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Whence Came Law?

Where did the institution of law come from? By “law,” I mean a body of directives, guiding the conduct of subjects in some state, that are general, written, published for their subjects, and made and enforced by a set of officials distinct from those subjects. Law in that sense came to humanity relatively late in its history. In aboriginal tribes, tribal life is guided by taboos, religious dogmas, customs, and the directions of tribal or family leaders. In the earliest civilizations, law complemented these other forms of social guidance, and in developed countries, law has largely displaced them. Today, the most influential models of law come from the West—in model statutes, constitutions, and international treaties. How did law emerge at first, and how have Western models of law come to dominate impressions of law across the globe?

Those questions are taken up in Fernanda Pirie’s The Rule of Laws: A 4000-Year Quest to Order the World. Pirie is a professor of the anthropology of law at the University of Oxford. Among her many other works in comparative law and anthropology, she has previously co-edited a 4-volume collection of academic essays on legalism. The Rule of Laws complements that collection but it is written primarily for lay readers.

The Rule of Laws begins by studying the origins of law. The earliest laws that anyone knows of were established in Sumerian cities like Ur. Later, laws were established in India (by Brahmins) and in China (by emperors and their aides). Roman, Greek, and Islamic authorities all built on the Sumerian model. I wondered why The Rule of Laws does not cover law in early Egypt—until Pirie explained that, like Latin American Indian empires and sub-Saharan African kingdoms, early monarchs ran Egypt “without creating general rules.”

The Rule of Laws then studies how Western concepts of law gained preeminence across the globe. Although Western law has not totally displaced other forms of law, as Pirie observes, “the state laws that now dominate the world are largely based on those developed in European countries and America from the seventeenth century onwards.” And Western models exercise outsized influence when officials develop and administer contemporary international law. The Rule of Laws studies how Western law came to dominate—even though other sources of law had head starts of 2,000 years and more.

Some sections of The Rule of Laws survey the emergence of law on the fringes of Western civilization—in Ireland, Iceland, Russia, and Armenia. Other sections study how well-established legal systems matured—in the Byzantine Empire, the Islamic world, India, and China. There are also fascinating detours into alternatives to law—trials by ordeal, shari’a in the Western world, and the extra-legal rules enforced by tribes and criminal gangs. For the most part, however, the book focuses on the spread of what we now know as Western law around the globe. In many different European countries, general and uniform law was one of many benefits monarchs offered to pry subjects from allegiance to their feudal lords. On the continent, monarchs and legislatures promulgated statutory civil codes, but the common law kept its preeminence in the United Kingdom. Civilian and common law systems were then introduced throughout the rest of the world as European nations colonized and took over most of the rest of the globe. And the same legal sources supplied the templates for international treaties and the international organizations that enforce treaties without “the backing of direct enforcement mechanisms” possessed by sovereign nations.

The Rule of Laws is the book to read and buy for readers who want to learn about the emergence of law in human history but have time and patience for only one book on the topic.

True to its “post-colon” title, The Rule of Laws reports on legal systems across the world over 4,000 years. In case it is not already obvious, however, to get that breadth The Rule of Laws sacrifices depth. For example, readers might want a book on the history of law to say in what conditions is law desirable. Or, when law secures liberty and when it threatens or restrains liberty. The Rule of Laws does not explore these questions. It recognizes that “laws provide means to order social life,” and it concedes that “autocratic rulers regularly use law to control, oppress, and exclude.” Those observations are in tension with each other, and the book does not resolve the tensions.

For another example, The Rule of Laws does not address the most basic question in jurisprudence: Is it in law’s nature to be just? Some parts of the book seem to support positivist views about the relation between law and justice. Pirie’s comments about autocratic legal systems support such views. So do passages studying continental civilian code systems, which were enacted partly in hostility to the French Revolution’s universalistic natural rights rhetoric.

But other parts of the book seem to support natural law views. Pirie recounts faithfully how the American colonies appealed to natural law to justify their revolution and independence from the United Kingdom. And Pirie finds in all laws tendencies to “hold the promise of both justice and order” and to “set out, for all to see, the moral parameters of the civilized society our rulers claim they can create.” For my part, those tendencies confirm natural law views. It is natural for law to supply justice and political order via generally published directives, just as it is natural for money to facilitate exchange via a government-backed currency. But assertions like that raise deep questions about what it means for different features to be “natural” for law, money, and other social concepts. Since The Rule of Laws is a survey history, it does not take those questions up.

I have one other reservation about The Rule of Laws. Here and there, the book assumes that law should be what twenty-first-century American and European urban elites assume it should be—focused on trade and commerce, and kept out of vexed religious and moral questions. When the book acknowledges that, “within the Hindu, Jewish, and Islamic traditions, legal rules have shaded imperceptibly into moral and religious guidance,” it quickly adds that such rules are “very different from those considered appropriate in a modern state.” The biggest “tell” comes in the way the book uses the adjectives “practical” and “impractical.” The book classifies systems of commercial law and legal remedies as practical; it describes as impractical laws expressing people’s common goals and their religious aspirations.

In these passages, The Rule of Laws seems to assume editorial views to which secular and cosmopolitan liberals would subscribe and to which communitarians and religious traditionalists would object. This is not the place to say which side is right. But Western countries have enough problems—with breakdowns in civic trust, or degradation of the rule of law—that communitarians and traditionalists might be right. In any case, The Rule of Laws would have been a better read without the background editorial commentary critical of religious or communitarian legal projects.

Still, The Rule of Laws is the book to read and buy for readers who want to learn about the emergence of law in human history but have time and patience for only one book on the topic. Pirie’s prose is clear, easy, and enjoyable to read. The Rule of Laws is also a handy resource. The book summarizes where law came from and why Western models supply blueprints for law in the twenty-first century. It also gives readers a trove of examples of how law orders political life and how different laws promote different political regimes.