A Look Back at the Global History of Law across the Centuries

The Rule of Laws: A 4,000 Year Quest to Order the World, Fernanda
Pirie, Basic Books, 576 pages (2021)

Reviewed by Frank G. Colella, Esq.1

If Fernanda Pirie’s far-ranging global history of the development of law, “The Rule of

Laws: A 4,000 Year Quest to Order the World,” teaches one overarching lesson, it is society’s

rulers (if not its very citizens) will create, adopt, or modify some form of legal system to govern

its day-to-day world, its relationship with other societies (nations or regions), and its very role in

the cosmos – in other words, forge a civilization. The stories related in this expansive treatment

span from the earliest chiseled tablets that announced “laws” in Mesopotamia to our modern

international rules of nations. In fact, Mesopotamia is but one of the trio of regions, together with

India and China, which begat our modern legal systems, as the title suggests, four millennia ago.

Ms. Pirie is a Professor of the Anthropology of Law at Oxford. Prior to her move to

academia, Professor Pirie practiced law as a barrister for ten years. The result is a comprehensive

look at the history of law that is not merely academic, but also benefits from her having practiced

law. The relationship between the early use of “ordeals” to establish credibility and how those

practices would eventually develop into modern rules of evidence, is but one example.

Notably, however, the book does not unfold chronologically. Instead, the subject matter is

grouped around particular milestones in the historical development of laws. Part one, “Visions of

1 Frank Colella is a clinical professor in Legal Studies and Taxation at Pace University's Lubin School of Business.
He teaches courses in Constitutional Law, Business Law, Estate Taxation, and Tax Practice & Procedure.

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Order,” is the “historical” deep dive into the earliest days of what we would recognize as law. It

begins with Ur-Namma, a pre-Hammurabi Mesopotamian military leader, who ousted a ruthless

warlord to seize power in the city of Ur. The new king “introduced measures to relieve peasants,

labourers, and artisans who had fallen into poverty, and he promised to redress social inequalities.”

He, like many of his predecessors, “ordered scribes to write out his grand claims about justice on

clay tablets.” In addition to broad assertions of justice, they also contained “rules,” or more

realistically, “pragmatic instructions.”

However captioned, these clay fragments are the earliest “laws” that have been discovered

by archeologists. Thirty-seven fragments of Ur-Namma’s laws have been unearthed. They cover,

for example, punishments or compensation for murder, injury, false imprisonment. Also included

are rules for divorce and marriage, as well as agricultural disputes. Ur-Namma is credited for

having developed the casuistic, “if-then,” model. Professor Pirie gives as an example, “’if a man

(wrongfully) detains another he shall be imprisoned and he shall weigh and deliver fifteen shekels

of silver.’” This modality was focused on the regulation of future conduct instead of the

dispensation of justice to those who came before a judge with petitions for relief.

Thirty-seven of the “if-then” laws written on tablets have survived. Albeit a small sample,

they directed the compensation or punishment “for murder, injury, false imprisonment, and sexual

offences of different kinds … there are rules for divorce and marriages, oaths and accusations, and

agricultural disputes.”

However, there are no surviving records of how these laws were put into practice. While

“courts” existed to resolve disputes, “and surviving tablets record their decisions[,]” none of the

unearthed cases actually referred to Ur-Namma’s laws; there is no evidence that those early judges

actually applied his laws to decide their cases. More likely, as Professor Pirie suggests, these early

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judges were more akin to modern-day mediators or conciliators, “who would cajole or pressure

people to reach agreements along well-established lines following local customs.”

Of the succession of kings who followed Ur-Namma’s rule, it was Hammurabi who would

expand law-writing to new heights and whose impact and reputation would, ultimately, extend

over centuries. “In the prologue to his laws, he presents himself as a divinely inspired ruler. … He

describes himself as benevolent, providing for his people and guaranteeing them justice.” He, too,

had his laws carved into stone tablets. The greatest of these was a towering granite slab that

included a carved image of Hammurabi standing before the sun god, Shamash, from whom he

received his divine authority. In the epilogue to his laws, he again promised justice to those who

came before his courts.

While Hammurabi’s laws were far more detailed and elaborate than Ur-Namma’s more

rudimentary laws, they were also focused on the issues that typically created disputes among the

Babylonians. In this case, since it was primarily an agrarian society, his rules “deal[t] with the

many issues that must have arisen from cultivation, irrigation, and other farming activities. There

[were] also rules relating to pastures and orchards.” Undoubtedly Hammurabi’s laws reflected

existing community practice and custom. But, having them in written (or, in this case, carved)

form provided ordinary people a stronger measure of protection than an oral tradition.

Unfortunately, like Ur-Namma’s laws, there is no evidence to show that judges cited or

relied on Hammurabi’s laws when they decided cases. “The surviving records of the agreements

and arrangements that followed legal disputes never made direct references to the laws; in fact,

they show little direct correspondence with what the rules provide for.” More likely, suggests

Professor Pirie, “the laws reflected past cases, telling Babylonians how justice had already been

handed out; but they also established principles for the future, using Ur-Namma’s casuistic form.”

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In this sense, it would appear that these early “laws” sought to codify or, at the very least, report

the society’s earlier common law tradition.

While the Mesopotamian legal system evolved around a justice-focused model, the

simultaneous development of legal systems in neighboring India and China were not primarily

focused on the achievement of “justice,” in the modern sense. Instead, Professor Pirie explains,

the Indian Brahmins were more concerned with articulating a sense of cosmological order through

the delineation of individual duties to society and a person’s place in the wider world order.

Chinese emperors, on the other hand, were primarily focused on the maintenance of “law and

order” through the enactment of criminal codes and punishments. These two neighboring regions

also independently created legal mechanisms and systems to achieve their fundamentally different

objectives.

However, despite the centuries of parallel, independent development of this trio of legal

systems, Mesopotamia’s casuistic, “if-then,” form of law would ultimately evolve into the modern,

Western legal system paradigm. The casuistic form was adopted, and in turn adapted, by the

Romans. Eventually, the Roman civil law model slowly took root throughout the Empire. “When

the Roman Empire was at its height, judges, jurists, and litigants in North Africa, Egypt, the Middle

East, and Armenia as well as southern Europe all referred to Roman legal texts and ideas.” Well

after the fall of the Roman Empire, variations of the Roman civil codes predominated across the

continent, with the notable exception of the British, who would instead embrace the common law.

In England, the development of the common law was traced through the various specialized

courts that arose to resolve practical disputes among the citizenry. While the king or queen was

the nominal head of the legal system, at the most local levels, individual lords ultimately decided

the disputes of those who resided on their estates. As the legal stakes, or the persons involved,

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rose in stature, so did the court charged with resolving the particular dispute. Additional,

specialized or quasi-judicial forums arose to settle, for example, commercial or professional

dispute among members of artisanal or trade guilds.

One of the more fascinating parts of the book covered “The problem of Judgment: Oaths,

Ordeals and Evidence.” That material focused on the very practical issue of how judges and courts

determined, then and now, who won or lost a given legal dispute. It related how the earliest

credibility determinations were based on physical ordeals and sworn oaths and eventually evolved

into our modern day evidentiary rules and jury verdicts. “Oaths and ordeals might seem exotic to

us now, even barbaric, but pre-modern societies the world over invoked the divine to determine

whether someone was guilty of a crime.” While this issue is typically considered from the

accused’s perspective, Professor Pirie points out that all the major religions “threatened divine

retribution, the fires of hell, and a miserable rebirth for any judge who punished someone unjustly.

The stakes could not have been higher.”

The process of oath taking, which included not only the oath of the accused, but also those

of “oath-helpers” who bolstered the word of the accused, was a significant component of European

legal systems well into the Middle Ages. The oath-helpers swore to the accused’s probability and

general honesty, but they could not speak to the specific merits in question. It should be noted,

however, that only a member of the upper classes could swear an oath. Moreover, those without

family networks large enough to gather sufficient numbers of oath-helpers were at a serious

disadvantage in a process that rewarded sheer numerical strength.

The “truth-seeking” process was much more perilous, however, for those who could not

provide oaths. To prove innocence or the veracity of their allegations, without the benefit of oaths,

would then require the undertaking of an ordeal as a solution. Professor Pirie describes: during “a

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typical ordeal, the accused would have to take a hot iron bar or stone in their hand and walk a few

paces. After this the hands would be bound. If it was already healing when … inspected a few

days later, it was a sign of innocence.” In contrast to the oath, in which there would be the

possibility of some form of spiritual retribution for swearing false witness, ordeals sought the direct

intervention of God or spiritual forces to reveal the truth. Ordeals were not for the faint-of-heart.

The glaring weaknesses inherent in both oaths and ordeals eventually led to their

replacement with new procedures focused on judge-led investigations of wrongdoing, with the

specific powers to summon witnesses to court for investigation. This changed the focus from the

accuser to the available evidence. As legal systems specifically evolved away from the use of

ordeals and oaths, the modern rules of evidence developed to replace them. This, in turn, gave rise

to the modern jury system when judges, fearful of public responses to their actions or inactions,

began to use “groups of witnesses to assist in inquests.” Initially, this new use of juries was limited

to criminal matters, but soon spread to civil cases as well.

Professor Pirie then discusses how these practices spread though colonization and conquest

during the 18th and 19th centuries. European countries exported their legal systems. But these laws

“were primarily instruments of government designed to support new colonial administrations,

regulate commerce, and impose order on large populations.” To justify their administrations,

Europeans “ma[de] claim[s] about the transformation their laws would bring about: efficient

administration, private property regimes, individual rights, and the rule of law.” Their boldest

prediction was “a promise of civilization.”

One jarring juxtaposition was the lengths certain societies would go for an extra-judicial

solution to a problem. Professor Pirie, in the “Turning Their Backs on the State” chapter, covers

the various problem-solving methods adopted by, inter alia, the New York City diamond

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merchants together with those of the Mafia underworld. It is a bit disconcerting to see how

determined some groups – including “many tribes, villages, and clubs, along with mafia

organizations” - are to avoid entanglement with more formal elements of state legal systems.

Even the most comprehensive work, however, will leave material on the cutting room floor.

In this case, a more robust discussion of the role constitutions played in the adoption of Western

legal models across the globe during the 18th and 19th centuries would have bolstered Professor

Pirie’s narrative. Aside from the United States’ experience of its Constitution (in the wake of the

failed Article of Confederation), former colonies that had gained independence and those states

that had never been colonized were incentivized by the drafting and adoption of their own

constitutions to accept Western legal systems.

In any event, regardless of your particular interest in how “law” and legal systems

developed across history, there will undoubtedly be a legal anecdote (or two) in Professor Pirie’s

wide-ranging and comprehensive tour of the millennia of legal history that speaks directly to the

reader. For both academics and practitioners, the book contains numerous worthwhile reminders

about the extent to which societies will go to develop and foster legal systems that promote their

given value systems. And, whether the overarching goal is justice, duty, or obligation, those

societies will inevitably include some who are just as determined to escape or avoid those

priorities.

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