Saturday, December 5, 2015

Barend Vlaardingerbroek: The non-religious origins of law

The Islamic State and fundamentalist Christian groups don’t exactly like one another, but they have quite a lot in common. They both believe in the fusion of temple, State and judiciary. They both regard human beings as being intrinsically incapable of regulating their own behaviour and running their own affairs, thereby requiring rules of proper conduct to be imposed ‘from on high’.

In this morbid view, humankind is inherently amoral rather than immoral: the building blocks of morality, ethics and law are not to be found within the natural human psyche. But this is a completely erroneous premise concerning the nature of the human condition.

And the Lord said unto Moses, Come up to me into the mount, and be there: and I will give thee tables of stone, and a law, and commandments which I have written; that thou mayest teach them. (Exodus 24:12)

Animal societies are governed by complex systems of communications and rules as to what constitutes appropriate and inappropriate behaviour within given social contexts. Sparrows, seagulls, lions, wolves, cattle and sheep – you name it – have evolved what we could call systems of ‘protoethics’ and ‘protomorality’ that regulate their behaviour. Primates such as baboons and chimpanzees exhibit behavioural norms underpinned by what can legitimately be regarded as primitive ethics and morals that we as humans can identify with. These were not imposed from ‘on high’. Neither are they embedded in the DNA – a juvenile bird or Mammal has to learn the rules by emulating the behaviour of older members of the group, and may have to be corrected by them when it oversteps the mark or fails to display an appropriate behaviour. Let’s call it ‘protolaw’.

Now if my budgies and my cats can develop codes of conduct to govern relations among themselves (and with me), it would be an anomaly indeed if human beings had not crossed that bridge many, many moons ago – indeed our pre-human ancestors did so umpteen million years back.

The Abrahamic religions would have us believe that law is something that had to be revealed by their god to people who had presumably hitherto been lawless. Exactly when law came about depends on how one defines law. My view is that law need not be written to qualify as such, but there must be a corpus of rules that are known and applied by people who wield powers of enforcement (i.e. a judiciary of sorts, such as a tribal council of elders). The most primitive societies had law in that sense, for no society can be viable without it. The early law-writers such as Hammurabi did not conjure up most of the laws they recorded but codified customary law, some of which would have been around since time immemorial.

It is indeed true that when there is a total breakdown of law and order, some people will break loose and kill, steal, rape, etc, to their heart’s content. But I maintain that this is an aberration from the norm and that society at large invariably deals decisively with such miscreants once law and order are restored. Order, not anarchy, is the natural human condition.  Ethics, morality and law arise from the social aspect of the innate human condition, and anyone who does not abide by the established social norms is eventually expelled or eliminated.

Fundamentalist Christians claim that the Ten Commandments form the basis of all law. This is a ludicrous suggestion. The first four govern relations between a Middle Eastern tribe (the Hebrews) and their tribal god. The other six regulate interpersonal relationships, but injunctions against bumping other people off or nicking other people’s property are rules that are ubiquitous because no human society can possibly survive as an integrated social unit if people routinely do such things. The injunctions against telling slanderous fibs about other people, or having a fling with someone else’s wife or husband, likewise represent global norms aimed at maintaining harmonious societies. (The 10th commandment – “thou shalt not covet” – would be fun to try to enforce. Shall we make envy a summary offence or an indictable offence?)

For real law, try the Torah in the Old Testament, which includes plenty of laws about how to deal with slaves and concubines, stoning to death of unmarried girls who fail the virginity test, and the like. This stuff is rather embarrassing for many modern Christians. It was, ironically, largely irrelevant to first-century Christians who turned to the Roman court system and not the temple for legal guidance and services.

The relationship between Christianity and law in England was akin to an arranged marriage in which the partners keep a wary eye on eachother as they vie for dominance, one of the two eventually coming out on top. Ecclesiastical courts (‘courts Christian’) dealt with ‘spiritual’ matters such as marriage and defamation (‘bearing false witness’). However, if there was any secular aspect to the case such as pecuniary interests, that came within the province of the ‘temporal’ (secular) courts. This extract from the Curia Regis rolls of 1211 (Greenford v Hugh Son of Walter) exemplifies the relationship:

Claricia widow of Walter of Greenford claimed from Hugh son of Walter the third part of two carucates of arable with the appurtenances in Greenford as her dower. And Hugh said that she was not married to Walter, and the plea was sent to court Christian, and she proved the marriage… So she is to have a writ to get her seisin.

Henry II had made it perfectly clear that the place for criminal actions against clergy was the ‘temporal court’ and not the ‘court Christian’. There was a dodge – for hundreds of years, men (and, from 1691, women) could wriggle out of many a charge in a ‘temporal’ court on the basis of the ‘benefit of clergy’ (which most of them weren’t!), which came down to being able to recite verses from Psalm 51. (They didn’t get off scot-free, mind – they were branded on the hand and the trick could not be used a second time. This farce finally ended in 1827.) The remit of ecclesiastical courts themselves was chipped away at little by little over the centuries, and they lost their jurisdiction over all but church-related matters in 1857.

The relationship between Christianity and law on the Continent was stronger than it was in England as they did not develop a Common Law tradition. Legal education was within the province of the universities, which were repositories of Roman law and centres of canon law (in England, there were avid debates about whether universities had a role in legal training into the late 19th century). The Napoleonic code civil went a long way towards severing the relationship between religion and law and this model spread throughout Europe. Nevertheless, an unholy alliance between the State, the church and the judiciary (exemplified by the ignoble ancien régime of pre-revolutionary France) remained an aspect of European governance until well into the 19th century in some places.

On the whole, the relationship between Christianity and law has been a tenuous one, and it is sheer balderdash to claim that Western law, be it English or continental, has been derived from Christianity. The situation is rather different for Islam, which unlike Christianity has a distinct system of law – the Sharia. To growing numbers of modern Muslims, the Sharia is however becoming somewhat of a sore point, not least because of the attention drawn to it by the Islamic State, which claims to practise Sharia in its ‘pure’ 8th-century form. But despite ostensibly being divinely ‘revealed’ law, the Sharia has nonetheless undergone considerable modification over time in various Muslim jurisdictions. There are notable differences between Sunni and Shia interpretations and applications of the Sharia. As the winds of change start becoming more persistent in liberalising Islam, attention is increasingly being focused on how the Sharia should be interpreted in the modern world. Keep watching that space.

Law is a product of human endeavour. Human beings, as social creatures, are innately order-seeking and order-imposing. Rules of conduct, morals and ethics arise from that drive, and law is its highest expression. We are not amoral ‘fallen angels’ who need to have rules imposed on us from outside the human condition but moral ‘naked apes’ within whose nature it is to devise and observe our own.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is at the American University of Beirut and is a regular contributor to Breaking Views on political and social issues. Feedback welcome at 


Peter Mundy said...

Man, animals, creation as a whole etc. were created "very good" by God. Genesis 1:31.
Man was given free will and authority over this world Genesis 1:26-28.
We chose disobedience and allowed sin, and consequently the punishment by death, into our lives, separating us from God.
The law for our lives was crystallised by Jesus in Matthew 22:37-40.
Over thousands of years and so many forms of human government, we still have not overcome our original choice of evil in our hearts Jeremiah 17:9, Romans 3:23.
Biblical prophecy, written thousands of years ago, is coming to full fruition in our time today.
Our failed "human" way of thinking is demonstrated right through the Bible.
God is soon to bring the world around.

Barend Vlaardingerbroek said...

Thanks for the Sunday School lesson but it's not what the article is about.

Chuck Bird said...

Good article Barned. I would hope you would agree that it is not only humans that have laws but most other animals as well.

Anonymous said...

If your theory is surmised to be true, and all religious thought aside, then it would seem we have erred most heinously in recent times with a lot of 'societally destructive' lawmaking. If what is most important is the continuity of society/community, then RESPONSIBILITY towards that community trumps ANY claim to individual "human rights". How would that fit with todays self-centredness? To be blunt, abortion would be outlawed - unwanted babies should be adopted out (to ensure survival of the species) homosexuality too would be banned - as they dont/cannot breed and therefore remove huge numbers from the community genepool. Heterosexual marriage on the otherhand should be encouraged to the point of being mandatory for all adults. European countries are already facing the dilemma of diminishing populations - they are literally dying out due to lack of pro-creation. If as you say, communities need laws/commonly held beliefs etc to function together and survive, why are we being foisted with so much destructive, self defeating behaviour?

Barend Vlaardingerbroek said...

Excellent points, DB.
Like any human institution, law too can be hijacked. And it has been hijacked by the social engineering lobby.
As you correctly note, we are starting to pay the price - and it's a high one: extinction.
Maladaptive behaviour leads to non-survival. Maladaptive laws are no exception.

Gordy said...

Take Christianity out of the laws and lets see what happens when everything turns to custard. Me thinks that there will be total anarchy and the 'people' will beg for Gods rules and wont be phased by your red herrings of the Old Testament

Barend Vlaardingerbroek said...

Funny how the laws of ancient Babylon and Greece worked well without Christianity (which didn't exist yet).
In more recent times, funny how Communist legal systems didn't have Christianity built into their laws but worked remarkably well.
Funny how the only law many millions of people around the world are 'begging for' is Sharia...... while many of those living under it are 'begging for' secular law!
Wakey wakey, Gordy.......

Anonymous said...

I don’t see much in the way of “order-seeking” societies emerging apart from technological progress. It tends rather to go the opposite direction. Historical and current trends don’t support the article’s thesis of “naked apes” organising themselves into caring communities. The Ten Commandments were a codification of what was “breathed” into the human conscience from the beginning by the Creator (obviously not part of the writer’s evolutionist world view) and this can be traced through the scriptures prior to Mt Sinai. The basic building blocks of useful and freeing law (no, communism hasn’t had much success with the latter) are found in the human psyche because they were put there by God. The tenth commandment went to the heart of the matter and has ramifications totally relevant to today’s society. Stoning laws were abrogated by Jesus’ teachings and the application of moral laws (e.g. regarding how human life is valued) is still in process in every society.

Barend Vlaardingerbroek said...

I didn't say anything about 'caring communities' - just orderly ones. Yes, there are individuals who buck the system and sometimes law and order break down, but societies have a remarkable capacity to return to some sort of equilibrium when faced with such upsets.
The 10 commandments are not 'codified law'. If you want to see what codified law looks like, try the Code of Hammurabi or the Napoleonic Code Civil.
When reading religion at varsity, I came across a most interesting case that the so-called Mosaic Code had actually been plagiarised from the Code of Hammurabi. I don't have the requisite period knowledge to comment on this claim with any authority, but given that the early books of the OT were actually written quite late, it seems plausible.

Gordy said...

You speak of how well the communist legal system in more recent times seems to have worked "remarkably well" without Christianity. Well sir, having woken up as you suggested, I would have to suggest to you that maybe we should ask some of the millions of Russians who were slaughtered by Stalin, I think they might have a different opinion to you. As for Sharia law, that is nothing to do with Christians so has no relevance to my comments however I do find it quite amusing that you say "millions" want it but "many" want out of it. How many is many? 100's, 1000's or what? Millions is a lot of people but many doesn't seem many. By the way, the only understanding animals have is that it is survival of the fittest and I can assure you that your cat has no regards for the laws of your house. Try this little experiment, take the bird out of it's cage and shut it in a room with your cat......

Barend Vlaardingerbroek said...

Gordy, dictators bring laws into existence by decree, bypassing the normal stages of law-making. Or they may operate outside the law, which they consider themselves above. Underlying the atrocities of Stalin and other dictators is the breakdown of the Rule of Law.
When I say that a system of law 'works' I am not necessarily saying that it is a good thing. The laws of ancient civilisations were in many cases repugnant to us today, but they definitely 'worked' in the sense of being in codified form and being applied consistently by judiciaries. The same general comment goes for Sharia law.
Polls in various Muslim societies have shown that a great many people approve of Sharia. Some 90% of Pakistanis want it and so do most Muslims in Malaysia. There is a thriving Sharia court system in Britain, believe it or not! 'Western' law to many people in developing countries (and to some minorities in developed countries) is esoteric, expensive, and non-reflective of cultural values (and often not a little corrupt).
I think you need to catch up on developments in ethology over the past 60 years - all social animals exhibit 'understandings' of what are often highly sophisticated rules of conduct within their societies.

Anonymous said...

Proof or refutation of the plagiarism theory (of the Ten Commandments being copied from Hammurabi) just seems to depend on which source you use as a reference.