Origins of Law

When speaking of the history of English law and of things that happened 900 years ago, it is appropriate to establish some historical context. Nine hundred years is not a long time ago. History is not characterized solely, or perhaps even primarily, by progress. Functionally primitive systems can be far newer than sophisticated ones.

We can be reasonably sure that there has been law at least as long as there has been civilization. The word "civilization" comes from the Latin word for "city" — it means people living in towns. And when people live together in towns they need rules.

Of course, people living together in any environment — even in families — need and have rules. Your family has rules. All groups, however small, have rules (whether or not they expressly recognize them as such) that regulate their behavior together. But we do not call them "laws." Laws are things imposed by society, i.e., by the sum of people living together (though obviously not necessarily by a democratic system).

There is archeological evidence that villages existed in Mesopotamia by around 8000 B.C. This is some 5000 years before writing was developed. They must have had rules that, especially as the villages grew into towns and then cities (over the course of a couple of millennia), we would recognize as laws. The invention of writing is what is considered to separate history from pre-history. Law, therefore, is pre-historic.

This is confirmed by the fact that even the earliest written laws that have been found are not primitive. They are well-developed systems of law. Writing was invented in Sumer, in lower Mesopotamia. Sumerian records — of which there are uncounted thousands — are mostly of trade and bureaucratic activities, which require fairly sophisticated laws. It appears that trading was a principal spur to the development of law. The Code of Hammurabi — from the early Babylonian Empire, a bit later than the Sumerians — is an extensive legal code covering many of the same areas addressed by modern law. For example, it covers the problem of what to do about a person who innocently buys stolen property — addressed by our Uniform Commercial Code — in a way that makes clear that this law is the result of consideration and experience, not merely of some ruler’s ad hoc decree.

The Code of Hammurabi also sets forth fairly well-developed criminal laws. Although some seem draconian to us, they formed a considered system. If a man stole a cow, for example, he would have to repay 10 or 20 cows (depending upon whom he stole it from); if he could not pay, he would be executed. The law of “an eye for an eye” is also from the Code of Hammurabi. But this is not a primitive concept. It is an early attempt to let the punishment fit the crime, a more humane alternative to a private vendetta which could involve killing the offender, his family, and his friends.

It is inevitable that developed legal systems, whether today’s or that of 4000 year ago, will have many parallels. Human nature never changes. And so the essential problems faced by people living in society — people trying to sell stolen goods, for example — will always be the same. Each society’s set of laws, of whatever place or time, attempts to deal with what is largely the same set of problems. What is interesting is that earliest historical mankind had already begun to deal with these problems in ways that differ only in detail from our own.