The Rule of Laws, page 47
8. On Confucius, see Caldwell, Writing Chinese laws, ch. 2.
9. Caldwell, ‘Social change’, 20.
10. Caldwell, ‘Social change’, 14–18.
11. On the Qin and the Shangjun Shu, said to be the work of Shang Yang, see Caldwell, Writing Chinese laws, ch. 3; Liu, Origins of Chinese law, ch. 6, esp. 175–77.
12. Ulrich Lau and Thies Staack, Legal practice in the formative stages of the Chinese Empire: an annotated translation of the exemplary Qin criminal cases from the Yuelu Academy collection, Leiden: Brill, 2016.
13. See, generally, the cases and commentary in Lau and Staack, Legal practice, particularly 27–45.
14. Debates continue about why officials were buried with texts. See Anthony J. Barbieri-Low and Robin D.S. Yates, Law, state, and society in early imperial China: a study with critical edition and translation of the legal texts from Zhangjiashan tomb numbers 247, Leiden: Brill, 2015, 107–9.
15. Lau and Staack, Legal practice, 174–87.
16. These were expressed in terms of shields or suits of armour, but in practice they were replaced by other goods or money, as documents found at Liye indicate. I am grateful to Ernest Caldwell for this fact.
17. Lau and Staack, Legal practice, 188–210.
18. On this period and its laws, see Barbieri-Low and Yates, Law, state, and society.
19. See Barbieri-Low and Yates, Law, state, and society.
20. Barbieri-Low and Yates, Law, state, and society, 99–100.
21. Barbieri-Low and Yates, Law, state, and society, 100–101.
22. On the Han and Sui laws, see Geoffrey MacCormack, ‘The transmission of penal law from the Han to the Tang’, Revue des droits de l’antiquité 51: 47–83, 2004.
23. MacCormack, ‘Transmission’, 54–55.
24. MacCormack, ‘Transmission’, 73–74.
25. For a translation of, and commentary on, the code, see Wallace Johnson, The T’ang Code, 2 vols., Princeton, NJ: Princeton University Press, 1979–1997.
26. Scholars have estimated this at 30 to 40 percent. Derk Bodde and Clarence Morris, Law in Imperial China: exemplified by 190 Ch’ing Dynasty cases (translated from the Hsing-an hui-lan), Cambridge, MA: Harvard University Press, 1967.
27. Philip Huang, ‘The past and present of the Chinese civil and criminal justice systems: the Sinitic legal tradition from a global perspective’, Modern China 42: 227–72, 2016.
28. On legal practices, see Philip Huang, Civil justice in China: representation and practice in the Qing, Stanford, CA: Stanford University Press, 1996.
29. This was particularly the case under Hu Jintao, while Xi Jingping has encouraged greater use of law. See Taisu Zhang and Tom Ginsburg, ‘China’s turn toward law’, Virginia Journal of International Law 59: 277–361, 2019.
30. Jérôme Bourgon, ‘Chinese law, history of, Qing dynasty’, The Oxford international encyclopedia of legal history, Oxford University Press, 2009, 176.
4 . ADVOCATES AND JURISTS: INTELLECTUAL PURSUITS IN ANCIENT ROME
1. For early Rome, see Tim Cornell, The beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 BC), London: Routledge, 1995; Kathryn Lomas, The rise of Rome: from the Iron Age to the Punic Wars (1000–264 BC), London: Profile Books, 2017. Readable general histories are offered by Mary Beard, SPQR: a history of ancient Rome, London: Profile Books, 2015; Robin Lane Fox, The classical world: an epic history of Greece and Rome, London: Folio Society, 2013.
2. On the early Roman temples, see Charlotte R. Potts, ‘The development and architectural significance of early Etrusco-Italic podia’, BABESCH 86: 41–52, 2011.
3. The crystallisation into two classes, patricians and plebeians, occurred gradually, but its origins were in the opposition between the wealthy political elite and the newly formed plebeian group in this period.
4. R. Westbrook, ‘The nature and origins of the twelve tables’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte 105: 74–121, 1988, argues for the influence of the Mesopotamian, rather than Greek, codes via the trading and diplomatic missions of the Phoenicians to Italy. The casuistic form is certainly similar.
5. For the text, see M. H. Crawford, Roman statutes, vol. 2, London: Institute of Classical Studies, School of Advanced Study, University of London, 1996.
6. On the Twelve Tables, see also Elizabeth A. Meyer, Legitimacy and law in the Roman world, Cambridge University Press, 2004, 26.
7. See, among others, Richard E. Mitchell, Patricians and plebeians: the origin of the Roman state, Ithaca, NY: Cornell University Press, 1990.
8. On early lawmaking, see David Ibbetson, ‘Sources of law from the Republic to the Dominate’, in D. Johnston (ed.) The Cambridge companion to Roman law, New York: Cambridge University Press, 2015.
9. Seth Bernard, ‘Debt, land, and labor in the early Republican economy’, Phoenix 70: 317–38, 2016.
10. Lomas, Rise of Rome, ch. 9.
11. Bernard, ‘Debt, land, and labor’.
12. This fact, based on a single source, is much debated, but several scholars think it likely. See Cornell, Beginnings of Rome, 247–28; Seth Bernard, Building mid-republican Rome: labor, architecture, and the urban economy, Oxford University Press, 2014, 123–24.
13. Alan Watson, Law making in the later Roman Republic, Oxford: Clarendon Press, 1974, ch. 2.
14. Philip Kay, Rome’s economic revolution, Oxford University Press, 2014, 10, 327.
15. This was the Lex Hortensia. See Lomas, Rise of Rome, ch. 14.
16. On Roman legal practice, see Richard A. Bauman, Crime and punishment in ancient Rome, London: Routledge, 1996; Alan Watson, The spirit of Roman law, Athens: University of Georgia Press, 1995, 3, although some of their conclusions, like much about early Rome, are subject to debate.
17. On the pontiffs, see Alan Watson, The evolution of Western private law, Baltimore: Johns Hopkins University Press, 1985, 22.
18. Watson, Evolution, 5–6, ch. 1.
19. In general, see Andrew Lintott, The constitution of the Roman Republic, Oxford University Press, 1999.
20. Callie Williamson, The laws of the Roman people: public law in the expansion and decline of the Roman Republic, Ann Arbor: University of Michigan Press, 2005, ch. 3.
21. Williamson, Laws of the Roman people, xii–xiii.
22. As Cornell put it, in The beginnings of Rome, 342, Rome had developed from an exclusive aristocracy to a competitive oligarchy.
23. Polybius was applying Greek political theory to the Roman constitution and his account was schematic, but he was clearly convinced that ‘the people’ played a vital role in overthrowing corrupt regimes and allowing the rise of a more democratic constitution. See F. W. Walbank, ‘A Greek looks at Rome: Polybius VI revisited’, in his Polybius, Rome and the Hellenistic world: essays and reflections, Cambridge University Press, 2002; Lintott, Constitution, chs. 3 and 12.
24. On Polybius’s account they produced 35 metric tonnes each year. Kay, Rome’s economic revolution, ch. 3.
25. Beard, SPQR, 199.
26. The laws are listed in Williamson, Laws of the Roman people, Appendix C.
27. This incident is described by Watson, Law making, 7–8.
28. On the praetors and their activities, see Lomas, Rise of Rome, 296–97; Bruce W. Frier, The rise of the Roman jurists: studies in Cicero’s ‘pro Caecina’, Princeton, NJ: Princeton University Press, 1985, ch. 2; T. Corey Brennan, The praetorship in the Roman Republic, Oxford University Press, 2000; Watson, Law making, chs. 3–5.
29. The earliest known edict dates from 213 BCE. Watson, Law making, 1.
30. This was confirmed by the Lex Aebutia. Anna Tarwacka, ‘Lex Aebutia’, in the Oxford classical dictionary, 5th ed. Oxford University Press, 2019.
31. On legal procedures, see Frier, Rise of the Roman jurists, 64–65, ch. 5; A. H. J. Greenridge, The legal procedure of Cicero’s time, Oxford: Clarendon Press, 1901.
32. Frier, Rise of the Roman jurists, 59–62.
33. Lintott, Constitution of the Roman Republic, ch. 9; A. N. Sherwin-White, ‘The Lex Repetundarum and the political ideas of Gaius Gracchus’, Journal of Roman Studies 72: 18–31, 1982.
34. Derek Roebuck and Bruno de Loynes de Fumichon, Roman arbitration, Oxford: Holo Books, 2004, ch. 5.
35. Frier, Rise of the Roman jurists, 157.
36. Cicero, Topica 65; Watson, Law making, 103.
37. Watson, Law making, 103.
38. Frier, Rise of the Roman jurists, 158–60, ch. 4.
39. Watson, Law making, 117–22.
40. On Cicero’s prosecution of Verres and its context, see Frier, Rise of the Roman jurists, 48–50, ch. 2; Brennan, Praetorship, 446–50.
41. Williamson, Laws of the Roman people, ch. 2.
42. Brennan, Praetorship, 450–51.
43. Frier, Rise of the Roman jurists, 149. Cicero’s equivalent in United Kingdom is the criminal barrister who specializes in courtroom advocacy in cases that turn largely on matters of fact, while his or her Chancery colleagues, often less brilliant in court, are more like the jurists.
44. The case is described in some detail by Frier, Rise of the Roman jurists, ch. 1.
45. Alan Watson, Rome of the XII Tables: persons and property, Princeton, NJ: Princeton University Press, 1975, 175.
46. Jill Harries, Cicero and the jurists: from citizens’ law to the lawful state, London: Duckworth, 2006.
47. Brennan, Praetorship, 608.
48. On the jurists, see Frier, Rise of the Roman jurists, esp. ch. 4; Watson, Law making, 108–9.
49. In fact, Cicero did not become a jurist, and most of his fellow students were destined for other public offices, but their training must have followed similar patterns.
50. We do not know about Scaevola’s properties, but the details are typical of wealthy Roman residences. Fox, Classical world, ch. 34; Beard, SPQR, 318–28.
51. Watson, Law making, 104–6.
52. On the fictions, see Yan Thomas, ‘Fictio Legis: L’empire de la fiction Romaine et ses limites Médiévales’, Droits 21: 17–63, 1995.
53. Clifford Ando, Law, language, and empire in the Roman tradition, Philadelphia: University of Pennsylvania Press, 2011, 6–18.
54. Ari Z. Bryen, ‘Responsa’, in S. Stern, M. del Mar, and B. Meyler (eds), The Oxford handbook of law and humanities, Oxford University Press, 2019, 675–77.
55. Watson, Law making, ch. 15.
56. Frier, Rise of the Roman jurists, 120–23.
57. The Latin is ‘Dolus mal(us) abesto et iuris consult(i)’. See Bryen, ‘Responsa’, 675.
58. There is considerable debate over the figures for population and citizenship. Walter Scheidel, ‘Italian manpower’, Journal of Roman Archaeology 26: 678–87, 2013; Myles Lavan, ‘The spread of Roman citizenship, 14–212 CE: quantification in the face of high uncertainty’, Past and Present 230: 3–46, 2016, at p. 30.
59. Bryen, ‘Responsa’, 679.
60. What he actually declared and intended by his ius respondendi is not, however, entirely clear. Bryen, ‘Responsa’.
61. On the development of the imperial cult, see Clifford Ando, Imperial ideology and provincial loyalty in the Roman empire, Berkeley: University of California Press, 2000, esp. ch. 9.
62. Cicero, De Re Publica, 1.39.1; Ando, Imperial ideology, 9–11, 47–48.
63. See Ando, Imperial ideology, 383; Clifford Ando, ‘Pluralism and empire: from Rome to Robert Cover’, Critical Analysis of Law 1: 1–22, 2014, at pp. 9–11.
64. There is considerable literature on this edict and its implications. See, for example, Ando, Imperial ideology, 395, and the introduction to his Citizenship and empire in Europe, 200–1900: the Antonine constitution after 1800 years, Stuttgart: Franz Steiner Verlag, 2016, 9.
65. Ando, Citizenship; Tony Honoré, ‘Roman law AD 200–400: from cosmopolis to Rechtstaat?’, in S. Swain and M. Edwards (eds), Approaching late antiquity: the transformation from early to late empire, Oxford University Press, 2006.
66. Bruce W. Frier, ‘Finding a place for law in the high empire’, in F. de Angelis (ed.) Spaces of justice in the Roman world, Leiden: Brill, 2010.
67. On the legal reforms of this period, see Honoré, ‘Roman law AD 200–400’, and his Emperors and lawyers, 2nd ed. Oxford: Clarendon Press, 1994.
68. Ando, Imperial ideology, 362–83.
69. Myles Lavan, ‘Slavishness in Britain and Rome in Tacitus’ Agricola’, Classical Quarterly 61: 294–305, 2011, at p. 296.
70. Ando, Imperial ideology, 339–43.
71. On law in this period, see Tony Honoré, Law in the crisis of empire, 379–455 AD: the Theodosian dynasty and its quaestors, Oxford: Clarendon Press, 1998.
72. Peter Stein, Roman law in European history, Cambridge University Press, 1999, 46, 60.
5. JEWISH AND ISLAMIC SCHOLARS: GOD’S PATH FOR THE WORLD
1. For general background, see David N. Myers, Jewish history: a very short introduction, Oxford University Press, 2017, and on the historical development of Jewish law, see N. S. Hecht, B. S. Jackson, S. M. Passamaneck, D. Piattelli, and A. M. Rabello (eds), An introduction to the history and sources of Jewish law, Oxford: Clarendon Press, 1996.
2. Peretz Segal, ‘Jewish law during the Tannaitic period’, in Hecht et al., Introduction, 101.
3. Plural of Gaon.
4. On the Geonim, see Gideon Libson, ‘Halakhah and law in the period of the Geonim’, in Hecht et al., Introduction.
5. Background details are largely drawn from Joseph Schacht, An introduction to Islamic law, Oxford: Clarendon Press, 1964, and Marshall G.S. Hodgson, The venture of Islam: conscience and history in a world civilization, vol. 1, Chicago: University of Chicago Press, 1961, along with Adam J. Silverstein’s excellent Islamic history: a very short introduction, Oxford University Press, 2010.
6. Hodgson, Venture of Islam, 161ff., ch. 2.
7. Schacht, Introduction, ch. 3.
8. This section draws on Hodgson, Venture of Islam, bk. 1, ch. 3, and Schacht, Introduction, chs. 4–6.
9. This is a major point of scholarly debate. I largely follow Schacht rather than Hallaq, taking the view that while the Quranic tradition and practices of Muhammad’s time must have laid the groundwork for later legal practices, during this period the qadis relied substantially on non-Islamic sources and their own judgement. Schacht, Introduction; Wael B. Hallaq, The origins and evolution of Islamic law, Cambridge University Press, 2005; Wael B. Hallaq, Sharī‘a: theory, practice, transformations, Cambridge University Press, 2009.
10. In what follows, I concentrate on the Sunnis and their law. The Shi‘i tradition developed in parallel, relying on the works of their imams, who regarded themselves as heirs to the Prophet, on which, see works by Robert Gleave.
11. Hodgson, Venture of Islam, bk. 2.
12. Marina Rustow, The lost archive: traces of a caliphate in a Cairo synagogue, Princeton, NJ: Princeton University Press, 2020. Earlier sources claimed they had learned the techniques from Chinese captives.
13. This was one area in which the Sunni and Shi‘i traditions differed, each recognizing different hadiths, but the results were not so different. Hodgson, Venture of Islam, 326–32.
14. Hodgson, Venture of Islam, 337.
15. On the laws, see Schacht, Introduction, ch. 7.
16. On the devices, see Schacht, Introduction, ch. 11.
17. The details in this paragraph are largely drawn from Hodgson, Venture of Islam, bk. 2, ch. 3, and Schacht, Introduction, 80–82 and chs. 6 and 7.
18. Schacht, Introduction, 80.
19. On Shafi‘i, see Schacht, Introduction, chs. 7 and 10.
20. Hodgson, Venture of Islam, 326–36.
21. Schacht, Introduction, ch. 9.
22. By the twelfth century, some scholars were arguing that all the essential legal questions had been settled and the gates of ijtihad were closed. See Wael B. Hallaq, ‘Was the gate of ijtihad closed?’, International Journal of Middle East Studies 16: 3–41, 1984; Wael B. Hallaq, ‘On the origins of the controversy about the existence of mujtahids and the gate of ijtihad’, Studia Islamica 63: 129–41, 1986. In these works Hallaq contradicts Schacht, in Introduction, ch. 10, who proposes an earlier date. For a good review of the issues, see David S. Powers, ‘Wael B. Hallaq on the origins of Islamic law: a review essay’, Islamic Law and Society 17: 126–57, 2010.
23. Schacht, Introduction, ch. 11.
24. Schacht, Introduction, 84.
25. Hodgson, Venture of Islam, 347.
26. Hodgson, Venture of Islam, 349.
27. On the general history in this section, see Silverstein, Islamic history, ch. 1.
28. Schacht, Introduction, 84.
29. On the jurists, see Norman Calder, Islamic jurisprudence in the classical era, Colin Imber (ed.) Cambridge University Press, 2010, 161.
30. On Nawawi, see Calder, Islamic jurisprudence, ch. 2.
31. Calder, Islamic jurisprudence, 101–2.
32. Calder, Islamic jurisprudence, 94.
33. Calder, Islamic jurisprudence, 92–95, 112–15.
34. Calder, Islamic jurisprudence, 92.
35. On Subki, see Calder, Islamic jurisprudence, ch. 3.
36. Calder, Islamic jurisprudence, 119.
37. Calder, Islamic jurisprudence, 124–25.
38. Calder, Islamic jurisprudence, 127.
6. EUROPEAN KINGS: COURTS AND CUSTOMS AFTER THE FALL OF ROME
1. The background in the first part of this chapter is largely drawn from Peter Heather, The fall of the Roman Empire: a new history of Rome and the barbarians, Oxford University Press, 2005. Legal details are based on Peter Stein, Roman law in European history, Cambridge University Press, 1999.
2. Étienne Renard, ‘Le pactus legis Salicae, règlement militaire Romain ou code de lois compilé sous Clovis?’, Bibliotèque de l’École des chartes 167: 321–52, 2009.
3. Patrick Wormald, ‘Lex scripta and verbum regis: legislation and Germanic kingship from Euric to Cnut’, in P. H. Sawyer and I. N. Wood (eds), Early medieval kingship, Leeds: University of Leeds, School of History, 1977, 28; Patrick Wormald, The making of English law: King Alfred to the twelfth century, Oxford: Blackwell, 1999.
