What Is Law? An Introduction to Law and its Importance to Society
Everyone seems to think that they know what law is, but ask anyone and they will all have very strange answers, like "law is what is legal" or "law keeps criminals locked up," or "law is civilization." Well, yes, law is part of civilization, but law was common practice among those who were not considered civilized. Law predates civilization. Law is the open discussion of problems that members have with each other in any given group. Sometimes laws are traditions (we've always done it this way) sometimes they are rules (we agreed that when you touch this tree you're safe) sometimes they are a mix of custom and agreement; and yes, sometimes they are a list of crimes, often unwritten, that a group in power has invented in order to try to keep the peace and line their pockets.
However, law and lawyers have not only saved civilization, but saved freedom, although they have the reputation of having curtailed freedom. We must back up a bit, for crime is not law, and rules are not law, and traditions are not law. Law is a public forum for redress. If you hit someone and they take it before others to exact some sort of penalty upon you, that is law. If you defraud someone or steal from them and they accuse you in front of others and you can prove that you did not do the deed so that the others will lay the blame elsewhere and not gang up on you, that is law. These seem silly, but often law is full of jargon, like any other profession and people think that the jargon sounds like law. But law is the playground at recess as well as the teacher breaking up a fight in the classroom. Law is the way that people invent, not to get along, but to complain about someone or something and engage others to do something about it. If it is between you and another and no one else is there, it is an agreement, not law. Law is public.
Of all of the inventions of people, law has been most abused. The first thing any group of power-mad people do is to try to trap people into agreeing to make them the rulers. Then they invent rules for conduct toward them and toward others they rule and invent ways in which they are going to be paid or supported and then they call it law. Often Divine Law, direct from the hands of the gods, so that if you break the law, you get beheaded but you also go to hell and don't get to have a nice afterlife. Any group in power tries to set up laws, or rules. Governments, churches, universities, merchant guilds, anyone who wants to control how other people act, is going to try to make rules, and try to make them sound final by calling them laws. Even scientists try to come up with the "laws of nature" in order to make their theories sound somehow final.
The first thing that makes a child or an animal social is its ability to recognize the rules of the game around it. If that game is conversing, it learns to converse and the rules of conversation. Children playing together usually make up rules, or one child does in order that the game may become better organized. Animals have "inborn" rules which they follow, often without variance, such as in hives of bees. Mammals have more flexibility and must learn, which involves imitating behavior which we call "learning the rules" of the hunt, or the family, or dominance or feeding. These usually involve survival skills and social survival skills that operate on giving precedence to breeding pairs who must produce young. The first rule any child learns is that of precedence, or who can beat up whom and why. Sometimes it is giving way to a larger animal, sometimes to a more aggressive animal, sometimes to a younger and stronger animal, sometimes to a group of animals protecting one they value. This is at the animal level. What is human in particular is the ability to abstract these rules of precedence to other systems, like the arrangement of figures on a board. This piece can take this piece but only when this occurs. This is a very high level of abstraction and rules that resemble law.
It's funny to think of laws as rules. We have rules of grammar, but to call them laws somehow makes them seem, well, invincible. The word law is full of spooks, spooks of being dragged into a court and put into prison. But I'm going to spend a moment talking about the way that lawyers do not mean crime, but freedom. We have, in the West, two kinds of law: criminal law and common law or civil law. Criminal law is a list of rules created by a governing body. Common law is civil suit and precedence. This is how it works.
This is a picture of a Babylonian King, Hammurabi who ruled when a body of criminal laws were written down. It is called Hammurabi's Code. Basically, it is a list of rules design to curtail the freedom of people in the area. Here are some examples:
#127 "If anyone "points the finger" as the sister of a god and cannot prove it, they
shall be taken before the judges and their brow shall be marked."
#265 "If anyone takes a slave of the court or a freeman, he shall be taken outside the city gates and be put to death."
#3 "If anyone brings an accusation of any crime before the elders and does not prove what he has charged in a capital offenc=se, shall be put to death."
#8 "If anyone steals cattle or sheep that belongs to the court, the thief shall pay thirtyfold therefor; if it belonged to a freeman of the king, he shall pay tenfold, if he cannot pay he shall be put to death.
The Code is extremely long, yet what we moderns find horrific is not the crimes, but the punishment of death for misdemeanors. We are left with the feeling that these people were really unruly that they had to be so afraid of the punishment as to not do the crime. Yet much of ancient law is like this, at least Classical and Asian law. These are rules put forward by a group of rulers to try to keep people from doing wrongs to each other, but more often, from doing wrongs to the rulers and their courts. And most moderns tend to agree with this arrangement of society for the governing body is somehow special unless get get out of hand, as in France in 1793 and are starving their people to have more golden castles.
Yet how can this happen to begin with? How can it possibly happen that any one family grow so powerful that they can make up rules like this and have everyone respect them for it until they are so abusive and greedy that they are outed? And people hate the outing. They call it revolution and chaos and dread and fear the "power vacuum" that might drag them into some kind of pent up killing rage on the part of their neighbors.
But we are not like that! You may cry. No, others agree, for we have the Magna Carta and rule of law and in=mprisonment instead of death. Yes, we have the Magna Carta, but you see who is in this picture? The barons of the upper caste, overseen by the power of the Church, are stripping the king of divine rights. The gang of thugs wants more booty for themselves. This "white paper" as it is called, did guarantee some rights for the common people, but it was forced upon King John to keep him from taxing the hell out of his own ruling caste. So, for this, we think we have common law and rights of men to jury, and etc., but this is false. It is also false that it is English and that the English are more civilized. After this paper came one of the worst times in English history with two revolutions by the common people, three civil wars between people in power, and a list of pogroms and rulings that would make hell look pretty fun. For common law, we owe, not the Magna Carta, but an older system of law and order.
The Confederacy and Common Law
This is a picture of Law Rock on the Gathering Plain in Iceland where gathered the people to hear legal cases and decide them. This was Viking Law. There are similar gathering places in Norway, Manx, the Faroes, Ireland, Wales, England, France and other countries of the European Northwest, where Christianity and Empire came last. What we enjoy in our legal system is the vestiges of the ancient system of the Confederacy. The Mongols and Arabs had similar systems. This is how pastoral peoples who were semi-nomadic settled some of their problems. If a person did not like the agreement that came out of a smaller body, a village, family, clan or tribe, there was a forum of redress at the clan gathering. The judges and officials at such gatherings were usually the very old who carried in their memories a host of previous cases that had been tried and the consequences of those cases. If a man had stolen cattle, how was it resolved and did it result in a blood feud? If a slave hit a nobleman, was it for a good reason or was it merely malice and how should it be punished? What is remarkable about these confederacies was that, although death and enslavement was common, imprisonment was almost unheard of. Capital offenses were few, but wergild impoverished many a noble as well as freeman. The system was remarkably stable in that these confederacies lasted thousands of years.
The arguments against this kind of system are legion, for these people were sparsely populated over enormous territories and not driven to the kinds of stresses that drought and crowding brought to the lands of the Mediterranean and Asia. Yet is this really so? It is known that many of the northern peoples lived clustered and not alone. They followed the herds, yes, but so did many of the other regions. They had kings and rulers and nobles. They had death and enslavement They had codified agreements and structured rules of conduct. Yet why did they relish their freedoms to the point of wild jealousy that often drove them out into uninhabited lands?
One answer could be that they were on the frontier and very spread out compared to people in Babylon and Egypt. Yet another answer could be that they were all poorer and all wealthier than those in the Empires. The slaves had almost as much as a freeman. The nobles had more, yes, but usually it was better food, prettier jewelry and better clothes. A better tent is still a tent. A better horse was still a horse.
A thing they had in common was that land was not owned, but held in common by a large group related by blood. Border disputes were rampant when two tribes fought over water rights or cows that wandered. Goods were stolen back and forth, often as much as they were traded back and forth. But land was not controlled by a small group of people or an individual. The idea of a king owning all the land of all the territories and granting it to those he favored would have made them all laugh and then cut your head off. Another thing they had in common were almost equal rights for men and women. They did not perform the same tasks and their was envy back and forth, but young Mongol girls were as rough-spirited and as good with a horse as the young bucks. Caesar reports of Celtic women fighting right along beside their men, often more terrorizing for being as tall and ferocious. Yes, some areas had slaves mining in lethal conditions, others saw raids and wars that burned their homes every year, but they did not see the harems and slave pits of the Empires. A man had slave women, but the family owned them, and a man did not own his family. Women were not cast out onto the street for bearing a child; on the contrary, they often were not wed until they proved to be fertile. Women could be a rich as men and often did many of the same tasks.
The other thing they had in common was social mobility. A man could be born a slave and buy his freedom on win it and a noble could sell himself into slavery and back out of it. The caste system existed, yes, but it was very fluid. Social movement changed dramatically over a person's life depending on their own will, health, talents and, above all else, luck. In the Empires, born a slave always a slave, or the stigma of once having been a slave. It took generations to climb the ladder, and the nobles did not fall from it unless the other nobles or the emperor stripped them and they were shunned.
Yet, despite the social structure of the confederacies that gifted us of the West with Common Law, I firmly believe that common law is a natural outcome of the human group. It is the formalization of years of agreements that worked. It worked to allow right of passage along this river or down this road and let no family claim it and try to collect tolls. It worked to fine people for dumping their garbage in a river so that it was polluted for those downstream to prevent the from doing it. It worked to cast out a person who could not keep their temper. It worked to shun a woman who injured other women's babies. It worked to fine those who would not share food in times of hardship. It worked to set the price of a cow higher than the price of a tree. And etc. It does not matter what the agreements were, what matters is, not only that the worked, but that they might still work in the case being heard. The law changes, often fast if a precedent is set. The lawyer is essential in this system, for the lawyer has learned all the different cases relevant to yours. What was done in this year under these particulars? Will it work in this situation, or are the particulars too dissimilar? The lawyer acts as a social engineer, helping to effect interaction between those who disagree. The lawyer is not a bailiff of the ruling group sent out to bring wrongdoers before the court to pay for their crimes.
The lawyers preserve freedom because they are jealous of their own status. They get attention by bringing cases to trial. They get acclaim when they have uncovered some wrongdoing and offered it up and offered up solutions to that wrongdoing that keep the peace between aggrieved parties. If the lawyer is a free agent, they seek out the wrongdoing of anyone; if they are paid by the king, they seek out rule breakers who have the means to pay (if only with their lives) the king and thus make the ruling body more power and rich.
The system of civil law that was so widespread among the Celts and Vikings and Goths is what made English law so different. Trial by jury of peers is a Viking legacy. Brehon (Irish) law is full of fines and types of agreements and all kinds of interaction, not just infractions that must be punished by death. This system was mixed with the criminal system, so you see the rise in civil law of infractions as we see in Brehon law as opposed to Icelandic, but the criminal system and court never becomes the ONLY system. In a famous case of murder, a murderer might be acquitted, but then sued by the aggrieved family in a civil suit that might be less entertaining but way more of a punishment than imprisonment.