Download (신) Mid Term Exam Study Outline with Timeline

Comparative Law - The development of legal systems over time and geography.
Comparative Law Study Time Line
I) 100,000 b.c.e Humans emerge
A. Hunting and Gathering Societies
1. Good: Harmony
2. Bad: Uncertain Food Supply  Starvation more likely to occur
II) 14,000 b.c.e. Agricultural Revolutin
A. Agricultural Societies
1. Good: Food Surpluse
2. Bad: Cruelty, Brittle Societies
III) Early Legal Systems
A. 2050  Ur-Rammu (Vendetta based)
B. 1772  Hammurabi (Vendetta based)
C. 1553  10 Commandments (Bible)
IV) 752 Rome Founded
V) 509 Rome: Monarchy (Kingdom) Ends, Republic Begins
VI) 500 b.c.e. Axial Age
A. Question: How to have Food Surplus without Cruelt
1. How to have Food Surplus AND Harmony
1. Harmony≠Fairness
2. Harmony~Fairness
B. Intellectual Academic Thought
1. Topic  Ethics
1. Ethics  Fairness
a. FairnessGolden Rule
i. Golden Rule “Do to others how you want them to do to you”
C. Method
1. Philosophy  Teaching
1. China  Confucius
2. Greece Socrates
2. Religion  Preaching
1. India  Buddha
2. Iran  Zoroaster
3. Israel  Isaiah
3. Law Rome
D. Law
1. Levels:
1. Might Makes Right = Law of theJungle
2. Vendetta=Revenge
3. State based Law
2. Norms
1. Informal Norms  Religion, Philosophy
2. Formal Norms  Law
3. Public Law: You King/state/Government
4. Privage Law: You Me
VII) 450-449 b.c.e. Rome: 12 Tables of Roman Law published  Mostly Private Law
VIII) 21 b.c.e Rome: Republic Ends, Empire Begins
IX)
476 (West) Roman Empire Ends
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Summary of topic so far:
I) Reading Material: Where does Law come from?
a. The Evolution of Cooperation = Robert Axelrod
i. The Prisoners Dilemma
1. Best Strategy  Cooperation
2. Next Best Strategy  Tit for Tat
b. Mere (simple) Christianity = C.S. Lewis
i. Nature implants in creatures two instincts:
1. heard instinct – help others
2. self preservation – save self
ii. Humans (and perhaps some animals) have a 3rd capacity or awareness that allows them to
override instinct.
1. This is the sense of fairness
2. This instinct comes from God
II) Movies
a. Fiddler on the Roof
b. Dances with Wolves
c. Apocalypto
III) . Principles and Concepts
a. The Prisoners Dilemma: Cooperation vs. Tit-for-tat
b. The Jurisprudence of the Carrot and the Stick
i. Jurisprudence = Philosophy of Law (philosophy = 철학; Law = 법)
ii. Carrot = Moral Authority (도덕적 권위) / Perceived Legitimacy (인식 정당성)
iii. Stick = Coercive Authority/Coercive Force (Coercive =강제적 인; Authority=권위; Force=강제)
iv. Regime = 제도
v. Store =저장
vi. Dynamics 역학:
 The more Stick (coercive authority) a regime uses, the less the store of coercive authority it has –
 The more Stick (coercive authority) a regime uses, the less Carrot (Moral Authority/Perceived
legitimacy) a regime has.
 The higher a regime’s store of carrot the higher the regimes store of stick or potential stick.
 The higher a regime’s store of carrot the less likely a regime will have to use Stick
c. The more competition for a regime, the more it needs to have Carrot (moral authority).
IV) 100,000 b.c.e Humanity emerges in Hunting and Gathering societies
a. Hunting and Gathering societies: can be very good life for humanity –They have harmony between human
relations but Food supply is insecure/
b. Agricultural societies’ developed hierarchies, elites take the benefits, peasants and slaves do all the
work
i. The more top heavy the elites (the more of the farmer’s surplus elites take), the more unstable these
societies can become because they depend upon the peasants. The peasants wilt under the strain of
the cruelness of their situation (also they have no incentive to perpetuate their society).
ii. Generally this limits the success of societies – they seldom last long or become very large.
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iii. Neolithic states were generally small. When they got large, they have a tendency to collapse – they
are brittle. They look strong but can easily collapse.
a. The Pre-Axial Age Question is: How can humanity have all the benefits of the agricultural age (food
surplus and civilization) but not have the cruelty of the agricultural age?
b. Elites want to keep as much power and wealth as possible but that creates unsustainable societies
c. so societies around the world experiment with various models.
i. How to be inclusive but not too inclusive
ii. The best models eventually prevail.
I) The Axial Age: The creation of intellectual thought, the beginnings of academia – (학원/대학)
A. It’s called the axial age – because at almost the same time in separate, isolated parts of Europe and Asia
(what we can call the Eurasian Periphery) - 5 or 6 distinctly different civilizations began to develop ideas and
mechanisms to address the Pre-Axial Age crisis.
B. The first great academic subjectis ethics, or the creation of a system of ethics.
1. The idea was to define ethics and then teach ethics to a wider audience.
a. The main ethic that the great men of the Axial age defined was fairness
i. Fairness is very close if not the same thing as the legal principle of Justice.
C. Confucius first states: “Treat others the way you want to be treated.” (In the west this is called
“The GOLDEN RULE”)
(What makes the Axial age profound is it occurred simultaneously in separate centers of civilization throughout Eurasia
(Europe + Asia) at a time when there was no contact between these places: East Asia , South Asia, Southwest Asia + West
Asia, in South East Europe (Greece) and Rome.):
Point: We are working towards a fundamental understanding of the practical purpose of law.
II) The Axial Age Answer -Summing up the Axial Age and humanities general response to the Pre-Axial Age Crisis:
A. Intellectual pursuit  Ethics
B. Define Ethics  Fairness/Justice
C. Disseminate/Implant ethics
D. Approach………………………………………………………..Method of Disseminating/Implanting
PRACTICAL APPROACHES TO ETHICS METHOD OF
DISSEMINATING/IMPLANTING
Philosophy
Teach (mostly carrot, little stick)
Religion
Preach (use both carrot and stick)
E. Philosophy route: Great Civilizations with great resources (a very broad definition of ‘resources’) to
draw upon
1. Resource equal historical development as well as material substance, human resources, etc….
2. China – Philosopher Confucius –The Golden Rule: “do to other’s as you would have them do
to you”
3. Greece – wealthy but politically fractured had the most sophisticated response – the Sophist
tradition of philosophy –
4. particularly Socrates, Plato, Aristotle: “Ask Questions – to seek truth.” Very abstract
5. Solon – Creator of Laws in Athens that lead to establishment of Democracy
F. Religious route: Great Civilizations, but with lesser resources to draw upon, or history, perhaps
smaller states, etc.. .
1. India – Buddha: Basic thesis/message: Elimination of (human) Suffering through ethical behavior
2. Israel – One God over the entire universe – seeks justice – the Torah (1st 5 books of the bible):
a. Book of Deuteronomy
i. Book of Leviticus: Love God, Love Neighbor, Don’t eat pork.
b. Iran – Zoroaster: Good versus Evil is an eternal struggle – fight evil through ethical behavior
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
Compare and contrast theses with the Mayans: they believed there was a god, or many gods. They believed
that God’s bring suffering to humans. So to ‘control’ and limit the suffering, the Mayan elite attempt to
preempt the Gods by delivering up suffering of humans to the Gods.
G. So axial age ethics attempt to make life better for ordinary people and thus societies more stable
through ethics. The practice of ethics have to Norms
1. Cultural norms  Informal Norms
2. Legal norms  Formal Norms
a. in almost all cases, these are more limited penetration of axial age ethic
III) Axial Age is only partially successful .
A. Where axial age is implemented, states/societies of great complexity and size develop –
1. China Empires, straight through to the present:
2. India (Asoka) (great empires off and on)
3. Iran – Persian Achaemenid, then Parthian, then Sassanian, then Safavid. Achaemenid is the first
truly great super power Empire: enormous size and increadibly stable but…
4. Greece – Extremely sophisticated response to Axial age problem (Sophist philosophy: Socrates taught
Plato, Plato taught Aristotle, Aristotle taught Alexander, Alexander conquered the Achaemenid
Empire, the laws of Solon). Systematic questioning of everything to get at truth
5. Israel is an exception: it stays small, but does manage to gain independence from Greek Seleucid
Empire
B. Eventually these societies enter into a period of decline anyway. Axial Age ethics then help build better,
more stable societies, but eventually these societies become too big so that the ethics are not sufficient to keep
them functioning and from keeping elites from taking too much from the peasants.
1. Part of the reason for this is ethics creates only informal Norms – eventually members
of the elite learn that they can violate the norm created by ethics without being
punished for the violation.
IV) Concerning Law  Formal Norms
A. Pre-Axial Age Systems of Law
1. The Most primitive Legal Systems
a. Might Makes Right  Law of the Jungle
2. Next Most Developed Legal System
a. Vendetta/Revenge
B. Earliest Legal Codes
1. Code of Ur-Nammu, king of Ur 2050 BC
2. 1772 BC Hammurabi’s code: “eye for an eye”
3. 10 Commandments: basically – don’t lie, cheat, steal or kill
C. Important difference between Public Law and Private Law
1. Public Law governs the relationship between people and the State/King
2. Private Law governs the relationship between people
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High Level Easy Study of Rome: This is a big part of the Exam, so know this page (It is the
outline I used in class)
1. The foundation (Creation) of Rome in 753 b.c.e. – shaped by the Evolution of Cooperation
a. 7 hilltop villages
b. Cooperation necessary to form Rome: kind of contractual bargain  Incentive: Control Italian
Trade
i. Originally a King and a Senate, and Assembly, 7+2 Tribes, each tribe 1 vote,
1. Senate locals
2. King – Etruscan
ii. Patricians (founding fathers) – 7 hilltops maybe 3,000 people
iii. Plebians: Need more people, so attract with offers of citizenship => some
iv.
v.
vi.
vii.
viii.
ix.
x.
franchise
1. Now 10,000 = Now can defend themselves. “Assimilation” is Roman
characteristic
By 509 Rome grows to 30,000 Assimilation helps Rome grow!!!
1. 509 ends kingship
2. How to have local executive? Well divide into 2 consuls, 1 year, each can veto the
other
Plebians don’t like system
1. Some have grown rich. They want to know how to become Patricians and Consuls
2. So, they demand to know the law!!! -- At this time law is only Public Law.
Plebians go on strike !!!! They Succeed
1. They go camp on one of the nearby hilltops
2. Patricians exposed. They need the Plebians.
3. Patricians concede that they will let the plebians know the law
Patricians must cook up laws
1. visit Solon, Athens, democracy, they think is too generous
They create 12 tables – 450 b.c.e and 449 b.c.e
1. MOSTLY PRIVATE LAW=>RELATIONS BETWEEN ROMANS=>Property/Contract law
etc…
Where is the Public Law? eventually war comes & Plebians are able to get more
concessions
1. Plebians get to elect 2 tribunes who can veto legislation – invaluable to coercion
2. Right to marry Patricians (become patrician)
3. Tribunes able to pass laws that limit the amount of land one can own.
Roman Social Contract (constitution+law) is less fair than informal norms, but more
generous than most formal & informal systems at the time and location + has force of law.
1. Why? Political Fragmentation (Competition) => Jurisprudence of Carrot &
Stick
xi. Rome now has the most Generous Social contract in their area Rome quickly
c.
expands.
A formal contractual/legalistic approach surrounds all their way of doing things,
approaching problems, such as the Axial Age Problem
2.
Rome begins to Expand shortly after 450 b.c.e
a. 21b.c.e Republic is Replaced by Empire (Dictatorship)
3.
476 c.e. Western Roman Empire Collapses
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More Detail Study of Rome:
V) The Roman Response to the Pre-Axial Age Crisis: Law – Specifically the invention of Private Law
A. At the time of the Axial Age – Rome was a fairly new, but rapidly growing City State in Italy.
B. It had the same pressures of the Axial Age
C. Rome’s response to the Axial age conditions:
1. Rome was new city – not great civilization. It lacked the resources to create a great religion or
philosophy
2. Rome was founded in only 753 b.c.e. Fairly new with only 3,000 people.
3. Rome was created to take economic advantage of trade routes running through the Italian peninsula –
it controlled the cross of the Tiber River at a strategic point
4. Surrounded by enemies and potential enemies.
a. Coping mechanism: Assimilation - 동화하다
b. Invite foreign people to live there – grant them citizenship
c. Conquer Neighbors – then grant them citizenship
VI) Why Rome was so successful - How they assimilated new people into their own society
A. Society Organization
1. King – and after 509 b.c.e – Dual Consuls
2. Patricians – top 10% of society – membership was a matter of LAW.
3. Plebians
4. Slaves
B. Government Organization – The Roman Constitution (Informal)
1. EXECUTIVE:
a. King – Selected by Assembly then – Often Foreigners
b. 509. B.C. E. Two Consuls – Patricians –
i. who rule for a year
ii. Can Veto Each other.
2. Legislature
a. Senate – Creates Legislation, Advices Executive: only Patricians
b. Assembly – Can Veto Legislation
i. Dominated by the Wealthy
c. Majority Rule
d. Richest vote first
e. Poorest vote last
f. Most decisions made before the poorest people get to vote.
C. Rome’s situation around 509 b.c. – revisited.
1. Rome surrounded by Enemies
a. Powerful Etruscan Confederation of City States to the north (at one time ruled over
Rome)
b. Powerful Sabine Tribes / City States to the East
c. Other Latin City States to the South
d. Greek City State (colonies) to the South and East
2. Rome needs Rich + Patrician people to help Fund the Army
3. Rome needs LOTS of People to man the armies
a. Patricians have to cut a deal with the Plebians
i. Creation of Tribunes
i. Immune to punishment
ii. Selected by Plebians in assembly
iii. Veto Power over legislation
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VII)
Formation of Roman Law
A. Plebians want to know what the law is… (rich plebians want to know how to become patricians) –
1. In 450 and 449 they publish the 12 tables
B. Creation of the 12 Tables of Law
1. Mostly Private Law to protect Patricians wealth
a. Property Law
b. Commercial Law
c. Family Law
d. Criminal Law
e. Civil Procedure
f. Some Public Law
2. Sample Laws
a. Where anyone commits a theft by night, and having been caught in the act is killed, he
is legally killed.
b. If you are called to go to court, you must go. If you don’t show up, you can be taken to court
by force.
c. A father shall have the right of life and death over his son born in lawful marriage, and shall also
have the power to render him independent, after he has been sold three times
d. Marriages should not take place between plebeians and patricians. (This law was
changed. When the tables were first written, this was the law.)
C. Roman expands quickly after 450 b.c.e
1. By 300 b.c.e. controls most of Italy
2. By 150 controls Italy, Greece, Spain, North Africa and Western Turkey
a. Size eventually destroys the balance needed to perpetuate Rome’s constitutional system
b. Control (ownership) of foreign lands by “generals” causes wealth to concentrate and
poverty to spread. Poor begin to basically sell their votes for money.
3. By 21 b.c.e Republic Ends and Empire Begins
2) Roman law keeps evolving until about 200 c.e
3) Western Roman Empire Collapses 476 c.e
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Pre-Axial Age Question:
This is the Pre-Axial age problem (Tension/Crisis): 축의 시대의 문제는 다음과 같이 정의할 수 있다.
당시의 사회,
국가 및 문명을 지탱했던 것은 농업 생산이었다.
the rich get richer, 부자는 더 더 부유 만들어진다
the poor get poorer, 가난한 사람은 더 가난한 만들어진
but society is reliant upon the poor to sustain itself. 그러나 사회 그 자체를 유지하기 위해 가난한에
의존하고
The Question:
How to have the surplus of agriculture societies and the fairness of Hunting and Gathering
societies? 농업 사회의 잉여 및 사냥 및 수집 사회의 공정성을 가지고하는 방법?
… in order to have more stability. 더 안정성을 위해
Famous Quotes
“We shape structures, then structure shape us”
(google translate)우리는 구조를 모양, 그런 다음, 구조는 우리를 모양– Winston Churchill.
“Poverty is a kind of violence, the worst kind” “빈곤폭력의한형태이다, 그것은폭력의최악의종류’ – Gandhi
“Humans are at their worst when they are least accountable for their actions”
“‘인간은자신의행동에대하여최소한의책임만질때, 가장최악의상태에놓인다”
(Google translate: 그들은자신의행동에을위한최소책임이할때인간은자신의최악이다) M. Scott Peck, M.D.
“Do to other’s as you would have them do to you”
‘다른사람에게당신을치료하는당신이그들을원하는방식으로치료 – The Golden Rule: Confucius, Buddha, Scorates
“The arc of history is long, but it bends towards justice”
“역사의호긴하지만, 정의를향해구부러” Martin Luther King, Jr.
“A great civilization is not conquered from without until it has destroyed itself from within”
“위대한문명은장북되지않는다스스로붕괴하기전엔…”
Google translate: “위대한문명은내부에서스스로를파괴할때까지하지않고에서정복되지않습니다.” -W. Durant
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