Halbig and Hammurabi

Perhaps it is not the case that in the 21st-century United States we can live under something as simple and straightforward as the Code of Hammurabi. But the principle is the same: We write laws down in order that citizens may know what is permissible under the generally promulgated rules of the polity. The writing down of laws was the first step on the road from subject to citizen, and to reverse that is to do violence to more than grammatical propriety, Mr. Klein’s huffery-puffery notwithstanding.

The written law was the first real constraint on the power of kings. An oral tradition is subject to constant on-the-fly revision. Mr. Klein and others of his persuasion would see us return to that primitive state: “Oh, sure, the law says that the IRS can only operate on state-created insurance exchanges, but that isn’t what we” — and who is this we? — “really meant. And besides, things will turn out other than as we desire if we follow the law as written, and who are you, and what is the law, to forbid us our desires?” It is easier to think that way when you believe that you represent a uniquely enlightened point of view, that you are acting in the public interest, and that your political rivals are wicked and ignorant.

An important distinction needs to be made in not just the law, but on the legal systems on which it is based. Because these underlying legal systems permeate every aspect of our culture, containing axioms of who and what we are.

For all intents and purposes, there are two legal systems in most of the world. In cultures with a history of royalism, there are just the noble classes and the peasant classes, so the assumption is that there are two kinds of law: a law written by the nobility, to apply only to nobles; and a law written by the nobility, that only applies to peasants.

This is the basis of Roman law, which later was reformed into Napoleonic law, and the modern French Civil Code. No matter how egalitarian it might seem to be, it is still a bipolar system of law: one for the elites, and one for everybody else.

However, there is another way. As western Rome declined, the Germanic tribes north and west of them flourished. Their tribal law was based on entirely different axioms. It was a system based on the “equality of warriors”. That is, the only nobility they had was if a warrior was popular or wealthy, and other warriors gave him allegiance as it suited them. If he fell from popularity, he became just another warrior.

So how do you have a system of law between equals? Equality before the law? To start with, you need an unbiased warrior more powerful than the two warriors in contention. And both had to respect his authority. And this was a good idea, because it inhibited family feuds and revenge attacks.

But soon they realized it was hard to find someone who was entirely unbiased. So they evolved the jury. If a group of warriors found for or against another warrior, there was far less chance for bias. They were a jury of his peers, who would not gain from their judgement.

And since they were warriors, not versed in speaking or oratory, the idea of impartial advocates and prosecutors arose.

This was the legal underpinning of what eventually moved to England and became Common Law.

It is also why it is so very hard for the modern British to adapt to the Code Civil as practiced by the EU in Brussels. Their dictates just go across the grain as far as the typical “free Englishman” is concerned.

And while the US is mostly a Common Law nation, there are still many, especially in New England and the Democrat party, who lust for one law for them, and another law for everyone else.

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