Global Legal Systems
What is œlaw? What is œcrime? These are words and concepts that can be found in almost any society throughout the world’s history. And yet, there are slippery definitions of both. Laws are magical in some ways, because their strength lies in the silent agreement among all subjects to adhere to them. If one person drives on the wrong side of a traffic lane, that person might receive a ticket. If everyone ignores traffic laws, the law becomes weaker and weaker until it is useless. In this way, all laws are a thought experiment in which we all, together, silently agree to follow what has been written into the legal code.
Obvious examples of crime include murder, rape, arson, and assault. Less obvious kinds of crime may include manslaughter (accidental murder), violence in self-defense, or sex while under the influence of drugs or alcohol, precluding a person’s ability to consent. Beyond these kinds of violent events there is an enormous realm of grey area: crimes of omission, of parking tickets, of thoughts. Many civilizations throughout time found religious expression and belief to be the subject of law, and so we find societies across the globe criminalizing blasphemy, atheism, sexual contact outside of religious unions, or other behaviors that are not offensive unless viewed within a particular religious context.
Laws are usually granted by some sort of authority. Often, these authorities overlap. In the modern US system, co-existing jurisdictions may include the state, city, county, and federal laws. Some of these legal codes may include laws that actively contradict each other: a local ordinance against speaking blasphemy might contract the federal Bill of Rights that protects free speech. In addition to governments, though, laws can originate through informal means, like the law of a household, or through religious structures, like the laws and courts of churches, rabbis, imam councils, and community leaders. Laws are often written, but not always; sometimes they develop gradually through tradition, culture, and historical enforcement.
And so, a community with multiple threads of authority “ from local leaders to a form of state to religious codes of conduct “ might be subject to conflicting orders. During the Reformation, for instance, Catholics living in Protestant countries were ordered by their monarchs to begin worshipping in Protestant services. But their priests and the Pope ordained through ecclesiastically binding laws that those who participated in Protestant would lose favor before God and could experience excommunication. Catholics dealt with this contradiction through the process of casuistry: the addition of silent words to a verbal oath that appears to state authorities to conform to their laws when spoken aloud, but actually negates the oath when the silent words are added. An example would be œI [do not] pledge my life to the King of England. In a period when a person’s oath was the very sense of his or her soul, these kinds of logical tricks were crucial to an internal acceptance of both authorities. The coexistence of multiple legal systems to which an individual or community is subject is called legal pluralism. Co-existing structures of law codes can lead to contradictory orders, as a modern person could be forced to choose between obeying a religious code, a local code, and a federal code, all at the same time.
The Roman Goddess of Justice, Justitia, holds her scales with a blindfold
There is a sense that all law is tied to justice, and yet, this is an illusion, since justice only occurs when there is full knowledge of a crime, its exact violation, and the nature of the motivation. Frequently the people involved with pronouncing something guilty or not can be just as flawed as those they judge. Mistakes are made, sometimes to the detriment of a society that loses because of hasty imprisonment or execution.
And this leads us to another question: What is the goal of a legal system? Superficially, laws create order in a society. They organize social expectations and create boundaries for those living under the rule of that law. But if we work with the meat of laws themselves, it becomes about upholding power and authority. For without authority, there is no law. In families, children do not create the rules of the household; parents do. In the workplace, the rules of office interaction are dictated by managers and executives, not workers. In the state and in religious structures, authority is paramount to the strength of the society and laws are written to enhance loyalty, cooperation, and even patriotism.
What is the point of punishment? Punishment enforces the law and supports authority. Beyond that, though, there are two reasons for punishment: deterrence “ the prevention of crime before it happens “ and payment after the fact. The former is the longest-lasting, most traditional sense of legal structure. However, modern laws seem ever-more attracted to the idea of making people pay for behavior as a way to extract fealty from them or portray their power or even to raise money through fees and fines. Many local governments would be upset if people stopped running red lights, for it would lead to an ordered society with less money in the local coffers. I would argue that the ideal goal is to prevent any crime at all, but the world appears to be more complicated than that. And so people pay for their behavior in victimless crimes while laws are written without successful policy to prevent crime in the first place.
Examining laws throughout history would take multiple volumes. Here, let us consider some systems of law that have been exported to various areas around the world: English Common Law, which is used in most areas that were once British Colonies, and European Civil Law, which evolved over thousands of years from Greece to Rome to the Byzantine Empire before being adopted by many European States. We can also cover traditional forms of dispute resolution to get a small taste of legal systems throughout the world.
Egyptian and Sumerian laws constitute some of the earliest forms of legal codes known to modern historians. The Egyptian law code was based on œproper behavior or Maat, and created twelve books of punishments for breaking maat in various situations. In Sumer, the leader Ur-Nammu created a list of hypothetical situations where people violating local tradition and harmony would be punished with specific consequences. All of these laws began with an œif¦then structure. This brief list of codes was not nearly as successful as the Babylonian Code of Hammurabi, which we have already seen. The Babylonian Code was similar to Hebrew punishments, in which criminals were warned that whatever crime they committed would be inflicted on them. The phrase œeye for an eye, tooth for a tooth refers to this kind of code, which, as Gandhi said, œleaves the world blind.
Ancient Greek law departed from these systems and used instead a sense of family order in their theory of law. If citizenship was controlled in Athens by those who served in councils, then disputes and crime could be settled there in an abstract theory rather than a list of specific laws. The case of Socrates, for instance, reflected the loyalty of the state and his position as a citizen more than a violation of a written law. Outside of citizenships, the people who had authority over wrong-doers were free to achieve harmony within those households as they saw fit: the father could punish the son, a husband his wife, or a master the servant. And so, by using the family as the basic unit of legal cooperation, Ancient Greek law occupied a more theoretical, hierarchical system than later, more explicit systems. This may be different for various periods in Greek history but lost to time due to a lack of surviving documents, but the general conclusion for Athens holds true.
Ancient Roman Law was different from those of the Greek city-states. Just as with religion, Rome studied Greek traditions but due to the expansive nature of the Roman Empire, written laws, edicts, and decrees became much more important. Each case faced a judge whose sole opinion decided the matter of conflict; cases were not reported and a system of precedent “ so popular in modern countries today “ was not a major feature of Roman Law. The justices’ opinions were based on a few forms of law, each authored over time and used throughout the Roman authority. One of these was the Law of the Twelve Tables, collected in the fifth century BCE. This formed the core of the Roman œconstitution and covered the obligation of civic duty. Later Classical Roman Law focused on developing a property-based legal code. The law was divided under Gaius in the second century CE into three parts: personal, material things, and actions. These categories corresponded with interpersonal violence, theft of goods, or civic action from slander to law suits. Roman Law also covered a regulation of trade, so that exchanged goods would use standardized units of measurement. Most of these laws were practical, but some underscored the authority and power of the Roman Empire. As the Empire fell, law became less important to former Roman colonies, but remained paramount to the identity of the Roman successor: Byzantium.
Civil Law versus English Common Law
Ancient Roman Law established a precedent in historical terms, if not in legal terms; they did not record preceding trial records for future information, but the theory behind these laws persisted in the Byzantine government. The rules laid out under the unifier Constantine were preserved in the Theodosian Code, which combined Roman ideas of legal structure with the Greek emphasis on the family as the ideal unit of harmony and punishment. Mostly, Theodosius merely collected existing laws and bound them in a single volume.
In 529, a strong, powerful Emperor known as Justinian the Great called for the laws of the land to be collected, organized, and published into a single collection. Contradictory or outdated laws were to be discarded and the new bound collections sent to all communities under Byzantine rule. The resulting collection of law was called the Justinian Code. The Code combined laws under Roman Empire, Greek traditions, later Christian developments, and Byzantine laws in response to particular Byzantine challenges. In addition to covering social obligations for citizens and legal statuses of families, these laws added new criminalization decrees concerning blasphemy, heresy, and plagiarism. The result was to tie religious expectations to the State. As the Justinian Code spread to other Christian countries, the law code threaded Christian beliefs into the secular law code, serving to enhance the power of the Medieval Church. The Code spread beyond the borders of the kingdom into other European states. The later adoption of a similar code in European kingdoms is known as Civil Law. In the modern era, around 1800, the Civil Law would transform into the backbone of French law through the creation of the Napoleonic Code under Emperor Napoleon.
Compare the Civil Law tradition with English Common Law, which help historic preservation to be supreme. In England, the development of traditions over time were considered to be law: if a farmer worked the same land for a course of years without any complaints, even if he never purchased that land, the land would become his, for he had developed a traditional ownership over it. Common law marriages “ where two people living together for a set period of time, perhaps five years or seven years automatically become married under the local customs “ is a direct descendent of English Common Law. There, precedent is key; tradition provides the legal justification. In Common Law, the tradition is more powerful than any written law espoused by a specific congress, parliament, king, or diet. The underlying idea was that if a system worked for a certain period of time and preserved the peace of society, then it was a good system and should enter in the observed collection of traditions that comprise English Common Law. Furthermore, precedent was vital to building on the interpretation of written laws. As a result, English Common Law became a conglomeration of traditions, written legislation or decrees, and interpretations at trial based on the real events that tested the hypothetical conditions of the written laws.
Civil law as developed by Greco-Roman ideas and Justinian implementation used written assent as its founding guide. In civil law countries, a law must be written in order to exist. Tradition counts for nothing as much as the codification of the wishes of an authority. Courts must use only the language as written in order to decide complicated cases of real-life offenses. If the law did not mention by word a particular crime, the crime did not exist and there was little room to apply a similar law to a previously untreated offense. English Common Law, by contrast, built flexibility into the system through the adoption of traditions that proved themselves over time. Any law might be proposed, written, and passed, but only those policies that proved to be useful and orderly were adopted long-term, joining the ranks of English Common Laws. Many of these œlaws were not written down, merely observed over time. In contrast, civil law was collected, described, and enforced regardless of a time frame of cultural adoption.
Trial by Ordeal: Europe
The influence of religion on legal systems can be striking. Some religious codes avoid corporal punishment, and instead resort to spiritual punishments instead: years spent in hell, or excommunication, or banishment from the group. Compare this to the Hebrew law code calling for an eye for an eye or a tooth for a tooth, inflicting the crime back onto the convicted criminal œuntil we are all blind.
A fascinating example of the inter-relation between civil law and religious influence is in the European tradition of Trial by Ordeal. Through this form of law, guilt is determined through a physical trial. The accused person is set to perform a very difficult task. Tasks may include being submerged underwater for an extended period of time, or told to place their hands into a pot of boiling water, or even made to walk five full paces while holding a piercing-hot three-foot iron. Those who can perform the task completely, without incurring burns or marks or scars, prove themselves to have the spirit of God within them and are accepted as pure and innocent souls. Those who are unsuccessful, however, show the truth through injuries; their sin and crime prevent God’s miraculous healing an indicate guilt.
Asian Legal Codes
The Tang Dynasty of China developed a legal system in the seventh century CE that synthesized Confucian and Legalist interpretations of law and society to create a compromise in legal structure that could be applied across the Chinese Empire. The resulting Tang Code created a particular penalty for a specific offense, and then complicated those offenses through the relationship between victim and offender. For instance, a person might strike another and receive flagellation as a penalty. However, if the assaulter was a master correcting a servant, there was no penalty. Conversely, if the assaulter was a servant striking the master, then penalty could include extreme pain, from torture to execution. Bastinado was a form of foot whipping that emphasized the pain of whipping by creating a wound in a place that could not heal easily. The whipped individual had to keep working and walking on foot, increasing the pain and possibility of infection, to enhance the punishment of the crime.
Classical Hindu Law,in contrast, holds that the acceptable practice of civilized people to be authoritative in its very existence. What is a civilized people? What is acceptable practice? Hindu scholars were adopting rules and regulations established under the ancient Veda people, so to them the civilized description and acceptable practice made sense in the Veda context. From those early laws, Classical legal scholars in India created a corpus of law that placed three kinds of concepts together: (1) the written law, (2) tradition or practice, and (3) the religious idea of Dharma, the sense that doing right is tied to one’s obligations and duties to humankind. Dharma is also the œnatural law of things that points out that even without the presence of written law, there still exists an obligation of humanity to each other.
In practice, Hindu law was enforced through local courts that received power and authority from the King. Guidance could be shared throughout the hierarchy of authority, and the written texts provided a sense of precedent to assist judges in returning a community to harmony after the event of a crime or conflict. Throughout Hindu Law, the sense of Dharma and obligation to each other was pervasive; even if two parties were guilty of some level of crime, they had to find a way through punishment or compromise in order to return the community to its rightful state of peace.
What is interesting about the Hindu system is that it does not always assume that there is an offender and a victim. The European legal systems and much of the ancient systems prescribed punishments for criminals without considering that when two people come into conflict, leading to the commitment of crime, both parties might be guilty of some offense or another. There is some room in English Common Law to identify such situations “ and clemency was written into the law through sanctuary, benefit of clergy, diplomatic immunity, King’s pardons, and other tactics “ but Hindu Law considered this possibility as part of the framework of a fair and equitable system.
In contrast to the legal systems of Chinese and Indian governments, the Mongols used a tradition called Yassah. Created under the leadership of Genghis Khan, Yassah was designed to create a unified legal code during the occupation of the Mongol Empire. The law itself was overseen by the leader and his closest advisers. It demanded absolute fealty throughout the Mongol occupation, with the most common punishment for stepping out of line and violating law to be absolute death. Primarily the law functioned to eliminate tensions among Mongolian and local traditions by following a strict code of social and economic interaction. So long as the Yassah of cooperation was observed, the people were free to worship as they wished without penalizing œheresy or œblasphemy or other non-conformist, religious œcrimes.
Many of the laws included in the Yassah merely forbade the actions of taking power from the Khan, claiming to be an inheritor to his authority, or challenging the hierarchy. Additionally, Mongol law dictated behavior on the battle field and in social life. Theft was punished severely, but losing a hand or leg could be avoided by paying up to nine times the worth of the thing stolen. Some laws were bound to safety “ bathing and washing during thunder and lightning, for instance, was forbidden. The worst offenses included lying, spying, indulging vices, conducting witchcraft, and betraying the Mongol leadership.
Legal Codes around the World: Conclusions
Many systems of law throughout history were not written down and were not easily preserved to the modern day. Extensive traditions concerning the restitution for theft, assault, slander, or offense in communities without a strong written tradition often had the most interesting legal systems of all. Native Americans in Inuit traditions developed a form of law that focuses on three concepts: maligait, behavior that must be followed, piquijait, things that must be done, and tirigusuusiit, the forbidden things that must be avoided. During conflict between two people or families, a song and dance battle occurred. The two wronged parties performed dances or songs for the community in order to indicate the offense as it transpired in their eyes. The winner was proclaimed by the community who watched. In Somalia, the traditional legal code Xeer provided a wealth of advice to a council of leaders who were empowered to dispel disputes, or poor cooperation within communities. This informal authority of Xeer had no written code, but collected the experiences of others through oral history and story-telling in order to create a body of reference through practice “ very similar to the English Common Law and the Tang Legal Code. Leaders or elders could draw upon the history of tradition in order to deal with challenges in the present.
The most helpful aspect of studying law throughout history is that laws tend to be the product of the time. Concerns in a society become codified into law. A society that is worried about the sexual promiscuity of women will criminalize premarital sex or bastardy. A society that is worried about invasions or assassination plots might make the association with foreign diplomats to be treason. Through the law, we can see what ideal behavior is in a particular community, and what is out of fashion or threatening to the existing authorities. And finally, the la