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Post 20

Wednesday, October 7, 2009 - 5:28pmSanction this postReply
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Jon:

When does objective law date to?

5th century BC, then?


Well written law predates that. The Code of Hammurabi dates to 18th century BC

http://en.wikipedia.org/wiki/Code_of_Hammurabi

The laws of Hammurabi seem pretty nutty though. Such as: "If a man strikes a pregnant woman, thereby causing her to miscarry and die, the assailant's daughter shall be put to death."


(Edited by John Armaos on 10/07, 5:33pm)


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Post 21

Wednesday, October 7, 2009 - 8:01pmSanction this postReply
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If you are correct, John, then objective law predates cities and is no invention of civilized man.

Even the law you quoted meets one of Rand’s descriptions of objective law, as given by Ted above* (and what I have always thought “objective law” meant): one can know whether an act is prohibited and what will happen following a violation.


* In his post 12, at the start of his list: “men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.” [Rand]




(Edited by Jon Letendre on 10/07, 8:06pm)


Post 22

Wednesday, October 7, 2009 - 8:14pmSanction this postReply
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Although written down, the code of Hammurabi was the edict of an absolute ruler, not a code of objective law. Objective law is law based on principle, not on personality or whim. The appeal to "the rule of law" is an appeal to objective law, not the rule of men. Rules like the prohibition against ex post facto law are based on the principle that the principle rules, not the decision of the magistrate after the fact.

Roman law was defined. There were clear charges for defined crimes with rules of evidence and procedure and set punishments. See Rand on this above. Roman law was not perfect, but the absence of perfection no more disqualifies law as law than it does engineering as engineering or medicine as medicine. Law is an applied science. Objective law allows for a method of change and the adoption of new law. What matters most in objective law is equality before the law and impartial procedure. Early Roman law was flawed in that it recognized social classes, but it evolved toward the equality of all citizens and it was admirably impartial.

The code of Hammurabi is progress over unwritten law. The law, not being secret, is not so easily evaded by the ruled or the rulers. But the code of Hammurabi was his code, issued on his authority. Hammurabi stood in the place of high priest, like Akhenaton, like Moses, like the Pope. The principle that the law is a truth above rulers whether men or divine was not yet achieved. Hammurabi's is not the only code we have from his era. It was each ruler's prerogative to issues his own code. It was law by edict, by ukase, by directive, by presidential order.

There is also the matter of civil law. Roman private law "is the most original product of the Roman mind." (Introduction to Roman Law, H L A Hart, editor, Clarendon Law Series, Oxford.) Rome's achievement parallels that of the United States. With an area half that of the fifty states, Rome is estimated to have had some 65 million inhabitants in 117 AD. (Estimates vary from 45 to 120 million.) There were 4,063,000 citizens in the 28 BC census. That number was up almost 25% to 4,937,000 in the 14 AD census. Shipwrecks in the year 700 number 2% percent of the of those during the height of the empire. This is due to a 98% decrease in trade, not a 5000% increase in safety. Clearly, Roman law was more than just "consistent."

Post 23

Wednesday, October 7, 2009 - 8:19pmSanction this postReply
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So Objective law requires a Republican form of government to create it since an edict by an absolute ruler is not an Objective law.

So Republican form of government is the greatest invention of civilized man?

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Post 24

Wednesday, October 7, 2009 - 8:32pmSanction this postReply
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“Although written down, the code of Hammurabi was the edict of an absolute ruler, not a code of objective law. Objective law is law based on principle, not on personality or whim. The appeal to "the rule of law" is an appeal to objective law, not the rule of men.” [Ted]

John’s Hammurabi example looks very much like a codified objective law to me. How is the prohibition against a man striking a pregnant woman a law based on the personality of a ruler, as opposed to principled and objective?


Post 25

Wednesday, October 7, 2009 - 8:58pmSanction this postReply
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The argument "Hammurabi's code is written down, Objective law is written down, therefore Hammurabi's code is objective law is" not sound logic. It formally equivalent to saying dogs are mammals, horses are mammals, therefore dogs are horses.

Neither does it follow that if the edict of an absolute ruler is not objective law then the edict of a non-absolute ruler is objective law. This is the same as saying if dead birds cant fly and cats are not dead birds then cats can fly.

An absolute ruler could pick up the US Constitution and say it is the law. He would then either cease to be an absolute ruler, or he would be able to change his mind and institute the code of Hammurabi. The law is not a bunch of words in a book, a bunch of scribbles carved in a rock. It is the set of principles a state actively instantiates and by which it rules itself. It does not matter what is written in our books today if men chose to act otherwise. If a policeman turns his head, if a Congressman ignores his oath, if the law is not the law then the words do not matter. There is no claim that Rome was perfect or that Hammurabi having his code written down was not good. The claim is that Rome had something new that Hammurabi did not. The proof lies in Rome's unprecedented growth, longevity and material success and that the United States, in patterning its laws after the best precedents of Rome and England repeated that success.

English Law, which is essentially objective, was not produced by a republic.

I really suggest reading some relevant sources like Paterson and Durant and basing the discussion on that. Making statements about a complex human institution like Roman law based on floating deductions like this, even if they were valid, is rationalism. Thanks to Ryan, here is a direct link to Paterson for those who do not have THE GOD OF THE MACHINE

Post 26

Wednesday, October 7, 2009 - 9:12pmSanction this postReply
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From "The Power of Ideas" (pp 18-20)
of The God of the Machine

Science is the rule of reason. Instead of being resigned to
inexorable destiny or blind chance, it might
be possible, by discerning the causation of events, to order
them at will, and bring about what men desire. An abstraction
will move a mountain; nothing can withstand an idea. The
Greeks had found the lever.

Apparently events mocked them. While they philosophized,
the mountain moved of itself in an avalanche; Rome over-
powered them. On the face of it, this would seem a victory
of gross substance, a refutation of the concealed premise of
the superiority of mind over matter. It was not; on the con-
trary, even in its immediate incidence it was a vindication
of the intellect. Rome had evolved an abstraction, a political
concept, which was likewise among the universals. Rome had
the idea of law.

All nations have had laws; the most primitive sav-
ages were bound by custom, and a binding custom is a
law. A taboo is a petrified law. Primitive peoples believe
that their laws are permanent even though arbitrary, like
"the law of the Medes and Persians, which altereth not."

The effective meaning is that custom may alter only by
imperceptible degrees, if it is to remain valid. Custom cannot
be new. The attendant drawback is that if a ruling custom is
broken abruptly, no substitute is at once available. What may
happen, by war, pestilence, or migration, or even by innova-
tions otherwise beneficial, is a period of confusion, in which
habit is interrupted and expedients tried; but the resultant
institutions cannot endure unless they are imbued with tra-
ditional sentiments. Of course the fabric of tradition is never
wholly destroyed. However, since custom cannot meet change
quickly, and above an elementary level of culture there will
be occasional necessity for deciding a course of action which
must affect the group, an informal council and a leader com-
prise the obvious development. These seem to suffice for a
nomad band of hunters. The next stage, either the pastoral
nomad, or primitive agriculture, calls for more definite or-
ganization of a permanent character 3 to secure continuity,
the chief's position was allowed to become more or less
hereditary, with the patriarchal clan system. The clan was a
permanent family. Many languages still testify to this con-
cept. If a distinction is to be drawn between a chief and a
king, by modern usage it would consist in the degree of
formal organization, marked by the appointment or recogni-
tion of officials with fixed rank and specified duties. The
simultaneous evolution, alongside of secular government, of
a priesthood with moral authority, is to be observed. It had
its own significance. "Division of powers," or opposed agen-
cies of moral authority and physical power, is a natural
feature of society -y hence it is also necessary in the form of
government to secure stability.

But all of these forms of association were effective only in
appropriate conditions, and had their innate defects. Custom
could not deal with the unexpected. Leadership will not serve
with organized institutions. Monarchy becomes despotic. Each
tyfe of association is suitable to a certain mode of conversion
of energyy and will either break down or become fused into
rigidity when it is made to receive a higher potential than
it can accommodate.

When a nation has experienced the conditions in which
custom is proved perishable, leadership disastrous, and mon-
archy oppressive, reason must define the prime source of
authority, to invest it with viable form.

By such a sequence, probably foreshortened, Rome be-
came a political laboratory. What went into the crucible must
be deduced from the myths, legends, traditions, and institu-
tions which took shape in the obscure centuries of the city's
early history. It does not appear that Rome was ever primi-
tively barbaric, if the city had its inception in trade, using
money, (Familiarity with the function of money enabled
Rome to govern an empire in due course. It is said that
the Spartans, being unaccustomed to money, were quickly
demoralized when they abandoned their bare subsistence
economy. They could not maintain the minimum of honesty
in contractual relations, having been bred to communism. At
the lowest level, they didn't even understand the limits of graft.)
and holding land as private property; these are elements of
an advanced civilization. And the fables are frequently inconsistent,
as would be the case if they were partly
imported and intermingled. Such tales as those of Romulus
and Remus and the rape of the Sabine women cannot be
accepted literally; nor need they be of local origin. Bride
stealing belongs to a barbaric culture, in which it is no dis-
honor. The belief that the she-wolf suckled Rome must be
still older, and might be derived from a savage totem; but
not necessarily, for when Europe was barbarian, an outlaw
was a "wolf's-head," a very ancient figure of speech. The
suggestion in all three stories is that Rome was always more
or less an open city, admitting refugees, exiles, or immigrants.
They would bring in varied customs which must be recon-
ciled under general rules.

In any event, the feature of asylum certainly became in-
corporated in the Roman social and legal system; and
ultimately created the special character of Roman citizenship.
Distinctively, one had to be born a Greek, but one could become a Roman.

(Edited by Ted Keer on 10/08, 9:14am)


Post 27

Wednesday, October 7, 2009 - 9:22pmSanction this postReply
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How is the prohibition against a man striking a pregnant woman a law based on the personality of a ruler, as opposed to principled and objective?

Post 28

Wednesday, October 7, 2009 - 9:58pmSanction this postReply
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Roman citizenship wasn't really expanded beyond Rome until the Latin War and again during the time of Caesar. Before then you couldn't be a Roman unless you were born of Roman blood. Even with the Latin war, the Latin league of cities in Italy weren't granted full Roman citizenship. The conquered Greeks before Caesar did not have citizenship, nor did the Carthaginians, poor bastards just had their entire city burned to the ground. Caesar expanded citizenship and he did this by decree, among many other decrees that he made. This was of course after he was granted the title of dictator for life and largely relegated the Senate to an advisory role. I find it odd that one would consider any kind of decree by a ruler to negate the notion of Objective law while simultaneously appealing to Rome, which came with it rulers like Caesar and Augustus who made edicts, as an example of Objective law. And Rome's unprecedented growth, longevity and material success continued for centuries after Caesar.








(Edited by John Armaos on 10/07, 10:35pm)


Post 29

Wednesday, October 7, 2009 - 10:39pmSanction this postReply
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Yes, like England and the U.S., Rome was an extended event, occurring over centuries, with actors of different character and with systemic contradictions, the kinds that even led to civil war. The scope and meaning of citizenship changed over time. And Rome fell.

What do the three societies have in common? The rule of law.

Yes the emperors were a problem. But they mainly troubled the court. Their bad acts were clearly considered wrong and usually illegitimate by their contemporaries. Contract law stayed in place until Diocletian.

The topic is objective law, as in modern medicine, not as in whther one law is objective or whether a certain medicine is modern. Institutions, not single instance. Of course tyrants can issue good laws. The institution of tyranny remains bad. It differs essentially from the rule of law.

Does that fact that Hammurabi's code or the laws of the Soviet Union were written down? Do Roman problems imply that Rome should not be credited for the invention of objective law? I assume my points are quite clearly made. I am happy Ryan found that pdf.

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Post 30

Wednesday, October 7, 2009 - 10:59pmSanction this postReply
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“The topic is objective law, as in modern medicine, not as in whther one law is objective or whether a certain medicine is modern. Institutions, not single instance.” [Ted]

Invention (the topic of this poll) means first instance. Flight appeared when a man flew, not when the masses were flocking to Disneyland.

(Edited by Jon Letendre on 10/07, 11:02pm)


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Post 31

Wednesday, October 7, 2009 - 11:08pmSanction this postReply
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“Objective law” is not a valid answer to a poll about civilized man’s inventions because it was “pre-civilized” man who got there first.




(Edited by Jon Letendre on 10/08, 12:09am)


Post 32

Thursday, October 8, 2009 - 5:24amSanction this postReply
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I'm still unconvinced that a law based in invalid principles can be termed objective law. To me it seems that there is a world of difference between the rule of law and objective law, although both are unimaginably important. The Romans clearly had rule of law, at least for long periods, but given the arbitrary principles codified into some Roman law I hesitate to apply the term "objective".

Ted, please attribute your quote in post 26.

Post 33

Thursday, October 8, 2009 - 9:31amSanction this postReply
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Sorry, Ryan, I deleted the attribution when I edited the post. I have put it back. The excerpt is from the chapter on Greece.

Jon, I'm not quite sure what the point of your assinine remarks is. For instance, the option was "powered flight." So your reference to "when a man flew" (presumably you mean Fred Flintstone in a pterodactyl plane) is irrelevant. Likewise, if you want to call the decrees of a dictator such as "If a man strikes a pregnant woman, thereby causing her to miscarry and die, the assailant's daughter shall be put to death" a system of objective law merely because it is written down, feel free.

Post 34

Thursday, October 8, 2009 - 9:37amSanction this postReply
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From Chapter III "Rome Discovers Political Structure"

Needless to say, the actuality fell far short of the ideal.
Penalties in Roman law were excessive and cruel. Slavery
and class privilege were legal institutions; they cannot obtain
otherwise. Equality before the law was limited to citizens,
which meant only freemen; and a debtor risked slavery.
This brutal and irrational view of debt, a false equation,
sometimes caused alarming social disturbances j under politi-
cal pressure, cancellation was resorted to by ex-post-facto
legislation, a remedy which in particular instances was almost
as unfair as the grievance, and only in lesser degree danger-
ous. To sentimentalize Roman law and gloss over its harsh
and faulty aspects is to miss the point. Its solid virtue was
its mere existence, since at worst it proved preferable to the
unpredictable will of either king or people. In their ordinary
conduct the Athenians were probably more humane, or easy-
going, than the Romans -, but the quality of Roman law was
that it was dependable. Though the anecdote may have been
invented as a joke which related that an Athenian voted for
the banishment of Aristides because he was tired of hearing
Aristides called The Just, the thing was not impossible by
the democratic system. In Roman law a man must be charged
with a specified act having known penalties, and convicted
on something more positive than opinion, to incur sentence.
He could not be guilty for no cause. A single instance, ex-
pressed by the most famous secular conversation in all his-
tory, shows how Roman law created an empire, held it
together, made it workable, and made it work.

On the occasion of a riot, the Apostle Paul was taken into
custody by the Roman guards. When he was about to be
beaten, "Paul said unto the centurion that stood by, Is it
lawful for you to scourge a man that is a Roman, and un-
condemned?" (Slaves were scourged when they gave evi-
dence merely as witnesses; and apparently this procedure
was likewise permissible with aliens.) The centurion at once
informed his superior officer of Paul's protest. "Then the
chief captain said unto him, Tell me, art thou a Roman?
He said, Yea. And the chief captain answered, With a great
sum obtained I this freedom. And Paul said, But I was free-
born. ... And the chief captain also was afraid." Since Paul
was in danger from fanatical opponents, he was given pro-
tection, and later brought before the governor, Porcius
Festus. His opponents then sought by influence either to ob-
tain a summary sentence, or to have Paul handed over to
them. Festus said: "It is not the manner of the Romans to
deliver any man to die, before that he which is accused have
the accusers face to face, and have license to answer for him-
self concerning the crime laid against him." The charge of
sedition was offered, but nothing could be adduced which
the Roman law defined under that head. The case was pre-
cisely the kind which any Roman official in a provincial post
most disliked hearing; but the very reasons which made it
distasteful to the governor made it impossible to avoid or
dispose of arbitrarily. Seemingly Festus endeavored to per-
suade Paul to submit to local jurisdiction under Jewish law,
as a Jew. Of course the Jewish court could not have tried
Paul for sedition; but some other accusation might have been
made, within their legal competence, which need not have
been the concern of the Roman governor. Presumably, find-
ing no valid accusation, Festus could simply have discharged
the prisoner, but then if Paul had been arrested by the local
authorities under another charge, Paul might have demanded
trial by Roman law none the less; and Festus would have
had the affair back on his hands, doubtless with fresh com-
plications. Or if Paul had been put out of the way sur-
reptitiously, Festus might have been suspected of connivance
in a local political broil at the expense of a Roman citizen.

Paul stood his ground. "I appeal unto Caesar."

"Then Festus, when he had conferred with the council,
answered, Hast thou appealed unto Caesar? unto Caesar shalt
thou go."

The crux of the affair is that a poor street preacher, of the
working class, under arrest, and with enemies in high places,
had only to claim his civil rights and none could deny him.
Here the whole historic process becomes apparent in its
imperial fulfillment.

(Edited by Ted Keer on 10/08, 9:49am)


Post 35

Thursday, October 8, 2009 - 10:02amSanction this postReply
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No malicious or deceptive intent was suspected or meant to be implied. We all have a "whoops" moment every now and then.

I'm not seeing what attribute you are using to determine that Hammurabi's code is any less objective that Roman law, Ted. I would certainly agree that Roman law was more advanced, and from my limited reading, some of it was based on good principles. However, some of it clearly wasn't. An example being slavery. The impression I have gotten so far is that Roman law developed from a traders culture. It doesn't surprise me at all then that their law encouraged certain principles known to be true to modern objectivists, such as property rights and other individual rights, because those principles have always been a requirement of effective and lasting trade. You don't have to understand the theory of gravity to surmise that jumping from a cliff is a bad idea. So (again from limited study)it appears that the details of Roman law were arrived at fairly arbitrarily, with some being very close to actual correct ethics and some not, and then applied with rigorous consistency. That is still a huge leap forward in human understanding. Both in abstracting law as separate from the whims of the man with the sword and in the understanding that the man with the sword must be subordinate to that abstract. The situation appears to me to be analogous to alchemy vs. chemistry. They were on the right track but had some bad premises and practices. Roman law would have been developed into modern objective law in time, and in fact it did do so as it laid the groundwork for American and some European modern law. However, this picture of Roman law isn't fully developed. I may encounter data that contradicts or modifies it while reading.

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Post 36

Thursday, October 8, 2009 - 10:26amSanction this postReply
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Even though traditionally the four great inventions of ancient China are compass, gunpowder, papermaking and movable type printing ;), I think I'd pick "objective law". Roman Law I know very little. Bur the British law after Magna Carta (1215) seems the forerunner of today's constitutions adapted by many civilized countries.

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Post 37

Thursday, October 8, 2009 - 12:09pmSanction this postReply
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I don't think anyone is disputing the important contributions the Romans gave to law. If someone is than please speak up because I would argue against that wholeheartedly. Nor did I say or make any implication Hammurabi was somehow equivalent or superior to the Romans. Clearly the Romans were superior in many ways to the ancient cultures that preceded it, in other ways inferior (can anyone think of one famous Roman mathematician?). Athenian law was definitely in many ways subjective. People were brought up on charges of "impiety", which Socrates who was charged with this famously brought up the question of what such a thing actually is, and through his arguments established no one really knew what that was. My only point is that many of the positive attributes we give to Roman civilization occurred during the reign of the emperors, absolute rulers who had the power to pass edicts. And there were definitely some good emperors, I would defer to Machiavelli's observation of the "Five Good Emperors" of Rome that were responsible for expanding citizenship and the rule of law to territories they conquered. The Roman Senate on the other hand was previously a collection of Roman aristocrats that really didn't give a damn about anyone else except for their own blood-lines within their city.




(Edited by John Armaos on 10/08, 12:39pm)


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Post 38

Thursday, October 8, 2009 - 1:52pmSanction this postReply
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“The topic is objective law, as in modern medicine, not as in whther one law is objective or whether a certain medicine is modern. Institutions, not single instance.” [Ted]

I’ll go slow because I can see you are having trouble following. The topic of the poll is “invention.” Invention means first instance and not institutions as you comically and goal post movingly assert above. (Therefore “powered flight” means a Wright brother on a certain day, a “single instance.” It does not mean the establishment in the early twentieth century of American Airlines.)

Likewise, the poll option “objective law” means first instance, not “Institutions.”

Therefore objective law, invented prior to cities, is an invalid option for a poll that is about inventions by civilized man.

Now bring on the pics of thunderbolt-casting wizards!


Post 39

Thursday, October 8, 2009 - 4:39pmSanction this postReply
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John, you are right about the emperors extending citizenship. But the system of civil and criminal law was largely in place from the Republic, the time of the Twelve Tablets. I would refer you to the Clarendon Introduction to Roman Law.

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