in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name.

    The voice of a Roman could no longer enact his laws, or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master: and the bold adventurer from Germany or Arabia was admitted, with equal favor, to the civil and military command, which the citizen alone had been once entitled to assume over the conquests of his fathers.

    The first Caesars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the condition of the mother; and the candor of the laws was satisfied, if her freedom could be ascertained, during a single moment, between the conception and the delivery.

    The slaves, who were liberated by a generous master, immediately entered into the middle class of libertines or freedmen; but they could never be enfranchised from the duties of obedience and gratitude; whatever were the fruits of their industry, their patron and his family inherited the third part; or even the whole of their fortune, if they died without children and without a testament.

    Justinian respected the rights of patrons; but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor.

    Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude.

    Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education. But the hardships of this dependent state were continually diminished by the influence of government and religion: and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman.

    (DEF II, Vol.4, Ch.44, pp.806-807)

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