The Rule of Laws: A 4,000-Year Quest to Order the World

by Fernanda Pirie

What is certain, however, is that in the fertile lands between the Tigris and the Euphrates, the dry climate has preserved the earliest relics of any writing, cuneiform script, inscribed on stones and pressed onto clay tablets. And that writing offers evidence that by the third millennium before the common era, the Mesopotamian kings were making laws.

laws probably did reflect existing practices—the issues people took to the judges and the ways they were resolved. Any complex society in which people form social and professional relationships, especially with those whom they do not know well, needs a means of resolving disputes.

By publicizing his laws for all to see, he made it easier for people to hold his officials to account. Anyone could now quote a law, which had been pronounced by the king. It was the beginning, indeed, of the rule of law.

Ur-Namma’s innovation—assuming he was the first lawmaker—was to create a list of rules in casuistic form, the pattern taken by all subsequent Mesopotamian law. It may not seem remarkable to modern eyes, as it is the form in which most contemporary legislation is drafted—even our criminal laws specify penalties for crimes, rather than simply instructing people not to commit them.

The first law codes were statements of propaganda, but they also established a technique that would be taken up again and again over the following centuries a...

The rules are far more detailed and elaborate than the rather rudimentary laws of Ur-Namma, but they take the same casuistic form. They clearly reflect the sorts of problems that must have given rise to disputes in Babylonian society.

Local communities were probably enforcing these sorts of practices anyway, but writing them down may have given ordinary people a measure of protection against those who tried to cheat them.

Hammurabi’s laws reflect a stratified society in which people followed distinct professions as soldiers, civil servants, doctors, judges, and merchants. They divided people into three classes—freemen, dependent citizens, and slaves—who had different rights and privileges, and who were entitled to different amounts of compensation if they were injured.

Hammurabi’s laws address the sorts of problems that arise in a complex society in which not everything can be resolved by face-to-face mediation. But more than guidance for judges, the laws also gave structure to social relations, by specifying the different classes and professions people could belong to and how their members could and should relate to one another.

The laws probably aimed to make clear the sorts of offences that were considered to be the most serious.

In a society in which armies plundered and sacked one another’s cities and the defeated were carried off into slavery, powerful officials probably did enforce harsh penalties. But the physical brutality meted out on conquered populations would have destabilized Babylon if applied to its own citizens.

He was most likely using the laws to indicate the sorts of cases in which it might be right to impose it, the sorts of conduct that were most to be discouraged in a peaceful and just society. The laws reflected past cases, telling the Babylonians how justice had already been handed out; but they also established principles for the future, using Ur-Namma’s casuistic form. They provided examples, specified limits, and established exceptions, all against a background in which the basic principles of justice were known to all.

These laws seem to be just as important for what they demonstrate in terms of class as for the exact penalties they prescribe in cases of medical negligence. The rules must, then, have given judges and mediators a starting point from which they could negotiate appropriate compensation in quite different cases. They express general principles about status and equivalence in terms of specific rules about compensation.

The laws are quite specific, reflecting decisions in real cases and indicating the sorts of predators that threatened Babylonian shepherds. But they demonstrate fundamental principles: unintentional injuries and unavoidable losses should be treated differently from deliberate striking and negligent damage. Hammurabi almost certainly did not intend that his judges should apply the rules literally, as we expect of contemporary legislation.

In practice, most legal disputes were probably resolved locally, through mediation or the interventions of officials, regional governors, or respected elders.

The mediators would have treated each individual case on its own facts, but they would have taken account of the general principles expressed in Hammurabi’s laws.

No one is likely to have denied that it was wrong to kill, to injure, or to steal, and that compensation should be paid by those who did. What the laws needed to do was to clarify best practice in difficult cases, such as when witnesses gave contradictory evidence, when a guilty party claimed his behaviour was an accident, or when a thief was caught red-handed and killed by an irate property-owner.

The laws cover some of the more difficult cases, while the more basic principles are assumed.

Written in everyday language, his laws were accessible not only to all literate people who could read, but to all who were in hearing distance when they were read aloud, and they could be quoted back to anyone who tried to cheat or oppress them. They held the promise of justice for all. They were also supposed to last forever. Hammurabi was promising the rule of law.

Later Greeks were not enthusiastic lawmakers, although they did inscribe some laws on stone slabs, but they were proud of their legal traditions.

The five books of the Pentateuch, or Torah, describe laws for worship, ritual, and sacrifice. Much of their moral guidance takes the form of proverbs and offers motivations for good conduct.

The twenty-one or so laws of Exodus are far briefer than the Babylonian laws.31 They deal with only a handful of basic issues, and there are nothing like the fine distinctions and exceptions found in the Babylonian code. It is fair to assume that most disputes were mediated locally, both during and after the time of the kings, when elders in Jerusalem and other towns decided cases ‘in the gate’, that is, in the marketplace just inside the town’s gate.

The Israelites used a similar casuistic form for their laws as the Mesopotamians, and many deal with similar subjects: how to treat slaves, the penalties that should be imposed for injuries and theft, and the consequences of adultery or seducing a virgin, although the details are different.

The laws of the Pentateuch place considerable emphasis on retaliation.

The principle of retaliation may seem barbarous in the modern world, and it is far less prominent in Hammurabi’s laws, designed as they were for a more centralized and urbanized society. But patterns of feuding are extremely common among nomadic tribesmen.

But no society shaped by feuding relations condones indiscriminate retaliation. Revenge must always be proportionate, so that feuds do not escalate with terrible consequences for both sides.

It was a law designed to limit retaliation, rather than an order that his people should always take revenge for a wrong. It was designed to ensure that feuds did not get out of hand.

In the different parts of the world where people practise feuding, in East Africa, the Middle East, and the shores of the Mediterranean, there are always elaborate practices of mediation. Skilled mediators negotiate between warring factions to achieve peace through the payment and acceptance of compensation: blood money is paid for a death, and a wound price for injuries.

This explains what Moses meant when he went on to declare ‘an eye for an eye, a tooth for a tooth’. He was setting out a rule of equivalence, the starting point for a negotiated settlement in what might be the messy aftermath of a long-running feud. In this context, the laws were perfectly logical, emphasizing ...

An instinct for revenge probably lingered, and the basic pattern of compensation for injuries must have been maintained among groups to whom tribal loyalties mattered.

The laws of Exodus may have been written down in stages during this period, successively revised, combined, and supplemented. But when the scribes eventually put the laws into the form they now take in the Old Testament, they chose words and phrases that are strikingly similar to those which Hammurabi had used on his law stone:

Yet they adopted both the Mesopotamians’ legal techniques and much of their laws’ substance.38 Of course, some problems arise almost everywhere that people live together. Every society must decide how to respond to an accidental killing, how to deal with conflicting evidence about the loss of property, and what penalties to apply for rape, and it should not be a surprise if different people came up with similar solutions. But some of the details are too particular to be the result of coincidence.

In their account of God’s commandments to Moses, they accordingly started by copying parts of these famous laws, simplifying, improving, and adapting the rules to suit their own circumstances and practices.39 It was simultaneously a mark of respect for the ancient civilization of Babylon and a gesture of defiance towards their own rulers.

It is extremely difficult to say for certain when the laws were made, and by whom, not to mention how they might actually have been used. But it seems likely that they had their roots in basic principles of social organization which the Israelites thought were important: ideas of equivalence and just compensation. These were defining principles for tribal people, whose livelihoods and social structures were constantly in flux, but who held a common vision of justice.

Now more familiar with the work of specialist judges, and facing the contemporary problem of debt bondage, the writers combined their ancient traditions and practices of justice with the laws and legal forms developed by Mesopotamian rulers, laws that had acquired prestige throughout the region.

Whatever their history, the Israelite authors were using legal techniques to reinforce their account of who they were: independent people, loyal to their tribes, proud of their homeland, considerate to the poor, and worshipping a single god.

Law started out as a project of justice. The earliest lawmakers wrote out rules to accompany grand statements about their achievements, their religious devotion, and their commitment to a just society.

Successive Mesopotamian kings appreciated the potential of written rules and used them to regulate their societies, create predictability for their merchants, and address social problems. The substance may often have been mundane, specifying penalties for basic crimes, compensation for injuries, and rules for contracts and family relations, but they created a new form of order. By defining classes and professions, rights and duties, like the scribes who developed standard forms for commercial relations, they were creating an order of rules and categories.

The earliest laws were not just practical instruments to regulate city life and address the problems of individual petitioners.

Judges and mediators did not need laws to resolve disputes; nor did kings primarily intend them to give officials ways of raising taxes, suppressing crime, and keeping undesirable people off the streets. It was the people who needed laws as resources for justice, standards that they could quote against anyone who might try to oppress them—and this was what Hammurabi claimed he was giving them.

The casuistic form of law established in Mesopotamia was to have a long history, after it was adopted and adapted by the citizens of Rome.

A historical sense of superiority, of warrior over peasant, now solidified into a class distinction between the kshatriyas (the rajas and power-holders), on the one hand, and the vaishyas (the farmers, merchants, and craftsmen), on the other.

The more successful farmers and traders began to employ servants, who came to form an underclass, the shudras. The shudras also included landless peasants, wage labourers, and slaves, both the inhabitants of conquered lands and those who had fallen into debt bondage.

Over time, the classes formed a hierarchy of ritual purity, from the elite brahmins, to the kshatriyas, to the vaishyas, and finally the least pure, the shudras. These were the four varnas, which Vedic wisdom explained as being like parts of the human body, each with its own independent character. In practice, these distinctions allowed disparate groups of people, of different ethnic origins and engaged in different occupations, to form into a single social and ritual structure. It is the basis of India’s caste system, which endures to this day.

The brahmins, who had been passing on their wisdom orally in mantras and sutras (instructions for rituals), now wrote them down in texts, which gradually became more elaborate and more esoteric. These coalesced into the four primary Vedas, along with the Brahmanas, commentaries on sacrificial rituals, and the Upanishads, more esoteric philosophical treatises. Concerned with ritual correctness more than rules for behaviour in ordinary life, let alone matters of politics and administration, the brahmins nevertheless offered a sense of ritual order to ordinary people.

They developed their view of dharma gradually, building up a body of wisdom and ritual practices to create a sense that Hindus everywhere should live by the same principles and follow the same rules. The scholars were laying the foundations of what is now known as ‘Hinduism’, a quite varied set of beliefs and practices which cluster around a common group of deities and ritual techniques, along with reverence for ancient Sanskrit texts.

The sutras presented individuals with rules for how to follow ritually correct lives.

The sutras claimed to be rooted in the ancient Vedas, which gave them a sense of timeless authority. In reality they probably drew much of their content from contemporary custom. Effectively, they were redescribing the practices of the upper classes in terms of a higher morality, creating an ideology that would dominate Indian social thought for centuries to come.15

The overwhelming emphasis of the text is on the correct behaviour of individuals according to their caste, family, and

life stage, and it specifies their duties, rather than defining their rights.17 It reflects and emphasizes the fact that individuals are born into a web of social relations and obligations.