In my previous post, Loyalty, I proposed a four dimensional analysis of an interaction.

The nature of the interaction.
Who are the participants.
The intensity of the interaction.
The manner in which the interaction is changed by the passage of time/changes the passage of time.

I’m going to use the method in my attempt to understand the legislative process.

Hammurabi, “the best known and most celebrated of all Mesopotamian kings“, is famous for, among other things, having compiled one of the best preserved – hence best known, ancient codes of law.

“When he began ruling the city-state of Babylon, he had control of no more than 50 square miles of territory. As he conquered other city-states and his empire grew, he saw the need to unify the various groups he controlled.
Hammurabi keenly understood that, to achieve this goal, he needed one universal set of laws for all of the diverse peoples he conquered. Therefore, he sent legal experts throughout his kingdom to gather existing laws. These laws were reviewed and some were changed or eliminated before compiling his final list of 282 laws.”

Having learned that, it becomes safe to say that a ‘legislative process’ is a development which clarifies the relationship between a ruler and his subjects.

But why would an absolute ruler – as they used to be in those times, put a cap on his own authority? Why would he limit his own powers? Why not judge each case individually? Why not do according to his ‘present mood’ on each occasion?

For two reasons.
As his empire grew, he wasn’t able anymore to judge all the cases by himself. He had to delegate at least some of his judicial powers. And he didn’t want the appointed judges to do as they pleased, without any ‘guidance’.
Secondly, as his empire grew, more and more people – following diverse traditions and bylaws, became incorporated in his empire. He wanted all of them to enjoy the same level of justice and he didn’t want to alienate any one of them.

For this he had first gathered the existing laws throughout his kingdom. He didn’t want to impose his own ‘weltanschauung’ on everybody else, he only needed to build an effective ‘governing tool’.
And he had understood that a law actually makes sense only if it reflects the mores of those asked to abide by it. This way, those who have to ‘police’ those people have to deal exclusively with the relatively few trespassers. Had his laws been a ‘wholesale invention’, the job of the government/police would have been enormous, the costs incurred would have been prohibitive and the result uncertain – to say the least.

I’m sure that most of you noticed that the last paragraph was about the intensity of the relationship so I’ll jump directly to the last dimension.

We have the history of the legislative process and we have history itself.
Is it farfetched to consider ‘history itself’ as the ‘success and failure’ story of how the legislative process has influenced the fate of various people?

Hammurabi had a predecessor. He wasn’t the first to have conquered the entire Mesopotamia. Sargon the Great of Akkad had done the same thing a few centuries before him. There is though a marked difference between Sargon and Hammurabi.

“It is a testimony to his rule that, unlike Sargon of Akkad or his grandson Naram-Sin from earlier times, Hammurabi did not have to re-conquer cities and regions repeatedly”

Joshua J. Mark, Hammurabi, http://www.ancient.eu/hammurabi/

From then on, history is choke full of examples leading to the same conclusion.

The ancient Romans were sticklers for the rule of law – and everything went OK as long as the rulers kept their part of the bargain, yet the first major ‘Roman’ code was compiled by Justinian, the Byzantine emperor, long after the Western part of the Imperium had collapsed. And is imperious for us to remember, in this context, that so many of the Roman emperors had a rather ‘erratic’ behavior…

This example also suggests that there’s no real need for complex and all encompasing code. All it takes is for both rulers and ruled to do their respective jobs in a responsible manner by implementing the existing rules of the land in a reasonable manner.

Fast forward to Great Britain.
The only modern country without a written constitution.
And one of the best working countries in the world, too… except for the last two years or so… I’ll leave it there, for now.
OK, it resides in an island, which somehow insulates it from outside intervention and provides better conditions for stability. Yet it would be very hard to deny the correlation between the legislative stability and relative political continuity that can be observed throughout the British history. Specially when you compare them to what happened in the rest of Europe during the same period.
France is at it’s fifth Republic in less than two and a half centuries.
Germany had morphed from an aggressive Reich to a republic, but not before bringing the whole world to the brink. Twice!
Italy cannot get a grip on itself… Spain almost killed itself during the Civil War, the Greek people had allowed some of its citizens to ‘steal’ almost everything in the country…

What is the common point between all these countries? All of them had been run, during the last 10 centuries or so, in a lot more centralized manner than Great Britain? Their legislative processes have been mostly a top down thing while the one in England had started with Magna Charta? Which was anything but top down!

Coda.

I still need to educate my writing.
I started putting my thoughts down on paper – up in the Cloud, actually, as a manner of bringing my mind to some sort of order.
My success is relative.
I start writing about a certain subject having a certain goal in mind. Yet sometimes that particular goal fades as I write and others, more important, jump at me from various corners.

Now, there’s this ‘small’ issue regarding the ‘Constitution’.

Like any other Law, it defines an interaction between people. Hence, it belongs to the same ‘legislative’ realm.
On the other hand, while the Law defines what a certain person might or might not do and what is the punishment for trespassing, the Constitution delineates the whole environment where the entire social life will take place.
In a sense, the early constitutions were contracts between an erstwhile ruler and his ‘former’ subjects. Both parties entering this contract transforms the relationship between them changes.
While an absolute ruler would give a law as a promise – I’ll behave in such and such way if/when you, the people, will do such and such, when entering the contract known as constitution the ruler acknowledges a new statute for his erstwhile subjects.

Erstwhile ruler and erstwhile subjects become sort of equals.

Constitutions adopted by countries organized as republics go one step further. They actually proclaim the status of equality among all their citizens.

Unfortunately there’s a second similarity between Law and Constitution. Both have to be read and implemented by people.
And there is a difference if most of the people choose to read and implement them in good faith – for the common good, or whether too many of ‘the people’ choose to interpret the law/constitution in a manner that would be beneficial exclusivelly for them.
For those powerful/skillful enough to manipulate enough of the rest into believing that ‘this is how it has to be’.

This is how ‘the road to hell is paved with good intentions’ has come to be coined…

 

 

PS. I borrowed the first block-quote from ushistory.org and they implicitly asked me to publish this information.
I’m only happy to oblige, given the wealth of information which is available on their site.
Thank you.
The origin of the rest of the quotes can be determined by simply clicking on them. All the links will open in new tabs.

AUTHOR ushistory.org
TITLE OF PAGE Hammurabi’s Code: An Eye for an Eye
TITLE OF PROGRAM Ancient Civilizations Online Textbook
URL OF PAGE http://www.ushistory.org/civ/4c.asp
DATE OF ACCESS Monday, March 19, 2018
COPYRIGHT 2018