The Pathos of Politics – History


Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all. ~ Edmund Burke

Historically, tribal societies had weak centralized authorities. A tribe leader had limited ability to coerce individuals.

Tribes typically lacked an effective system for 3rd-party rule enforcement. That said, virtually all tribal societies had traditions for seeking justice, including obligations on kinsmen to seek revenge or restitution for wrongs; arbitration mechanisms, albeit nonbinding; and restitution payment schedules.

The Beowulf saga – an Old English epic poem set in Scandinavia – has blood feud revenge as one of its major themes. Blood feuds are a typical tribal institution. Fear of incurring a blood feud is the most important legal sanction within a tribe, and the greatest guarantee of life and property. There were rules as to how blood feuds were to be pursued.

Popular assemblies originated as a venue to adjudicate tribal disputes. The Illiad describes a dispute over the blood price for a slain man, which was argued before a marketplace crowd, and a verdict read out by the tribal elders.

Tribal societies did develop increasingly sophisticated institutions for civil and criminal disputes, but 3rd-party enforcement of those decisions only came with the emergence of states. It was in those early states that laws evolved from moral traditions.

By ~2500 BCE, Egyptians had embraced rule of law, based on the concept of Maat, personified by the goddess of the same name. The ancient Egyptians believed in an underlying sanctity and unity of the universe. Maat was the holistic conception of cosmic harmony. Maat’s polar opposite was Isfet: lies, chaos, and violence.

Pertaining to humanity, Maat represented the ethical and moral principles of proper behavior, to maintain social and natural harmony. Maat derived from the moral traditions of the Egyptians. It was more the spirit of justice than exposition of rules.

It is true that evil may gain wealth, but the strength of truth is that it lasts. ~ Egyptian vizier Ptahhotep on Maat

Ur-Nammu founded the 3rd Sumerian dynasty ~2050 BCE. He or his son Shulgi promulgated the earliest known codes of law.

The prologue to the Code of Ur-Nammu, which was penned in the 1st person, stated that the king was the beacon of justice for his land: a role not normally taken by kings. Disputes were handled by local government officials (mayors), and there was an appeal process: to the provincial governor, and possibly the king.

The Code of Ur-Nammu was written as a set of conditional statements: “if… then” situations and redresses. This pattern was followed in nearly all later law codes.

Ur-Nammu codes were more humane than the talionic (“eye for an eye”) principle behind later Babylonian law: there were monetary compensations for minor injuries and injustices. That withstanding, murder, robbery, rape, and adultery were capital offenses.

The 6th Babylonian king, Hammurabi, ruled from ~1792 to 1750 BCE. His laws, known as the Code of Hammurabi, outlived the empire, influencing Roman and subsequent law.

By the time of Hammurabi, almost all traces of tribal custom had disappeared from the law. Hammurabi’s code served the state’s interest in keeping order.

Hammurabi’s code proclaimed that one of its chief goals was to defend the weak against the strong. Yet in early civilizations there was no concept of equality before the law. On the contrary, social inequality was expressed and defended in many ways in legal systems. Crimes committed against upper-class people tended to be punished more severely than crimes against commoners. The privileges of the upper classes were protected by armed forces and the legal system. ~ Canadian anthropologist Bruce Trigger

Babylonian law was primitive in its physically abusive punishments for crimes, which were graded depending upon severity of offense and social status, most starkly whether slave or free man.

Nearly half of the 282 Hammurabi laws dealt with commercial matters. 1/3rd of the codes were family law or related to sexual conduct. A few provisions related to military service. Only 1 law imposed any obligation on an official: that a judge who reaches a wrong decision be fined and permanently removed from the bench.

Ancient Jews had a different take on legality: viewing transgressions as offenses against God rather than solely societal infractions. The Law of Moses (~1280 BCE), covered in the 1st 5 books of the Hebrew bible (the Torah), is traditionally believed to have been written by Moses.

These are the decrees, the laws and the regulations that the Lord established on Mount Sinai between himself and the Israelites through Moses. ~ Leviticus 26:46, The Bible

The Ten Commandments are the most famous codes of Mosaic Law. Other laws pertained to crimes, morality, family, food, purity, and rituals. With codes covering food and bodily secretions (menstruation and ejaculation), the Jews were legally meticulous in codifying their culture of disgust.

Sexually repressive mores and attendant taboos were passed down, and transmitted to gullible gentiles, for endless generations afterwards. The gender and sexual biases of Western civilization originated with ancient Hebrew codes of conduct.

Ancient India and China had their own legal traditions.

In India, the authoritative Arthashastra influenced the legal texts that followed, most notably Mānava-Dharmaśāstra (~200 BCE), on ethical governance, which affected ancient Hindu kingdoms in Cambodia and Indonesia.

If the people be led by edicts, they will try to avoid punishment, but have no sense of shame. If they be led by virtue, they will have a sense of shame and moreover will become good. ~ Chinese philosopher Confucius in the 5th century BCE

Despite Confucius’ influence, Chinese law initially favored legalism, which posited that societal harmony cannot be left to philosophic virtue. Instead, strong state control and absolute obedience to authority, codified in a system of laws, was the way to go.

To govern the state by law is to praise the right and blame the wrong. ~ Chinese political philosopher Han Fei Zi in the 3rd century BCE

The brutal implementation of legalism by the authoritarian Qin dynasty (221–206 BCE) led to its overthrow, discrediting legalism until its revival under Communist dictator Mao Zedong, who rejected Confucianism.

Chinese civilization never evolved a strong sense of either private property or individual legal rights. ~ Bruce Trigger

The ancient Greeks had no term for law as a concept. Instead, they distinguished between natural law (thémis), personified by a goddess, and human decree (nomos) and custom (díke). Beyond customary laws, Greece’s city-states added codes related to civil rights and constitutions of democracy which proved influential through the ages.

Roman Law

Roman law was rooted in Etruscan religion, which was steeped in ritual. (The Etruscan civilization was the culture of western central Italy from ~800 BCE until Roman times.) Noble Roman families claimed Etruscan descent, and thereby its cultural precepts endured.

753 BCE is the legendary founding date of Rome by Romulus, who reigned until 715 BCE. The next 4 kings were elected by the Romans. The popular 6th king, Servius Tullius, inherited the throne.

The 7th and last king of Rome, Tarquinius Superbus, known as Tarquin the Proud, was an usurper who murdered Servius Tullius to gain the throne. He reigned from 535 BCE until overthrown by popular revolt in 509 BCE. This led to the founding of the Roman Republic (509–27 BCE), which lasted until Augustus was made “1st citizen” (princeps), and the Roman Empire (27 BCE–395) ensued.

There was a long struggle between patricians and plebeians in the early years of the republic. One of the concessions made by patricians in mid-5th century BCE was legislation termed the 12 Tables, which granted basic procedural rights to all Roman citizens regardless of rank.

The 12 Tables were by no means a reform or liberalization of custom. Rather, they recognized the prerogatives of the patrician class, the validity of enslavement for unpaid debt, and the interference of religious custom in civil disputes. The 12 Tables were nonetheless advanced for their time, particularly with respect to property rights and commerce: providing for testamentary rights (inheritance) and contract enforcement. This reflected the extent and vigor of trade and commercial customs in that era.

Based on custom and legislation, Roman civil law (jus civile) evolved during the early republic. Roman law, like other ancient systems, adopted the principle of personality, whereupon legal rights extended only to citizens. Foreigners only had rights where their homeland had a mutual protection treaty with Rome. From early times such treaties existed in the interest of commerce.

By the mid-3rd century BCE, a massive body of law had been built – via magistrate rulings – that applied to both citizens and foreigners (jus gentium). This case law alternately derived from existing mercantile law used by Mediterranean traders, Roman law, and what a jurist might have considered fair and just.

Citizenship was extended throughout the empire ~200 BCE, largely erasing the distinction between jus civile and jus gentium. Even before this, when a Roman lawyer argued that a contract was juris gentium, he meant that it applied regardless of the parties’ citizenship.

This envelopment became the practical meaning of jus gentium. Because of its universality of application, jus gentium became linked with the theory of natural law, which the Romans adopted from the Greeks.

The Romans relied upon written and unwritten law. Custom was the basis for unwritten law.

The constitution of the Roman Republic was largely unwritten: the product of custom and constantly evolving.

Concepts that originated in the Roman constitution live on to this day. The notions of scheduled elections, block voting (such as used in the US electoral college), separation of powers, checks and balances, powers of the purse, term limits, impeachment, vetoes, and quorum requirements all originated in early Roman times.

During the 1st century BCE, the power and legitimacy of the Roman constitution eroded. The constitution died with the republic, though Augustus gave the appearance that a constitution still governed the empire.

The duration from the rule of Augustus, which began in 27 BCE, to the death of Roman jurist Ulpian in 223, is considered the classical period of Roman law. There was an expansion of legal specialists, empowerment of jurists, and a flowering of literature on jurisprudence.

Depending upon the era, written law might come from any of various sources: general assemblies, plebeian resolutions (whence the term plebiscite), magistrate edicts, the senate, or legislative expression by the emperor. Regardless of the times, magistrates had considerable discretion in their exercise of the law.

The Roman legal system affected the development of law in Western civilization, and later derivative regimes throughout the world.

In early civilizations, the upper classes and the major institutions they controlled had far more wealth and privileges to protect than did commoners, and they relied on the law to do this. In some early civilizations, growing concern to protect property resulted in increasingly severe penalties for theft. An important function of the legal system was to reinforce the power and privileges of the state and upper classes. Between men of unequal status, the more powerful was invariably deemed to be in the right, and therefore litigation could occur only between equals. ~ Bruce Trigger

Salic Law

The transition in Europe during the Migration Period (376–800) was when the western Roman Empire crumbled, and European social order collapsed from waves of tribal migrations. The first migrants were Germanic tribes, undefeated by the Romans. They were later pushed westward by tribes from the east.

Along with keeping earlier tribal customs, Latin law codes were adopted by these Germanic peoples. This became known at Salic Law during the rule of the Franks in Francia.

The original edition of Salic Law was commissioned in the late 5th century by Clovis I, the 1st king of all of the Frankish tribes. The laws were maintained in written form – in Latin – by succeeding Frankish kings in the early Middle Ages.

Locally, Salic Law was administered via a Teutonic institution known as the Court of the Hundred, consisting of assembles of local villagers, known as moots (from which the term moot court derived). The Court of the Hundred was essentially an arbitration court. Meting out a decided justice was left to the litigant.

A man who did not abide by the Court’s sentence was outside the law. If he were killed, his kinsmen were forbidden from taking the vengeance that otherwise would have been their right and duty.

The weakness of tribal jurisdiction under Salic law was apparent, as practical enforcement of a legal decision was not from sovereign authority, but little more than tribally sanctioned self-help.

Chinese Law

Chinese law was shaped by its Confucian tradition, and by the needs of the state’s leaders. For thousands of years, until the end of the 19th century, China was dominated by Confucian thought, which stressed virtue in personal conduct and harmony in social relations.

Disputants were supposed to come to conciliatory agreement, perhaps assisted by someone of superior status. There were law and lawyers in China, but their use was a last resort. The truth is that Confucian China disapproved of legalism, whereas Western societies considered it progressive.

Lawsuits would tend to increase to a frightful amount if people were not afraid of the tribunals, and if they felt confident of always finding in them ready and perfect justice. As man is apt to delude himself concerning his own interests, contests would then be interminable. I desire, therefore, that those who have recourse to the tribunals should be treated without any pity, and in such a manner that they shall be disgusted with law, and tremble to appear before a magistrate. ~ 7th-century Kangxi Emperor

When the Communists gained power in 1949, they continued the Confucian tradition of minimizing the use of the law. There was a transformation from the previous aristocratic reign to one which was ostensibly proletariat-based, but the principle remained.

From 1949 to 1976, the government passed scant legislation. China was governed by decree, with courts and legal processes rarely used. In 1981, on the eve of Deng Xiaoping’s moves to open China more to the world, there were only 5,000 lawyers for a population of 1 billion, compared with 500,000 American lawyers for a population 25% the size.

Under Deng, the body of statutes expanded dramatically, with codes for many areas not previously ruled by law, including industrial safety, environmental protection, and inventions (patents). Laws dealing with crimes, marriage, and many areas of potential civil contention were expanded. The most dramatic changes were in criminal law, with procedures modeled upon European code law. The number of lawyers multiplied 10-fold 1981–1990. By 2018, China had 350,000 attorneys, compared to over 1.1 million in the US.

Having personally suffered from the legal caprice of the Cultural Revolution, Deng wanted rule of law for greater protection of individual rights. Deng also wished to liberalize, and so invigorate, the Chinese economy. This required fortifying civil law.

As Kangxi presciently foresaw, business disputes soared. China was less successful in rooting civil rights in its society, as the government continued to rule with an iron fist, brooking scant dissent.

It is commonplace for citizens to be arbitrarily summoned, forcibly seized, and detained indefinitely, and for citizens whose freedom has been restricted to be treated inhumanely. ~ China Youth Daily in 2000


Justice systems evolved in complexity alongside other societal institutions. On the whole, this has not necessarily led to an improvement in dispensing justice. Justice in more primitive societies was more direct, and therefore often more just than modern law enforcement and justice: institutions which are inherently impersonal and often inept, if not downright corrupt.