Dan Snow's History Hit - The Rule of Laws

Episode Date: January 12, 2022

The laws now enforced throughout the world are almost all modelled on systems developed in Europe in the eighteenth and nineteenth centuries. During two hundred years of colonial rule, Europeans exported their laws everywhere they could. But not quite as revolutionary as we may think, they weren't filling a void: in many places, they displaced traditions that were already ancient when Vasco Da Gama first arrived in India. Even the Romans were inspired by earlier precedents.Fernanda Pirie, Professor of the Anthropology of Law at the Centre for Socio-Legal Studies at the University of Oxford and author of ‘The Rule of Laws: A 4,000-Year Quest to Order the World,’ joins Dan on the podcast. They discuss where it all began, and what law has been and done over the course of human history.If you'd like to learn more, we have hundreds of history documentaries, ad-free podcasts and audiobooks at History Hit - subscribe today! To download the History Hit app please go to the Android or Apple store.

Hi everyone, welcome to Dan Snow's History Hit. A lot of discussion in the US on the centenary of the attack on Congress and here in the UK at the moment as the group of people responsible for tearing down the statue of the slave trader Colston and throwing it in Bristol Harbour were found not guilty by a jury. A lot of discussion around those two events about law, about the rule of law, and how about how the rule of law is under pressure at the moment from a bunch of joker politicians who don't want there to be a rule of law,

but a rule of men. Big difference, folks. And I thought it'd be good to do a podcast on law, on the rule of law. Where the heck did it come from? What is this thing that binds us, this invisible thing that binds us as tightly as chains? Why don't I just go out and ram raid my local supermarket and steal all the food there? Anyway, Fernando Piri is the Professor of the

Anthropology of Law at the Centre for Socio-Legal Studies at the University of Oxford. That's a hell of a title. So Professor Peary came on to talk to me about the law, how humans have used the law for millennia to forge civilisations, but how the law today, really throughout the world, is largely modelled on the systems developed in Europe in the 18th and 19th centuries, and how, because of colonial rule over those 200 years, those systems laws were exported nearly everywhere on earth, and how they displaced ancient traditional systems of law in places like India that Vasco d'Argama comments on when he reached there. We go back to the beginning. Where did law begin? And we also talk about some of the parallel legal systems that

we can still find in the world today. It was super interesting. So enjoy. That's the law. That's the law. You can also go to History Hit TV, folks. Don't forget, if you subscribe today, you get two weeks free.

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So make sure you subscribe. Get yourself all signed up. Get ready for the adventure. In the meantime, folks, here's Professor Pirri. Enjoy. Fernanda, thank you very much for coming on the podcast you're welcome i have been to places where there is no law and they're the worst places i've ever been like you can taste it in the air can't you you feel an absence of law and maybe that's because i've grown up in very very delineated

societies and you feel when you're not in one of those places. Sure. I just want to know, therefore, where you think law comes from? Because as you've looked back at the past, we think of law now as a very top-down, parliament's past laws, which we may or may not vote for those parties, but they kind of come from the top there. That's not necessarily true though, right? Because you show that traditionally law is something agreed upon by, well, it could be agreed upon by small groups.

Exactly. And it has to be said that some groups do perfectly well without law. The places you're thinking of are probably the large complex societies which have organised themselves with law and the rule of law. When that breaks down down it leads chaos some societies have got by with you know rulers being a bit autocratic but basically keeping the peace small communities having systems of mediation and customs so law is something special something that some societies have come up with as a particular way of managing their societies.

And it's been good and bad. You know, there are some places where law has been very much an instrument of oppression. It's been used to manage, to discipline, to punish. You think about traditional China. Whereas other places, it's been largely a force for good. It's been a means of coordinating society. And there have been sort of careful checks and balances. So those are societies in which there's been a rule of law, where the rule has been held to account according to objective legal standards.

Now, obviously, that's generalising wildly. But, you know, I think we can think of those two different sort of extremes and what law has been done over the course of human history. Is that right? I mean, in Britain, we like to tell ourselves a story about Magna Carta and what evolves either because of it or not, because depending on your historiographical view, into a place where rulers are bound by law. We tell ourselves a story about exceptionalism

that's very, very, very unusual in human. Is that true? Ah, exactly. That's one of the things I discovered when writing my recent book, which I've now called The Rule of Laws. It's essentially a history, it goes back 4,000 years. Rather to my surprise, I found that back into Mesopotamia, 2000 BC, there were sort of elements of the rule of law there. These were warlike kings, they were fighting each other, burning down their cities, cutting away slaves, but they made these sets of laws, they were fighting each other, burning down their cities, counting away slaves,

but they made these sets of laws, they promised justice to their people, and they tried to ensure that future rulers would be bound by law. Now, it may not have been particularly successful, I mean, it's difficult to tell now, the archaeological record is very thin, but at least there was the sense that rulers ought to be bound by law. And you found that coming up again and again in unexpected places. So in India too, a very different example. Laws are made by the priests, the Brahmins. So they instituted the caste system, you know, terrible hierarchy. But they also made laws that they thought the rulers themselves, the kings, ought to obey. So there was checks and balances there, priests and kings.

Priests making the laws, holding the rulers to account, at least in theory. But these dynamics come up again and again. You know, Magna Carta is one of them, but it wasn't the first. And that's what's really interesting is the law. Maybe it's because we've been watching too many kind of US Westerns or something, but there's the idea that the law is something that is a tool for oppressors, or it's forcing us, the people, to behave in a certain way. But of course, actually, what's so powerful about law, and I've been thinking of so much during the kind of Trump

era and the various erosions of the rule of law that we've seen around the world sadly recently, is actually law protects us. Law can emancipate. That's the beautiful bit about law. And that's a really puzzling thing, so that you can do these things. It is a tool for managing and disciplining, locking people up. You've only got to think of the Jim Crow laws in the US,

which basically legalise discrimination to see what bad things law can do. But at the same time, the very same legal system can promise justice and can allow ordinary people to go to the courts and complain that officials are behaving badly. And those dynamics have been there right the way back in history. One thing also with our Magna Carta chat and the brilliance of white Anglo-Saxons inventing the rule of law is you have obviously looked at all these other cultures over thousands of years.

Is what strikes you that there is a common human, I mean, are there just a galaxy of different responses and reflections on law or are there weird similarities of cultures separated by oceans and ignorance from each other and yet we have crawled towards similar ways of organising ourselves when it comes to these laws and customs. That's a very good and very complex question because there are places in the world which just didn't invent law although they then adopted it when they were inspired by other cultures to do so but law does seem to have arisen completely independently in China, India and Mesopotamia. China about 500 BC, Mesopotamia about 2000,

and India the early centuries of the second to last millennium. And it took different forms. It was the same basic idea that people would write down laws, make them objective, objective standards that people had to hold to. And since then, laws have gone off in very different directions. You know, little communities have made laws, religious leaders have made laws. There have been laws for very bounded communities. There have been laws which have been very expansive.

So they have taken lots of different forms. But it seems to me that the same three ideas keep coming back within the laws that people have invented over the ages.

One is justice. You know, as we said just now, that people should be able to use laws to seek justice. One is duty. Laws setting up what we ought to do with a sort of moral

feeling to them. We have a moral panic in our society today and the legislators rush to pass a law. It's supposed to answer their sort of moral problems, tell us how we ought to behave. And the third element is discipline. Laws are there to punish, to control, to go back to an earlier theme. And those three themes, it seems to me, have sort of weaved their way through the whole history of laws, varied though they've been, and arguably the achievement of modern legal systems as they combine all three. So you mentioned Mesopotamia, India and China, they're a place that we also associate with the beginnings of

civilisation, if that's the right word, of living in large complex units, largely in settled, perhaps, cities. Are laws a necessary precondition of that state? Do we need laws before we could do the science, do the politics, do the engineering, and do all the rest of it? There are certain things you can only do with law, but you can do an awful lot without. And there are some big examples, and Egypt is one of them. For centuries, very sophisticated, powerful civilizations. But their government, according to Egyptian scholars, was always small. And their bureaucracy was, as one has put it, inefficient and ramshackle. So you can have pretty sophisticated civilization without an extensive bureaucracy and without law, by which I mean explicit written rules and recording of cases. I mean, there were judges, there was command, but there weren't laws in that sort of objective sense.

And then the South America, the Maya and the Aztecs, as far as we know, no written laws. Again, sophisticated, long-lived civilizations. So laws do specific things, but they're by no means necessary for a lot of the things we call civilization. So in the absence of law, is there something called custom? Is it just our modern legal brains looking for something we think must be present. What have you identified within those societies that can fill the space that law or can create the parameters in which people can operate? Or do they just not have them? So all societies have some sorts of customs or norms. So I did my very first anthropological fieldwork up in a very small Tibetan village in the Himalayas. And even though they lived on the edge of this sophisticated Tibetan civilization, which had writing and

certain amount of laws, the villagers themselves didn't write anything down. But they did everything with custom. And there were all these unwritten rules and expectations, which people were pretty clear about. But they never made anything explicit in written form. And equally, they had these very good systems of mediation, resolving disputes according to well-accepted principles about how people ought to behave and the importance of reaching agreement. So those are the sorts of things which can bring about a type of order if there's no law. You're listening to Dan Snow's History. I'm talking about the law. I am the law. More coming up. Ever wanted to know more about some of the greatest stories in history? Kings, queens, knights, monks, peasants, battles, castles, love, hate, treachery and revenge. They're all waiting in the greatest millennium in human history. Well, yet anyway.

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whether it's Chinese influence on the British bureaucracy or European bureaucracy, things like that. In that period where lots of our law, although we have some medieval law knocking about in the British constitution, a lot of it is that kind of early modern period. How important are these other strands of law and custom in the development of kind of European, North American law? Are we learning anything as we go out and meet the Chinese, the Japanese? I'd love to say we were, but that early modern period ushered in a time of quite dramatic colonial domination. It's certainly true that, as you say, it's sort of the early modern period, back in the medieval period,

the most sophisticated legal system in the world by far were found in Asia, China. They'd been around already for about 2,000 years. You know, the Muslim legal systems were extremely sophisticated, as were their societies and their cultures. I would love to say that the Europeans learnt a lot from them. I don't think they did.

In fact, that's one of the puzzles that in the 17th century, European laws were pretty rudimentary. They were pretty unsystematic. They had the Roman jurisprudence behind them, but there was lots of custom. They're pretty fragmented. And yet somehow the Europeans just, I suppose, when they started to industrialize, to expand, to go overseas, to found colonies in America. They just seemed to develop this great sense of their own sort of superiority. And that included a huge belief in the importance of the European laws. I suppose they look back to Rome and that great Roman legal systems

at the heart of the European or behind the European laws and truly believe that by expanding their laws to the rest of the European or behind the European laws and cruelly believed that by expanding their laws to the rest of the world they were going to bring civilization to places of despotism. Okay so to echo my earlier question this extraordinary expansion of Europe into the rest of the world in the 18th and 19th. How does law interact with that? Was law a necessary precondition of that? Did law result from it? The extraordinary wealth, the ships traveling around, the insurance brokers, the bankers, ledgers, we now needed like transnational transactions. Or did law precede it? Is law something that we see in the kind of late

medieval Renaissance, northern Italy? Does that help this European explosion? There's a big debate among legal scholars about the relationship between, you know, law and, in particular, industrialisation, and whether the development of law helped that latter process or whether they went side by side. I'm not going to dip my toe into those particular waters, but they certainly went alongside each other. those particular waters, but they certainly went alongside each other. It was a period of the strengthening of national governments very much, as well as overseas expansion and strengthening national governments, both enabled and was enabled by the consolidation, centralization of legal

systems. Looking abroad to the colonial expansion, it's not really the case that the European laws helped that project. But it was something that the colonialists felt they certainly ought to do, is take their laws and set up legal systems in the place they colonised, in the whole interest of civilisation. All this talk of 200-year-old laws is making me think of how we're straying into politics slightly, but there's often a sense that for a law to be legitimate, it almost needs to be a bit cumbersome to make and unmake and then make different laws they lack heft is there a sense in which the machinery to make that law should like because the legislative process is slow and gets gummed up and there's a sense that we whether it's constitutional law of course which is even the extreme example of this where you need super majorities and various things and various hoops to jump through or they're just immutable is there a sense that the ease of making laws is related to their legitimacy basically yeah i think so and that's one of the reasons that so often

laws are deemed to be traditional it's still a theory of the english common law that it's always been there that the judges are just declaring what the laws are, what the law is, rather than making new laws, even though they're constantly developing the law. And in very many legal systems around the world, you find this sense of that they're rooted in tradition. Even if everybody knows that rulers are actually making new laws all the time. if everybody knows that rulers are actually making new laws all the time. And I think that sense of sort of permanence and tradition gives the law some of its authority, which then allows it to play that crucial role of holding the leaders to account. It's something external, it's something out there. And it's probably linked to that, that the lawmaking process is generally rather slow and cumbersome.

I mean, classical Rome is a great example of this. You know, this is a huge triumph for the citizens. You know, they got together, they got rid of their kings, their oligarchs, they created these citizen assemblies, and then made the 12 tables back in 450 BC. And they set out their rights. And for the whole of the Republic, the citizens gathered in these big assemblies to make new laws and to hold corrupt officials to account. And it was extremely slow and extremely cumbersome. They couldn't do it very much.

But I think it was important in a way that law making itself was such a big deal because then it could do the things which they wanted it to do and it was centuries before then that Roman emperors came in and swept the whole thing away and basically took over the law making themselves. Is it a challenge to law and our willingness to obey those laws? Laws are now so complicated that I have no idea how you even... Like, if the people of Rome or of Athens could gather together and be like, right, we basically need a law governing what size of goddamn canal to use, all right?

We should celebrate the increasing sophistication of our world. And yet, is that a problem for law and the way it's seen in society? Yeah, absolutely. I mean, if laws aren't going to do anything, if we're going to be able to use them, if we're going to be able to use them, if officials are going to be able to use them, they've got to know what they are. You do hear people and civil servants complaining about the laws being so complicated,

it's very difficult even for them to know what they're actually supposed to be doing. I suppose law has tended to complexity. And that's something that's a little bit puzzling, but it just always has. The Roman jurists got hold of the law and made it into this incredibly complex academic exercise that nobody could really understand apart from them. And of course, there's a cynical way of looking at this. So it gives power to the experts, the people who actually understand this thing. So I'd say that laws often tend to complex, but it's not a good thing. What are some of the laws that have stuck with you? You've studied

thousands of laws now, I'm sure, in the course of 10 years, if not more. What are some from anywhere in the world that have particularly stuck with you? Well, some of my favourites are from medieval Ireland and medieval Iceland. These small agricultural fragmented communities, a whole sort of series of kings in Ireland in the 7th, 8th centuries, Iceland a little bit later forming its own republic, but a whole lot of farmers basically gathering together and making laws and having just a few experts who were you know in charge of these legal texts who then took up the project and ran with it and created these long complex sets of laws

I mean talk about laws that nobody could ever sort of master or understand or even that were particularly useful so among the best was laws in Ireland that told farmers how they should track down swarms of bees and when they could cross into their neighbours' fields and when they couldn't and, you know, how exactly they ought to get permission and in what way. I mean, no farmer was actually going to sit down and write the rule book before they went off and caught a swarm of bees, but some lawmaker thought this was really important to do it probably just enjoying the intellectual challenge of it and also at the same time in Ireland some of the lawmakers were making pretty important laws trying to set up the king's duties you know here again here's law which is supposed to guide the king to keep the king check and make sure that the king's governed

properly but one set of laws tells the king how he should spend his week Sunday he should drink ale Monday he should play board games Tuesday he should hear disputes Wednesday he should go hunting Thursday he should have sex Friday he should hear more legal cases I might have got that slightly wrong but it's sort of ludicrous, but it was written down. I think at the very least, it demonstrated that law was important and the kings had to respect the law. At what stage do people start going, these laws are made by men and maybe women, but often by man, mankind. And at what stage do we start going, no, no, there are natural laws. And a legal code needs to reflect deeper laws that just bloody exist by virtue of us being human and existing alongside each other on this planet.

Good question. And it depends on the context. So, you know, in Mesopotamia, it was the king saying, here we are, I'm promising you justice. And it's a royal thing. And in China, it was the rulers saying, this is what we're doing to impose order. But in India, it was the Brahmins saying, ah, yes, this is all about the Dharma. These are the laws of duty, which are just out there anywhere. And we're the experts because we know what it is. I think those strands have been running alongside each other all the way through. And so there

wasn't anything new about that sort of development of those kind of universal laws in Europe? I mean, the Romans were sort of playing around with ideas about natural laws, but particularly as their empire expanded, and they were having to make sense of the fact that they were trying to rule people with different laws and where the commonalities between them. And they developed ideas about the common law that was common to all mankind, basically, even though they as Romans had their own sophisticated laws. Is there any lawmaking techniques that we need to bring back into the modern world today? There's a question. I don't think we should necessarily be asking our priests to make all our laws. I'm sure some of them could do a pretty good job.

Should we all meet together in a digital forum? Yeah, yeah. Dangers with too much populism, I think, when it comes to the law. I think it's checks and balances. You need expertise. You need popular buy-in. Sounds like you're a big fan of the balanced constitution of the British Parliament, so that's happy news. Yeah. I think the fact is that for all their commonalities, every society is a bit different.

And we've got to recognise that and work out what's best for where we've got to now in the world. And it's good that there's variety as well. We should be looking around to other contemporary societies and thinking, well, can we learn anything from them? Or can we be very aware of paths that we don't want to go down?

I agree. I'm always surprised we don't just copy things more from other places in the world where things are working, import them. Strikes me as a very clever thing to do. Thank you so much, Fernanda. That was great to come on and stretch my brain talking about law.

I really enjoyed that. How can people read more about this? Oh, well, The Rule of Laws, title of my new book, available in all good bookshops. Yep, The Rule of Laws. Thank you very much for coming on. You're very welcome. It's been a pleasure. I feel we have the history on our shoulders.

All this tradition of ours,'s History. I really appreciate listening to this podcast. I love doing these podcasts. It's a highlight of my career. It's the best thing I've ever done. And your support, your listening is obviously crucial to that project. If you did feel like doing me a favor, if you go to wherever you get your podcasts and give it a review, give a rating, obviously a good one, ideally, then that would be fantastic and feel free to share it. We obviously depend on listeners, depend on more and more people finding out about it, depend on good reviews to keep the listeners coming in. Really appreciate it. Thank you.