Law: instrument of oppression or tool of justice?
Fernanda Pirie, Professor of the Anthropology of Law
Laws can be harsh, exclusionary, and oppressive. Authoritarian rulers use them to entrench power and undermine human rights; and they manipulate courts and judges to support undemocratic and illegitimate activities. We only have to consider the Jim Crow laws in the US, which legalized racial segregation for decades, the legal regime of apartheid South Africa, and recent moves in Russian and eastern Europe to undermine the independent judiciary. So why do people continue to place faith in the rule of law? The UN declares it to be fundamental to international peace, economic progress, and the protection of fundamental freedoms; social movements take political battles to the courts; and human rights are enshrined in ever more ambitious legal conventions.
Is law fundamentally an instrument of oppression or a tool of justice? And how can it, in practice, be and do both? In my new book, The Rule of Laws, I go back to the origins of law in Babylon, India, and Rome to ask what history can teach us about this paradox. It turns out that laws have been and done contradictory things since they were first invented by the warlords who competed for power in the Fertile Crescent almost four thousand years ago.
It all began in 2,300bce when Ur Namma, conqueror of the splendid city of Ur, commissioned the first (known) laws. The lives of his citizens and their thoughts are largely lost in the mists of time, but the activities of Mesopotamian kings and the writings of their scribes have been preserved in cuneiform marks stamped onto clay tablets. They reveal that, after he seized power, Ur Namma made a grand pronouncement about the justice he could guarantee his people and he followed it with a set of laws. The rules were rather mundane statements about fair legal processes, punishments, compensation, and family disputes, but he presented them as part of a vision for a better and more civilized society. We do not know how, if at all, the judges applied these laws, but at the very least, the new king was making a public promise that his laws should be a source of rights. They were intended as a weapon for ordinary people against those who might oppress them.
Ur Namma’s successors were often, like him, ruthless warlords, who captured slaves by the hundred and embarked on grandiose urban projects. But almost all promised justice to their people. Later kings etched even grander claims onto tall granite stones, not least Hammurabi, king of Babylon in the 1770sbce, who placed the law stones around his kingdom. Hammurabi promised that ordinary people should be able to read the laws and know that they would receive justice and, in an epilogue, he called down curses on any of his successors who failed to respect his laws.
Over the next few hundred years, Hammurabi’s successors lost power to new rules and Assyrian forces overran the region. But people continued to respect and preserve Hammurabi’s laws. Centuries later, scribes were still copying out the rules as they learned their craft. The Mesopotamian legal tradition also inspired the tribesmen of Israel and Jordan, far to the west. Their priests crafted the laws now found in the Old Testament, in projects designed to set out God’s vision for his people. The laws pronounced by Moses told the Israelites how to seek justice and how to live good lives as followers of their one God.
In around 600bce, the Mesopotamian tradition also inspired the citizens of Athens, who had just staged a popular revolt against tyranny. In a quest to put their society on a better footing, they commissioned two sets of laws, almost certainly copying Babylonian precedents. Again, the laws promised justice. About a century later, again, the citizens of Rome, then still a very small city, also demanded laws after their own revolt again tyranny. The result was the Twelve Tables, which were etched onto bronze tablets and displayed in the Forum for all to see. Roman historians later made grand claims about the social equality that these laws had established, largely overstating the impact of their rather mundane provisions. But over the next four centuries, Roman citizens did gather periodically in great assemblies to make new laws. Many of these were explicitly designed to curb the powers of the ruling classes and hold corrupt officials to account. Law, in the Republic, was a weapon against autocracy. But it did not last.
The pendulum swung the other way after Julius Caesar, Augustus, and their successors seized power and laid the ground for a new imperial order. Gradually, they undermined the authority of the independent legal scholars and tuned the judges to their will. By the sixth century of the common era, when Justinian brought together the multiple laws and texts that formed the Roman legal tradition, the emperor could declare that ‘what pleases the prince has the force of law’ (quod principi placuit legis habet vigorem) and ‘the emperor is free from the laws’ (princeps legibus solutus est). Roman law had been turned from a means of combatting tyranny and corruption into an instrument of imperial government.
Elsewhere in the world, similar dynamics played themselves out in the very different legal traditions of Hindu India and imperial China. In India, the priestly caste, the brahmins, took it upon themselves to lay down laws that even the kings ought to respect. By contrast, in China law was always an instrument of discipline and punishment, a tool of government and foundation for the imperial order. In India, as in the classical world, law was supposed to guide the king, the basic dynamics of the rule of law. But in China it was a tool of government, as it became in the hands of the Roman emperors. This was rule by law.
Over the centuries, laws have been made by democracies and dictators, priests and kings, communities and councils. They have been designed to bring order to villages and tribal groups, to map out a vision for the adherents to a world religion, and to manage expanding empires and colonized people. The variations have been endless. But among them these contradictory dynamics — rule of and by law — have repeatedly recurred. Laws have been instruments for government, control, discrimination, and oppression in the hands of authoritarian rulers, while in other contexts they have promised justice to ordinary people and provided rules that people could quote when they sought to stand up to oppression.
So what is it that allows laws to be and do such contradictory things? And how, on occasion, can it seem to do both at once? The Jim Crow laws are surely one of the worst examples of discrimination through law in recent history. Yet within that same legal system in the US, just a few decades later, the Supreme Court rejected (former) President Trump’s bid to undermine the results of the 2020 presidential election. The Court was putting the rule of law into action, as its UK counterpart had done just a few weeks earlier, when it declared that Boris Johnson’s government had unlawfully prorogued parliament.
In the book, I argue that it is the very form of law, the simple act of setting out objective and general rules, which can be quoted and applied by others, that allows it to do these contradictory things. Laws can embody the ruler’s will, helping the ruthless to impose power and control more systematically and effectively than if they relied upon simple commands and the loyalty of their subordinates. But laws, once written, can acquire a life of their own. They can be quoted by others. And, once made explicit, the law cannot simply be ignored. A rule that grants power to officials can also be scrutinized to work out the limits of that power. Even the most imperial king risks criticism for breaking the law. Rulers throughout the ages have also wanted to legitimize their positions by promising justice to their people and, once declared, those same laws can be relied upon by ordinary people. Few modern states explicitly reject the rule of law.
To this day, autocratic rulers continually try to undermine the rule of law. They curb the powers of their judiciary and turn individual judges to their will. For the rule of law to become a reality, there must be independent courts, the equivalent of the Roman assemblies that held corrupt officials to account. A legal system, however perfect, cannot, on its own, ensure a fair, free, and equal society. But law is a deceptively simple technique, which can be used for both oppression and for justice. We need to understand this paradox if we are to use it effectively to make our own societies into better and fairer places.
More about Professor Fernanda Pirie.
The Rule of Laws will be published by Basic Books in the US on 8th November and by Profile books in the UK on 18th November.
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