This article was published in the Spring 1994 issue of Formulations
formerly a publication of the Free Nation Foundation,
now published by the Libertarian Nation Foundation

Notes on the History of Legal Systems

by Bobby Yates Emory

(to table of contents of archives)

Outline

Introduction
Philosophical Foundations
The Evolution of Law
Ancient Legal Codes
Methods of Legal Improvements
Law of Nature
Primitive Society and Ancient Law
 
 

Introduction

If we are to live with others, we must have a way to resolve the inevitable disputes. Perhaps we also need to have a code to provide a framework for our relations with others. We need to be able to create contracts that are enforceable over long time periods. So if we are to design the institutions for a free society, we must include a legal system in our deliberations.

Although our primary purpose is to create proposals for the future, we may get some ideas or, at least, some inspiration, from studying the history of legal systems. Perhaps we can avoid some of the mistakes that have already been made.

(back to top of page)

Philosophical Foundations

Since the legal system will be one of the few areas where we will allow the use of compulsion, we must be very careful to select a system that will not violate our philosophy. A legal system is certainly a "useful servant but a fearful master." This study will not comment on the philosophy appropriate to the legal systems discussed. Suffice it to say that most of them are more appropriate to statism than to freedom.

(back to top of page)

The Evolution of Law

If we look back at the history of law in many societies, we can discern the same evolution taking place in the same sequence.
 

Accustomed as we are to legal systems with voluminous codes and well defined procedures for contracts, many of these don't sound like much of a legal system to our ears. But for most of the existence of humans, these are the systems they lived under.

The Patriarch

In the earliest records and in the observations of more primitive cultures by more advanced, the earliest stage of development is characterized by people living in small groups based on kinship and ruled by the eldest male. Usually the ruler was determined by very strict customs of descent through the eldest sons from the "original" ancestor. Often his rule was quite complete and almost always included property, earnings, and contract. This was entirely at the caprice of the patriarch, with the ruled having none of what we would think of as rights. But the patriarch did have a customary responsibility to provide for his family. And males having obtained the age of majority could free themselves from the rule of their father and even start their own patriarchy.
 

The Sovereign

Later there develops a sovereign ruling over a collection of families. This rule is in the style of the patriarch: he issues rulings after the fact and without reference to any established rules. Primitive man at this stage supposed that the gods (Themis to the Greeks) dictated to the king what to award. Themistes was the name for the awards. Note that these are not laws but judgments. By a pattern of themistes, a custom was created (as opposed to the theory that the laws embody the customs of a previous era).
 

Customary Law
Usually the initial kings were heroic, but often feebler monarchs followed. Often an oligarchy would grow up around the monarch. These aristocrats became the depository and administrators of the law. This was the epoch of customary law. English common law pretends to be of this type (at one time, the judges relied on rules, principles, and distinctions not fully known to lawyers or the public), but it is today based on written precedents.
 

A Legal Code
Finally a legal code is written down. This usually occurs just after the invention of writing. Often the initial code mixes civil, religious, and moral issues. But at last we have arrived at a stage where the legal system becomes regonizable. Usually the initial code retains the flavor of the earlier patriarchal era and primarily deals with relationships between families or between the patriarchs of the families.

In English history, this occurred in 800 when King Alfred the Great declared that the law would be written before the fact so that people could know what the law was. (I date the beginning of the Libertarian revolution from this point.)
 

Individuals

Next, the legal code begins to deal with individuals rather than just the patriarch. It even begins to regulate relations within the family.
 

Contractual Relationships

Finally, relationships within a legal system begin to be determined more by contracts than by the status of the actors. The most obvious is employment, which becomes a matter of contract between parties rather than master and slave. This process can be observed in historical times and is still proceeding today.

(back to top of page)

Ancient Legal Codes

One of the most important steps a society takes is reducing its legal structure to a written code. It provides three important protections to a society:
 


(back to top of page)

Methods of Legal Improvements

Western European civilization is a rare exception in the history of the world. Most societies have not had the objective of improving their legal system. Where societies have attempted to be progressive, social necessities and social opinion are usually ahead of the law. The happiness of the people depends on how quickly the gap is narrowed. The improvements usually come in three ways, and they usually develop in this order: First, legal fictions bridge over problems. Second, equity courts provide a means of relief. Third, legislation brings the law nearer the improved social opinion.

A legal fiction is an assumption that changes the operation of a law without changing the letter of the law. For example, an adoption allows a family tie to be created even though the child was not born into the family.

Equity courts' reason for existence is that they supersede civil law on the grounds of superior sanctity, often expressed as providing more just decisions.

Legislation includes any agency for changing the code, from rulings by a despot to representative assembly deliberations.

Two of these steps, legal fictions and equity courts, need more explanation.
 

Legal Fictions

Legal fictions usually come into being when a change is needed but no one wants to appear to be making changes. In the English common law system, before a decision is reached the theory is that any case can be decided on existing precedents, but after the decision is handed down, this case affects all future cases that are similar. The Roman Responsa Prudentum operated in a similar manner, except for three details of procedure: the proceedngs could consider hypothetical cases; decisions were made by lawyers rather than judges; and entry to the bar (and therefore to the ability to render decisions) was open to anyone.
 

Equity Courts and the Appearance of the Law of Nature

The equity court of England is the Court of Chancery. It received its guidance from Canon Law (religious), from Roman law, and from the mixture of jurisprudence and morals in the Low Countries. The equity court of Rome was the Jus Gentium. The need for this court grew from the presence of many foreigners and their subsequent legal needs. Rome was unwilling to allow them to use the system set up for Roman citizens. An alien could not use the normal Roman law courts or make contracts. The lawyers got around this by creating a new law: Jus Gentium. In theory this law was supposedly composed of those laws common to all nations (actually just the other Italian tribes, because that was all they knew at the time). It was not held in high regard at the time of its creation, but was forced by political and commercial necessity.

The theory of the Law of Nature came from Greece later; the Stoic philosophy was very popular among lawyers. This led to Prætors wanting their Edicts to restore an assumed natural law. Thus Jus Gentium gained respect. The Prætor was the supreme justice of Rome, but held office for only one year. The Prætors were drawn from lawyers or controlled by lawyers. At the beginning of his term, the new Prætor explained what he intended to do in an Edict; such an Edict was usually a minor modification of his predecessor's.

(back to top of page)

Law of Nature

The idea behind the Law of Nature confuses past and future. It implicitly assumes a past state of nature ruled by a natural law. It assumes society can change toward a perfect future an idea picked up from Christianity. It has been very important to the evolution of thought. Roman lawyers worked to perfect the "elegance" of their law. But the Law of Nature has much influenced modern law. Even though France had a very confusing law, with different laws for different people and different laws for different jurisdictions, the Law of Nature provided a theory and an article of faith for lawyers.

Then in the middle of the 18th century there occurred the most important event in the evolution of the Law of Nature: the writings of Rousseau. He widely influenced many levels of people. Rousseau held, in the words of Sir Henry Maine, that "A perfect social order could be evolved from [a] natural state." Unfortunately, in disdaining the superstitions of the priests, the adherents of natural law "flung themselves headlong into a superstition of the lawyer." This led to many of the disappointments of the French Revolution: "its tendency is to become distinctly anarchical." It also gave birth to International Law and the Law of War. International Law came from the idea that nations are equal (even if one is overwhelmingly more powerful than the other).

(back to top of page)

Primitive Society and Ancient Law

Legal Writing
Much of legal writing has been a restatement of the Roman thesis of natural law. There are some exceptions: Montesquieu's Esprit des Lois stated that laws come from local circumstance, that the nature of man is entirely plastic. He underrates the stability of the race and the inherited qualities of individuals. He doesn't realize that, in Maine's words, "An approximation of truth may be all that is attainable with our present knowledge, but there is no reason for thinking that [truth] is so remote or (what is the same thing) that it requires so much future correction, as to [make our present knowledge] be entirely useless and uninstructive." Bentham held that societies modify laws for general expediency. Most legal theories have not examined antiquity; yet we have always had evidence of early social states from three sources: accounts by contemporaries of less advanced civilizations; records by primitive societies of their history; and ancient law texts. Today we would have to add archaeology and anthropology.

Patriarchy
From ancient law we get the Patriarchal Theory. In the earliest history of most societies the Father ruled the entire family. Earliest states dealt with families, not individuals. Adoption was used to include outsiders who wanted to join the society. When recruitment by adoption stopped and outsiders were still drawn to a society, the growth of aristocracy began. Although these societies were very restrictive, adult males were able to withdraw from the family. Lineage followed males only, as the Scottish clans still do. This implies reduced rights for women. But after the Law of Nature became fashionable in Rome, women began having equal rights. Dark ages reduced women's status again. Slavery also is illustrative of primitive legal thinking. Slaves were considered members of the family, because the slave was subject to the commands of the head of the family. By contrast, English common law (which came later) regarded slaves as chattel property.

The Early History of Property
Because Roman law referred to certain ways of obtaining property as natural, people have assumed those were "natural" ways; but if we look further back we see a different pattern. Similar to other aspects of ancient law, property rights were held by family units. In India, villages (family groups) held property in common; in Russia, the serf communities held property in common.
 

Roman Property
Under Roman law, three elements were necessary for possession: occupancy, adverse possession (holding for exclusive use), and prescription (keeping over a period of time). Many legal systems divide property into classes, e.g., land property (which for the Romans included slaves and work animals) versus other property; ownership of land was usually harder to transfer. Over time, easier methods of transfer are worked out. Sometimes there is a system of dual ownership. For instance, in Rome, both the landlord and the tenant had rights in the property. Under feudalism, both the lord and the liegeman had rights.
 

The Early History of Contract
The history of contract in other places is unknown. In Rome, the earliest contracts were in the form of conveyances of land. Gradually, they began to be different. Conveyances were given a new name. Contracts then developed into four types. The least formal consensual was much like ours. Δ


1 Sir Henry Sumner Maine, Ancient Law (1861; Dorset Press, 1986).
 

Bobby Yates Emory has worked a career as a programmer and systems analyst at IBM. A longtime libertarian activist, he has run for offices from County Commissioner to U.S. Senator, and held political party offices from Precinct Chairman to Regional Representative to the National Committee.

(back to top of page)

   (to table of contents of archives)