Chapter 6.
Whether based on physical or political power, those in control have always exercised their authority through law. Just as political power came to rival brute force, so too has the ‘rule of law’ come to rival and control them both. Physical and political power have often proved transient when faced with the unstoppable march of the law.
The assertion that power is exercised through law finds strong support in historical developments. Early societies often saw rulers wielding absolute power, with their decrees enforced through physical might. However, the gradual evolution of legal systems shows a shift toward more formalised and institutionalised governance. This transition is evident in the development of written legal codes, which sought to replace arbitrary rule with more predictable and standardised systems.
The very act of writing down the law was revolutionary, a recognition that laws could and should exist independently of a ruler’s immediate desires. One of the earliest surviving legal texts is the Code of Ur-Nammu, from around 2100-2050 BCE in Sumer. This code provides insights into early legal thinking, addressing property rights and bodily injuries, with fines rather than harsh physical punishments. This suggests a more nuanced approach to justice. Similarly, the Laws of Eshnunna, from around 1930 BCE, included controls on the prices of essential goods and rules governing loans, highlighting the early link between law and economic life.
Perhaps the most renowned early legal code is the Code of Hammurabi, from Babylon around 1754 BCE. Its 282 laws cover a vast array of topics, from trade regulations to family law. While it reflects the hierarchical nature of Babylonian society, with different punishments for different social classes, it also embodies a vision of the king as the ultimate guarantor of justice. A later but equally foundational example is the Roman Republic’s Twelve Tables, established around 451 BCE. This was a response to the plebeians’ demand for limitations on the arbitrary power of patrician magistrates. By making laws publicly accessible, the Twelve Tables played a vital role in developing a more complex Roman society.
The existence of these early legal codes—Ur-Nammu, Hammurabi, Eshnunna, and the Twelve Tables—powerfully highlights the necessity of written law for the progression of human civilisation. These were not abstract philosophical exercises but practical responses to the growing complexities of organised communities. They laid the groundwork for the development of more sophisticated legal systems, influencing traditions across the globe.
The evolution of law did not end with these early codes. The centuries following their creation witnessed a complex interplay of legal, political, and social developments that further shaped legal history. In England, the development of Common Law began in the 12th century under King Henry II. Royal judges travelled the country, applying a consistent set of legal principles and precedents, gradually replacing diverse local customs. This created a more unified legal system, but it also established the crucial principle that even the king was subject to the law.
The Magna Carta, initially agreed in 1215, represents a pivotal moment in asserting limitations on monarchical power. This charter arose from a period of conflict between King John and powerful barons who resented his heavy taxation and military failures. The charter laid crucial groundwork for the right to a fair hearing and access to justice, as evidenced in its declaration, ‘To no one will we sell, to no one will we deny or delay right or justice.’ While rooted in the specific grievances of the English barons, the Magna Carta became a symbol of the struggle against arbitrary rule and a cornerstone of English liberty, influencing legal and constitutional thought worldwide.
While these early legal documents were revolutionary, the concept of universal human rights, applicable to every individual, emerged much later. The 20th century, with its unprecedented global conflicts, served as a stark reminder of the need for such protections. The culmination of this realisation was the Universal Declaration of Human Rights, adopted by the United Nations in 1948. This document, drafted by representatives from diverse legal and cultural backgrounds, enshrines a comprehensive range of rights, representing a global commitment to upholding the inherent dignity of all people. In Europe, the European Convention on Human Rights (ECHR), signed in 1950, also established a system for the protection of human rights and fundamental freedoms, creating the European Court of Human Rights to ensure its enforcement.
The long and often arduous journey from the rule of brute force to codified laws and the emergence of universal human rights foreshadowed the aspiration for a global order underpinned by agreed-upon rules. The 20th century, with its devastating conflicts, spurred the development of international institutions like the United Nations, the IMF, and the World Bank. These organisations, and the complex web of treaties and international laws they oversee, represent a significant step towards this ideal of a “rules-based world order.”
This trajectory faces stark and concerning challenges. The ongoing onslaught of military might, as witnessed in Ukraine and other regions, represents a dangerous erosion of this very rules-based world order. The fundamental principles of sovereignty and the protection of civilians are being flagrantly violated. The pursuit of national interests through military force, often disregarding international norms, threatens to unravel decades of progress. These conflicts serve as a sobering reminder that the triumph of law over brute force is a fragile and contested ideal that requires constant vigilance and collective action to uphold.
It is also crucial to acknowledge that the “rules-based world order” ultimately still relies on the back-up of that power to maintain itself against rogue states. Without the credible threat of consequences, including the use of force in extreme cases, the rules-based order can become vulnerable to those who prioritise military might over legal obligations. Therefore, the challenge lies not only in establishing international law but also in forging the political will and the capacity for collective security to ensure its effective enforcement.
Next Chapter: Justice: Balancing Power and Access
Bibliography
Bederman, David J. International Law Frameworks. 4th ed., Foundation Press, 2017. (For international law, UN, GATT, IMF, World Bank context)
Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Harvard University Press, 1983. (For general legal history, common law, canon law)
Davies, Norman. The Isles: A History. Oxford University Press, 1999. (For UK historical context, Norman Conquest, Henry II)
Finer, S. E. The History of Government from the Earliest Times. Oxford University Press, 1997. (For general history of governance and early legal codes)
Gardner, John. Law as a Leap of Faith. Oxford University Press, 2012. (For philosophical aspects of law and its role in society)
Kelly, J. M. A Short History of Western Legal Theory. Oxford University Press, 1998. (For Roman law, Twelve Tables, natural law)
Lochner, Louis P. The Code of Hammurabi. Kessinger Publishing, 2004. (A translation or analysis of Hammurabi’s Code)
Pollock, Frederick, and Frederic William Maitland. The History of English Law Before the Time of Edward I. 2nd ed., Cambridge University Press, 1899. (Classic work on English Common Law)
Pritchard, James B., editor. Ancient Near Eastern Texts Relating to the Old Testament. 3rd ed., Princeton University Press, 1969. (Contains translations of Code of Ur-Nammu, Laws of Eshnunna)
United Nations. Universal Declaration of Human Rights. 1948. (Primary source for UDHR)
Council of Europe. European Convention on Human Rights. 1950. (Primary source for ECHR)
Vincent, Nicholas. Magna Carta: A Very Short Introduction. Oxford University Press, 2012. (For Magna Carta context)