[ I’m presuming you’re not making the distinction “civil law” as compared to “common law”, but as compared to “non-codified warlord/monarch/group decisions”. If you really are talking about how legislation differs from precedent, I have a completely different set of thoughts. ]
For contracts and property not to just be custom and violence we need civil law.
This implies a model where “civil law” is an ontologically different thing than “custom and violence”. I don’t agree. Civil law is an encoding of the customs, and an indirection of the violence, but it’s the same thing at it’s root. There is, of course, more infrastructure in modern law to make cooperation-competition work somewhat efficiently in much larger groups of people.
You’d be simply incorrect if you claim that planning and mostly-non-violent dispute resolution didn’t happen in non-literate tribes, or before the Magna Carta (or before the Thracians, or before the Israelites, or pick any case you like as “the start of civil law”).
Without regular, intelligible, governing principles that are known at least implicitly by the governed, the resolution of a dispute is determined by whatever people happen to decide at the time, not by the text of the original commitment
Sure, but the bar for “regular, intelligible, implicitly known” is VERY low, especially for smaller, poorer groups. Social expectations of what property is to be shared and what can be hoarded, and punishment by shunning (which is a death sentence in many situations) is enough. Yes, it’s “whatever people happen to decide at the time”. But there is likely to be some consistency across time in those decisions. In modern times as well, you might be surprised at the amount of effort and argument that goes into interpreting “the text of the original document”. Text neither makes nor enforces decisions. People do.
You’d be simply incorrect if you claim that planning and mostly-non-violent dispute resolution didn’t happen in non-literate tribes, or before the Magna Carta (or before the Thracians, or before the Israelites, or pick any case you like as “the start of civil law”).
I meant to assert the opposite—that what we now know as civil courts are a formalization of an investigative process that must have been happening since the beginning of descriptive language, before people had the idea of courts to refer to, and that we mainly need a distinct idea of it in response to interference with investigative processes as such, motivated by commitments to antinormativity.
[ I’m presuming you’re not making the distinction “civil law” as compared to “common law”, but as compared to “non-codified warlord/monarch/group decisions”. If you really are talking about how legislation differs from precedent, I have a completely different set of thoughts. ]
This implies a model where “civil law” is an ontologically different thing than “custom and violence”. I don’t agree. Civil law is an encoding of the customs, and an indirection of the violence, but it’s the same thing at it’s root. There is, of course, more infrastructure in modern law to make cooperation-competition work somewhat efficiently in much larger groups of people.
You’d be simply incorrect if you claim that planning and mostly-non-violent dispute resolution didn’t happen in non-literate tribes, or before the Magna Carta (or before the Thracians, or before the Israelites, or pick any case you like as “the start of civil law”).
Sure, but the bar for “regular, intelligible, implicitly known” is VERY low, especially for smaller, poorer groups. Social expectations of what property is to be shared and what can be hoarded, and punishment by shunning (which is a death sentence in many situations) is enough. Yes, it’s “whatever people happen to decide at the time”. But there is likely to be some consistency across time in those decisions. In modern times as well, you might be surprised at the amount of effort and argument that goes into interpreting “the text of the original document”. Text neither makes nor enforces decisions. People do.
I meant to assert the opposite—that what we now know as civil courts are a formalization of an investigative process that must have been happening since the beginning of descriptive language, before people had the idea of courts to refer to, and that we mainly need a distinct idea of it in response to interference with investigative processes as such, motivated by commitments to antinormativity.
I mean civil as opposed to criminal. Thanks for pointing out the ambiguity.