The genesis of law
Despite the importance of law in society, its manifestation in the form of general codes first appears only around 3000 BC. Prior to the advent of writing, laws exist only in the form of custom. And the absence of written law retards the capacity of these rules to provide lasting or extensive application.
Among the first written codes is that of Hammurabi, king and creator of the Babylonian empire. It appeared in about 1760 BC, and is one of the earliest instances of a ruler proclaiming a systematic corpus of law to his people so that they are able to know their rights and duties. Engraved on a black stone slab (that may be seen in the Louvre in Paris), the code contains some 300 sections with rules relating to a broad array of activities ranging from the punishment that is to be inflicted on a false witness (death) to that to be meted out to a builder whose house collapses killing the owner (death). The code is almost entirely devoid of defences or excuses, a very early example of strict liability!
The king was, in fact, acknowledging the existence of even earlier laws (of which we have only the barest of evidence), which his code implies. In truth, therefore, the code echoes customs that preceded the reign of this ancient monarch.
A more striking example of early law-making may be found in the laws of the Athenian statesman Solon in the 6th century BC. Regarded by the ancient Greeks as one of the Seven Wise Men, he was granted the authority to legislate to assist Athens in overcoming its social and economic crisis. His laws were extensive, including significant reforms to the economy, politics, marriage, and crime and punishment. He divided Athenian society into five classes based on financial standing. One’s obligations (including tax liability) depended on one’s class. He cancelled debts for which the peasants had pledged their land or their bodies, thereby terminating the institution of serfdom.
To resolve disputes between higher- and lower-ranked citizens, the Romans, in about 450 BC, issued, in tablet form, a compilation of laws known as the Twelve Tables. A commission of ten men (Decemviri) was appointed in about 455 BC to draft a code of law binding on all Romans (the privileged class – the patricians – and the common people – the plebeians) which the magistrates (two consuls) were required to enforce. The result was a compilation of numerous statutes, most derived from prevailing custom that filled ten bronze tablets. The plebeians were unimpressed with the result, and a second commission of ten was appointed in 450 BC. It added another two tablets.
During the period of the so-called classical jurists, between the 1st century BC and the middle of the 3rd century AD, Roman law achieved a condition of considerable sophistication. Indeed, so prolific were these jurists (Gauis, Ulpian, Papinian, Paul, and several others) that their enormous output became hopelessly unwieldy. Between 529 and 534 AD, therefore, the Eastern emperor, Justinian, ordered that these manifold texts be reduced to a systematic, comprehensive codification. The three resulting books, the Corpus Juris Civilis (comprising the Digest, Codex, and Institutes), were to be treated as definitive: a conclusive statement of the law that required no interpretation. But this illusion of unconditional certainty soon became evident: the codification was both excessively lengthy (close to a million words) and too detailed to admit of easy application.
Its meticulous detail proved, however, to be its huge strength. More than 600 years after the fall of the Western Roman Empire, Europe witnessed a revival in the study of Roman law. And Justinian’s codification, which had remained in force in parts of Western Europe was the perfect specimen upon which European lawyers could conduct their experiments. With the establishment in about AD 1088 in Bologna of the first university in Western Europe, and the burgeoning of universities throughout Europe in the succeeding four centuries, students of law were taught Justinian’s law alongside canon law. Moreover, the contradictions and complexity of the codes turned out to be an advantage, since the rules were, despite the emperor’s fantasy of finality, susceptible to interpretation and adaptation in order to suit the requirements of the time. In this way, Roman civil law spread throughout most of Europe – in the face of its detractors during the Renaissance and the Reformation.
By the 18th century, however, it was recognized that more concise codes were called for. Justinian’s codification was replaced by several codes that sought brevity, accessibility, and comprehensiveness. The Napoleonic code of 1804 came close to fulfilling these lofty aspirations. It was exported by colonization to large tracts of Western and Southern Europe and thence to Latin America, and it exerted an enormous influence throughout Europe. A more technical, abstract code was enacted in Germany in 1900. What it lacks in user-friendliness, it makes up for in its astonishing comprehensiveness. Known as the BGB, its influence has also been considerable: it afforded a model for the civil codes of China, Japan, Taiwan, Greece, and the Baltic states.
The appeal of codification
[A] man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency: what acts it is his duty to perform for the sake of himself, his neighbour or the public: what acts he has a right to do, what other acts he has a right to have others perform for his advantage. … In this one repository the whole system of the obligations which either he or any one else is subject to are recorded and displayed to view.
Jeremy Bentham, Of Laws in General, chapter 19, para 10; quoted in Gerald J. Postema, Bentham and the Common Law Tradition (OUP, 1986), p. 148