The Rule of Laws, page 45
Behind the legal systems of the most powerful, there generally hovers a sense of divine right, cosmological order, or natural law. And rulers inevitably promise to prevent or correct disorder and injustice. The Chinese emperors claimed that their people needed to be disciplined in the interests of the peace and stability that they themselves embodied as representatives of heaven; Indian kings patronized the brahmins, who maintained that Hindus needed to act according to the requirements of their dharma to avoid a miserable rebirth; and modern states everywhere justify punitive regimes by insisting that chaos and disorder will ensue if ‘criminals’ are not punished. We are still heirs to Hobbes’s view of life without a state as ‘nasty, brutish, and short’.1
Rulers have everywhere claimed to promote peace, order, and prosperity, maintaining that they are in the best position to pursue these goals, if only people will follow their lead and grant them sufficient power. Promulgating laws is a means to make these goals explicit, to spell out the ways in which they will manage resources, suppress crime, and redistribute wealth—or accomplish whatever currently exercises the public imagination.
In little more than three hundred years, law has come to be associated firmly with the nation-state. Models and systems developed in Western Europe now dominate the world. Of course, state systems are not as comprehensive, effective, or coherent as our governments would have us believe. Small communities continue to live by their own rules, Muslims follow the legal guidance of their muftis, and international organizations create sets of rules that unite people across borders. But European rulers brought together disciplinary practices, pragmatic techniques, and idealistic visions, the innovations of the first lawmakers in Mesopotamia, China, and India, to create a powerful model of law. Behind it lay ideas about natural law and common humanity. Remarkable economic, technological, and military expansion then allowed them to export their laws around the world, claiming that they would bring ‘civilization’ to indigenous people and sweep away outdated models of ‘despotic’ or ‘primitive’ order. In the twentieth century, this has become the vision of an international order in which properly elected governments promote peace and prosperity, uphold democracy, and respect human rights. It is the equivalent of the cosmological order invoked by the Chinese emperors and the order of the dharma elaborated by the Hindu brahmins that the colonizing powers were so keen to replace.
BY MAKING THESE promises, rulers throughout history have also made laws that their citizens can rely upon. And, despite the disciplinary techniques of the most autocratic rulers, many ordinary people have continued to put their faith in the power of law to produce a just social order. It was not just the Roman citizens who gathered in vast assemblies to pass new laws that they hoped would curb the powers of corrupt officials. Medieval French peasants quickly grasped the possibility of standing up to their lords, and even viscounts and bishops, in their local courts; Daghestani tribesmen made their own laws in defiance of the local khans and even shaykhs; a Russian traveller was impressed by the Tibetan herdsman who claimed that his tribal laws were vastly superior to those of China, the Dalai Lama, and ‘any of your petty kings’; and Hawaiian nationalists established their own court to ‘try’ the United States for crimes of colonial aggression.
Laws do not possess any inherent power for good or for evil. Over history, many legal projects have been thoroughly cynical and manipulative. The Germanic kings were trying to acquire the power and status of Roman emperors; Hammurabi was a ruthless warlord who wanted to bequeath a benign image for posterity; lawmaking priests and their institutions often amassed power and resources for their own benefit; authoritarian leaders regularly cite the law to legitimate their actions; and contemporary governments try to convince us that they are more in control of a crisis than they really are. A vision of civilization, competence, and human rights may be a screen for ambition and greed, or simply power. But visions and screens only work if people believe in the values they project. And once laws set out a vision that people believe in, they can also be used against any power-holder who tries to ignore them. This is what gives law its ability to both legitimate and limit power.
Once made explicit, laws are rules that people can quote, rely upon, and use to object to corruption and abuse. Hammurabi declared that any person should be able to read the laws on his granite stone and seek justice. He also described the terrible curses that would descend on any of his successors who flouted these rules. He was graphically illustrating the rule of law. And legal experts have almost always been able to stand up to political power. Indian brahmins upheld a vision of dharma that was so powerful they could refer to their laws to declare that a king was illegitimate. Medieval popes claimed authority to define the jurisdiction of European kings. In the Islamic world, while the qadis enjoyed the backing of powerful caliphs, the muftis kept themselves apart, claiming superior authority. Both caliphs and qadis had to respect their legal opinions if they wanted to secure popular support. And the reclusive Islamic cleric Ali al-Sistani was able to intervene decisively in the 2003 conflict in Iraq to insist upon an elected government, to the embarrassment of the US authorities who had wanted simply to appoint one. European colonialists embarked on projects to administer the territories they had seized and imposed their own rules with little regard for ancient laws and customs, fairness, or justice. Indeed, they often stipulated that indigenous people remain outside the protective cover of the law. But eventually local elites were able to turn the new laws and legal principles against their colonizers in powerful arguments for independence. If laws spell out a ruler’s vision for the world and legitimate his power, they can also be used to curb or overturn it.
This is why, over the course of human history, tensions have repeatedly arisen between those who exercise political power and the scholars and judges who claim authority to declare what the law is. In England, Sir Edward Coke threw down the gauntlet to James I by declaring that the king could not interpret the law. In doing so, he set a precedent for Lady Hale, when she sat in the Supreme Court four centuries later and told Boris Johnson’s government that it had acted unlawfully by proroguing the British Parliament.2 Powerful governments chafe when their judges declare executive activities to have been illegal and mutter darkly about the judiciary ‘exceeding its powers’ and ‘straying into politics’. No rulers like to have their power constrained, but this is how law has been used repeatedly over the course of history.
LAW CAN MAKE a social vision concrete and explicit, holding it up for all to see. This may be the promise of a king, a religious elite, a community, or a state, and it may be the means by which they seek to legitimate power. But once made explicit, that vision has a life of its own. Publicizing rules and judicial precedents gives them a fixity, hence authority, of their own. This is why law can be both an instrument of power and a means of resisting it. Heavy-handed rulers may be able to bend law to their will, use it to control and oppress, and justify what they do. But most find that their laws can eventually be turned back against them by anyone who can cite a rule and demonstrate that it has been broken, as long as they can gain access to legal structures and procedures and be heard. Rules can be quoted against the actions of those who would flout them. Dictators may tear up the rulebook, but they cannot do it unnoticed. Obscurity, imprecision, and secrecy are the tools of the autocrat, the mafia boss, and the despot.
The exception, as so often, has been China. Here, for centuries, powerful emperors managed to avoid the rule of law by claiming that they were both the source of their elaborate legal system and the ultimate object of its protection. Their achievement was to establish a sense not just that social order depended upon the discipline they could impose through punitive laws, but that they themselves were the representatives of heaven. They combined the roles of king and priest, the forces of might and right, in a pattern that endured through successive dynasties, and that no other ruler has been able to emulate so successfully or for so long. The European doctrine of the divine right of kings had a very short life. Unscrupulous rulers have repealed their laws, sacked their judges, closed the madrasas, or just declared, as Ayatollah Khomeini did, that they were above the law, but none has had the success of the Chinese rulers. Even now in China, the idea of ‘the rule of law’ implies the obligation of government officials to abide by the state’s rules, rather than acting as an explicit constraint on party leaders.3 This is rule by law, not the rule of law.
There is nothing inexorable about the rule of law, however widespread and however repeatedly it has emerged over the course of human history. The question is not whether law is a force for good or for evil, or even the extent to which the dynamics of the rule of law can successfully restrain abuses of power. Law can act as a check on power, but the powerful can often avoid its effects. The question is, rather, how law does what it does, and how any of us can use its promise and potential to make the world a better place. People repeatedly put their faith in law, grasping its capacity to transform their experiences of unfairness and injustice into arguments that will be heard. But laws on their own cannot transform the world. To ensure justice, laws need to be enforced. The Mesopotamian citizen who stood before Hammurabi’s law stone needed a judge to listen as he quoted the laws. Roman citizens had to struggle for decades to establish the political institutions that would ensure the justice promised by their laws, and by the time Justinian had them codified, those political rights had long been lost. Rulers in the modern world need to respect their judges if they are to claim, with any conviction, that they uphold the rule of law. Courts need to be accessible, and laws need to be fair. How this can and should be achieved are practical questions that go far beyond the scope of this book. But we, the ordinary citizens, need to demand the rule of law, and for this, we need to understand what law is and how it works.
The rule of law has a long history. It is an achievement of the past four thousand years. But that is a short time in the history of humankind. It has emerged time and again to confront and challenge those who wield power, but it is neither inevitable nor invulnerable. It is also ours to lose.
Calicut in the sixteenth-century. The port was one of the most important for European merchants trading with the Islamic and Chinese empires.
French scholar Paul Pelliot travelled to Western China in 1908 to explore the thousands of manuscripts in Dunhuang, newly opened after nine hundred years.
A page from the chronicle of the Tibetan Wa clan, discovered at Dunhuang.
The granite law stone created for King Hammurabi of Babylon in around 1770 BCE. The king is standing before Shamash, god of the sun, and both sides of the stone are covered with laws in cuneiform script.
Ashurbanipal, king of Assyria (r. 669–c. 631 BCE), collected a vast library of texts inscribed on clay tablets. Contemporary images depict him with a stylus tucked into his belt, even when fighting a lion.
Rudradaman, second-century ruler of Saka in western India, who commissioned a lengthy inscription in Sanskrit. This helped to secure the authority of the brahmins and their legal texts.
A fifteenth-century copy of the Naradasmrti, a Dharmashastra text that concentrates on legal matters, made for the Himalayan Malla kings.
Shivaji, a seventeenth-century rajput warlord, had to commission a legal opinion from a renowned brahmin to confirm his royal status.
Tang Emperor Taizong (r. 626–649) receives Gar Tongtsen Yülsung, ambassador of the Tibetan Empire, at his court. Copy of an original painted in 641.
A Tang dynasty exam paper from Turfan or Dunhuang, reused for a funeral shoe.
Upper-class Romans lived and worked in elegant villas decorated with frescoes. These Pompeian women are encouraging a girl to read.
Marcus Tullius Cicero, the great legal scholar and orator.
Papyrus recording the registration of property, prepared for the Roman census of Arabia in 127. It was hidden in a cave by a Jewish woman fleeing from the Romans after the Bar Kokhba revolt.
Learning and literacy flourished under the Abbasid caliphate. Scholars in a library in Baghdad, from a thirteenth-century manuscript.
Senior Jewish scholars also made Baghdad a centre of learning, remaining there into the twentieth century. Photograph from 1910.
Alfonso X of Castile commissioned the legal text known as the Siete Partidas, inspired by Justinian’s Corpus Iuris Civilis, in 1265.
Denarius representing Charlemagne as Roman emperor after his coronation in 800.
This aestal, or pointer, was made for King Alfred, to help readers to follow the manuscripts he distributed throughout his kingdom in the ninth century.
The laws of the Anglo-Saxon king Aethelstan, written in the tenth century, reflected the expanding reach of royal government. From the later Leges Angliae.
Thingvellir, site of the Althing, where the Icelanders gathered every year to listen to and promulgate new laws.
Grágás, ‘the grey goose’, the Icelandic book of laws collected during the twelfth century.
The baptism of Rurikid prince Vladimir in the tenth century, depicted in a fifteenth century version of the Russian Primary Chronicle. The event marked the beginning of an era of lawmaking in Rus.
The Armenian priest and teacher, Mxit’ar Goš, began work on his legal text in 1184. This monastery, at Tatev, was then already three centuries old.
Legal manual discovered in a Geniza, the storeroom of a synagogue, at Fustat, in Egypt from the eleventh or twelfth centuries. It sets out the conditions for debt agreements.
Irrigation channels in a central Algerian oasis just north of the Touat region. The villagers kept thousands of documents using Islamic legal forms.
The village of Tindi, in Daghestan, in the late 1890s.
The Song emperors, here Emperor Huizong (1082–1135), hosted elegant banquets for their scholar officials.
Under the northern Song dynasty (960–1127), the Chinese made numerous technological innovations, including harnessing hydraulic power to drive a grain mill.
English law students kept commonplace books in which they copied out important legal texts and decisions. This book, from the fifteenth or sixteenth centuries, contains the Natura Brevium, a commentary on the application of writs.
Manorial court roll from Assheton of Downham, in the Wapentake of Blackburn, from 1621–1622.
Lostwithiel Palace, in Cornwall, constructed by the Earls of Cornwall for the stannary administration in the late thirteenth century. It housed the Convocation Hall, smelting houses, the coinage hall, stannary courts, and the stannary prison. Engraving from the eighteenth century.
In 1470, a boy named Hans Hegenheim was convicted for theft and as punishment thrown into the Reuss River bound with a rope and pulled behind a boat. He survived, and was considered to have atoned for his crime, and went on to live a long life.
Kunigunde of Luxembourg, wife of Holy Roman Emperor Heinrich II, was accused of adultery in around 1010. To prove her innocence she walked over red-hot ploughshares, as depicted in this bas-relief from Bamberg Cathedral.
The ordeal by hot iron, as depicted in a twelfth-century European manuscript.
When they entered into the Treaty of Shackamaxon with William Penn in 1682, the Lenape people presented him with a belt of wampum, a symbolic object used by Native Americans to confirm important agreements.
The representatives of the English king confirmed and recorded their treaties in their own ways.
Sir William Blackstone published the first volume of his Commentaries on the Laws of England in 1765.
By the late nineteenth century, the law and its executives had become matters for satire in publications such as Punch magazine.
Warren Hastings (1732–1818), British colonial administrator, was considered one of the founders of the British Empire in India. In this portrait by Sir Joshua Reynolds, he is shown with a pile of papers and a seal with Persian script.
This cartoon of the Berlin conference from 1884 depicts Belgian King Leopold II dividing up the pumpkin that is the Congo, flanked by German Emperor William I and the crowned bear of the Russian Empire.
British colonial administrators employed local Nigerians as officials. This court clerk is surrounded by his messengers. Photo from October 1914.
Abu al-Sa’ud (1490–1574), one of the chief Ottoman theologians, teaching law. Illustration from a sixteenth-century manuscript.
A qadi and a mufti (on the left) are offered refreshments during a break from their work in Afghanistan in 1960.
Ninety-year-old Grand Ayatollah Ali al-Sistani and Pope Francis met in Iraq in March 2021.
Seyh Suleyman Kaslioglu, Turkish Mufti of Rhodes, in 1957.
In the Tibetan areas of Ladakh, villagers turned their backs on law and legal records, even in the twenty-first century.
In the eastern Tibetan region of Amdo, respected mediators resumed their work of resolving feuds after the end of the Cultural Revolution.
ACKNOWLEDGEMENTS
THE INTELLECTUAL ORIGINS of this book lie in the Oxford Legalism project. Between 2009 and 2018 a group of inspiring colleagues from many different disciplines and institutions presented papers and case studies which stimulated debates about the nature and history of laws and produced four edited volumes (Legalism, OUP). In doing so, they laid the ground for the arguments that would develop into the present book. I owe a particular debt to the initiative and insights of Paul Dresch and Judith Scheele within that project and I am grateful to the several Oxford institutions that supported it. The result was empirically-grounded, exploratory scholarship of the most productive kind.
