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

by Fernanda Pirie

Judges were now to have the authority to investigate wrongdoing and summon suspected criminals to their courts, rather than relying upon an accuser. Pope Innocent had also decided that members of the clergy should no longer take part in judicial ordeals.

First, ordeals ‘tempted God’: that is, they tested the divine by demanding a sign of guilt or innocence. Second, if the process might end with a punishment

mutilation or death, it involved the clergy in ‘bl...

Replacing blood punishments with other penalties was not a practical option. Imprisonment was expensive, compared to mutilation and execution, and the Old Testament also made it clear that justice meant proper punishment. God had said to Moses, ‘Thou shalt not suffer evildoers to live.’ And in 1203, Pope Innocent had himself declared that criminals should be punished in the public interest.32 So judges feared public unrest if they failed to prosecute and punish crime. The theological problems of crime and blood punishment remained acute.

The solution they came up with was to place the burden and moral responsibility for declaring guilt onto a jury. The Anglo-Saxon kings had used groups of witnesses to assist in inquests, and the Norman kings had turned them into ‘juries of presentment’.

The English system of jury trial soon spread into the civil sphere. By using the new writ of novel disseisin, a landowner could bring a property claim in the royal court, and here a jury of recognitors would adjudicate on the claim.

By demanding that twelve people agree on a verdict, the courts did provide some comfort to the jurors and their consciences, and officials would keep searching for jurors until they found twelve who could agree. The system also provided some safeguards for the accused. By the seventeenth century, at least, judges were directing juries that they had to be ‘sure’ of guilt, and even that evidence of a felony had to be ‘so manifest, as it could not be contradicted’.

The judges now began to talk of ‘reasonable doubt’ as the test that juries should use when deciding their verdicts.40 They would direct jurors that it was their duty to convict if all the ‘moral probabilities’ of the evidence was against the accused and they had no ‘reasonable doubts’ about the facts. This not only protected the accused but also reassured jurors that they could convict with a clear conscience if the evidence was, in their judgement, sufficiently strong.

A principle that we now associate firmly with protection of the accused was originally designed to salve the consciences of the jury.

Nineteenth-century American juries, brought up in a strongly Christian tradition, were still troubled by the moral and theological consequences of a guilty verdict.41

42 But judges faced several problems: according to the principles established in Roman law, an accuser needed direct proof of a crime and the support of at least two witnesses before a court could convict. This made it almost impossible to prosecute a crime committed in private, however compelling the circumstantial evidence.

So Pope Innocent III’s declaration that crime needed to be punished in the public interest prompted scholars to rethink the whole basis of criminal evidence.

When the Lateran Council directed that judges could summon suspected offenders to their courts, some theologians proposed that they should also be able to compel witnesses to give evidence. In doing so, they began laying a foundation for practices of judicial torture.

The scholars, accordingly, developed rules about ‘half-proof’. In these cases, the judge could torture an accused in order to extract a confession. The attraction of this method was that it provided proof of the crime. If the accused confessed, the judge did not need to worry about the quality of the evidence, so his conscience could rest easy.

Reassured by the pope’s declaration that it was important to punish crime, they decided that beatings, blindings, brandings, the slashing of nostrils, and hangings were all in the public interest.43 Theologians and other writers continued to debate the justification for these punishments and some expressed doubts about the use of judicial torture.

It was only in the eighteenth century that judges felt able to do without the certainty provided by a confession and to sentence, albeit on a lesser scale, on the basis of ‘suspicion’.

The European jurists were not the only ones to search for alternatives to oaths and ordeals in criminal cases, but everywhere, the scholars found it a challenge to develop legal rules for the processes of evidence-gathering and judgement.

In China, Confucius disapproved of the harsh legal processes advocated by the ‘legalist’ scholars and promoted new ideas about moral education. But even he and his followers recognized the need for punishment in the interest of social order. Rather than resorting to ordeals, Chinese government officials came up with the idea of judicial torture several centuries before their European counterparts.

We do not know for sure if Chinese officials had similar concerns to their Christian counterparts about the consequences of wrongful conviction, but it is clear that corrupt earthly judges could expect divine retribution in the underworld, where spiritual judges heard petitions, took evidence, and meted out justice.

But they presumably still felt that a confession provided the best and safest justification for a blood punishment. Many also hoped for divine intervention to help solve difficult cases.

The lawmakers never prescribed oath-taking; nor did magistrates resort to ordeals. They had to extract confessions directly in order to justify punishing even a known criminal.

47 The laws of karma promised a miserable rebirth for anyone who led a sinful life, so the kings and their judges must have had similar concerns to their European counterparts about wrongful convictions. But the brahmins assured them that it was their dharma to maintain peace and order, and offered them detailed rules about how to go about prosecuting and punishing criminals.

The Quran gave them only the briefest guidance about punishing crimes and about the kind of evidence required to convict someone of adultery, rape, or murder, offences that merited a blood punishment. Over the centuries, the jurists developed a more extensive set of procedural rules and principles. But instead of helping the judges convict in difficult cases, by the eleventh century they were calling on judges to avoid criminal punishments in all cases of doubt.

The government’s judges, the qadis, could hand down criminal sentences, which their officials would enforce, but most scholars were reluctant to act as judges themselves.

In their madrasas, at some remove from the power of government officials, Islamic jurists were concerned and felt they needed to provide checks and balances on the Seljuk’s excessive use of executive power.

The Arabic word for doubt, shubha, was broad, and they decided it could refer to doubts about the facts of a case, doubts about the law, or doubts about the morality of a proposed punishment.

While the European doctrine of ‘reasonable doubt’ and the use of oaths, judicial torture, and juries helped judges decide when blood punishment was justified, the Islamic rules told judges when they ought to harbour doubts. They reflected the jurists’, rather than the judges’, anxieties about the morality of punishment. Instead of providing moral comfort, they injected an element of uncertainty into the judges’ work, insisting on the problematic nature of a very wide range of cases.

Their object was to deter capital sentences and to curb executive power by helping a morally anxious judge resist pressure from officials to hand down capital sentences on the grounds that his hands were tied under Islamic law.

The problems of punishment and the perils of judgement arise whenever some people assume the right to discipline and punish others. Over the centuries, many have found the process of judgement fraught with difficulties.

Eventually, more bureaucratic states established rules of evidence, which relieved the discomfort of judges and juries by defining what it meant to act legitimately. They also constrained the power of the judges and officials. This is one of the most dramatic ways in which modern laws, after so many centuries of trial and error, have offered new ways to fulfill the promise of justice.

The state laws that now dominate the world are largely based on those developed in European countries and America from the seventeenth century onwards. During that period, law has come to be firmly associated with the state and its processes of government in ways that combine law’s disciplinary potential with its promise of justice and order.

According to powerful international institutions, such as the United Nations and World Bank, laws should support democratic structures, efficient regulation, private property regimes, and individual rights, with an independent judiciary to resolve disputes and decide on criminal sanctions.

The Ottomans also established their own kanun, a code of civil law loosely based on the shari‘a. As one scholar has put it, ‘Islamic law sheltered a world economy and an international commercial culture pioneered by Armenians, Hindus, and Greeks, which was as developed as that of Europe’.

During the Middle Ages, most European courts applied an amalgam of the civil law and their own customary rules. In France, the kings ordered that every community should have its own coutumes, a code of customary laws, and the Coutume de Paris, published in 1510, became the standard applied throughout France.

Customary norms and processes remained important, particularly in the lands that made up the Holy Roman Empire, by now the dominant political power in Europe.

A few decades later, in 1532, Emperor Charles V issued a criminal code, the Carolina, based on Italian precedents.

He required judges who were not legally trained to seek advice from scholars—those in Prague, Vienna, Heidelberg, and Cologne were particularly renowned—entrenching both their authority and that of Roman law.

Its monarchies, duchies, principalities, bishoprics, counties, imperial abbeys, and villages may have maintained their own courts, but they all recognized the civil law. Lawyers quoted passages from Justinian’s Corpus Iuris Civilis in the courts of Paris, Valladolid, and Vienna. In Scotland, too, James V confirmed that judges trained in the civil law should sit in the Court of Sessions.6 The Scottish judges accepted continental written procedures in place of common law remedies and turned to Justinian’s text to supplement Scots law, citing its ‘equity’ and ‘rationality’.

The civil law had come to provide a point of reference and source of common principles for a vast array of local courts, rulers, customs, and legal processes.

But the substance of the law applied in the higher courts was largely shaped by writs, the forms of words that litigants had to use when they presented their cases, and this ‘common law’ was far from comprehensive. Ordinary people largely followed, and expected others to follow, regional customs.

Even the central courts, in which the common law formed something like a system, varied in composition and jurisdiction, sometimes competing for cases.

In practice, the ability of the monarchs’ ministers to regulate people’s lives was limited, and the central courts could not adjudicate all their disputes.

If pushed, most judges would probably have agreed that the ‘common law’ was found in the learning of the legal professionals and the reasoning they used in the higher courts.

Even the magistrates in the lower courts talked frequently of the ‘excellence’ of the English law and the ‘liberties’ of the people that it upheld.12 To a large extent they were thinking of the safeguards of the courts’ procedures, above all jury trial.

But even the ‘common law’, applied by the higher courts, hardly formed a systematic body of rules and principles. There were no textbooks which even tried to be comprehensive, and success in court depended on using the right writ. Procedure was everything.

Although English law was an imperfect system, there was a sense that law was important, something with its own authority. This led to political tensions between the monarch and the judiciary in the early seventeenth century.

In the early seventeenth century, James I, less politically astute than his predecessor, claimed that the king was the source of all law, that he owned it, and that he had the right to define, regulate, and administer it. Neither Parliament nor the king’s judges could accept these claims, and even James’s chancellors, Lord Ellesmere and Sir Francis Bacon, argued that the king’s legal powers ultimately derived from the common law.

20 In his judgement, Coke famously declared that the courts would not enforce any parliamentary statute that was ‘against common right and reason, or repugnant, or impossible to be performed’. The common law, he said, would ‘control it’ and ‘adjudge it to be void’.

The idea that the law imposed limits on the authority of the king, the ‘rule of law’, continued to resonate in legal and political circles over the decades.

Amidst all these debates and arguments, some expressed concern that, over the centuries, the common law had become a tangle and needed to be synthesized. But, resisting calls for codification, Sir Edward Coke insisted that its flexibility and refinement made the common law superior to the civil law.22