The Rule of Laws, page 1
THE RULE OF LAWS
THE RULE OF LAWS
A 4,000-YEAR QUEST TO ORDER THE WORLD
FERNANDA PIRIE
First published in Great Britain in 2021 by
Profile Books Ltd
29 Cloth Fair
London
EC1A 7JQ
www.profilebooks.com
First published in the United States of America in 2021 by Basic Books, an imprint of Perseus Books, LLC, a subsidiary of Hachette Book Group, Inc.
Copyright © Fernanda Pirie, 2021
Print book interior design by Trish Wilkinson.
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Printed and bound in Great Britain by
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The moral right of the author has been asserted.
All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the publisher of this book.
A CIP catalogue record for this book is available from the British Library.
ISBN 978 1 78816 302 6
eISBN 978 1 78283 580 6
CONTENTS
Introduction: The Promise of Law
PART I: VISIONS OF OR DER
1 Mesopotamia and the Lands of the Bible
2 Indian Brahmins: The Order of the Cosmos
3 Chinese Emperors: Codes, Punishments, and Bureaucracy
4 Advocates and Jurists: Intellectual Pursuits in Ancient Rome
5 Jewish and Islamic Scholars: God’s Path for the World
6 European Kings: Courts and Customs After the Fall of Rome
PART II: THE PROMISE OF CIVILIZATION
7 At the Margins: Lawmaking on the Fringes of Christianity and Islam
8 Embracing the Laws of Religion: The Hindu, Jewish, and Muslim Worlds
9 Imperial Law and Divine Justice in Medieval China
10 Courts and Customs in the European Middle Ages
11 The Problem of Judgement: Oaths, Ordeals, and Evidence
PART III: ORDERING THE WORLD
12 From Kings to Empires: The Rise of Europe and America
13 Colonialism: Exporting the Law
14 In the Shadow of the State: Islamic Law in the Modern World
15 Turning Their Backs on the State: Tribes, Villages, Networks, and Gangs
16 Beyond the State: International Laws
Conclusion: The Rule of Laws
Plates Section
Acknowledgements
Notes
Bibliography
Illustation Credits
Index
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.
