I spent most of one day this week reading a medieval law
textbook: Decretum, by Gratian. (I’m
enough of a nerd that I actually enjoyed it.) It left me with the impression
that the practice of law hasn’t changed much in the last thousand years,
although nowadays there is much less discussion about the superior authority of
the church.
The Decretum was originally
written in Latin. I, of course, read an English translation; otherwise I wouldn’t
have gotten much out of it. One of my other books was also translated from
another language. This only becomes a problem when I’m reading the footnotes,
many of which were not translated. I’ll be reading, reading, reading, and . . .
something in French . . . reading, reading . . . something in Spanish . . .
reading, reading, reading . . . something else in French . . . reading,
reading, reading . . . is that Italian?
It feels like a game of “Name That Language” (. . . German? .
. .) The Decretum has a footnote in
Greek, but the translators were kind enough to put an English translation for
that as well.
In other history news, we read a very old case that would
have been among the first malpractice cases on record (if they had malpractice
back then). It involved a property dispute between a younger son and his older illegitimate
brother. When the younger son’s lawyer began to lose the argument, he tried to bring
up the older brother’s illegitimacy. The judge flatly told him that he plead
the wrong thing to make that argument and the older brother won.
We also discussed trial by ordeal (for example, throwing
someone in water to determine if they are guilty by whether they float or not)
and trial by contest (accusing someone of a misdeed and challenging them to a
duel to determine guilt). In England, these methods eventually gave way to trial
by getting-a-bunch-of-people-from-a-few-nearby-villages-to-give-testimony. That
was the early beginnings of trial by jury.
Part of this legal evolution took place during the reign of
King John, whose movements are so well documented that there is a website
dedicated to his daily itinerary. He was involved in increasing the penalty for
serious crimes (later to be known as felonies) from merely having your foot cut
off and given 40 days to abjure the realm (that is, leave the country) to
having your foot and your hand cut
off and being forced to leave. And those who were acquitted of serious crimes
weren’t much better off; they were also given 40 days to abjure the realm,
though they did get to keep all of their limbs and possessions.
Trial by ordeal is not extinct, by the way. In Comparative
Law, we are studying chthonic law (also known as customary law; that is the
type of oral, traditional law you find in societies the western world calls “aboriginal”
or “developing”). Liberia, for example, has a long tradition of trials by
ordeal. Some of their methods are severe, but others are pretty benign. And in a
customary law system, which is heavily focused on returning harmony to the
community, trial by ordeal can be an efficient way to solve contentions and
pacify both the accuser and the accused.
Meanwhile in Copyright, we’ve discussed the concept of fixation;
something has to be fixed in a physical medium to be copyrighted. (In other
words, you can’t copyright a thought.) “So,” my professor asked, “can you copyright
skywriting?” (For the record, I have no idea. But these are the kinds of questions
I spend my days pondering.)
A copyright also requires a modicum of creativity (illustrated
nicely by an old case about copyrighting circus posters) and some originality. The
originality requirement raised a conundrum for a scholar who was trying to fill
in the missing gaps of the Dead Sea Scrolls. The more accurate his work was,
the less original it would be; if it was not original, he couldn’t copyright it
and another scholar would be free to steal and publish his work.
That wouldn’t have been a problem for me, of course, because
I don’t read Hebrew. Or Latin. Or Greek. Or . . .
___________
Favorites of the week:
- Professor quotation (from Admiralty): “What do jet skis do? They hit things.”
- SCOTUS quotation: “The English language has a number of words and expressions which by general consent are ‘fighting words’ when said without a disarming smile.” Justice Murphy, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), emphasis added.
- Picture: abandoned ships in San Francisco Bay during the 49er gold rush (the sailors went to find gold, leaving the harbor clogged with empty ships)
- Song: Ancient Sea, by Elephant Revival (thanks to NPR for the recommendation)
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