The Rule of Laws: A 4000 Year Quest to Order the World

The Rule of Laws: A 4000-Year Quest to Order the World

By Fernanda Pirie

Basic Books 2021 571 pages, $19.99

Reviewed by Christopher C. Faille

In what follows, I will use two expressions that I find nowhere in the book being reviewed. I will speak here of “street law” on the one hand and of “grand law” on the other. The distinction those labels suggest is integral to this book. The book turns out to be all about the troubled relationship between those two sorts of law, and it has alongside its merits the one minor flaw of never putting the theme quite that concisely.

The subtitle of Fernanda Pirie’s book speaks of a 4,000-year quest to order the world. That time reference is presumably an allusion to the Code of Hammurabi, the renowned law-giver who acquired the throne of Babylonia in 1793 B.C. If we take that as the beginning of the “quest,” then it has now lasted 3,815 years, close enough for this rounding-out.

The dust jacket of this book, though, includes a blurb from Edward J. Watts, an authority on the fall of the Roman Republic, who teaches at the University of California San Diego. Oddly, the Watts blurb praises the author for the masterly way in which she leads the reader “across five millennia.” Even before opening the book, then, one may be wondering: why does the chronology as Watts understands it differ so markedly from the chronology that justifies the subtitle? Are we looking to 5,000 or merely a little less than 4,000?

The answer is that in the first chapter of this book, before we reach Hammurabi, Pirie introduces us to a family in the city of Lagash, a family whose name is lost to us, but one that established itself as the royal family there around 2900, in the region we would now describe as southeastern Iraq. The self-elevation of one Lagash family to a monarchy seems to have inspired something of a race to do likewise among families in neighboring cities, and soon all the new kings between the rivers Tigris and Euphrates were proclaiming that they could intercede with the gods on behalf of their people. This actually meant that they were interceding in the lives of their people on behalf of their gods.

The preliminary material here, covering the development of law between the lost names of a family in Lagash and the still-renowned name of Hammurabi in Babylon constitutes the difference between the four-millennia and the five-millennia readings of this book. Pirie—a professor of the anthropology of law at the Centre for Socio-Legal Studies at the University of Oxford—gives the period between Lagash and Babylon just five pages. But it is a concisely expressed and factually packed five!

Those five pages reference a King Uruinimgina, the last ruler of the first dynasty of Lagash, who, around 2450 B.C., had an inscription made in which he assured the gods that “never would [I] allow the orphan or the widow to suffer at the hands of the powerful.” By this time, then (as Pirie puts it), “Writing had become a means for kings to make grand statements about justice.”

The statements that kings make, whether addressed to the gods or to the widows and orphans supposedly under a grand name’s protection, have little or nothing to do with the actual lives of those widows and orphans. The grand law propounded by grand names is addressed to a void, and real history, along with what one may call street-level law, proceeds regardless.

It is the grand law that seeks to “order the world,” in the words of this book’s subtitle, while a street-level law proceeds to order the specifics of the lives of ordinary people, usually in ways that get more sensible the more independent they prove from grand law and its promulgators.

Secure at the Top

Let us regard that first post-Lagash period as prologue and look to the proper beginning of this book: Hammurabi. Pirie, using again her gift for concision, gives a brief account of the military campaigns that made Hammurabi’s Babylon the unchallenged capital of all the land between the two great rivers.

Once secure at the top of the pyramid of power, Hammurabi dictated a law code that was inscribed on a granite slab and put in a public place so that all could see it and all who could read at all could study it. The slab also contains an image of the great king standing before the god of the Sun, Shamash, presumably receiving some infusion of instruction and authority.

The slab contains 300 laws, some quite detailed. Some read more like case reports than statutes. Pirie quotes the following example, which I condense, “If a man has given a field to a gardener to plant as a date orchard … in the fifth year, the owner and gardener shall divide the yield in equal shares and the owner shall choose his share first.”

This particular clause encourages several observations. First, clearly private property in land, and the lease of that land to commercial tenants for profit, was an accepted practice quite early in the development of civilization, although (then as now) the details needed thrashing out. Second, the thrashing out in question on this specific point—the respective shares in the profit of an enterprise that could be claimed by the landlord and the tenant—seems not really to have been

definitively settled when these words were set down. If they were really entitled to “equal shares,” what was the point of stipulating who gets the first choice? Doesn’t the first choice suggest that there were going to be two separate piles of proceeds and that one pile might be higher than the other (i.e., they may not be equal)? The language seems to suggest a compromise, and a still-unsettled one, between an equal split on the one hand and ownership pre-eminence on the other.

Pirie observes that “local communities were probably enforcing these sorts of practices anyway” before Hammurabi codified what they had been doing. He was including a bit of street-level law that had come into existence without him. What was the significance of such a codification? Pirie observes that Hammurabi’s code and its rules “do not seem ever to have been referred to in legal cases.” Indeed, surviving records of subsequent Babylonian legal disputes have little correspondence with what the code says.

So, what was the point? It gave the king a chance to preen. The text concludes, “I am Hammurabi, king of justice, to whom Shamash has granted the truth.” Along the way to that bang-up ending, the code turned street-level disputes over dates and a gardener into the grist for the grandiose task of ordering the world. The code depicts, detail by detail, a settled, largely literate society with established occupations, social ties, and an elaborate hierarchy. By setting its workings out in this way, it became possible for the king to imagine he had founded those workings for the ages.

We get the same impression from the Hammurabi material that we might have gotten from the briefer mention of Uruinimgina earlier. In both cases, we have a king who has puffed himself up by associating himself with the notion of justice. Yet, in neither case do the grand proclamations seem to have been important to the lives of the people of the time. In both cases, the key takeaway may be the sharp contrast between grand law and street law—that which is trumpeted to posterity and that which affects the lives of the real people of the day.

Grand Law Comes to Republican Rome

Now, let us skip ahead considerably, to the laws of the ancient Roman Republic. Early in its history (449 B.C.), the “Twelve Tables,” a detailed listing of the rights and duties of a Roman citizen, were set up in the Forum for all to see. There was no single outstanding leader to whom this decision can be attributed, and the wording of the rules on those tables was the work of a committee.

And, as that categorization suggests, the Twelve Tables were very practical in orientation. They set out compensation for injuries, thefts, minor crimes, rules about wills and inheritances, the specification of circumstances in which a free man might fall into debt bondage. There was even as Pirie calls it, “the beginnings of urban planning” here, a couple of clauses that concerned boundaries and roads. This was, precisely, street law.

Over the following centuries in Rome, law became a specialized profession, one engaged in by ”jurists,” generally drawn from the well-born senatorial class. It was in this climate that the career of Marcus Tullius Cicero became possible.

In the hands of the intellectual elite in ancient Rome, or the part of it that gathered around Cicero, law became an intellectual exercise increasingly devoid of the practical concerns that had motivated the creation of the Twelve Tablet. In Pirie’s words, “Learned men conducted debates in the rarefied surroundings of their aristocratic mansions, where they were free to develop their intellectual interests. Roman law had become an elite pursuit, insulated from the social and political pressures of Roman life.” Thus, even given Rome’s republican origins, so different from the monarchies of Lagash or Babylon, both sides of the distinction between Grand Law and street law could reassert themselves.

Grand law speaks on behalf of an earthly sovereign, toward its presumed heavenly patrons and toward the people who ought to be awed. It doesn’t need a monarch to do this, although the cultivation of grand law by such as Cicero can weaken republican impulses and help prepare the way for a monarchy. As we noted above, Professor Watts, the bestower of a jacket blurb, is an authority on exactly that development in the history of Rome.

Grassroots and the Grasslands

Is it fair to describe street law as, in essence, stateless law? Pirie’s professional work on legal history until now has been largely on a matter that speaks directly to that point: she has written on the law of the grasslands of Tibet.

Pirie makes a convincing case that, through long periods of time, Tibetans have avoided the legal systems of China simply by … ignoring it, and living their lives by their own rules. The vast grasslands of eastern Tibet, Qinghai Province in particular, are the home of mutually hostile and migratory tribes, so there is a lot of room for conflict. Further, there is a culture among them that both allows for raids and stresses the armed defense of honor, one in which it is natural that all men carry knives, “which hang ostentatiously in decorated sheaths around their waists.”

Yet despite all this, the relations among the tribes are not as violent as they might be. Is this because distant officials in Beijing would not approve of violence? That is hardly a consideration.

Yes, during China’s “Cultural Revolution,” there were efforts to collectivize herding activities. But by the 1980s the government had allowed, and the tribes had in fact re-established, their older patterns. Since then, the government has largely ignored eastern Tibet, and the eastern Tibetans have returned that favor.

So, what does limit violence between tribes? Local deterrence and mediation. “Most feuds are settled [quickly] … through payment of compensation,” Pirie writes. “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.”

If members of one tribe have raided the pens of another and made off with sheep, the members of the latter will naturally be furious and know that they must act it. They must refuse compensation and talk as if war is imminent. But “skilled mediators” can “go patiently between the two sides” and wear down obstinance, perhaps calling in a senior Buddhist lama in an especially difficult case, Pirie explains.

Final Thoughts

All of this could well be employed to make a case for anarchism. Perhaps the only good law is the sort that arises spontaneously, from the grass roots, precisely because of its statelessness. Perhaps state law is addressed into a void when everyone is lucky, but it can be “devastating” (the word Pirie uses of the Cultural Revolution) when it does interfere with the locals making their own way in the world.

But in Pirie’s hands (I report with some regret), the observations I’ve summarized here, and many others to much the same