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

by Fernanda Pirie

Many of the Irish laws concerned the sorts of practical problems that arose among Ireland’s farmers: how to divide land among heirs, how much compensation should be paid for injuries, and which offences deserved punishment. Relations of honour and revenge still shaped the ways in which the Irish thought about their social groups.

As among the Germanic tribesmen, payment of compensation was the basic way to resolve many disputes.

Almost half the Irish laws concerned social status. All freemen had an honour price, and wrongdoers had to pay that price if they insulted, injured, or satirized anyone; if they stole someone’s property, or that of his kin or dependents; if they refused anyone hospitality; or if they raided someone’s house or molested his wife or daughters.

Although the Irish laws clearly demarcated social groups, many were inordinately complicated.

Like some of the Germanic legal codes, the Irish laws attempted to impose order on what must have been far less tidy and more varied social relations. The legal texts go into great detail about the duties of judges, to whom parties could turn with really serious disputes.12 Not only did a good judge need know Irish law, canon law, and poetry, but he had to be prepared to give a pledge in support of his judgement and to swear on the gospel that he would speak the truth. A judge was liable to pay a fine if he judged a case improperly—for example, by listening to only one party. The texts set out complicated rules for legal procedures and even for styles of reasoning.

Despite all this intricate legalism, the kings provided no means of enforcing the resulting judgements. A successful party not only had to pay the judge but also had to rely on family members to force wrongdoers to pay up.

Some of the earliest Irish legal texts largely consist of maxims and verses, suggesting that the authors were recording the oral wisdom of their poets and lawyers.

The Irish laws recorded traditional wisdom and formalized the rules that judges could and should apply in court cases, then. But the writers were primarily thinking of their students, discussing the laws they should apply rather than setting them out in an authoritative way as a ruler or legislative assembly might do. In the end, the texts presented a complex web of laws, which made Irish society seem much more orderly than it actually was.

Several texts emphasize the reciprocal relations that should exist between a king and his people. It is the people, they state, who appoint the king, and he, in turn, has to support and protect them and to act justly if he is to keep disasters and plagues from afflicting his realm.

They were Irish laws for Irish people. It would be too much to credit the laws alone with the failure of any single king to consolidate power over the whole island. But they must have given articulate people greater confidence to stand up to authoritarian behaviour, and to insist on what they felt was proper conduct on the part of their kings. As well as guiding judicial practice, the texts constructed a legal edifice that could, at least at times, have provided checks on the exercise of power.

The first wave of Norse settlers established an annual meeting, the Althing, which all adult men were supposed to attend. Here, the island’s freemen gathered for two weeks every midsummer to hear public announcements, receive summonses, listen to speeches, and resolve disputes. As they spread farther around the coasts, the islanders established new ‘quarters’, each with its own Thing, and these were further divided into three local Things, which were convened annually by three local chieftains.

The chieftains took responsibility for maintaining order in their regions, overseeing communal matters (such as allocating meadows), dealing with people who shirked communal duties, and organizing maintenance for the poor. They established courts to hear legal disputes, considered allegations of theft or sorcery, and were expected to confiscate the property of outlaws. They also had to attend the Althing and convene their local Thing, first purifying the ground on which it was to be held.

At the Althing, the Lawspeaker would recite the island’s laws. This position had been established at the first meeting and it remained fundamental to Icelandic government.

Lawspeaker had to recite each of the island’s laws at least once every three years, so that ordinary peopl...

By the end of the century they had made and amended so many laws that the three-year recitation rule had become unworkable. The Logretta had to make a citation law to tell people which of the rules, now written on vellum scrolls, were still in force.

Even if the lawbook included some laws that were already obsolete, the effort indicates that the Icelanders were enthusiastic legislators.

Here, the law goes beyond a statement of basic rules that everyone might be expected to follow to describe ideal procedures.

The Icelanders’ written laws indicate complex legal procedures.

The lawbook contains almost one hundred pages of complex and formalistic procedural rules. It seems unlikely that they were always followed, especially since most judges were not specialists, just farmers gathering to do justice. But in difficult cases they could ask the legal experts who surrounded the Lawspeaker for guidance. Everyone clearly thought that legal cases should proceed properly.

The Things, councils, and courts may have provided ordinary Icelanders with the opportunity to challenge others for status and power, but they also reinforced the idea that they were governed by a single law. Vár lög, ‘our law’, meant all of Iceland, and the islanders considered that their laws were as old as their community.25 Some even claimed that the law had roots in an earlier civilization, even if it had not always been written. It confirmed that the Icelanders were a single people who resisted the domination of any king.

Apparently designed to address cases of conflict among the Rus people, the first law specified who could take revenge for a killing, limiting it to close relations, with compensation due in other cases. The next rules specified compensation for different sorts of injuries and theft, for insults, and for harbouring a slave, and gave directions about the sorts of evidence a complainant needed to bring. These rather basic laws probably reflected the sorts of problems that arose among the Rus nobility in a society still shaped by tribal loyalties.

For the most part, Rus farmers, merchants, and artisans followed their own customs and settled disputes locally.

These apparently random laws probably had the princes’ immediate entourages in mind, and some may have reflected cases that their judges had decided. But there is no evidence that the princes distributed their laws widely or that any administrator applied them among the general population. Their officials collected tithes and raised taxes, but they exercised little administrative control over farming, herding, family relations, or artisanal activities in the towns and villages. The laws symbolized, rather than directly implemented, the authority of the Rurikid princes.

For most of the Rus people, custom (obichay) was more important than the laws of their rulers (pravda) or the moral directions of their priests. But the clergy continued their efforts to spread the practices of Christianity and stamp out pagan ‘customs’, appealing to a sense of zakon, a higher Christian law.

The princes were now looking beyond matters that concerned their immediate circle and trying to regulate economic activities among the wider population.

The Russkaia Pravda told the wealthy how to manage their labourers and slaves, but it hardly regulated property ownership or everyday farming activities. In the countryside, people largely followed their own customs, their obichay, and in the towns the authorities managed urban problems.

Rus society was more complex and heterogeneous than that of the Irish and Icelanders. The Rus people looked to multiple sources of law, with different aims and ambitions, depending on who they were and what they were doing. The princes were inspired by grand lawmaking emperors, although they based their laws on practical issues; the church had penance and discipline firmly in mind; and ordinary people relied on custom and their own written documents, developing the beginning of legal forms to regularize their own commercial relations.

Their laws reflected local customs and social problems and offered rules for evidence and the resolution of disputes. But there was almost always a sense that the laws represented higher principles, a vision of how the world ought to be.

The more pragmatic Irish and Icelandic laws also had higher purposes. Their complexity suggests a social vision, a higher intellectual order. They were the laws of independent and fair-minded people, who knew how to govern themselves and could control the power of anyone who might impose on them.

The great religious systems of the Hindus, Jews, and Muslims concentrated on duties more than rights. They created rules to guide individuals in their daily lives, spelling out how they should act in accordance with their dharma or by following God’s path for the world.

In practice, issues of caste status and occupation demanded much legal attention from the brahmins. But they generally did not trouble themselves with minor quarrels, and peasants and artisans were uninterested in learned opinions on matters of trade practice and agricultural custom. All Indian people were rooted in social groups, generally more than one, which defined their social obligations to their neighbours, families, partners, and associates.

In reality, many of the groups overlapped, and people were often governed by multiple directives simultaneously. An individual weaver might have to recognize the rules of his guild, the directions of his village council, and the orders of the temple that owned the village land, as well as the obligations of his caste, as directed by the shastras.

For the most part, the rules of local groups were much more present in people’s everyday lives than the laws of the Dharmashastra or the commands of their king.

The assemblies could not officially make rules that would bind the whole population, so the documents recording their decisions were often signed by everyone present. But, in practice, their decisions were respected by the community as a whole.

The local Jewish leaders (often known by the Arabic title of muqaddam), performed both religious and legal duties.

As far as the Cairo Jews were concerned, they lived by the Torah. This was the source of the laws the rabbis explained in their synagogues and which men taught to their sons.

Their laws offered people a sense of identity, a means to distinguish themselves and their communities from the surrounding populations. They represented a religious order, an order of duties and obligations, which transcended the pragmatic concerns of daily life. But all seem to have offered a sense of stability amidst the uncertainties and flux of daily life.

By the turn of the first millennium, Chinese rulers had established the most extensive and legalistic administrative structures to be found anywhere in the world. And legalism had seeped into the lives of most ordinary Chinese people, including their relations with the afterlife.

Documents recovered from a grave dating to the fourth century bce include legal petitions that people had presented to their deities.1 They indicated that a bureaucratic pantheon of spirits, headed by a supreme deity, managed a realm of troublesome ghosts, officious spirits, and deceased souls.

They needed, they felt, to maintain order through discipline, and the law was supposed to reform and educate. Punishment, and the threat of it, was meant to encourage good behaviour and deter crime. They also considered that rulers should be merciful and periodically declare amnesties, under which criminals would have their sentences commuted, prisoners would be released, and criminal proceedings discontinued.

Even if they spoke different languages, followed different customs, and never even dreamt of visiting Chang’an, herdsmen and traders in the far reaches of the Chinese Empire learned the same subjects, used the same contracts, and followed the same property rules as merchants in the capital and fishermen on the Pacific shores.

They believed it was their duty to be the first to worry about the world’s troubles and the last to enjoy its pleasures, and they pursued serious debates about principles of government and law. Many advocated ambitious reforms, sometimes dividing into factions, which engaged in wastefully antagonistic arguments. But they all emphasized the need for loyalty to the emperor, to China, and to its culture while lamenting political fragmentation.

The scholars who dominated the upper levels of the imperial bureaucracy regarded the law as a means of maintaining the social order exemplified by the emperor.15 A system of rewards and punishments, they all agreed, was fundamental if they were to reform individual behaviour.

Detailed ordinances known as shi regulated the work of the finance commission, the directorate of education, the ministry of personnel, the office of academicians, the civil service examinations, official salaries, and the ceremonies to be carried out in the most important ritual temples.

Excessive as they were, and unlikely as it is that they could all have been enforced with any precision, the shi must have imparted a sense of order, almost a geometry, to the running of the Chinese state. Everything and everyone had its place, and the most minute processes were carefully mapped out. And the closer you were to the emperor, the more regulated the world in which you moved.

Outside the glamour, wealth, and intrigues of the imperial court and the bustle and commercial whirl of the capital, provincial China was governed by an extensive bureaucracy.16 The smallest official unit was the district, the xian, headed by a magistrate, who was supposed to serve as a moral exemplar for the people.

Officials were supposed to implement the Confucian ideals of morality, loyalty, respect, and restraint. Practical though most of their tasks may have been, they had all studied the Confucian classics, and commissioners often issued directions about the qualities of good officials, the problems of corruption, and the social and family relations they should promote.

He expresses distinctly Confucian views: that human nature is unchanging, that leadership must be exercised through example, and that proper administration depends upon open and honest communication.

The magistrates often used distinctly moralizing language in their directions and judgements. In line with the official purpose of rewards and punishments, they often explained their legal decisions in terms of deterring others or encouraging wrongdoers to reform.

The magistrates took the duties of children towards their parents seriously and were prepared to punish them when they shirked those duties—for example, by making an unfilial son wear a cangue, a heavy board fastened to the neck, and perform daily greetings to his father.25