When You Go to Court in Los Angeles, Please Don’t Bring Your Guns.

I have been off and on reading this little gem, Sixty Years in Southern California by Harris Newmark. Written in 1913, Newmark was a German Jew who emigrated to Los Angeles from northern Germany via Sweden, England, Nicaragua and San Francisco. It’s a fascinating tale, especially all of his details about Los Angeles in the early 1850s. Newmark was skilled as an ink maker in Germany, but joined an older brother in Los Angeles as a dealer in dry goods. I’m not through the 1850s at this point, but I’m guessing Newmark does pretty well for himself.

But this book, given all of his adventures (Nearly arrested in Liverpool for consorting with a Swedish bank robber! Nearly drowned in the North Atlantic when a storm wrecks sailing ship!), isn’t as well written as it could be. It does, however, have that matter-of-fact narration that lends itself to the understating of some very interesting and funny events. He writes at length about the state of the law and the legal profession in early 1850s Los Angeles, and tells this wonderful little story:

Speaking of the informality of courts in the earlier days, I should record that jurymen and others would come in coatless and, especially in warm weather, without vests and collars; and that it was the fashion for each juryman to provide himself with a jack-knife and a piece of wood, in order that he might whittle the time away. This was a recognized privilege, and I am not exaggerating when I say that if he forgot his piece of wood, it was considered his further prerogative to whittle the chair on which he sat! In other respects, also, court solemnity was lacking. Judge and attorneys would frequently lock horns; and sometimes their disputes ended violently. On one occasion, for example, while I was in court, Columbus Sims, an attorney who came here in 1852, threw an inkstand at his opponent, during an altercation; but this contempt of court did not call forth his disbarment, for he was later found acting as attorney for Pancho Daniel, one of Sheriff Barton’s murderers, until sickness compelled his retirement from the case. As to panel-service, I recollect that while serving as juror in those early days, we were once locked up for the night; and in order that time might not hang too heavily on our hands, we engaged in a sociable little game of poker. Sims is dead. 

More than inkstands were sometimes hurled in the early courts. On one occasion, for instance, after the angry disputants had arrived at a state of agitation which made the further use of canes, chairs, and similar objects tame and uninteresting, revolvers were drawn, notwithstanding the marshal’s repeated attempts to restore order. Judge Dryden, in the midst of the mêlée, hid behind the platform upon which his Judgeship’s bench rested; and being well out of the range of the threatening irons, yelled at the rioters: 

Shoot away, damn you! and to hell with all of you!”

What The Resolution Really Says

Something caught my eye the other day as a read through UN Security Council Resolution 1973 — the resolution that authorizes military action against Libya to “protect civilians.” This is the operative section is paragraph four, which comes after wading through many paragraphs of preamble (“Recalling,” “taking note of,” “reiterating,” “considering,” blah blah blah):

4. Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council …

Two things. First, the purpose of the resolution makes the defense of civilians and civilian areas under attack the purpose of the military action. This, of course, is cover for assisting the rebels, but suppose the military situation turns, it could just as easily be invoked by Qaddafiy’s government to demand protection for Tripoli. It won’t happen (the protection, not the call), since the goal of the intervention — at least from the Anglo-French perspective — is the end of Qaddafiy and his government. Neither country will use their military to protect him or his forces, or cities he controls, even if the “law” allows it.

The second thing, however, is more interesting. The resolution explicitly excludes a “foreign occupation force.” This has been taken to mean (by the press) no ground troops, but that’s not what the words say. It doesn’t say “foreign combat force,” it says “foreign occupation force.” This is enough wiggle room to drive the French Foreign Legion or a Marine Expeditionary Unit through. The difference, in my mind, is simple — no one can send troops in to occupy and govern Libya, but it says nothing about troops in to help the rebels fight.

I’m not saying that will happen, or was even planned. But lawyers write these documents very carefully. If they had wanted a resolution that would explicitly forbid all foreign (non-Libyan) ground troops from being in the country as part of this, it would have said so. That it doesn’t suggests someone (in Paris, probably) wanted to keep the option open.

Yes, A Cup of Tea Would be Nice, Thank You

Jennifer and I have just finished watching the first series of Law & Order:UK. I love well-done police procedurals, and the Law n’ Order franchise is Dragnet with lawyers — the cops are almost always virtuous, the perps are almost always guilty, and the lawyers all act above board except when they have to in order to get the baddest of bad guys. It’s a fantasy, and I understand it as such. But still a fantasy.

And while all the scripts for the first series of L&O:UK were drawn from the various NYC flavors (so much so that I found myself going, “I’ve seen this before” even though I know I hadn’t), there were some intriguing differences that I think worked in the UK show’s favor.

  • Wigs. I love the wigs lawyers have to wear. I wish American lawyers had a standard dress, and something somewhat outlandish and anachronistic on their heads. Dead squid? Live squid? And I thought judges had to wear even sillier wigs that look like long sheets of individually wrapped mattress coils? What gives?
  • “How about a nice cup of tea, then?” Lenny Briscoe would never ask that of someone he was interrogating. Elliott Stabler certainly wouldn’t. (Robert Goren might.) Detective Sergeant Ronnie Brooks is a very disarming character, a sweetly disarming character, very Columbo-esque, and not someone I’d worry too much would smash my head into a wall. 
  • Ethnically Diverse. Americans pride ourselves on ethnic diversity, but the NYC L&O universe is still pretty white (especially where senior people like judges are concerned) and the UK version makes the US flavors look almost white supremacist at times.
  • CCTV. I dislike even the very idea of cameras watching everyone everywhere, but it is interesting to see how they play out in fantasy UK police work. and how central video footage is to just about every UK story.
  • Rights. First, it’s interesting how much the rights a UK police officer reads a suspect are to the US Miranda Warnings. Second, it’s even more interesting how in the UK L&O universe police officers are better at reading rights to those they arrest (every time or almost every time). I don’t recall hearing many US L&O cops give the Miranda Warning upon arrest. (I memorized it as a kid watching reruns of Dragnet and Adam-12.)

The Reach and Limit of the Law in Antiquity

I have sporadically (when I’ve not been writing and singing songs, leading worship, or watching al-Jazeera on the latest events in Libya) been reading Peter Leithart’s Defending Constantine: The Twilight of an Empire and the Dawn of Christendom. It’s a fascinating and challenging read. Leithart so far has not so much “defended” the arrangement between the Church and the Roman state that Constantine made as he has explained what it really was. Which is helpful.

He also takes as a basis for his narrative the fact that Constantine really was a Christian. The question then, for Leithart, is what kind of Christian Constantine was.

The Roman state, by the time of Diocletian, had long been a religious state. Pagan sacrifice was the core of the empire’s regular devotional practice. There are some passages about sacrifice which I meant to blog on earlier, and will get to later. Because this is a posting about the law.

In 324, Constantine (according to Eusebius) issued a degree that was “intended to restrain the idolatrous abominations which in time past had been practiced in every city and country; and it provided that no one should erect images, or practice divination and other false and foolish arts, or offer sacrifice in any way” (p. 127, quoting Eusebius’ Life of Constantine). He ended the practice of state officials offering regular sacrifices, and was himself militantly opposed to sacrifice. Not long after Constantine died, his son Constans reinforced this with a decree making sacrifice a punishable offense. According to Leithart, this is the point where Christianity could be seen to be the official, established religion of the state, at least in the eastern part of the empire. (Again, Leithart is citing Eusebius here.)

However, Constantine also allowed broad “freedom of conscience” within the empire. Leithart asks how can these two ideas — the ban on sacrifice and freedom of conscience for pagan worship — be reconciled? Because of the nature of the law in antiquity. Leithart writes:

Imperial edicts always depended on enforcement by provincial or local officials, who might be too lazy or busy to carry out the emperor’s business. A provincial governor surrounded by convinced pagans would be hesitant to bear down. More important, emperors “never expected or intended that their anti-pagan legislation be enforced.” [Quotation from Scott Bardbury’s “Julian’s Pagan Revival and the Decline of Blood Sacrifice,” p. 134.] Leafing through the codices, one gets the impression that the decrees of the early Christian emperors were concise and legally framed legislation, but when we examine the full of text of certain decrees in Eusebius, we find that the legislative portion is fairly minor and often concludes a prolix moral lecture. The Codex Theodosianus consists of excerpts from Constantine and his immediate successors, but excerpting changes the genre and tone. In its original setting, much imperial legislation functioned more as mere moral appeal than as law [italics mine] in our modern sense of the term. Given the nature of the “law” in Constantine’s empire, there was no necessary contradiction between his “We wholly forbid the existence of gladiators” and his permission to an Umbrian town to honor the emperor with combats. Nor was there any necessary contradiction between a decree suppressing sacrifice and continued toleration of sacrifice. 

Constantine cannot keep himself from preaching. He did it in court, and when he issued decrees in his official capacity he was still the mission-minded preacher. Eschewing sacrifice entirely was the best way to go, so he prohibited sacrifice; yet everyone should be free to follow conscience, so he did not enforce prohibition. He was a politician-preacher … [and h]is legislation created an “atmosphere” in which sacrifice gradually faded way. (p. 128-129)

The law as moral appeal rather than legislation. This is interesting. It appears to understand the limits of both law and state, something modernity does not appear to grasp (because it wants the law omnipotent and omnipresent, much like modernity wants the state). To an extent, the people of antiquity appear to grasp — at least in this example (and assuming Leithart and his sources, whose conclusions he draws from, are correct) — the limits of power and ability. It may even be that the law’s primary use is as moral exhortation rather than enforced limit on human activity.

This is not to say law or decree were not taken seriously in antiquity, were not viewed as having real power, or were not expected to be obeyed. Otherwise, no one would take seriously the decree of Augustus that becomes the reason in Luke’s Gospel for Mary and Joseph to move from Nazareth to Bethlehem in order to fulfill prophesy. (In Matthew, the move is the other way around, from Bethlehem to Nazareth, and then only because the wrong people rule Judea.) Nor would the Tanakh conclude with the two books of Chronicles, the final of words of which are the decree from King Cyrus of Persia to rebuild the temple of Jerusalem. Powerful words that move people to act, and change the world.

But it seems to me as well part of the power is in their proclamation. If Constantine saw himself as a preacher, then he was exhorting people to act rather than compelling them. Perhaps the distinction is blurry in antiquity between exhortation and compulsion, but it may be there is less an element of raw power (and the modern state, especially the state in the 20th century, seems to be grounded much more on the exercise of raw power) in the state of antiquity because while the people who did rule were conscious of the extent of their power over others, they may also have been much conscious of the limits of their power.

It would be like — to use a bad but probably appropriate example — the United Nations. Sometimes, the Security Council (the UN’s executive) is truly seized of its power, such as its response to Iraq’s occupation and annexation of Kuwait in 1990. Mostly, however, the UN Security Council engages in moral hectoring more than legislating or enforcing (however edifying or annoying that may be). Which may explain why many UN Security Council resolutions read the way they do.

However, we moderns expect the law to be enforced, to be impartial, and to be fair. We have come to believe the law is almost (or should be) mechanical. Perhaps because the law has always held out that promise. But it can’t be, and never will be, for the reason Leithart states. It is a human act, and perhaps it is better to consciously live with the tension that the law is better as moral appeal than code of behavior, knowing that it will always be enforced capriciously regardless.