Andrew Oh-Willeke, Esq., observes:
One example of cyclicality that continues to today is the practice of law. The basic principles of Roman private law and the complaints that people made about lawyers and litigation were remarkably similar in the 300s to what they are today.
In the 6th century Justinian the Great sponsored a compilation of the body of law which was being widely practiced in the Roman Empire at the time, what is now known as the Corpus Juris Civilis. This is not an abstract or obscure point in the history of modern law:
The present name of Justinian’s codification was only adopted in the 16th century, when it was printed in 1583 by Dionysius Gothofredus under the title “Corpus Juris Civilis”. The legal thinking behind the Corpus Juris Civilis served as the backbone of the single largest law reform of the modern age, the Napoleonic Code, which marked the abolition of feudalism.
Imagine that the astronomical models of Ptolemy served as a basis for modern astrophysics! There’s only a vague family resemblance in this case. The difference is that law is fundamentally a regulation of human interaction, and the broad outlines of human nature remain the same as they were during the time of Justinian and Theodora. In this way law resembles many humanities, which don’t seem to exhibit the same progressivity of science. Our cultures may evolve, but there are constraints imposed by our nature as human beings. Human universals in humanistic enterprises speak to us across the ages. The story of Joseph and his brothers in in Genesis speaks to us because it is not too unfamiliar from our own. The meditations of Arjuna are not incomprehensible to the modern, even if they come from the imagination of Indians living thousands of years in the past. The questions and concerns of the good life are fundamentally invariant because of the preconditions of our biology.
Science is different. It is the basis for real magic, in a Clarkian sense. It is a necessary precondition for humanity’s slipping the Malthusian trap for any period more than a generation or two. Science drives innovation which increases per unit productivity fast enough that it is feasible that in concert with the demographic transition utopia is possible. Many of the other hallmarks of the modern world we cherish are not unique. The Romans had law, as shown by the experiences of St. Paul, who was a citizen and due the appropriate rights. The Greeks had the Golden Age of Athens, which produced artistic works still valued today. The Chinese had a meritocratic bureaucratic system ~1,000 years ago. The British lacked the joint-stock corporation for a century thanks to the South Seas Company fiasco, but that didn’t stop them from initiating the Industrial Revolution. Institutions and norms are important, but they are not sufficient for the flourishing of affluence. We live in an age of the “secret sauce” of just enough innovation to outpace population growth. This is singular and distinctive in the history of mankind.
This is why the most recent episode of This American Life is so disturbing to me. It is redolent of ages best forgotten. And if you haven’t heard it yet, listen now! It’s titled “When Patents Attack!” The piece narrates the misuse and abuse of intellectual property law today in the United States for the profit of a few. Sound familiar? Like the frontiers of the financial sector it is clear that a system whose ultimate purpose was to smooth the aims of innovation and ingenuity is actually squelching and smothering it one step at a time. Gangs of lawyers are now marching together as collective legions of patent trolls whose sole aim is to shakedown technology firms. This is nothing new, a clever lawyer has always been an asset. Cicero lives on today as he did in the past. What’s new are the legions of would be James Watts. Throughout history the clever, sly, and ingenious, have managed to climb to the top of the pile. What is different about the past 200 years is that the spread of the gains to productivity to the masses. The gap between the skilled and unskilled worker in 1750 was far greater than it is today (though that gap was at a minimum in 1970). This massive redistribution of wealth has occurred through the positive externalities, the spillover effects, of science & technology, as well as institutional amplifiers (e.g., welfare state) possible to a large extent enabled by the productivity surplus.
Like parasites blooming within an organism the proliferation of patent trolls is disturbing. The very fact that someone as brilliant as Nathan Myhrvold perceives rich profits in this sector is a signal of the reality that the system has structural incentives which are warped in terms of its long term aims. Most of history has been a story of the few clever and strong bullying labor and produce out of the many. We’ve seen this before. What does it profit a civilization to gain the eloquence of Cicero if it loses its silent genius? (we know what it profits particular individuals, but that’s not rocket science, those the iron laws of history we aim to keep at bay)
In this story the United States of America is alas no longer on the side of the angels. From what I can tell one way that our nation aims to maintain its “competitiveness” is not to innovate, but to extract rents from our accumulated “intellectual capital.” This is just spending down the the savings of ages, rather than building new stores. Years ago my friend Joel Grus made me to be skeptical of the long term utility of intellectual property today, but my reading of economic history since then has moved me more toward his radical position rather than further from it.
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