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 10^th 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 19^th 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 19^th 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’ 8^th-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 bv00@aub.edu.lb