Vol. 34 No. 03 (May 2024) pp. 26-30THE RULE OF LAWS: A 4,000-YEAR QUEST TO ORDER THE WORLD, Fernanda Pirie. New York: Basic Books, 2021. 570pp. Cloth $35.00. ISBN: 9781541617940. Ebook $19.99. ISBN 9781541617957.
Reviewed by Brian Z. Tamanaha. John S. Lehmann University Professor, Washington University in St. Louis. Email: btamanaha@wustl.edu.
The Rule of Laws is an impressive achievement. Oxford anthropology Professor Fernanda Pirie traces the historical trajectory of a number of great legal traditions of the world (mainly Mesopotamian law, Hindu law, Chinese law, Roman law, Jewish law, Islamic law, Civil law, Common law, and international law), while, along the way, providing detailed close-ups of many particular manifestations of law, including Irish law, Icelandic law, colonial law, Tibetan law, and more. Written in lively prose, Pirie treats readers to an unmatched historical tour of law around the globe over the past four millennia, drawing on a broad range of studies by historians, anthropologists, legal scholars, religious scholars, and other fields. No other work of world history covers law with such scope and depth. These qualities make The Rule of Law a commendable work of popular history that many readers will find informative and well-worth reading.
What is a terrific book for a popular audience, however, can be problematic for an academic audience. Popular audiences seek informative, entertaining, and readable treatments of a given subject. Academics demand that concepts be carefully defined and consistently applied, that empirical claims be backed by evidence, and that complex matters be treated with nuance. These respective objectives can be reconciled, but sometimes they clash. In several critical respects, it appears (to me) that academic concerns gave way to the demands of popular consumption.
The book is presented as a history of “law” and of “the rule of law.” In the Introduction, Pirie declares, “The rule of law [emphasis added] has a history, and we need to understand that history if we are to appreciate what law is [emphasis added], what it does, and how it can rule our world for better, as well as for worse” (p. 14). Her exploration purports to show that “law” and “the rule of law” emerged together in the distant past, gradually ascending and spreading over 4,000 years of human history. Although they coincide, law and the rule of law are not the same (Pirie emphasizes that China has had law for over two millennia, but not the rule of law). Thus, it is essential to understand each notion separately as well as how they relate to one another.
Scholars have long debated the meaning of “law” and have long debated the meaning of “the rule of law.” Pirie eschews these debates, giving readers no hint that each notion is the source of endless scholarly disagreement. Avoidance of theoretical complexity is a defensible strategy for a popular book, though an academic book would mention the disagreements, if not take a position. To bypass the theoretical debate, a popular book can simply stipulate what each notion means for the purposes of the exploration. Following this strategy, Pirie depicts the rule of law as imposing legal restraints on rulers and government, which captures a core meaning of this notion.
Nowhere in the book, however, does Pirie clearly set forth the criteria for what she identifies as “law.” She has criteria in mind, and in other scholarly work, she has advanced a theoretical conception of law (Pirie, 2019; Pirie, 2023), but readers of the book are left to guess. This lack of specificity gives rise to lingering questions throughout the text. For instance, in the Introduction, Pirie tells us that “some complex and sophisticated societies have not made laws,” (p. 10) citing ancient Egypt as a prime example. “Ancient Egyptian documents and inscriptions indicate that for two thousand years pharaohs presided over complex fiscal systems in which officials kept detailed records of property holdings, temples, foundations, and revenues; scribes recorded royal decrees and orders; and judges heard legal cases and sentenced miscreants to penal labour, all without creating general rules” (p. 11). This statement, however, is belied by the distinguished scholar of ancient Egyptian law, Jean-Marie Kruchten, who finds that “Egyptian legal documents always refer to a ‘rule’ (hp), whether they concern proceedings or the way judgments are passed;” and judges (a vizier) “had to treat each case (a formulation large enough to comprise judgements as well as administrative decisions) according to the established rule, but without sticking to the letter of the law and being unfair” (Kruchten 2001, p. 3). Tellingly, Pirie’s own characterization straddles a tension: she asserts that “judges heard legal [emphasis added] cases” (p. 11) even though Egyptians did not make laws. What is a legal case that does not involve law?
Whether ancient Egypt had law is not just an empirical dispute that can be resolved through additional evidence—at bottom it depends on how one defines what counts as law. Pirie appears to suggest that to constitute “law,” a society must recognize binding legal rules, abstract categories, judicial precedents, and casuistry; it also appears from her account that being fixed in writing is essential to law. If that is indeed her position, it should be clearly articulated, explained, and justified. A history of “money” or “the state” or “religion”—or indeed of any social institution—must take a clear and coherent position on what counts as money or the state or religion, respectively. The conception one utilizes decisively shapes the historical narrative built thereon. Likewise, a history of “law” depends on and is shaped by how one defines law.
A crucial implication of requiring binding legal rules, abstract categories, judicial precedents, casuistry, and entrenchment in writing to constitute law is that most manifestations of (unwritten) customary law are disqualified as law—notwithstanding that customary law has been a pervasive form of law for much of human history. (Pirie appears to view customary law as mediation rather than law; for an approach that treats customary law as law, see Tamanaha 2017). Another implication is that the rules governing the internet (ICANN) and global sports leagues (IOC, FIFA), among other contemporary rule systems she discusses, are law. Pirie remarks, “These international organizations all develop legal rules and principles, and sometimes courts, to meet practical needs, rather than waiting for governments to enter international agreements” (p. 436). Defining law in a way that disqualifies customary law but includes contemporary sports leagues should be explained and justified, at least for scholarly readers.
Another difference is that popular books often indulge in sweeping statements that would raise academic eyebrows. In the Conclusion, for example, Pirie states, “These three projects built on different fundamental principles: justice in Mesopotamia, discipline in China, and duty in India. But they collectively established a foundation for practically all the laws that have since been created” (p. 448). This striking claim rests on a thin genealogical thread: Mesopotamian law served as a model for Jewish law, and subsequently Greek and Roman law (plus Islamic law), which in turn influenced European law, and spread around the globe through colonization. Mesopotamian law carries the overwhelming bulk of the weight in this statement, while Chinese law (which has been superseded) and Hindu law have had little impact outside of their respective homelands (albeit with large populations). It is questionable whether such a thin thread supports the claim that practically all the laws since created have been built on this tripartite foundation, yet her narrative is constructed around this theme.
A particularly problematic aspect of Pirie’s account, from an academic perspective, is its teleological framing: portraying humanity engaged in a four millennia quest to order the world through law and the rule of law. Teleological accounts of this sort raise the specter of Whig history: a depiction of events in terms of progress from an uncivilized (lawless) past to the ideal (rule of law) present. In her teleological quest, humans have endeavored to achieve and spread legality and the rule of law; actions along the way that help achieve these goals further the progress of civilization.
A jarring implication of this reasoning lies in Pirie’s discussion of European colonization of much of the globe. She tells us, “Scholars appealed to Christianity, rationality, and natural law to promote models of civilization, and these laid the basis for modern ideas of statehood and the rule of law” (p. 342). Her assertion is not just that they claimed to be laying the basis for the rule of law, but that they in fact laid the basis for modern statehood and the rule of law. “In all these ways, European colonial powers introduced new social and political ideas into their territories, and these continued to shape the postcolonial constitutions, especially in the hands of an indigenous elite keen to participate in the emerging international order,” she writes (p. 363). As a result, “by the late twentieth century, most [formerly colonized countries] had adopted European models and taken their seats at the United Nations” (p. 365).
European colonizers in the 16th through 20th centuries would have been gratified to hear that, in the early 21st century, their actions would be credited with spreading the rule of law across the globe. That was, after all, their own justification for their actions. Viewed in light of humanity’s historic quest for the rule of law, all the terrible things European powers did—conquering foreign lands with the force of canons and firearms, exerting political domination over vast territories, killing and imprisoning resisters, taking property for colonial purposes and expatriate settler enterprises, imposing taxes and fees to fund colonial governments, trading and using slave labor, seizing material resources, forcing markets open to European traders, imposing European laws on societies that had their own preexisting laws and social-cultural arrangements, and more, actions that devastated and radically upended indigenous societies (see Tamanaha 2021)—were for the great end of bringing about the rule of law for humanity.
Pirie does not explicitly justify colonization in these terms, and she mentions the cruelty and abuses it entailed. But readers unfamiliar with the history of colonization might well conclude from her account that it was good for subjugated indigenous populations and for humanity generally. In the Conclusion, she writes:
In little more than three hundred years, law has come to be associated firmly with the nation-state. Models and systems developed in Western Europe now dominate the world….European rulers brought together disciplinary practices, pragmatic techniques, and idealistic visions–the innovations of the first lawmakers in Mesopotamia, China, and India–to create a powerful model of law. Behind it lay ideas about natural law and common humanity. Remarkable economic, technological, and military expansion then allowed them to export their laws around the world, claiming that they would bring ‘civilization’ to indigenous people and sweep away outdated models of ‘despotic’ or ‘primitive’ order. In the twentieth century, this has become the vision of an international order in which properly elected governments promote peace and prosperity, uphold democracy, and respect human rights. It is the equivalent of the cosmological order invoked by the Chinese emperors and the order of the dharma elaborated by the Hindu Brahmins that the colonizing powers were so keen to replace (pp. 451-452).This highly idealized account credits colonization as a crucial step in the upward progress of law and the rule of law, a journey that began four millennia ago, when “Hammurabi was promising the rule of law” (p. 32). Pirie’s stance provides support for the argument of popular historian Niall Ferguson, among others (Gilly 2017), that on balance (British) colonization was beneficial because it passed on the English language and British economic, political, and legal institutions (Ferguson 2004). This position is fraught with controversy, needless to say, and merits serious scholarly examination—which Pirie does not undertake.
It is not clear whether Pirie agrees with Ferguson that (British) colonization was good for colonized peoples; but even if she rejects this particular argument, the broader impression remains that colonization was good for spreading the rule of law. (Let me interject here that many countries struggling today to develop the rule of law were previously colonized, so whether this is indeed a positive legacy of colonization is open to dispute.) Whatever her intentions might be, Pirie’s teleological account of humanity’s quest for law and the rule of law serves to justify colonization as a major step in the advancement of this long struggle.
Teleological historical accounts should be regarded with cautious skepticism. They rely on mysterious forces (Whose quest is this?); the (benighted) past is construed in terms of a struggle to achieve the (superior) present and secure a glorious future; the greater good this progress represents is a historic mission that justifies (or at least ameliorates) many bad things along the way. Although presented descriptively, teleological narratives are normatively driven and constructed by retroactively projecting the present (and future) as an objective of the past.
The tenor of the foregoing comments, regrettably, might come across as more negative than my actual view of the book. The critical concerns I have expressed reflect my own work as a legal theorist and are concerns that other scholars may not necessarily share. To counterbalance these critical comments, I should reiterate in closing what I stated at the outset: Professor Pirie’s The Rule of Laws conveys a wealth of knowledge about law over the course of human history. No other work on the history of law that I know of matches this book in scope and detail. Scholars and popular readers alike will find it engaging, highly informative, and provocative.
REFERENCES:
Ferguson, Niall. 2004. Empire: How Britain Made the Modern World. New York: Penguin Books.
Gilley, Bruce. 2017. “The Case for Colonialism,” Third World Quarterly, DOI: 10.1080/01436597.2017.1369037
Kruchten, Jean-Marie. 2001. “Law.” In Oxford Encyclopedia of Ancient Egypt, ed. Donald B. Redford. Oxford: Oxford University Press. 1-8 (online version).
Pirie, Fernanda. 2019. “Legalism: A turn to History in the Anthropology of Law.” Clio@Themis 15: 1-15.
Pirie, Fernanda. 2023. “Beyond Pluralism: A Descriptive Approach to Non-State Law.” Jurisprudence 14: 1-21.
Tamanaha, Brian Z. 2017. A Realistic Theory of Law. New York: Cambridge University Press.
Tamanaha, Brian Z. 2021. Legal Pluralism Explained: History, Theory, Consequences. Oxford. Oxford University Press.
© Copyright 2024 by author, Brian Z. Tamanaha.
