The Rule of Laws, page 10
The new rulers slowly unified the government of their empire, controlling urban markets and standardizing taxes on grain, cloth, and labour services. They revised the equal-field system, under which land was allotted to farmers, and expanded the tax registers, which soon recorded nine million households, representing a population of close to fifty million. The emperors also insisted on personal skills, rather than family connections or military achievements, for official positions. Candidates for the highest levels of government service studied the Confucian classics as they trained for their examinations, which taught them about loyalty, not least to the emperor. The ministry of personnel then allocated successful candidates to government posts, including the magistrates who headed the district offices in the far corners of the empire. The Tang system of government was designed to keep local families from amassing power.
The emperors also commissioned a team of legal experts to draft laws. In time-honoured tradition, they declared that their laws would be more lenient than those of their predecessors, but the draftsmen based their new code firmly on the laws of the Sui.24 Officials continued to develop and improve the laws over the next three decades until they had created a substantial penal code, with articles, commentaries, and subcommentaries, many in the form of queries and answers.25 These qualified and extended the basic rules, incorporating the wisdom of cases decided over many centuries, to create a complex set of crimes, often distinguished from each other in precise and subtle ways. The Tang Code started with different types of punishment: beatings of various kinds, penal labour, and the death penalty. It described the great crimes that merited the death sentence: rebellion, sedition, treason; major crimes against family members, teachers, employers, and officials; poisoning and sorcery; and not serving the emperor properly. It then described the people who were entitled to remission or who were permitted to substitute a fine for a physical penalty—such as relatives of the emperor, those who had given long service, and others renowned for great achievements. It dealt with the prosecution of anyone who conspired in or assisted a crime, and it delineated how officials should deal with multiple crimes, or mitigate sentences for youth, age, disability, and confession. The code indicates that many people could claim reductions in their sentences, meaning that in practice punishments were much less severe than the basic rules might suggest.
The next sections discussed property crimes, kidnapping, fraud, the effects of imperial amnesties, and collective responsibility and set out rules for servants and slaves. There followed twelve sets of articles on specific types of crimes, errors that might be committed by the imperial guard, misdemeanours in government office, household registration and composition, marriage, regulations for public stables and granaries, rules on theft and robbery as well as assaults and accusations, and various procedural rules about arrest, judgement, and imprisonment. Alongside this criminal code, officials drafted administrative statutes, regulations, and ordinances. As in all previous regimes, the laws were first and foremost concerned with the running of the state, raising taxes, managing land, regulating marriage among peasants, conscripting troops, maintaining stud farms and storehouses, and preventing forgeries and counterfeiting.
The introduction to the code reveals much about how the Tang rulers and their officials and advisers had come to see their legal system. The great rulers of the past, it claimed, had been chosen by the people, and they had made laws in accordance with the highest moral standards. After an original golden age, when morality alone could maintain order, the rulers had had to introduce punishments to inspire awe and dread among the stupid, the unthinking, and the downright criminal. But they had ensured that penalties were appropriate, recognizing ‘heaven’s great statute’. The Tang Code claimed that it followed ‘the pattern of the former sages, whose regulations have not been lost, but have all been preserved, both great and small’. Like Hindu brahmins, the Chinese lawmakers invoked a sense of cosmological order as the foundation of their laws. These were the creation of men, but observed principles of morality and justice. And, putting the emperor at the centre, the Tang Code proclaimed his ‘wide and great mercy’.
The code invoked both the Confucian sense of an ideal moral order and the legalistic approach of the Qin, claiming that ‘virtue and ritual are the basis of the government’s teaching, but punishments and chastisement are its instruments’. But it went much further than either the Mesopotamian or Indian laws in its insistence on the good order of rules and categories. The authors emphasized the importance of distinguishing between different kinds and degrees of crimes with laws that were both concise and durable, able to distinguish round and square, like a measuring stick or a balance, as they put it. And this was borne out by the structure of the articles with their fine distinctions and careful qualifications.
NOT ONLY DID the Tang Code model itself on much previous law, but it set the scene for almost all later Chinese legal codes. Its rules were largely adopted by the subsequent Song (960–1279), Ming (1368–1644), and Qing (1644–1911) regimes. Over time, legal officials introduced new laws in order to deal with changing social issues, making the codes more and more complex. They also poured out commentaries and legal treatises, along with collections of cases, not to mention detective literature in which county magistrates often featured as resourceful heroes. As a result, the law was well known to those who could read—educated citizens, merchants, artisans, and a relatively large general public. And, despite substantial reorganization, much of its substance was still present in the version of the code maintained by the last Qing emperors at the beginning of the twentieth century.26
Throughout the changes in ruling dynasty, the Chinese law codes remained overwhelmingly penal. Anything that the government wanted to control and regulate, it made the subject of criminal sanctions. If local officials were supposed to transmit conscription orders throughout their regions, or keep birds out of their granaries, they made it an offence not to do so. If people were supposed to divide their property equally among their sons, it was a crime if they gave instructions to do something else. And the social hierarchy among government officials, soldiers, merchants, and artisans was made clear in the different punishments they would receive for the same crimes. This meant that people could not sue one another directly to enforce commercial contracts or property claims, or challenge relatives when divorce or death led to family disputes. If they wanted to use the official legal system, they had to accuse someone of a crime. Sometimes there was a suitable offence—for example, it was a crime for someone who had entered into a temporary property purchase, effectively a type of mortgage, not to allow the debtor to redeem it. This protected the right of the property-owner, as civil laws do elsewhere. But in other cases the laws were not so useful. Those embroiled in property disputes often had to rely on a general provision against ‘stealing, selling, exchanging, falsely claiming, falsely contriving a price and drawing up a deed, conditionally selling or occupying another’s land’.27 This hardly helped anyone. In practice, many people tried to avoid the formality and delays of the official system, along with the risk that they might, themselves, be found to be in breach of some rule.28 Throughout the following centuries, most of what we might call ‘civil’ disputes were mediated locally, by village and guild councils, or by respected leaders, such as members of ancestral lineages, or even Daoist priests. Indeed, since at least Han times, the rulers explicitly encouraged these informal practices, on the basis that they upheld the Confucian values of harmony, conciliation, and forbearance. They were aspects of a more ‘humane’ or ‘minimalist’ government, as a succession of rulers liked to present it, the moral ‘rule of men’ as opposed to the harsh ‘rule of law’. Even in the modern world, the Chinese state has continued to rely on local mediation and semiformal justice systems in the interest of creating a more ‘harmonious society’.29 Nevertheless, the classical legal codes remained penal in form, prescribing punishments for people who did not follow the rules, rather than giving citizens the right to make claims against one another.
The Chinese laws formed a system of discipline, providing rewards and punishments by which officials were supposed to induce correct behaviour. As one Chinese scholar put it, the legal system was like a net. If the holes were too small, it would catch everything and become unmanageable, but if they were too big, some fish would slip through. The experts knew how to manipulate the cords so as to strike the right balance.30 But people continued to talk about Chinese law in Confucian terms, and the laws emphasized Confucian values, including respect for senior relatives, teachers, employers, and officials. In these ways, it had some parallels with the laws of the Hindu brahmins. But while the Dharmashastras emphasized individual duties and correct ritual behaviour, the Chinese thought of their law as a system of norms created by their rulers to bring order to a great empire. They seem to have internalized the words of the Tang ruler who declared that he had relied upon his ‘estimation of heavenly principles and considerations of human compassion’ to ensure that his code would embody universal and unchanging moral principles. He was the source of all law. This also meant that he was not constrained by it. Ironically, supported by the Confucianists’ warnings about publicizing legal rules, the emperors resisted the ‘rule of law’, the possibility that they could be judged according to their own laws. This was a unique achievement among the world’s major legal traditions.
LAW DEVELOPED QUITE independently in Mesopotamia, India, and China, at least as far as the historical record suggests. In each case, the lawmakers created basic rules that specified punishments and compensation, regulated family relations and contracts, and provided rules for evidence. Their substance reflected the social problems that mediators faced everywhere in complex societies. Their laws could, at least in principle, have been applied by judges, and they soon were by China’s magistrates, but all the early lawmakers had higher aspirations. The Mesopotamian laws were casuistic, specifying the consequences of actions, events, and situations; the brahmins spelled out duties; and the Chinese defined appropriate punishments—and behind each legal system was a different vision of order. Their texts were more important for what they represented—statements about justice, a map for a social hierarchy, a system of discipline—than for the social order they actually produced.
As these three legal traditions developed and spread over the centuries, different lawmakers used forms and techniques from all of them and found that their rules offered pragmatic instruments to regulate daily life, create predictability, and resolve disputes. But the lawmakers of the great traditions that emerged in Rome, the Middle East, and Western Europe, largely the distant descendants of the Mesopotamian tradition, all had their own visions of order. Here, ideals of justice, duty, and discipline combined to form distinctly new traditions, those that dominate the modern world.
CHAPTER FOUR
ADVOCATES AND JURISTS
Intellectual Pursuits in Ancient Rome
Roman law was the project of Roman citizens. Like the Athenians, just a few decades earlier, they were seeking justice, probably inspired by what they had heard of the Mesopotamian laws and their promises. Throughout most of Roman history, assemblies of citizens had to gather to approve any new laws. They were not in the gift of either the ruling elite or a priestly class. But over time, legal scholars developed the substance of the law, treating it as an intellectual exercise and producing academic opinions. These were eventually brought together in the great compendium of Roman law that law students still study today. Ultimately, powerful emperors managed to control both judges and scholars, but they never quite achieved the lawmaking authority of their Chinese counterparts. There was always a sense that law was made by and for Roman citizens and that it held the promise of justice for all.
IN THE SEVENTH and sixth centuries BCE, there was little to distinguish the site of what would become one of the world’s most powerful ancient cities at the mouth of the river Tiber. The local populations were still tending herds and fields untroubled by written rules or regulations, living in settlements of wattle-and-daub houses clustered on the hilltops. But across the Mediterranean people were exploring new trading possibilities. Adventurous Greeks established settlements in southern Italy, and an elite class emerged among the Italians to the north. Successful warrior clans consolidated their wealth, combined their villages into towns, and sent missions over the seas in search of luxury goods and cultural inspiration.1
Little is known about the Romans who lived during this period, but in Etruria, north of Rome, archaeologists have found ornate weapons, banqueting services, ivory ornaments, jewellery, and even ostrich eggs. Many of these items had been imported from Greece. The elite displayed their wealth during processions and at athletic competitions, horse races, and banquets, and they decorated their tombs with delicate murals. The Romans followed suit and began to construct substantial temples in their villages. At some point in the seventh century, they created a public space between the hills and constructed the foundations of a new urban centre, later known as the Forum.2
Throughout most of the following century, a series of kings, thought to be of Etruscan origin, governed Rome. They commanded large armies, raided their neighbours, and drew many of the surrounding populations into their sphere of control. The ambitious Servius Tullius embarked on extensive political and military reforms, introducing censuses, reorganizing the population into new groups, and establishing a military assembly. He may have been trying to limit the power of the aristocrats—he himself was probably of slave origin. But the wealthy classes were not happy and in 509 BCE they staged a coup against his successor, Tarquinius Superbus. Having removed the populist tyrant, they determined that Rome should have no more kings. This was the start of the Roman Republic, and it is here that the story of Roman law begins.
LATER ROMAN HISTORIANS described and embellished the events surrounding the overthrow of the Roman monarchy in stories involving the dramatic rape of the virtuous Lucretia by an arrogant king, and his final defeat twenty years later in a great battle outside Rome. It is now practically impossible to disentangle myth from reality, a common problem with early Roman history. But, possibly inspired by the Athenians, who deposed their tyrannical ruler in 510 BCE, the Roman elite established an oligarchy. They elected two consuls to manage their domestic affairs and military campaigns, and these men had to consult a larger assembly on important issues. The consuls also established an ad hoc group of advisers, which would later develop into Rome’s Senate.
But the Roman elite were careless with the livelihoods of the poor, whose resources they severely depleted through constant warfare. A group of commoners decided to form their own assembly, the consilium plebis, in 494 BCE and elected their own leaders, tribunes. They took over one of the town’s temples and refused to perform military service. This was the first of a series of strikes during which they demanded relief from both hunger and debt. The Roman economy had evolved systems of lending and credit, and, like their Mesopotamian counterparts, many of the poorest found themselves in debt bondage. As in Ur, debt and social inequality surrounded the emergence of laws. But in Rome lawmaking was the initiative of the people themselves.
By the middle of the century, the plebeians’ assembly had established voting procedures and the tribunes were demanding better treatment from the wealthy classes—the patricians, as they became known—who were monopolizing the higher offices of government.3 The tribunes also demanded that newly conquered territories be distributed fairly among them. They wanted laws that would apply to everyone, which would be written down for all to see. Responding to the plebeians’ demands, in around 451 BCE the consuls suspended normal political offices and appointed a board of ten men, the decimviri, to collect, draft, and publish a set of laws. Later tradition has it that they took a trip to Athens to study Solon’s text, written over a century earlier. Other scholars think it more likely that the Romans were inspired directly by Mesopotamian laws, which they knew about from Phoenician traders and diplomats. Certainly, the Roman laws follow a similar basic format and use a casuistic form.4 In any event, it was a political crisis that led the Romans to commission the decimviri to write laws.
The subjects and content of the Twelve Tables, as they came to be known, carefully reconstructed by decades of later scholarship, were in fact rather mundane.5 They made procedural rules for court cases and dealt with the sorts of subjects that almost certainly gave rise to disputes in the normal course of Roman life: compensation for injuries, theft, and other minor crimes; wills and inheritance; and debt, obligations, and damage to property. Some confirmed the status of the paterfamilias, the head of a household, while one limited funeral expenses, apparently to avoid conspicuous consumption. Others specified the circumstances in which debt bondage might be imposed. Although a couple of clauses concerned the organization of boundaries and roads, the beginnings of urban planning, for the most part the laws dealt with private relations. One of the rules directed that important cases, which probably meant those involving the death penalty, required the approval of ‘the fullest possible assembly’, that is, the consilium of the plebeians. They wanted all Rome’s citizens to participate in the administration of justice.6
Historians have long debated the nature of the conflict between Rome’s classes.7 The creation of the Twelve Tables was certainly not the great plebeian victory that later Roman tradition claimed it to be, and the patrician elite continued to dominate the higher offices of government. Nor did the new laws demand, even on the face of it, equality among citizens, or general relief from debt. Still, they came to seem foundational to later Roman writers, probably because the laws promised, even if they could not guarantee, the right of every citizen to be treated fairly.
