The Pathos of Politics (99) 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.