The Rule of Laws

INTRODUCTION

THE PROMISE OF LAW

In 1497 the Portuguese explorer Vasco da Gama sailed around the Cape of Good Hope and into the Indian Ocean. He was on a mission to open up a sea passage to the rich eastern trading networks. His journey also opened European eyes to the rich and sophisticated world of Asia, with its extensive commercial and technological developments, complex governing structures, and laws. The Portuguese docked at Calicut, on the west coast of India, where grains, sugar, spices, coffee, textiles, metals, and horses were loaded and unloaded every day on their way to and from the Spice Islands, the Indian plains, and ports in East Africa and the Arabian Gulf. Eager to participate in this trade, da Gama visited the court of the local ruler. The Zamorin was none too impressed by his gifts and sent the European delegation packing. But the Portuguese persisted, and after further missions and threats of violence, they established trading posts on the Indian coast.1

The merchants and adventurers who followed da Gama were impressed by the goods brought by Chinese traders, dazzled by the luxury and sophistication of the Muslim courts at Isfahan and Delhi, and intrigued by reports of the ancient Asian laws. In their distant capital at Beijing, Chinese rulers maintained a legal system that dated back to the third century bce. The Zamorin of Calicut, like other Hindu rulers, took advice from religious scholars, brahmins, who consulted the Dharmashastras. These centuries-old legal texts had their origins in the philosophical and ritual traditions of India’s Vedic period. Muslim legal experts referred to an extensive textual jurisprudence based on Muhammad’s revelations in the seventh century ce. In the courts of the sultans, well-trained judges dispensed justice, while scholars issued legal opinions and jurists conducted esoteric debates over ancient legal texts. The Europeans had nothing to compare in legal sophistication. Their own laws were still little more than heterogeneous collections of local customs and courts interspersed with the remnants of Roman jurisprudence.

By the early eighteenth century ce, everything had begun to change. The Qing had established a powerful new dynasty in China, the Mughal emperor Shah Jahan had built the Taj Mahal and extended a network of roads throughout India, and the Ottomans had threatened Vienna. But the Asian regimes were already faltering. The French legal philosopher Montesquieu still spoke with admiration of China’s sophisticated and stable legal system, but he also condemned it as ‘despotic’. Enlightenment philosophers had persuaded European rulers that their political systems followed the most rational principles, while their laws promoted superior regimes of private property. And, as their industrial and military achievements outstripped those of Asia, European rulers became convinced that their political, educational, and legal systems were the best in the world. The intricate scholarship of the Muslim jurists, the learning of the Hindu brahmins, and the elaborate codes of Chinese law were, to their minds, the irrational and outdated institutions of a degenerate Orient.

The national legal systems now found throughout the world are almost all modeled on those developed by European nations in the eighteenth and nineteenth centuries. During two hundred years of colonial rule, they exported and imposed their laws throughout the world and promoted a new international order of clearly demarcated states. Today, the leaders who take their seats at the United Nations are expected to maintain their own systems of laws and courts, as well as upholding democracy, human rights, and the rule of law. But within the long history of human civilizations, the rise and dominance of the state and systems of national law form just the latest chapter. The Europeans displaced legal systems that were already ancient when da Gama arrived in India, and even the Romans were inspired by earlier precedents. There is nothing inevitable about the shape that most legal systems take around the world today.

Most laws throughout history were very different from those considered appropriate in a modern state. For a start, laws have not always recognized territorial boundaries. Often, they travelled with merchants or religious scholars to new lands, where they generally came to coexist with local customs and rules. What is more, law and religion have often not been distinct. Particularly within the Hindu, Jewish, and Islamic traditions, legal rules have shaded imperceptibly into moral and religious guidance. Many ancient, and even quite recent, laws also defy the apparently basic requirements of efficiency, authority, and efficacy. Historically, many judges ignored the laws of their rulers, and plenty of laws were never enforced. Yet, highly impractical rules, which could hardly have contributed to the smooth running of their societies, were carefully written out on expensive parchment or chipped onto stone slabs. Time and again, historians have puzzled over what ancient laws were intended to do. Sometimes they have seemed little more than attempts to copy an older or grander civilization. Yet the Chinese traders, Hindu kings, and Muslim sultans that da Gama encountered all respected the rules of ancient legal systems. Their laws were just the latest examples of a technique that had been taken up repeatedly since it first emerged over four thousand years ago.

The oldest laws were created in Mesopotamia, the fertile lands lying between the Tigris and Euphrates Rivers in what is now Iraq. In the third millennium bce, the king of Ur ordered his scribes to write out a code of laws on a clay tablet. It followed a bold statement about the justice he could promise his people. Several centuries later, warlike leaders in central China inscribed ideograms onto bamboo strips and bronze vessels, which set out long lists of crimes and punishments. Their successors adopted the same methods to impose discipline on the officials and people of their expanding empires. On the plains of the Ganges, meanwhile, Indian scholars were crafting ritual texts based on the ancient wisdom of the Vedas. By the early centuries of the common era, brahmins were inscribing Sanskrit characters onto palm leaves to create the Dharmashastras, the foundational texts of Hindu law. Their successors travelled throughout South Asia, persuading rulers such as the Zamorin of Calicut to follow their rituals and adopt the Dharmashastras as codes of law. They were seeking to guide a body of religious adherents along a moral path.

The foundational legal systems that developed in Mesopotamia, China, and India were each distinct, in language, logic, and purpose. The Mesopotamian kings promised justice to their people, setting out rules that ordinary people could, at least in theory, rely upon; the Chinese rulers established systems of crimes and punishments to bring discipline and order to their expanding territories; and the Hindu brahmins sought to guide ordinary people along the path of the dharma, the cosmological order of their religious tradition. But, while each of these three legal systems was unique, together they provided the forms that all subsequent laws have adopted. It is arguably the crowning achievement of the modern state to have combined elements of all three within the legal systems that now dominate the world. But this did not happen for many centuries. In the meantime, legal techniques travelled, inspiring kings and rulers with quite different ambitions. They were also taken up in much more local contexts, by princes, councils, villagers, and tribesmen.

The earliest laws were little more than pragmatic and mundane rules. Ostensibly intended for rulers trying to manage complex societies, most addressed the sorts of tensions that arise anywhere people live together, the consequences of killings, injuries, theft, and adultery. They attempted to regulate property use and ownership, inheritance, family relations, and responsibility for children, as most laws have done throughout human history. They dealt with the consequences of slavery, for long a widespread issue, and provided rules about using oaths and ordeals to resolve disputes of fact. Over the centuries, rulers found law a useful tool with which to manage their populations. Chinese emperors, Indian princes, and Islamic caliphs all conducted censuses, measured and mapped out fields and pastures, and used laws to categorize households, levy taxes, and raise armies. Village meetings and tribal councils also made constitutions to regulate social behaviour and resolve disputes.

But the aims of the first lawmakers were not just practical. The Mesopotamian kings wrapped their laws in grand statements about the social justice they were promising their people while also invoking the favour of the gods. The Chinese emperors claimed that, by enforcing their laws, they were maintaining the order of the cosmos. The Hindu brahmins explained that they were establishing rules to guide people according to the requirements of the dharma, the ideal order of the world. Many other respected sets of laws have been highly impractical in quite puzzling ways, including those developed by the authors of the Old Testament. Although inspired by the Mesopotamian tradition, where law was the work of kings, the Israelite priests were pursuing a distinctly religious project.

The Pentateuch (or Torah), the first five books of the Bible, probably took the form we know today between the ninth and fifth centuries bce.2 They describe how, after leading his people to safety, Moses gave them laws for worship, ritual, and sacrifice, along with an extremely complicated set of dietary rules. These forbade Israelites from eating ‘abominable things’, that is, animals, fish, and birds that were unclean, creating a set of distinctions that have puzzled scholars ever since.3 Greek philosophers wondered whether the rules had medicinal purposes, preventing Jews from eating unsafe meat. But why should health, or even taste, have required that the Israelites avoid chameleons, moles, crocodiles, and most locusts (though not all), and what could possibly have been wrong with hares? The great Jewish theologian Maimonides despaired of finding meaning in the laws, declaring that ‘those who trouble themselves to find a cause for any of these detailed rules are, to my eyes, devoid of sense’. Others supposed that the laws were an amalgam of earlier rules, which originally had hygienic, aesthetic, or religious purposes, or even that they were simply a set of commands that required discipline, obedience, and unreflective rule-following on the part of pious Jews. But the authors of Leviticus were obviously keen to promote an orderly society, so why should they have produced such an illogical list?4 The answer must lie in the wider purposes of the laws. Many of them promoted physical perfection, so priests could not be disabled, for example. And they demanded ritual purity. Jews had to eat, sleep, dress, and have sex in the right ways; warriors’ camps had to be set apart from the business of war, to avoid its polluting effects; and Jews were told they should not yoke together an ox and a donkey, or weave wool together with linen. This was to avoid confusing distinct categories. The laws, that is, told Israelites how to live holy lives by creating an order of categories and separating the pure from the impure, in physical as well as spiritual terms.

This larger purpose of the Israelites’ laws sheds light on their distinctions between clean and unclean. The cattle, sheep, and goats that provided basic sustenance in the region were cloven-hoofed ungulates who chewed the cud, so the priests decided that these qualities should define the class of clean animals. As a result, it included some wild beasts, such as antelopes and wild goats, but not all domestic animals, most importantly pigs. They declared that fish without scales and fins were abominations, as were four-footed creatures that could fly, animals with hands that used them for walking, and anything that swarmed. To their minds, proper animals should walk, fish should swim, and birds should fly. Hopping was close enough to walking, so they declared that grasshoppers, crickets, and some locusts were clean. But swarming was not. Whatever the rationale behind their decisions, the rules were more important for what they symbolized, dividing pure from impure, than for the ways in which they might save Jews from unclean food. And they set the Israelites apart from gentiles, as people who followed God’s laws. Behind them was a religious vision for a chosen people.

Hindu, Jewish, Islamic, and Christian scholars all made detailed and extensive laws as they developed their traditions. It is a consequence of the rift between church and state in medieval Europe that modern laws are considered to stand apart from religion. The distinction would have made little sense to the early lawmakers of the world’s major religions.

Other lawmakers, pursuing apparently political projects, have been inspired by grander civilizations, setting out visions of social order in sets of laws that seem equally impractical. In the seventh and eighth centuries ce, the Tibetans who inhabited the vast plateau west of China were still warlike tribesmen. Strong leaders brought them together in military expeditions to China and Central Asia, demanding oaths of loyalty, and the most successful eventually established themselves as kings. A royal dynasty set up a court and a bureaucracy, with offices and ranks of ministers. Almost certainly inspired by the elaborate administration of the Chinese emperors, they also created laws. That we know anything of this period is largely thanks to documents crammed into a cave at Dunhuang, a trading post on a branch of the silk roads that ran north of Tibet, discovered by local scholars in 1900. It had remained sealed since the eleventh century, and when the Hungarian explorer Aurel Stein arrived in 1907, he found almost forty thousand documents written in Chinese, Tibetan, and other Asian languages.5 Persuading the local scholars to give him access, he spent days leafing through the fragile scrolls by candlelight and lamplight; eventually he carried away caseloads of the most important documents, which he deposited in the museums of Paris and London. Within this treasure trove historians found some of the ancient Tibetan laws.

Two specified the compensation that was to be paid when someone was injured on the hunting field, setting out long lists of payments graded according to the ranks of both perpetrator and victim.6 Someone who killed one of the four great ministers was liable to pay ten thousand gold coins; for a minister of the turquoise rank it was six thousand; for a gold-rank minister, five thousand; for the gilt, four thousand; for the silver, three thousand; and for the brass and copper, two thousand and one thousand, while the two classes of commoners received three hundred and two hundred, respectively. But it was different if you killed someone of a significantly higher status, or if the victim merely suffered a wound (although the severity of the injury does not seem to have made a difference), or if you could prove that the wound was an accident. The logic of the status distinctions is clear: an aristocrat’s life was worth more than that of his servant. But gold coins were not common currency when Dunhuang flourished, the differences seem excessive, and the details are unrealistically complicated. For all the kings’ desires to emulate their Chinese neighbours, Tibetan society can hardly have been so clearly stratified. On the vast plateau they depended on local tribal leaders to manage their populations, sending and receiving orders and letters over long distances via relays of horsemen. The laws symbolized the hierarchy the Tibetan kings wanted to create, their imagined state. They were mapping out a grander, more unified civilization. It was a map for civilization, not a map of an existing social order.7

Behind what are ostensibly functional laws there often hover grander ambitions and aims, in the modern period as much as in the ancient world. The US Constitution, for all its initial goal of establishing a practical means of coordination and government among the federal states, soon acquired a mythic aura as a symbol of the union’s ideals and aspirations. Sometimes described as the foundation of America’s ‘civic religion’, the original Constitution is carefully preserved and displayed in an elaborate vault in Washington, which some have likened to a sanctuary.8 It symbolizes the foundations and order of the United States. And the text has inspired similar projects elsewhere. Following successful struggles for independence, most postcolonial states created brand new constitutions for their fledgling democracies. Each demonstrated the credentials of the new government and its claim to participate in the contemporary world order. The new states often lacked the court structures, professional resources, and political will to enforce the terms of their constitutions, yet their legal texts indicated a political coming of age, statehood, and leaders who could take their seats at the United Nations. Their projects were not so different from those of ancient kings who chiselled long lists of laws onto stone slabs, which no one seems to have applied, or those of medieval rulers who commissioned scribes to write out lists of impractically detailed compensation payments when literacy was rare and paper expensive. They were aspirations to a grander order.

Even contemporary laws formulated in response to a social problem are not always as pragmatic as our governments would have us believe. When a tragedy occurs involving handguns or dangerous dogs, or the media gets overexcited about criminals evading justice, politicians rush to legislate. But all too often the new laws are impractical or unenforceable. The problem of hate speech was the subject of legislation in the United Kingdom which many commentators thought could barely, if ever, be enforced.9 But governments must be seen to be doing something. Passing a law gives their citizens the impression that politicians are in control of the situation. And, to be less cynical, it also expresses the moral revulsion of society at large. The laws set out, for all to see, the moral parameters of the civilized society our rulers claim they can create. They hold the promise of both justice and order.

Not all societies have created laws. Some people throughout history have formed social groups, managed their populations, and resolved their disputes without any laws. Bands of hunters and gatherers have practised tactics of avoidance rather than confrontation; tribes and lineages have pursued revenge relations, combining against adversaries but allowing mediators to settle feuds though compensation; homogeneous communities have preferred conciliatory mediation, trying to find compromises that satisfy all parties; and emergent leaders have centralized their powers, issuing orders and punishing those who disobeyed them. The variations have been endless, although patterns have repeated themselves, and they have produced forms of order that are stable and enduring without any explicit laws.

Even some complex and sophisticated societies have not made laws. The Old Kingdoms of ancient Egypt, the Aztec and Inca Empires in Central and South America, and the kingdoms that flourished in sub-Saharan Africa all maintained order without, as far as archaeologists have been able to discern, creating sets of rules or recording legal judgements as precedents. Ancient Egyptian documents and inscriptions indicate that for two thousand years pharaohs presided over complex fiscal systems in which officials kept detailed records of property holdings, temples, foundations, and revenues; scribes recorded royal decrees and orders; and judges heard legal cases and sentenced miscreants to penal labour, all without creating general rules.10 The Old, Middle, and New Kingdoms flourished from the middle of the third millennium to the sixth century bce with bureaucracies that were small, inefficient, and ramshackle.11 High officials were appointed through patronage or inherited their titles, and they had to carry out wide-ranging duties at the request of the king. One inscription describes the duties of the vizier as if the king, the benevolent teacher, were passing on personal wisdom to his student. There must have been accepted ways of doing things and deciding cases, but the Egyptian records emphasize the personal discretion of those who acted as judges. It was only in the sixth century bce that the Persian emperor Darius I ordered a legal codification in Egypt.

The first lawmakers were doing something different. Their laws may have been simple lists of punishments, compensation payments, and basic rules about contracts and divorce, but they were more than techniques of administration or means of judging cases. The Mesopotamian kings promised justice, Chinese emperors claimed they were upholding the order of the cosmos, and Hindu brahmins described the dharma that their rules enacted. From the earliest days, their laws represented a civilized world. Unlike the customs of nonliterate communities, the mediation of tribal conflicts, and the directions issued by Egyptian pharaohs, the new laws created objective standards, explicit sets of rules that other people could consult and quote. These laws could take on a life of their own. Some of the earliest Mesopotamian lawmakers chiselled their laws onto stone slabs, fully intending them to last. And even if clay tablets were crushed, bronze vessels melted down, or palm leaves deteriorated, people could remember the rules and write them out again. Their laws had a permanence that could, and did, outlast the authority of the lawmakers.

Laws provide tools with which rulers can order and control their societies. But they also offer resources to which people can turn as they seek justice and resist the arbitrary exercise of power. When laws are written out, different people can read and refer to them. The Chinese rulers created laws as practical tools of government, but when scribes placed them onto long bamboo strips, which they pinned up on gateposts and at markets, ordinary people could quote the rules to argue about an abuse of power or appeal against an unfair sentence, to the discomfort of local officials. In India, scholars, judges, and litigants consulted legal texts as they pursued legal cases and debated how property ought to be distributed. Judges could not simply decide what amounted to wrongful conduct and what would produce justice; they had to apply the rules. Their laws were objective and authoritative.

This is why the apparently simple technique of lawmaking can give powerful arguments to ordinary people. On a practical level, laws guide behaviour in ways that may make complex relations more predictable, as international merchants have long found. They define classes, professions, and social relations and categorize actions as permitted or prohibited, effective, or invalid. Laws provide rules for moral conduct. They offer standards that people can refer to and means of making decisions. By referring to laws, judges can treat like cases alike, as lawyers insist they should. They can say with certainty what the outcome of a dispute should be, and explain the principles that emerged from earlier judgements, creating the system of precedent that lies at the heart of the common law. Both written laws and precedents create an order of rules and categories, even without ready means of enforcement. They order the world conceptually as well as physically. This is, in essence, what all laws do. And once made explicit, written on palm leaves or inscribed on clay tablets, laws become objective. They can be tools to exercise power, means to legitimate it, and resources for those who would resist it.

Kings and governments have used law to cement their power, expand their domains, and discipline their populations. The Mesopotamian laws made liberal references to the death penalty; Chinese emperors used legally sanctioned sentences of penal labour to create an army of state slaves; brahmins supported the political projects of Indian kings; and Muslim caliphs enforced harsh criminal penalties, which they claimed were consistent with the directions of Islamic law. Laws help rulers to raise taxes and armies, requisition land and resources, and expand their empires. It was not just the Chinese rulers who used laws to create complex bureaucracies and manage their expanding territories. European powers also put law at the heart of their colonial projects. When the Persian, Mughal, and Ottoman Empires crumbled in the eighteenth and nineteenth centuries, and French and British forces unseated Muslim sultans and Hindu kings, colonial administrators declared that their laws would bring civilization to a ‘despotic’ Orient. Law legitimated their projects of conquest.

But law has never just been a tool for the powerful. People have also quoted laws to challenge government decisions, resist abuses of power, and seek justice. Over four thousand years, people have repeatedly put their faith in law to make the world a better place. Priests, village councils, and tribal leaders, along with reformers and campaigners, have crafted laws as they sought to promote a moral order, resolve conflicts, or pursue ambitious projects for justice. The innovation of the Mesopotamian kings, the Chinese emperors, and the Hindu brahmins was to create rules that would take on a life of their own. Once these laws were recorded and made public, people could appeal to them for justice. The determined dictator might tear up the rule book, but he could not do it unnoticed. Modern human rights laws are just the latest in a line of legal instruments designed to curb the wrongful use of power, and they do, on occasion, achieve this aim. This is the rule of law, and it is as ancient as law itself.

Laws have never simply been rules. They have created intricate maps for civilization. Far from purely concrete or mundane, throughout their history laws have presented a social vision, promised justice, invoked the moral world ordained by God, and enshrined the principles of democracy and human rights. And, while laws have surely been an instrument of power, they have just as often been a means of resisting it. Yet the rule of law is neither universal nor inevitable. Some rulers have avoided submitting themselves to the constraints of law, as Chinese emperors did for two thousand years. The rule of law has a history, and we need to understand that history if we are to appreciate what law is, what it does, and how it can rule our world for better, as well as for worse.

CHAPTER ONE

MESOPOTAMIA AND THE LANDS OF THE BIBLE

In 2112 bce, an ambitious military leader, Ur-Namma, seized power in the Mesopotamian city of Ur. Ousting a successful but ruthless warlord, the new king introduced measures to relieve peasants, labourers, and artisans who had fallen into poverty, and he promised to redress social inequalities. He boldly declared, ‘I did not deliver the orphan to the rich. I did not deliver the widow to the mighty. I did not deliver the man with only one shekel to the man with one mina [sixty shekels]. I did not deliver the man with only one sheep to the man with one ox.… I eliminated enmity, violence, and cries for justice.’1