Societies cannot function without rules to govern relations among people. When human societies first emerged, people lived close to the environment, almost completely embedded in nature. The rules governing such societies were presumably simple, learned by all, did not separate law and morality, affirmed intergenerational obligations, attributed no special importance to individuals, placed strong mutual obligations on everyone, and made no distinction between ordinary and sacred aspects of reality. The whole purpose of such rules, it seems, was to maintain social harmony, not to seek objective truth. Such legal patterns did not lend themselves to reflection, questioning, or philosophical analysis. One could not escape the rules except by leaving the society. The idea of change, moreover, was not part of the tradition. Even as more sophisticated legal concepts began to emerge, most people continued to follow the earlier traditions, or what scholars call “customary”—or even more esoterically “
chthonic”—law, right down to our own times, which is how we think we know what prehistoric law was like.1
The early emergence of law
The law as a separate set of rules devised by officials, scribes, rulers, and other elites began to develop long after human societies first appeared—sometime during the rise of human civilization in sedentary, agriculturally based, urban cultures. The first known instance of a preserved law code was adopted by
Hammurabi, a Babylonian king, nearly 4,000 years ago. This was “
fiat law,” which emanated from the will of the ruler. Most of the code’s 282 laws concerned crimes against person and property (including slaves and livestock); many also regulated the institution of marriage.
Legal traditions and formal systems of law soon emerged across Afro-Eurasia. One must assume that each such legal system was meant to affirm the ruler’s authority but also to create positive conditions for the development of society. Or as
Plato, an ancient Greek
disciple of Socrates and a founder of the Western philosophical tradition, has an unnamed Athenian ask rhetorically in his philosophical dialogue Laws
: “Would not every lawgiver in all his legislation aim at the highest good?”2
Some of the earliest legal systems to emerge resembled chthonic traditions in that law and morality were not separated and human society was deemed an organic part of the cosmos.
Talmudic law, perhaps the oldest ongoing legal tradition, arose among the ancient Israelites. Instead of evolving from centuries of experience of living in community and close to nature, this tradition was understood to be directly revealed to the Jewish people by God himself, starting with Moses receiving the Ten Commandments on Mount Sinai over three thousand years ago. In the course of many centuries, a body of legal rules developed to regulate nearly all aspects of life. As in chthonic law, an individual could not readily escape the rules without rejecting the community. The
early Hindu legal tradition also derived from
divine revelation and also was similarly hard to separate from morality. Yet another divinely revealed legal system appeared with Islam in the early 600s. In each of these traditions, significant change was hard. Institutions could not take on a life of their own.
In China, an ancient culture and indeed the longest enduring major society today, the law evolved differently. First, the
Confucian principles of harmony, stability, community-mindedness, and persuasion rather than command, deference to authority, respect for tradition, and the unity of things fostered a preference for informal conflict resolution.3
In theory, the ruler and his officials were supposed to be guided by an underlying force of righteousness called the Way, though in practice there were no legal restraints on their power. Second, no specialized legal profession emerged. Legal experts were typically government officials, the main subject matter of whose training was the study of Confucian philosophical writings. All officials were required to acquire some legal expertise on the job; some of them, especially in central state judicial agencies, gained more specialized knowledge. Nearly all such learning concerned penal and administrative law. Third, Chinese law and justice were not purely secular. According to one scholar, “the early
Ming ruling elite endowed law codes with religious meaning; religion and law were unified as indispensable components of their social practices and belief system.”4
As such, justice was conceived as restoring order and harmony and injustice as disrupting them.
Chinese codes of law aimed above all at controlling society.
Penal law emphasized Confucian values.5
For example, two of the ten gravest crimes were “unfilial behavior” and the murder of one’s parents. Government officials, by contrast, were almost completely above the law. They could not even be investigated without permission from the emperor.
Civil law, by contrast, was very little developed, and most commercial and civil cases were resolved informally.6
Magistrates typically reached decisions concerning civil complaints based upon moral principles and cultural norms rather than
legal statutes and codes (though recent scholarship has suggested their resort to statute law was more extensive than previously understood).7
Amateur legal experts, who helped individuals file complaints to government officials, were not well viewed by the government and were not allowed at trial. Lawsuits were often costly in both money and dignity and so were often strenuously avoided. Complainants typically sought to resolve disputes and grievances privately, by means of oaths, rituals, animal sacrifices, lodging “indictments” in temples and before statues, and other non-legal acts.8
At the other end of Eurasia, over two thousand years ago, Roman jurists developed the world’s first extensive and sophisticated
civil law system for settling disputes among diverse peoples within a vast multiethnic empire.9
They conceived of a law that applied to everyone, ius gentium
. Winning acquiescence from conquered peoples was facilitated by the practice of respecting
local norms and mores (customary law), so long as they did not offend Roman values. Such law was primarily participatory, with elite but amateur judges, legal experts (iurisconsulti
), and administrators (praetors) all contributing to the system’s evolution. Experts in the law elaborated precise and clear legal definitions and distinctions and composed procedural manuals, commentaries on the law, and collections of jurisprudence. Judges throughout the empire applied statute law but also had the authority both to follow and to set legal precedents. Over the centuries, they created a vast and systematic but supple corpus of law that set out most of the main branches and sub-branches of our modern legal systems today. This was the first system of law that emerged on a secular foundation—that is, not based on divine revelation—and conceptualized the law as a quasi-autonomous sphere of activity at least partially separate from both religion and state. Roman law powerfully influenced all the legal systems that emerged in the region over the next millennium: Islamic, Byzantine, European civil, and English common law.
Europe after the fall of Rome
After the fall of the Roman Empire in roughly the 400s A.D., its legal system deteriorated. In the sixth century, the Eastern Roman Emperor,
Justinian, commissioned the compilation of Roman law. The resultant collection of works, the Corpus Juris Civilis
, also gradually fell into disuse, especially in Western Europe. There during the early
Middle Ages, the only continuously functioning legal and judicial system was maintained by the papacy with its tradition of canon law going back to the first century A.D. The system comprised a body of law, a hierarchy of courts, trained jurists, and professional judges.
Carolingian Empire collapsed in the 800s, public order broke down almost completely in Western Europe. By the year 1000, secular rulers could not assert their legal authority much farther than their private domains, or beyond a radius of at most a few dozen miles. Power fragmented among thousands of lords, some with lofty titles like duke and count but others mere possessors of castles, called castellans. Violence and lawlessness racked most regions, as public order collapsed.10
From this chaos and anarchy, however, emerged a truly remarkable social order, often called feudalism or feudal society. It was characterized by the development, in roughly the century after 1050, of a distinct body of feudal law.11
One way to think of what happened is that society organized itself, taking the law into its own hands, as it were. From Carolingian times, armed horsemen came to dominate both the battlefield and social relations. Manorial estates with enserfed peasants were necessary to provide the upkeep of such combatants. It was customary for higher lords to grant their vassals such estates in exchange for service. Pledges of fealty, by both lords and vassals, cemented the
relationship. This hierarchy extended from the lowliest knight to the highest lord, typically either a king or an emperor. In the eleventh century, vassals began to demand the right to pass on their estates, or fiefs, to their heirs. This demand was gradually recognized and enforced in the law throughout Europe. Simultaneously, the authority of lords to interfere in the economic and personal affairs of their vassals was legally curtailed, and many obligations of service of vassals were converted into monetary payments. These developments tended to increase the personal freedom and economic autonomy of vassals. Since all lords of vassals were also vassals of other lords (aside from kings and emperors), one can speak of growing mutuality and reciprocity of relations throughout the hierarchy. Moreover, these mutual relations were confirmed in pledges of
loyalty and binding
contracts. Such contracts were often compared to marriage vows. They were not as binding as the latter, because, according to the emergent feudal law, both lords and vassals had the right to dissolve the contract for any serious case of breach of faith. (Here one finds an early development in Western constitutional law of a right to political resistance; see Chapter 4.)
The rendering of justice in feudal society was also reciprocal. Every lord was by custom, and gradually also by law, empowered to hold court and decide j...