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

by Fernanda Pirie

Most European states had adopted some aspects of the civil law by the seventeenth century, particularly in terms of procedure.

England had its own ‘common law’, ‘the common custom of the realm’, which protected the liberties of all Englishmen.

The English governments were distracted by the upheavals of the English Civil War in the mid-seventeenth century, and for a while they left the colonies largely free to govern themselves.31 Many developed forms of local justice emphasizing informality and consensus. But as their populations expanded, most established courts that followed English models, selecting local leaders to act as magistrates.

Back in England, there was considerable debate over the status of the American settlements, which largely centred on the question of whether the English Parliament had jurisdiction over their territories or the Crown could administer them directly. The issue had some significance in the tensions between king and Parliament, which culminated with the execution of Charles I in 1649. Some judges backed the king and his claims to rule without any constraints, and it seemed for a while as if this might undermine the authority of the common law and its ability to control monarchical absolutism, for which Coke had argued so strenuously.

As one scholar has put it, the educated classes associated the legal regime centred on the common law and the courts with ideas of justice, equality of process, and active consent, which elevated them above the oppressed condition of other European peoples.38 In practice, too, the cumulative effect of the new legislation was a relatively uniform set of principles for such things as relief for the poor and regulation of labour.

Gradually, the colonies consolidated their legal institutions into more unified systems, recognizing the common law, while their lawyers undertook more specialist training. Indeed, free of the historical complexities of English legal institutions, American lawyers could often develop more systematic and coherent procedures than their counterparts across the Atlantic.43

But by the 1750s, parliamentarians had accepted the necessity of legislating for the day-to-day government of their nation. People came to see law in the decisions of their Parliament as much as in the ancient principles of the common law.46

Both Radicals and Whigs, when they were in opposition, cited the common law as a guarantor against arbitrary and tyrannical rule. It represented a series of fundamental rights, they claimed, which the government was bound to protect and which it could not alter without the people’s consent.

The English philosopher John Locke further developed these ideas in the seventeenth century in his influential writings on property ownership. He argued that individuals had natural rights to own property on the basis of the labour they put into it.

A number of them talked of the ‘fundamental rights’ of Englishmen and declared that the legal control exercised by the English monarch and his government was against the principles of natural equity. Even though Coke and his contemporaries had never seriously questioned the authority of Parliament, American activists talked of the common law in the same terms as natural law. It promised individuals a set of fundamental rights, they maintained, and guaranteed their freedom. Rather than substantive rules handed down by the ruler, the law required the consent of the people.

In practice, after Independence, American states continued to use and develop the common law they had inherited from their English forebears.

Ideas about natural law and rights had come together with the practices and principles of the English common law to form the basis for what was to develop into one of the dominant legal systems of the modern world.

For their part, continental scholars formulated the idea of the ‘law of nations’, a body of general principles that were supposed to apply to all people wherever they lived. They built on the Roman concept of the ius gentium, the laws common to all nations, which were distinct from the legal privileges enjoyed by Roman citizens.

Then Hugo Grotius, in the early seventeenth century, argued that natural law could be discovered by observing rules common to the laws of all civilized people.

The turmoil of the Thirty Years’ War in the seventeenth century encouraged scholars to think more pragmatically about the purposes of the law and what it could achieve. Many became convinced that they needed a system of impartial law that could transcend the ‘human passions’ and antagonisms of their rulers, whose wars had done so much to devastate lives and livelihoods in northern Europe.

Roman maxims asserted that the prince was ‘absolved from the laws’ (‘legibus solutus’), and that ‘what pleases the prince has the force of law’ (‘quod principi placuit legis habet vigorem’). Although the Roman jurist Ulpian had originally been expressing somewhat different ideas, scholars in medieval and early modern Europe quoted these maxims as simple statements of royal authority.

Not surprisingly, the leaders of the European states that emerged from the Peace of Westphalia, which ended the wars, were enthusiastic about the idea of developing national codes of law, viewing them as aids to unifying their territories and limiting the power of local lords and judges.

In his De l’esprit des lois (The spirit of laws), published in 1748, he argued that any law must relate to its own society, with its particular climate, economy, traditions, manners, and religion. Looking for universal ideas in the principles of natural law or theology was a mistake.

The code, Napoleon maintained, would abolish feudalism and make all Roman laws obsolete in a new spirit of unity, uniformity, and simplicity. In practice, Roman precedents substantially shaped the structure and content of the new code. The committee followed the structure of Justinian’s Institutes, and critical laws on private property were based on Roman ideas. Napoleon also emphasized the ‘reason’ on which his legal structure was based, a concept firmly associated with Roman law.

Elsewhere, the ideas promoted by Montesquieu, that any law must be rooted in the context of its own society, had powerful advocates.

Throughout the world, colonial projects to record and apply local laws were supported by local elites who embraced the new projects of government. The existence of law had by now become an important marker of development, so no one wanted to deny that their ancestors had had their own laws, even if they were not written down. This meant that they effectively had to create a new type of law, which they called ‘customary’, or ‘traditional’, out of the fluid norms and practices that had characterized traditional systems of government.

In all these ways, European colonial powers introduced new social and political ideas into their territories, and these continued to shape the postcolonial constitutions, especially in the hands of an indigenous elite keen to participate in the emerging international order. The new nation-states had clearly bounded territories, languages, religious conventions, and their own laws. Behind it all lay ideas about universal progress and an international order that recognized the ‘comity of nations’, a concept emphasizing mutual respect for laws in a world of equal political entities.

Even those that had not been colonized chose the French Code Civil as the basis for new legal systems, which they hoped would allow them to participate more readily in the new economic and commercial order. Postcolonial states in Latin America had already adopted European models.

Europeans felt they needed to justify their activities, and they did so by making claims about the transformations their laws would bring about: efficient administration, private property regimes, individual rights, and the rule of law. It was a promise of civilization.

The problem faced by those trying to implement Islamic laws is that the shari‘a was never wholly, or even partly, a state system. Its scholars, the ulama, distanced themselves from the control of political rulers. They pronounced fatwas and advised judges, but they regarded themselves as morally superior to state-appointed officials.

These practices have been disrupted by state-building and the introduction of new courts and laws, and contemporary governments struggle to incorporate them into state structures. But in many settings shari‘a courts continue to hear family disputes and Islamic scholars retain their authority. And the most charismatic continue to foment popular movements, even revolution. Islamic law is still a force to be reckoned with.

Loyalty to one’s family, one’s encampment, and one’s tribe is everything. Most feuds are settled before they get to this stage. Everyone can recall incidents in their tribes, often serious ones involving knives and even killings, that have been swiftly resolved through payment of compensation. Everyone knows that it is much better to negotiate and avert a cycle of vengeance, angry though the young men may be, and must be seen to be. Stolen property must, of course, be returned, and blood money or wound price paid as compensation for the loss of life or injuries.

The United Nations can exert pressure on its members, but defiant leaders flout conventions, manipulate resolutions, and commit acts of aggression in the face of condemnation. So why do the UN delegates persist, and why do pressure groups continue to lobby for new international laws? Campaigns to eliminate oppression, uphold human rights, alleviate poverty, and protect a region’s cultural heritage often culminate in new laws. These projects are not so different from those of the Mesopotamian kings, who promised justice to their people by writing out sets of laws even if they were probably never applied in detail. Beyond the disciplinary authority of the state, law and legalism have a power of their own.

The nineteenth century saw the rise of formalized international lawmaking. As European states defined their boundaries, international merchants, financiers, and economists became concerned that the new borders would present barriers to free trade.

The United Nations continues to sponsor arrangements in response to ethical concerns in international trade.

At times, different organizations embark on parallel projects in response to a global problem.

Many international organizations, they argue, support international capitalism for the benefit of a new global elite. The legal structures that promote free trade, international financial regimes, and economic liberalism, along with those that justify armed intervention in the affairs of other states, they say, are creating a new imperial order.35 And they point out that even laws with explicitly idealistic goals, those that promote human rights and justice, tend to represent the values and ideals of the West.

In practice, the principles of many human rights conventions and declarations are virtually unenforceable. General and vague, they also lack the support mechanisms of courts and effective international institutions.

Anthropologists were also highly critical of the notion of universal rights. In 1947, the president of the American Anthropological Association warned that the promotion of ‘universal values’ would encourage people to overlook cultural differences and lead to a lack of respect for the alternative ideas and ideals of those who did not think in terms of human rights.41 Since then, many have accused human rights laws and their champions of imposing Western cultural values on people and places in which they do not belong.

The criticisms of ‘universal values’ have some justification. Many of the pioneering human rights lawyers believed in the superiority of Western civilization and its values.

Buddhists are taught to deny the substance of the self and its emotions in complex philosophical ways that do not sit happily with the concept of the rights-bearing individual. Yet the language of human rights has proliferated.

They presented themselves as people with entitlements even though they adhered to a religion that taught them to deny attachment to worldly things. This has been one of the paradoxes of the human rights movement. The Nepalese Buddhists were using the concept of human rights to catch the attention of the state, probably also conscious of the international currency of the language, and they apparently had no difficulty in distancing the instrumental language of their political arguments from the concepts they used to talk about themselves as followers of the Buddhist path.

There are others, particularly in the Islamic world, who continue to resist what they see as Western imperialism. They are often particularly concerned about the promotion of rights and equality for women, which they see as contradicting their religious values. But indigenous, marginalized, and impoverished people everywhere have come to appreciate the power of human rights language and adopt its idioms.

Litigants turn to lawyers to transform their claims into arguments that a judge will hear, even if it sometimes seems to distort their stories, omit things that concern them most, and use phrases they barely understand. And this happens in national courts as well as international contexts. But while litigants in local courts often have pragmatic reasons for pursuing legal cases, those who appeal to human rights laws are often trying to make moral arguments, to draw attention to their cause in a long-term campaign for social reform.

While the Internet pioneers largely had the practical goals of international coordination in mind for their lawmaking, human rights campaigners argue for new laws that make moral statements in long-term campaigns to make the world a better place. Both find that the simple technique of creating explicit rules gives them a powerful resource.

Some of the new enthusiasm for international laws and courts crystallised around the idea of ‘transitional justice’, and campaigners established an International Center for Transitional Justice in New York in 2001. The organization advocates measures to ‘redress the legacies of massive human rights abuses’ in countries ‘transitioning’ from conflict or state repression. It promotes criminal prosecutions, reparations for victims, institutional reforms, and truth commissions to address victims’ rights and ‘to see the perpetrators punished, to know the truth, and to receive reparations’.

Tensions have emerged within international processes themselves about the extent to which the pursuit of peace clashes with the requirements of justice.

Disciplinary criminal laws, backed by effective means of detection, trial, and punishment, are the achievement of the modern state. Along with elaborate laws that seek to regulate numerous aspects of social life, they lay the basis for new social programmes and promote economic development.

Laws have long crossed borders as merchants developed practical rules and instruments for long-distance trade and missionaries sought to guide their followers along God’s path for the world. In the modern world, international organizations create rules with pragmatic aims, seeking to promote coordination and regulation among large networks. And alongside them are initiatives with idealistic goals as campaigners seek to make the world a better place.

On the international stage, many laws are more important for what they represent than for how they actually restrain government power. Human rights and associated international laws stand as moral statements, which many find appealing and powerful, as they translate the messy reality of conflict, discrimination, injury, and oppression into a more direct language. They offer ideas that anyone can appeal to as they seek to make their arguments heard.

Law is a deceptively simple means of ordering the world. It makes explicit the general rules we use to describe how our societies ought to be and those that lie behind our judges’ decisions.

The social ambitions of the earliest lawmakers in Mesopotamia were quite different from those of the ancient Chinese rulers, and those of the Chinese rulers different again from those of the Hindu brahmins.

These three projects built on different fundamental principles: justice in Mesopotamia, discipline in China, and duty in India. But they collectively established a foundation for practically all the laws that have since been created.

At their most basic, laws provide means to order social life. Legal systems everywhere punish murder, compensate injuries, regulate marriage and inheritance, relieve debtors, and provide for the maintenance of children. These are issues that arise whenever people live together.

Rulers turn to laws because they put people and things, along with their activities, into categories and classes and specify relations between them, enabling more extensive and more effective government.