Roman Law to the Rescue

If you’ve ever had to make a choice with a group—picking what restaurant to go to for dinner with your spouse, what movie to watch with a bunch of friends, where to go on vacation with your family, etc.—you know how frustrating it can be. Some people like one thing, others like something else, some are happy with whatever, some have strong feelings, and yet everyone has to end up agreeing on one thing. In the worst case, you can get into uncomfortable power struggles over who gets to pick and who has to go along with someone else’s choice, which can just ruin what should be a good time for all.

Ancient Roman law provides an answer.

When Romans went to court, the various parties involved had to agree on who would be the judge in the case. Roman judges were not legal professionals and did not make decisions of law (those fell to the praetor or another local magistrate); they were laypeople who heard the evidence of both sides and made a judgment on who was telling the truth, a role similar to that of the jury in modern Anglo-American law. Since judges were just members of the community, there was always a risk that any potential judge might favor one side or the other out of family loyalty, personal ties, business relationships, or similar factors, so the Romans needed some way to ensure that the judge chosen to hear a case would be acceptable to both sides.

Here’s how it worked. Every year, a list was drawn up of respectable members of the community who were eligible to serve as judges. This list was then randomly distributed across three tablets. When it came time for a plaintiff and a defendant to decide who would hear their case, they looked at the three tablets. First the plaintiff eliminated one tablet, then the defendant eliminated another, leaving just one. Then they took turns going through that last tablet, crossing off names one by one until just one name was left. That person was assigned to be the judge in the case: not necessarily either party’s first choice, but the one who was least unacceptable to both of them.

The same method can be a good way of choosing a restaurant, a movie or something similar for a group, as long as there are more choices than there are people in the group. Make a list of all options. Choose someone at random to start. That person crosses off one one option. The next person crosses one off, and so on in turn until only one option is left. It may not have been anyone’s first choice to start with, but it will be the one that will make everyone least unhappy, which is what you really need when trying to choose for a group.

In our house, we sometimes use this method when deciding what to watch together. We have been known to pull piles of DVDs off the shelf, then take turns putting one series or movie back until just one is left. (On a side note, this method also provides a convenient opportunity for dusting the back of the DVD shelf.)

A few notes:

  • If the number of options does not evenly work out with the number of people making the choice, some people will get to more chances to rule things out than others. (If four people are choosing among six restaurants by this method, for instance, whoever gets the first pick will also get one extra pick.) If this feels unfair under the circumstances, you can collectively agree to rule out enough things to make the numbers even, or use this method as a way of reducing the number of options you have to choose among.
  • It can be useful to impose a “no explanations” rule: no one is required to explain why they crossed something off, and no one is allowed to ask anyone else for an explanation.
  • The person who makes the first elimination has the most options to choose from, but the person who makes the last elimination is the one who ultimately decides what the result will be. If that matters to you, keep it in mind when deciding what order people get to pick in.

Image: Artist’s vision of the Roman law of the twelve tables via Wikimedia

History for Writers looks at how history can be a fiction writer’s most useful tool. From worldbuilding to dialogue, history helps you write.

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Self-Help Law

“Self-help law” may sound like a book you would pick up to figure out how to make a will or file a lawsuit on your own, but it’s actually an important concept in history. Many societies in history have operated under a self-help legal system, especially small societies without developed governments, but even large, complex societies like the Roman Empire have operated under self-help law.

Most of us today live in legal systems that have mechanisms for enforcing legal judgments. If you take someone to court and win a judgment against them, you can rely on the police and courts to ensure that the judgment is fulfilled. Self-help legal systems don’t have those mechanisms. In a self-help system, you may take someone to court (or before a council of elders, or to a family tribunal, or whatever the system is) to get a judgment on who is legally in the right and what you are entitled to, but once the judgment is given it is up to you to carry it out. If the court decides that your neighbor owes you three bars of silver for cutting down your hedge, no one is going to come along and make them pay up. You have to go and get the silver from them yourself.

That may not sound like much of a legal system—if it all comes down to you having to barge into your neighbor’s house and grab their cash, it looks a lot like might making right. The difference, though, is that a self-help system requires you to get a legal judgment first. Once your neighbor cuts down your hedge, you can’t just bust in their door and take the silver. You have to present your case before a court (or council, or whatever the equivalent legal body is). You have to submit your grievance against your neighbor to someone who has the authority to represent the values of the community and judge how badly your neighbor has transgressed them. If you bust in and take the silver before going to court, that’s theft, and your neighbor has a case against you; if you do it after getting a judgment from the court, then you are executing justice and they have no case.

Self-help law accomplishes certain things that are useful in maintaining an orderly society. For one thing, it interrupts the cycle of vengeance by making people slow down, not act in the heat of anger but give wiser heads a chance to prevail. It offers a check on personal vendettas by submitting individual grievances to a neutral party. At the same time, though, it avoids burdening society with any kind of formal law enforcement, which could be a disruptive presence, especially in small-scale societies where disorder and crime are not everyday problems.

Self-help law also has its limitations. The obvious one is that some people are in a much better position to enforce their rights than others are. The rich and powerful have always been better able to wield the power of the law against the poor and humble, but under self-help law the weak often have very little real recourse against the strong. Another problem with self-help law is the tendency to escalate conflicts. Even with the intervention of a neutral party’s judgment, it’s hard for people to set aside their feelings of personal grievance. When your neighbor has cut down your hedge, even if you are legally entitled to go into their house and take three bars of sliver, it may be hard to resist urge to kick their dog and knock over their shelves while you do it, which just gives your neighbor a new legal claim against you. Self-help law may be described as a state of suspended violence, which carries within it the implicit threat of real violence breaking out.

A system of legal self-help also has broader social consequences. To be able to effectively carry out judgments (or resist people carrying out judgments against you), it’s useful to have a large network of friends and family you can rely on to stand up for you. Naturally, they’ll expect you to stand up for them in return. The bonds of friendship and family are more than sentimental in such a society; they can make the difference between living safe in your home and having your property under attack by your neighbors. They can also, on the other hand, drag you into conflicts that you had no part in beginning. As the old joke goes: “A friend will help you move; a good friend will help you move a body.” In a world of legal self-help, you might say: “A good friend will help you shove in your neighbor’s door and get the three silver bars that hedge-cutting menace owes you.”

Thoughts for writers

There is a lot of potential for drama in a self-help legal system. Modern law enforcement can sometimes create its own problems, but it also—by design—interrupts a lot of conflicts that would otherwise play out between individuals, families, and communities, sometimes violently. When you can’t just call the police on your annoying neighbors, interpersonal relationships evolve differently than we are used to today. A lot of stories from the past—the Mahabharata, the Iliad, Romeo and Juliet, etc.—have at their core the tensions that arise from the suspended violence and mutual obligations of a self-help society.

It is also important for us to understand that these tensions are real and have consequences. The conflicts that break out between feuding families or rival princes are not the result of overinflated egos but the consequence of living in a world where there is no one to guarantee your rights other than yourself and the friends and family you can count on to back you up.

Image: Balance scales, photograph by Mbiama via Wikimedia

History for Writers is a weekly feature which looks at how history can be a fiction writer’s most useful tool. From worldbuilding to dialogue, history helps you write. Check out the introduction to History for Writers here.

Legal Brief Partly in Klingon to Counter a Big Movie Studio

The copyright infringement case filed by Paramount Pictures Corporation against the Star Trek fan production Axanar has been in the news a bit this spring. I have a mild interest in it, but I don’t spend much time following the reports—with one marvellous, excellent, and hilarious exception.

Attorney Marc Randazza wrote an amicus curiae brief for Language Creation Society (i.e., for the defendant’s benefit) to counter a copyright claim by Paramount “over the entire Klingon language, not any particular words or portions of dialogue from any episodes of Star Trek, but in the entire vocabulary, graphemes, and grammar rules of Klingon.”

His friend and co-blogger Ken White at Popehat shared the story and the brief itself (as a .pdf file). (The full docket for the case is also available via the U.S. Courts Archive.)

Mr. Randazza not only argues that one cannot copyright an entire language, invented or not; he also briefly summarizes the history and some current uses of Klingon. (Did you know, for example, that the Klingon Language Institute has overseen Klingon wordplay contests? I didn’t. Check them out; the palindromes are especially awesome.)

The best thing about the brief, however, is how Mr. Randazza uses Klingon—complete with the Klingon font, transliterations to the Latin alphabet, and translations—to illustrate his arguments.

I’ve copied three examples below without the Klingon font, using the Latin transliterations instead and adding the English translations Mr. Randazza provides. It’s worthwhile to visit the .pdf brief available online (here or here) for the full effect, though.

“Plaintiff Paramount Pictures Corporation (“Paramount”) has claimed this copyright interest for many years, but has not actually asserted it in court before now – most likely because the notion of it is [meq Hutlh / it lacks reasons].”

[p. 9 of 26]

“Just as poker jargon is unprotectable, so is Klingon. To grant such protection would be to attempt to leash that which Plaintiffs have no right to control. Plaintiffs will learn that [Suvlu’taHvIS yapbe’ HoS neH / brute strength is not the most important asset in a fight].”

[pp. 16-17 of 26]

“Plaintiffs attempt to downplay the significance of their claim of ownership over the Klingon language by arguing that ‘a language is only useful if it can be used to communication [sic] with people, and there are no Klingons with whom to communicate.’ […]

“A language is not constrained to a given ethnic or racial group. By their logic, Ancient Greek is not ‘useful’ because the Ancient Greeks are no longer with us, and the language has no native speakers, despite it being the original language of some of the seminal literary and philosophical works of the western world. Plaintiffs’ logic would seem to dictate that French is not ‘useful’ if spoken by a native German. [qoH vuvbe’ SuS / The wind does not respect a fool.]”

[pp. 23-24 of 26]

At the very least, do yourself a favor and check out how the first line of the Sesame Street theme song translates into Klingon (pp. 23-24). Ha!

Randazza Amicus Curiae Paramount v Axanar

Mr. Randazza’s straightforward and humorous writing not only counters stereotypes about legal language, but it’s also very informative. (And he did it pro bono!) Qapla’, sir!

Image: Screencap from Brief of Amicus Curiae by Marc J. Randazza for Paramount v. Axanar (case no. 2:15-cv-09938-RGK-E) filed April 26, 2016

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