Indo-European gods of justice were always two-fold. One is a formal jurist, another is passionate about the gut-feeling fairness: Mitra and Varuna, Tyr and Odin, Dius Fidius and Jupiter. The informal fairness is off the primordial, wild nature, and could be scary sometimes. The court of jurors comes from the same origins, and it could take wild, not a pretty form of lynching. But without those wild nature roots, formal justice wilts and crumbles, as Romans understood.
The posts of Flamen Dialis, the overseer of the fas – moral and sacred law (in opposite to the civic and criminal law – ius), had to have wife and children, to insure that creative force of nature lives in him. The law without life and passion is dangerous as German proverb says: “Nur die Lüge bedarf den Schutz eines Gesetzes” – “Only the lie needs the protection of a law”. This is why it was passionate Ahura, not formal jurist Mithra, who became the supreme god of Zoroastrianism, the first monotheistic religion.
How laws were created then? They were created out of passion. For example Livy tells us a story how the nexum laws (personal, bodily liability of the debtor before creditor), we changed by mutuum (property liability). A libidinous creditor wished to abuse a hansom youth who, as a result of debts contracted by the boy’s father, was in his household as a nexus (hostage which would guaranty the debt repayment). The young man resisted, and the master, having run out of threats to make him consent, had him stripped naked and whipped. The victim ran out of the house and aroused the people in his defense. The consuls convoked the senate, and a law was voted on the spot that day.
How it’s done today? Well, we saw and heard that yesterday. Not a slightest commotion amongst consuls and senators of our days. “Morgen! Morgen! Nur nicht heute! Sprechen immer träge Leute” – “Tomorrow! Tomorrow! Just not today! Lazy people always say that”. And I would say it’s not just lazy, but hypocritical people.
It’s not the law in itself what is important, it only formalizes the passion of the society behind it. And what is lacking in our society is the passion to stop massacres. On the opposite, the passion is behind the continuing blood sacrifices of children for sins of guns affection of their parents. Just listen to the yesterdays ritualistic rhetoric: “Let’s mourn them first, and then…” Then what? Do nothing as usual? Or uphold “Shoot first” laws creeping everywhere? And wait for the next blood bath?
I’m sure that the Roman traders had million excuses for keeping the nexum intact. That abolishing it would make financial transactions impossible, and the economy will be ruined. Nevertheless, irrational adherence of other Roman citizens to principles of fairness and human dignity prevailed, and, at the end, made Rome great.
We hear similar arguments from gun enthusiasts about poor hunter-gatherers in Alaska, Pennsylvania, etc. who would starve without deer meet and would be eaten by bears if they part with their guns. Or that the Evil Government with all its military might is held back from turning US in a big GULAG only by NRA members and Second Amendment.
But are we irrational enough to inherit Roman greatness of caring about lives, well-being and dignity of our children and fellow citizens and not caring about practical excuses?