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

by Fernanda Pirie

The vindictive could persecute their enemies with legal complaints, but anyone who made a false accusation of criminal behaviour faced the same sentence as the one that the crime itself carried.

The Chinese legal system was highly formalistic, with elaborate rules for petitions, evidence-gathering, confessions, decisions, and judgements.

Having established the facts, the magistrate then had to apply the law. This was a process made more complex by the mass of legal rules and collections of precedents they were supposed to consult.

Faced with a mountain of legal complexities and fearing criticism for mistakes, many magistrates referred tricky cases to their superiors in the prefectures.31 Allegations of more serious crimes had, in any case, to be recorded in detail and referred upwards. A litigant could also appeal if he or she thought a magistrate had committed a serious error.

The rules were designed to give litigants considerable protection in a system that used torture to extract confessions. But even these procedures could obviously be abused.

For all its safeguards and the underlying ideal of mercy, the Chinese legal system was easily abused, especially at the lowest levels.

And although many magistrates had a reputation for meting out harsh justice, they were themselves subject to scrutiny by their superiors. During a process of appeal, they could be disciplined for errors, as could a prefect who was adjudged to have handed down the wrong sentence. Equally, a magistrate who cleared an innocent person of a grave charge would be publicly rewarded.

Most disputes, of course, never reached the courts. As in later periods, people turned to community leaders, local policing groups, and ritual associations to mediate common problems.

The Confucian emphasis on stable social hierarchies, filial piety, and loyalty to one’s superiors encouraged informal peace-making.

Chinese people also continued to turn to legalistic documents in their interactions with the underworld.

In later periods, Chinese writers referred to the demonic and celestial legal codes that the underworld judges had to apply. They apparently followed even more extensive rules than their earthly counterparts in courts staffed by an even more elaborate bureaucracy. In the underworld, they judged the deceased and entertained petitions from both unavenged ghosts and living petitioners.

They instituted a principle that the law should be known to all and made legal texts widely available. But people continued to put faith in the power of the deities to assist with legal cases. The compiler of a set of legal judgements from this period refers casually to the intervention of spirits and ghosts in many of the cases he describes.44

In desperate circumstances, an impoverished household might incorporate an unmarried man, who would contribute his labour to the household resources in return for a share of the wife’s bed.

Chinese peasants continued to record their agreements in writing, valuing the certainty they provided, even if the law forbade what they were doing.

Originally created for ambitious rulers several centuries before the common era, Chinese systems of crime and punishment were developed over two millennia by emperors who placed their faith in the power of punishment to control their people and manage their territories. Their laws promised an order of discipline.

Scholar-officials required people to use the correct legal forms for numerous transactions and follow detailed rules for court procedures. Peasants, herdsmen, and traders all managed their land, commercial relations, and family arrangements in legalistic ways.

The idea of a rule-based and geometric order also seems to have provided the model for a hyper-bureaucratic court in the underworld, to whose deities quite ordinary people presented legal petitions.

Legalism came to seem like the natural order of things. It is not so different in the modern world, where Western legal systems have expanded, bringing legalistic rules to bear on all corners of daily life.

But the separation between church and state had left the kings’ laws without the sanction of religion. Nor were medieval governments strong enough to impose an order of discipline on their populations in the way that the Chinese did.

In continental Europe, a wave of lawmaking followed the ‘rediscovery’ of Roman law in the twelfth and thirteenth centuries.1

For some time, local judges and mediators continued to approach disputes in traditional ways, seeking to broker compromises between parties at odds. But the idea that litigants could refer to an objective, impersonal set of rules to pursue their interests gradually took hold.

The new laws provided people of all ranks with a machinery that was impersonal, but which also offered them a language by which to challenge others, even those of higher status.

It was not, of course, a perfect system, and the legal arguments did not always work, but they gave people a way to take on those who tried to dominate them. Law now supplemented the moral and religious arguments people had always used in front of arbitrators, and its ideas and techniques filtered into local contexts.

New and reforming rulers often created or amended their laws and adopted styles of Roman legal procedure.

The legal reforms introduced by Henry II in the late twelfth century put the power to declare what the ‘common law’ was in the hands of the judiciary.

for most of the Middle Ages and into the early modern period peasants, artisans, churchmen, and merchants all turned to local courts, which were often sanctioned by the Crown to resolve disputes. They cited custom as well as law to local judges and expected a jury of their peers to consider charges against them.

During the thirteenth century, the eyres were eclipsed by the assizes, royal courts that toured distinct parts of the country ‘on circuit’ and took over the work of the hundred courts.

Along with local justices of the peace, who eventually superseded the sheriffs, they heard allegations of ‘felony’, that is, serious crimes such as homicide, robbery, and arson, breaches of various regulations, and disputes between individual citizens. Although private prosecutions alleging felonies framed them as crimes, people were generally seeking the sorts of compensation that would today be granted by civil courts.

Peasants found it a burden to sit in the sheriffs’ courts, but it did give them the chance to participate in the administration of justice, in a small way deciding what the law was and should be. And they brought ideas back to the manor courts: that grants of land gave them rights, that certain people were entitled to inherit from others, and that they could argue self-defence or accident to a charge of homicide or wounding.

In this way, rules, practices, and principles developed within the royal system of courts filtered down to the manors.

Issues about marriage, divorce, the legitimacy of children, and sexual crimes were all supposed to go to the church courts.

The clerics were supposed to apply the church’s canon law, which had its roots in Roman civil procedure, although there was rarely much dispute over the crimes in question.

The church was, at least in theory, concerned with the state of men’s souls rather than the regulation of their agriculture or social lives, but medieval English men and women cared deeply about their honour and often turned to the church courts to defend their reputations. Insults, particularly those with sexual innuendos bandied around in the heat of an argument, could cause great offence, and, at the risk of republicizing the insult, many sought public exoneration in the courts.

The practice of convening local juries to try disputes spread throughout most of England during the thirteenth and fourteenth centuries.

During the Middle Ages, legal scholars everywhere studied the rules, principles, exceptions, and distinctions of the civil (Roman) law, and the church courts applied canon law. French judges borrowed their legal forms to create laws with general application, while English judges developed technical forms of landholding and succession in their system of writs. But most people, even the judges in the highest courts, had a sense that custom was important and ought to be respected.

The variety of the world’s legal processes is almost as great as the variety of its societies. But a problem every society has faced is how to determine the truth.

For all the differences in their laws, in premodern societies people everywhere came up with similar solutions to this most intractable of problems.

Oaths and ordeals might seem exotic to us now, even barbaric, but premodern societies the world over invoked the divine to determine whether someone was guilty of a crime.

Eventually, laws of evidence superseded accusations made on oath and the proof offered by an ordeal, but it was a long time before these rules transformed criminal trials into the processes we know today. In the meantime, judges had to work out how to determine when an accused was guilty and ought to be punished.

A collective oath expressed the oath-takers’ loyalty. It affirmed the honour of the accused, which proved that the incident must have been an accident, not a crime.

The inhabitants of the British Isles still formed tribal groups which engaged in blood feuds, but by the tenth century, King Edmund I, in an attempt to restrain and regulate the associated violence, had issued a law saying that a victim’s family could only take revenge on the slayer himself, not on the slayer’s wider family. The Norman kings went further, banning direct retribution altogether. A killer now had to pay compensation to both his lord and his king, as well as to the victim’s family. The monarchs were beginning to punish crimes directly. But this also meant distinguishing between a murder, an accident, and a killing in self-defence.

Before they entertained a criminal case, however, the English judges needed an accusation, and for a serious crime the accuser had to bring witnesses to swear oaths of confirmation.

Oath-taking was a near-universal means to justify an accusation or deny guilt. But it was everywhere a serious and elaborate process which imposed an intense moral burden on the oath-taker.

It was an honour and privilege to be able to swear an oath in self-defence, and only those with sufficient status possessed that option. Throughout the Middle Ages, the legal systems of Europe continued to rely on the process of oath-taking to prove innocence or guilt, and many English subjects insisted on their right to ‘wage their law’, that is, to take an oath to demonstrate their innocence.

In a typical ordeal, the accused would have to take a hot iron bar or stone in their hand and walk a few paces. After this, the hand would be bound. If it was already healing when the judge or priest inspected it a few days later, it was a sign of innocence. Witnesses who took an oath invoked the divine, signalling that they were aware of the possibility of spiritual retribution if their evidence was false, while those who underwent an ordeal invited direct intervention from God or other spirits. The process itself indicated the truth.

The idea behind the process was to intimidate a witness into confessing.

An ordeal, conducted and interpreted by a member of the clergy, took the process beyond their control and weakened the authority of the judges. But it provided an answer where the evidence was genuinely contradictory or inconclusive, particularly if it involved an event that had allegedly happened in private, such as a sexual crime, a clandestine theft, or a surreptitious murder. Even more importantly, it allowed judges to avoid taking responsibility for what was a deeply problematic process, sitting in judgement on their fellow men and women.

Making a judgement was especially problematic if it meant condemning someone to death. In medieval Christendom, as well as in the Islamic world, Vedic India, and premodern Tibet, theological concerns placed a heavy moral burden on the shoulders of a judge.

Medieval Christian theologians liked to quote St. Augustine, who had declared that judges must act justly, which meant ‘pursuant to the law’ (iuris ordine servato). If a judge acted justly, and an accused was executed, it was the law that killed him, not the judge.

Medieval jurists had not developed laws of evidence with concepts like the ‘burden of proof’. The ordeal offered the judge a way around this problem by providing a divine indication of guilt. A judge could then make an order for punishment secure in the knowledge that God had indicated it was just.