The first permanent corruption court was established in 150 BC in Rome.  It has a civil procedure and senators as jurors.  In 122 BC the court the procedure became criminal and the jurors equities (a class of citizens drawn from the cavalry).  Berry notes that the court became a political battleground between the senators and equities and thus in 81 BC the courts were reformed and senatorial juries were re-established.  During his prosecution of Verres, a corrupt former Governor of Sicily, Cicero dramatically illustrates the influence of these changes in order to appeal to the senatorial jury’s sense of justice and their need for political legitimacy:

I will tell the Roman people how it is that, when juries consisted of equestrians, there was for nearly fifty years not even the least suspicion of a juror ever having accepted a bribe in return for giving a particular verdict; how it is that, once the courts had been transferred to the senatorial order and the Roman people’s control over each one of you had been removed, it was possible Quintus Calidius to declare on his conviction that nat ex-praetor could be convicted honourably for less than three million sesterces … (para 38)

This prompts me to tell you of a remark which I recently made … when the rejection of jurors was being held … I said that I thought that there would come a time when foreign peoples would send delegations to Rome to request that the extortion law and this court be abolished.  For if there were no courts, they believe that each governor would only carry off enough for himself and his children.  With the courts as they are now, on the otehr hand, they reckon that each governor carries away enough for himself, his advocates, his supporters, the president of the court, and the jurors — in other words, an infinite amount. (para 41).

Cicero, In Verrem I in D. H. Berry (tr) Cicero: Political Speeches (OUP, Oxford 2009).

Hobbes on the ideal, good judge (in Leviathan, Of Civil Law, para 28):

The things that make a good judge, or good interpreter of the laws, are, first, a right understanding of that principal of law of nature called equity; which depending not on the reading of other men’s writings, but on the goodness of a man’s own natural reason, and meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches, and preferments.  Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love and compassion.  Fourthly, and lastly, patience to hear; diligent attention in hearing; and memory to retain, digest, and apply what he hath heard.

Hobbes on civil law

December 27, 2009

Hobbes’s Leviathan includes an amazing chapter on law: Of Civil Law (Chapter XXVI). It comes in Part 2: Of Commonwealth, where Hobbes lays out how man escapes the evils of the state of nature by forming communities under a sovereign, i.e. the leviathan.  Eight main points summarise his system of law:

  1. The legislator in all commonwealths, is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy, or aristocracy.
  2. The sovereign of a commonwealth, be it an assembly, or one man, is not subject to the civil laws.
  3. When long use obtaineth the authority of a law, it is not the length of time that maketh the the authority, but the will of the sovereign signified by his silence.
  4. The law of nature, and the civil law, contain each other, and are of equal extent. For the laws of nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature are not properly laws, but qualities that dispose men to peace, and obedience.
  5. If the sovereign of one commonwealth, subdue a people that have lived under other written laws, and afterwards govern by the same laws, by which they were governed before; yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws.
  6. [T]he two arms of a commonwealth, are force and justice; the first whereof is in the king; the other deposited in the hands of the parliament.
  7. In all courts of justice, the sovereign is he that judgeth: the subordinate judge, ought to have regard to the reason, which moved his sovereign to make such law.
  8. [T]hat the law is a command, and a command consisteth in declaration … we may understand, that the command of the commonwealth, is law only to those, that have means to take notice of it.

I’m starting this blog as I am about to return to university and embark on a DPhil, so I’m aiming for an exploratory feel.  The three themes I plan to explore–and by which I will try to categorize my posts–are: Tool Up, Dig Deep, and Look Out!  This is the unofficial motto of my DPhil and now this blog.

Tool Up–Master research methods and its tools

Dig Deep–Read those classic academic works you’ve always meant to read

Look Out–Don’t get lost in the Ivory Tower, keep an eye on the real world

The first two of these themes were the advice of a senior colleague, whose thoughtfulness I admire and who has written one of my favourite articles on development.  The third is my own doing.  Lets see if this works.