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

by Fernanda Pirie

The provisions of the Twelve Tables were rather sparse. But, like Hammurabi’s laws, they set out general principles that could be applied to a range of cases.

The laws also set out a complicated process that creditors needed to follow before they could impose debt bondage, which probably did give a measure of protection to debtors, at least those educated and confident enough to quote the laws. And they established technical requirements for marriage and inheritance. The assemblies passed several further laws to regulate contracts and guarantees, the status of minors and illegitimate children, and inheritance and succession practices, which were a constant source of problems.

Rome was now effectively governed by members of the nobilitas, the wealthy class. They formed the Senate, which debated general policy and controlled the treasury, but its business was largely controlled by the consuls, who also exercised authority over the army. And the consuls, in turn, were elected by the assemblies, along with all other senior officials.19 The body of citizens, through these gatherings, had the power to reject or approve new laws.

The nobilitas exercised a disproportionate influence in the assemblies, even the plebeians’ consilium, and their complex and cumbersome processes were hardly democratic. But, when coupled with the system of annual elections for major offices, the assemblies did effectively limit the powers of any one individual. And those who held high office and wanted to introduce changes had to have at least some understanding of the issues that faced the majority of the Roman people.

Above all, the laws were public statements, written down for everyone to see, after the citizens had had the opportunity to hear them debated.21 The nobilitas dominated the higher offices of government, the army, and Rome’s economic resources, but they could not simply govern at will.22

These structures and processes of government continued throughout the Republic—and they established a system of checks and balances between the consuls, the Senate, and the people.

At the centre of the Roman state, he said, the wealthy might dominate the most important offices and institutions, but the votes of the poor mattered, and had to be won.23

Rome’s dramatic expansion raised new legal issues for its officials.

The laws of the Twelve Tables were by now over three hundred years old, and although they remained important in the minds of most Romans, they were hardly adequate to deal with contemporary problems. So the consuls and tribunes formulated new laws, which the assemblies approved.

The Twelve Tables had been intended to ensure a form of equality among Rome’s people, and the laws guaranteed them certain freedoms and protections. But disparities in wealth and complicated distinctions in status and rights still created hierarchies and divided the population in ways that became more complex as the city grew.

Roman laws did not just concern its citizens. By far and away the majority of the issues debated by the assemblies concerned political and procedural matters revolving around the conduct of officials.

As the city grew and the affairs of its citizens became more complex, the judges, or iudices, began to require that applicants use a specific form of words, a formula, to begin a legal case, in place of the complicated legis actiones the pontiffs had stipulated.

The urban praetors now decided which formulae could be used in which cases, effectively determining what an applicant had to prove in order to succeed in his claim.

This board was set up in the Forum for all to see.30 In this way, the praetors could deliberately develop Roman civil law, formulating new and innovative legal actions.

But the edicts of the more ambitious and creative praetors continued to develop the range of legal actions, and a group of scholars began to take an interest in the underlying legal principles. They set themselves up as expert jurists, iurisconsulti, and offered advice to both judges and ordinary people who were contemplating, or embroiled in, a court case.

But in the hands of the praetors, the law was changing too fast for this idea to be maintained. By the middle of the first century bce the laws of the Twelve Tables had come to have more moral than legal authority, and eventually they were dropped from the school curriculum.39

Those who staffed and used the courts now faced the problems of complexity and corruption. The praetors were not legal experts, but rather, ambitious men en route to higher political office, and some would use their positions for personal gain.

Then he launched into a passionate argument about the law, in which he claimed that the law, the ius civile, was an independent body of rules and institutions which formed ‘the bonds of social welfare and life’. It was the basis for rights to ownership and legal relations. Law was the ‘incorruptible guarantor’ of these rights, he claimed, and its rules had to be ‘uniform among all and identical for everyone’, that is, set apart from ordinary political and social life. He continued by emphasizing the importance of the jurists. They stood between the law and the courts, he said, which are the most fallible of legal institutions. As interpreters of the law, they had the authority of the law itself, and they could not be attacked without the law also being attacked. The judges must respect their opinions, he concluded firmly.

The jurists sought to develop legal knowledge, ius, although this was, in theory, ancient and unchanging. They distinguished it from the leges, the assemblies’ decisions, which represented the will of the people.54 But the jurists’ debates became increasingly esoteric.

Complexity and obscurity are recurrent problems in developed legal systems.

Roman law had begun as an essentially practical system. The laws of the Twelve Tables, the legislation passed by the assemblies, and the formulae specified by the praetors were all created with contemporary problems in mind; they were designed to regulate the lives of Roman citizens and served as the basis for argument and decision-making during trials.

They also, from a very early period, symbolized the rights of all citizens to a measure of equality before the law. But in the hands of the j...

Roman law had become an elite pursuit, insulated from the social and political pressures of Roman life

Augustus had accepted the title ‘father of the land’, pater patriae, supposedly on the insistence of the Senate and citizenry, and gradually the emperors promoted the idea that they were the origin of justice, as their Mesopotamian predecessors had done.

An emperor might delegate this task to a judge, but he would claim to be ultimate arbiter in legal matters.

around 160 ce, the jurist Gaius, determined to present the law in a systematic way, produced a text known as his Institutes, in which he attempted to systematize the laws and opinions of the jurists. He divided the subject matter into sections on personal status, rights over property, wills and succession, legal proceedings, and obligations—what we would think of as contracts.

Romans regarded law as a privilege that they only rarely extended to ‘barbarians’. The ius was the basis of the Republic, as Cicero had put it.62 Some of the new provinces and their cities actively aspired to Roman civilization, seeking the status of civitas, which meant adopting Roman styles of organization and civic regulation.

Roman law slowly flowed into the provinces, where local administrators published edicts and legal decisions, and quite ordinary citizens began to initiate legal processes.68 Many regarded the legal system as a benefit of Roman occupation, along with improved architectural techniques, aqueducts, and baths, innovations that even reached the wilds of northern Britain. But some writers could see that Roman officials were using law as a tool of control.

Although nominally a benefit and an aspect of civilization, law had also become a tool of political control.

At the time of the Twelve Tables, the laws inscribed on bronze tablets gave Rome’s citizens a set of basic rules about how they should be treated and punished and how they could bring cases to court and seek relief from debt.

Their laws, leges, were instruments of government, by which the citizens could influence public affairs and the activities of their officials. As legal procedures became more elaborate, judges and praetors stipulated precise formulae for legal cases.

The law was originally a tool that Rome’s citizens used in their pursuit of justice, but by Cicero’s time it was considered a benefit enjoyed by all citizens.

Later emperors claimed that ‘the emperor is free from the laws’, princeps legibus solutus est. But Justinian’s Corpus Iuris also stated that the emperor should declare himself to be bound by the law, as a mark of his imperial authority. And it called jurisprudence ‘knowledge of things human and divine’.

But Mesopotamian legal techniques were not so easily eliminated. They had already served as models for the Israelite priests, who made laws with firmly religious purposes, working out the rules that God had given his chosen people. Adapting the Mesopotamian forms to realize a religious vision for their societies, the priests crafted rules for prayer, ritual observance, and cleanliness alongside social rules designed to ensure everyday justice. These were developed over the centuries into the great works of Jewish law.

But as religious leaders, the priests created laws with a very different purpose and character from those of the Greek and Roman citizens and, indeed, from those of the Mesopotamian lawmakers who had inspired them. Like the Hindu brahmins, they had a religious authority quite independent of the political power of Saul, David, and the other early kings. But the Israelite lawmakers were working in a very different social and political context to their Hindu counterparts and it was not their object to insist on a social hierarchy.

Muhammad’s original message in Mecca was about faith, piety, and moral responsibility before God, which he recorded in the Quran.

But for the most part, the rules and directions he inscribed in the Quran gave moral guidance to people on how best to fulfil existing duties, rather than instituting a radically new social scheme. The rules Muhammad made told people how to arbitrate and enter into contracts, how to determine which enemies should be fought, and how booty should be distributed, and they told men how to treat women, children, orphans, relatives, and other dependents, including slaves.7 But, at best, they were unsystematic directions for individuals, rather than rules about how governors should resolve disputes, or laws that administrators could use to maintain order.

These general principles in scattered sections of the Quran might have helped to unite the new community, but Muhammad was not trying to undermine the deeply rooted tribal traditions and forms of mediation that had shaped social relations among the Arab tribes for centuries. His revolution, in these early days, was centred on piety, faith, and moral responsibility more than political control or social reform.

Muhammad had concentrated on moral norms, and the Quran offered few rules that judges could apply when resolving practical disputes, particularly on commercial matters, and it made only brief references to crime and punishment. So the new rulers and their judges generally adopted the norms and practices of the territories they had conquered.

In the eyes of the most puritanical, the qadis’ more pragmatic rules and principles often strayed too far from the teachings of the Prophet. The judges needed to be strict and rigorous in their reasoning, the scholars argued, and to avoid putting too much weight on local customs or relying upon their own judgement and ideas. Eventually, even the more practically oriented qadis had to ascribe the legal principles they applied, where they could, to the Prophet.

The ulama made a self-conscious effort to systematize legal practices and ideas and bring them into line with Muhammad’s religious revelation. Still, they did not try to write a definitive legal text, or even an authoritative set of laws like those in the Pentateuch.

Enjoying the status that came with official recognition, the ulama now formed themselves into a distinct class and set about institutionalizing their systems of knowledge. Their project was to explain the shari‘a, God’s law for his people, and develop a religious programme that all Muslims would understand and accept. Their writings, like those of the Jewish scholars from whom they must have taken inspiration, combined practical social rules, fiqh, with directions for ritual observance and moral principles.

The scholars regarded the traditions of Muhammad’s time, the sunna, as the proper basis for contemporary legal practices, and they gathered information about those traditions, along with reports of what Muhammad had said and done, which they combined to form the hadith.

In the writings they produced during this period, the scholars created the rules of Islamic law, the fiqh. In stark contrast to Hindus in India, all Muslims were supposed to be equally subject to the requirements of the shari‘a, which recognized no hereditary class structures and maintained no ideal of monasticism, asceticism, or even celibacy. But, as among the Hindus, the archetypal Muslim was a householder, the centre of an extended family diligently carrying out his or her duties, both to relatives and before God. Like the brahmins, the Islamic scholars concentrated on defining individual duties rather than specifying norms for public life or laws that could be used within the political and social administration of the caliphate.

While Hindu and Jewish scholars had initially created foundational texts, statements of general principle that were supplemented by later works of interpretation and explanation, the Islamic legal scholars were more practically minded, giving detailed guidance for individual problems, rules people could live by. Like the Roman jurists, they were inspired by the social issues they saw around them.

In developing these guidelines, scholars resorted to the idea of ‘legal fictions’ or ‘devices’, hiyal, which could be used to circumvent inconvenient, but undeniable, Quranic rules, such as the prohibition on taking interest.

Quran and sunna also privileged oral over written evidence, a principle that became increasingly impractical as literacy spread and documents came to form the basis of most commercial transactions. So the scholars developed theories about the witnessing of documents, an oral act which could turn a written text into a source of evidence.

Gradually, they established a science of law that became known as the usul al-fiqh. The goal was to ensure that legal rules and practices were firmly based upon the practices and words of the Prophet and those closest to him by using proper legal reasoning.

It was proper, for example, to use analogies (qiyas), as long as they were based on accepted legal principles.

The scholars also tended to associate themselves with an individual master, and in this way distinct traditions, known as madhhabs, formed.