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

by Fernanda Pirie

Throughout his life, an individual might take on further roles, as business partner, owner of property, mortgagee, guild member, husband, or father. Different statuses and roles entailed different duties.

The text creates a sense that there is a right way to do almost everything, from eating and bathing to sleeping, marrying, having sex, conducting business, and being a student. Legal rules, that is, general directions for behaviour, are scattered throughout the more general advice and examples given in the text.

the fourth and fifth centuries of the common era, judicial practices had become formal and rule-bound, and petitioners could appeal from the court of the guild or local community to that of the king.21 Here, each party had to present his own case in accordance with rules that can be traced to the Arthashastra tradition.22 These were obviously adversarial processes: as one of the later Hindu commentators says, ‘In a legal procedure one person wins and another loses.’

The brahmin authors of Manu’s text were clearly keen to defend their social and ritual privileges and to emphasize the special relationship between king and priest at the top of the Indian social hierarchy. Their agenda, as one contemporary writer has commented, was to tell brahmins how to behave as true brahmins, and to tell kings how to behave as true kings.

The rules of the Dharmashastras were relatively limited in their scope, but later scholars, along with local rulers, guilds, and councils, worked out more detailed rules for social regulation and legal procedures.

Relations between kings, brahmins, and local groups all depended on the regional dynamics and relative power of particular families and individuals. In many cases, brahmins would act as judges, hearing cases of murder, theft, and arson as well as religious offences. At times, powerful brahmin families could take direct responsibility for law and order.

In practice, many brahmins were better able than kings to enforce law and order, although even they had to rely upon powerful local families, occupation groups, and castes to investigate, identify, and punish wrongdoers.

As well as advising on ritual practices, their leaders demanded that people should follow standard forms in their legal transactions, particularly when buying, selling, and mortgaging land and in their business accounts.34 Many of these forms used phrases and terminology that related closely to the language of the Dharmashastras.

In these ways, the influence of the brahmins, their ideas of ritual obligation and purity, the legal forms prescribed by the Dharmashastras, and the whole hierarchy envisaged by their texts filtered down from the ritual specialists into the practicalities of daily life. The brahmins controlled the interpretation of the Dharmashastras and the practices of the unwritten local law, largely by specifying the forms in which people could deal with land and take their cases to court.

All these ritual specialists were, at least in theory, guardians and interpreters of the immutable Vedic tradition, and it was the kings’ duty to enforce and apply laws over which they claimed ultimate authority.

Unlike the message of the Buddha, which was essentially egalitarian, the brahmins linked all their laws to caste, life stage, gender, family situation, and profession.

It was largely left to the kings and councils of much smaller social groups to create practical rules to regulate daily life, mete out justice, and resolve disputes.

Local laws, rooted in tradition, united groups of farmers, artisans, and traders and defined the behaviour expected of their members, but the Dharmashastras provided a common vision of social structures and relations. As one scholar put it, the Dharmashastra was a meta-level law, a source of ideas and arrangements that Indian people could use in different ways in very different places.43 Those at the top of the caste hierarchy thus maintained a relatively unified set of ideas and rules throughout the patchwork of kingdoms and communities that made up premodern India.

More importantly, they provided a sense of what united legal practices and the ideas and principles that should guide the judges in their enactment of justice. The shastras demonstrated the nature of Hindu law and the duties of those who were charged with implementing it.

The Thai king was supposed to embody the law, or, as one modern writer has put it, ‘the sovereign’s commands, when they were proper acts, spelled out the law’.45 It was the king’s duty to maintain order in society by punishing those who disturbed it, but the ruler was himself subject to the principles of the dharma, like everyone else.

Hindu law was always a religious, rather than a political, project, rooted in a sense of immutable tradition. Behind it was the idea of cosmological order as enshrined in the wisdom of the ancient, obscure revelations of the Vedas. The duty of all humans was to maintain that order by complying with the rules of the dharma, which specified how they should behave, and it was this that the brahmins worked out in their legal texts. Simple and often mundane statements about duties and the consequences of events and activities created an order of rules and categories which, like the Mesopotamian laws, had a sense of fixity. But while the Mesopotamian kings were mapping out social justice, the brahmins were specifying individual duties with cosmological order in mind.

The third of the great legal systems to emerge was that of China. It, too, mapped out an order based on rules and categories, but it was an order of discipline rather than an order of duties or a project of social justice.

Law in China was always an instrument of power and control.

The kings took it for granted that imposing punishments was the way to maintain order. They regularly complained that their officials were not fulfilling their duties properly and handing out correct punishments. Like the Aryans on the Indian plains, they had a sense of cosmological order, a divine ideal which people needed to respect, and kings should support, if their societies were to prosper.

Chinese rulers insisted on the power of law to map out their society, but they also thought they needed to impose order through a system of punishment, rather than rules for ritual purity. They were far more ambitious, and more confident in the power of law than the Indian and Israelite rulers of the period, whose regions were just as politically fragmented.

Rather than requiring a strong and authoritarian king, he argued, social stability depended upon basic relations between ruler and ruled, father and son, elder and younger brother, friend and friend, and husband and wife. He emphasized the importance of the cultivated and moral individual, the junzi, who would determine his fate by relying on his own abilities and efforts.

was not for the king to impose order through laws and punishments. Rather, social order arose from the behaviour of individuals, who needed to follow codes of morality, properly conduct rituals and ceremonies, pursue education, and, above all, be loyal to their parents.

Confucius famously criticized the practice of issuing laws, on the basis that this would disrupt social hierarchies.

On his view, order should flow from a stable social hierarchy rather than from laws that the rulers applied to everyone.

For the great philosopher and his followers, it was not so much the system of rewards and punishments that was problematic. The writer of the Zuo zhuan did not explicitly criticize the strong, even authoritarian, ruler, or the hierarchy of ministers and nobility. Rather, he criticized the act of writing down laws and making them publicly available.

The Confucian scholars clearly had no faith in the ability of laws to constrain arbitrary power or prevent officials from favouring those who pleased them, even though the scholars were obviously chafing against the centralization of power by the new political classes.

The idea of a moral ruler who could maintain peace through virtuous examples must have seemed like a distant dream. Those who managed to hold on to their positions saw an urgent need for new forms of control. In an attempt to preserve order and centralized power, they placed their faith in laws that were clear, universal, and consistently applied.

his view, people had formerly lived in peace, without the need for any government, but in the current age, when disorder abounded, scholars had to create written laws with heavy punishments to help the king rule effectively. Punishment would deter crime if it was enforced uniformly on all classes. On Shang’s view, law was an entirely pragmatic matter. Justice had little, if anything, to do with it; nor was there any merit in following ancient tradition.

Most striking, at least to modern eyes, was that the whole legal system was based on crime and punishment.

All Chinese litigants, including merchants with commercial disputes and peasants arguing about land use, had to squeeze their claims into the categories of the criminal laws. For those who took their cases to court, there must always have been a risk that they would find themselves being punished for a wrong, so most disputes probably never reached the magistrates. Disagreements over property, debts, contracts, and cases of minor fighting and assault were probably dealt with locally in the villages or in neighbourhoods, or by members of an ancestral lineage, in a pattern that continued into the modern era.

Throughout the rest of the Han period, debates continued between those sympathetic to Confucian ideas, who warned of corruption and growing disparities between rich and poor and who advocated leadership through moral example, and those who sought to strengthen government monopolies, control the population, and impose strict laws.

in Qin times, the magistrates followed precise procedures and kept records of past cases, particularly those they referred to their superiors. Carefully recorded on bamboo strips, these established a system of precedent not unlike the English common law.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Although few citizens were literate, simply by being written out and prominently displayed the laws signalled the fact that all Roman citizens had the right to refer to their laws.

But the basic system for making new laws continued throughout the four centuries of the Roman Republic, and the summoning of assemblies confirmed the important fact that government decisions had to be debated and confirmed by the citizens at large.

One of its most important provisions was the right of citizens to sit in judgement on a corrupt official. If someone was suspected or accused of a serious crime, a high-ranking official, generally a tribune, would call the suspect to an inquiry, which would be held in public, most likely in the open air of the Forum. Here, anyone interested in the case could listen and comment. If the tribune concluded by laying a charge, he would convene an assembly to hear the evidence and make the final decision.

17 Initiating a legal case, although available to all, was not a straightforward process.