The Rule of Law – Part 3

Passing responsibility down to jurors.

As Fernanda Pirie writes in her book The Rule of Laws: A 4,000-Year Quest to Order the World:

The variety of the world’s legal processes is almost as great as the variety of its societies. But a problem every society has faced is how to determine the truth. If a man claims that another has killed his son, the accused may protest that he did it in self-defence. If a woman complains that she has been slandered by someone, that person may swear she misheard what was said. A merchant may deny that he signed an agreement that his trading partner is trying to enforce. A shepherd may claim it was a lion who killed the sheep, while the owner of the sheep accuses him of carelessness. Who is to be believed? For all the differences in their laws, in premodern societies people everywhere came up with similar solutions to this most intractable of problems.

Unfortunately, those initial “similar solutions” involved some form of “trial by ordeal”:

Oaths and ordeals might seem exotic to us now, even barbaric, but premodern societies the world over invoked the divine to determine whether someone was guilty of a crime. Sometimes people had to prove their innocence—or the truth of an accusation—by swearing an oath. In imperial Tibet, people made dramatic oaths in front of divine images, while tribesmen in the Middle East could gather dozens of people, compurgators, to swear oaths confirming their innocence. People in other places might have to undergo an ordeal, a physical test that would prove their guilt or innocence: ancient texts from Vedic India describe how priests should prepare for this procedure, and in Africa, the Caucasus, and pre-Christian Iceland, ritual specialists conducted alarming and painful tests. Oaths and ordeals come closer to a set of universal legal practices than anything else did, before the forces of colonialism and modernity spread European laws throughout the world. Eventually, laws of evidence superseded accusations made on oath and the proof offered by an ordeal, but it was a long time before these rules transformed criminal trials into the processes we know today … Medieval stories and other written accounts present lurid descriptions of ordeals, but scholars suspect that the practice was much less common than these accounts would suggest. The idea behind the process was to intimidate a witness into confessing.

By 1213, ordeals began to be phased out:

In April 1213, Pope Innocent III summoned all the senior clergy of the Christian church to a general council. Seventy-one patriarchs and metropolitan bishops, 412 ordinary bishops, and 900 abbots and priors made the journey to Rome the following year, and Emperor Frederick II, Henry of Constantinople, and the kings of France, England, Aragon, Hungary, Cyprus, and Jerusalem all sent envoys. The delegates assembled for three weeks to consider seventy canons presented by the pope. These decrees, he explained, would combat vice, stamp out heresy, settle discord, establish peace, and foster liberty. They also included new directions about legal procedures. Judges were now to have the authority to investigate wrongdoing and summon suspected criminals to their courts, rather than relying upon an accuser. Pope Innocent had also decided that members of the clergy should no longer take part in judicial ordeals. The delegates agreed. There were two problems with ordeals, the church determined. First, ordeals ‘tempted God’: that is, they tested the divine by demanding a sign of guilt or innocence. Second, if the process might end with a punishment of mutilation or death, it involved the clergy in ‘blood practices’. This seemingly innocuous decree set in train a series of reforms that eventually led to the rules of evidence used in practically every modern state legal system.

With the clergy no longer wanting to take part in trials by ordeal, kings felt even less comfortable taking part in them. The result was that kings came to shift responsibility for truth determinations to lay juries:

The church’s decision had the most immediate effect in England, where Henry III, newly appointed to the throne after the disastrous reign of King John, ordered that his judges must find new means of adjudicating disputes. The solution they came up with was to place the burden and moral responsibility for declaring guilt onto a jury. The Anglo-Saxon kings had used groups of witnesses to assist in inquests, and the Norman kings had turned them into ‘juries of presentment’. When the judges travelled around the country, they summoned twelve men from each hundred (a division of the shire) and four from each vill (roughly equivalent to a manor) to ‘present’ cases. They had to declare whether they knew of anyone from their area who was guilty, or suspected of being guilty, of a serious crime such as robbery, murder, or theft. These crimes attracted blood punishment. So English peasants and townspeople were already used to being summoned to make accusations against one another. Most probably hated informing on their neighbours, but Henry III’s declaration made their task dramatically worse. It forced them not just to bring accusations against their fellow men but also to decide on the question of their guilt. In practice, this meant that they had to send some criminals to the gallows, with terrifying consequences for their consciences. Not surprisingly, many refused, or tried to refuse, but the king’s officers could charge them with amercement if they failed to bring a case forward … The English system of jury trial soon spread into the civil sphere … Over the following centuries, the courts of the manors, markets, boroughs, ports, and forests all adopted the jury. The system went through changes, but the basic principles remained the same … officials would keep searching for jurors until they found twelve who could agree.

To encourage jurors to agree, standards short of absolutely certainty developed:

The system also provided some safeguards for the accused. By the seventeenth century, at least, judges were directing juries that they had to be ‘sure’ of guilt, and even that evidence of a felony had to be ‘so manifest, as it could not be contradicted’. Many critics complained about the reluctance of juries to convict, even in what seemed like clear cases. The judges now began to talk of ‘reasonable doubt’ as the test that juries should use when deciding their verdicts. They would direct jurors that it was their duty to convict if all the ‘moral probabilities’ of the evidence was against the accused and they had no ‘reasonable doubts’ about the facts. This not only protected the accused but also reassured jurors that they could convict with a clear conscience if the evidence was, in their judgement, sufficiently strong. A principle that we now associate firmly with protection of the accused was originally designed to salve the consciences of the jury.

As Pirie writes:

The state laws that now dominate the world are largely based on those developed in European countries and America from the seventeenth century onwards … In the seventeenth century, European laws were partial, overlapping, and unsystematic. Yet, over the course of the next two centuries, movements for codification in continental Europe transformed the civil law into a number of organized national legal systems, while judges in England rationalized and expanded the reach of the common law. Their work was also taken up on the other side of the Atlantic, where the new American colonies were enthusiastic proponents of law in their quest for independence.

Monarchs tried to make their own rules outside the larger legal system, but they could not supplant it:

Although English law was an imperfect system, there was a sense that law was important, something with its own authority. This led to political tensions between the monarch and the judiciary in the early seventeenth century. Both Henry VIII and his daughter, Elizabeth, had tried to strengthen the ‘royal prerogative’, which allowed them to bypass Parliament by using their Council to issue charters and proclamations. Elizabeth used it to grant patents to merchants, which gave them monopolies over certain types of international trade. Citing the threat of foreign invasion, along with local conspiracies, she also expanded the work of her court, the Star Chamber, which provided a summary form of justice, and boldly claimed that ‘exhorbitante offenses were not subjecte to an ordinayre course of law’. But she did not entirely turn her back on common law institutions. And even a staunch supporter of her royal supremacy, the cleric Richard Hooker, argued that the law should guide the queen (or king), not the other way around. The commonwealth, the English state, would then, he claimed, be like ‘a harp or melodious instrument, the strings whereof are tuned and handled all by one’. This left the door open for others to use the law to challenge unpopular royal initiatives. In the early seventeenth century, James I, less politically astute than his predecessor, claimed that the king was the source of all law, that he owned it, and that he had the right to define, regulate, and administer it. Neither Parliament nor the king’s judges could accept these claims, and even James’s chancellors, Lord Ellesmere and Sir Francis Bacon, argued that the king’s legal powers ultimately derived from the common law. [In 1610], Sir Edward Coke, chief justice of the Common Pleas, considered a dispute about the jurisdiction of the London College of Physicians, Dr Bonham’s Case. In his judgement, Coke famously declared that the courts would not enforce any parliamentary statute that was ‘against common right and reason, or repugnant, or impossible to be performed’. The common law, he said, would ‘control it’ and ‘adjudge it to be void’. Coke had already had an argument with James about legal jurisdiction, in which he declared that the king had to obey the law because ‘the law protected the king’. This was to put the authority of the highest judges above that of the king, and it provoked James to ‘high indignation’. Coke had to apologise to James, falling ‘flat on the floor’ to seek his pardon, as a contemporary report puts it. But the standoff between the two men continued. It came to a head in 1616, during a tussle over the jurisdictions of the King’s Bench and Chancery. In The Case of Commendams, Coke persuaded the other judges to declare that the king’s attempt to prevent them from reaching a decision was invalid. Furious, James summoned the judges, ripped up their judgement, and declared that he knew the common law to be ‘the most favourable to kings’. The other judges bowed to the pressure, begging the king’s forgiveness, but Coke defended his duty to do what he considered to be right and was dismissed as chief justice … [F]ollowing his dismissal as a judge, he set out to describe the ‘frame of the ancient common laws of this realm’ in his Institutes of the Laws of England, a title that deliberately invoked Justinian.

The rule of law eventually trumped royal attempts at exceptions, and the primacy of the rule of law carried over into the American colonies:

[I]n England, there was considerable debate over the status of the American settlements, which largely centred on the question of whether the English Parliament had jurisdiction over their territories or the Crown could administer them directly. The issue had some significance in the tensions between king and Parliament, which culminated with the execution of Charles I in 1649. Some judges backed the king and his claims to rule without any constraints, and it seemed for a while as if this might undermine the authority of the common law and its ability to control monarchical absolutism, for which Coke had argued so strenuously. In his Leviathan, published in 1651, Thomas Hobbes famously called for a strong ruler who would impose order through law. But the common law and its judges survived. Oliver Cromwell committed himself and his regime to upholding the common law—he needed its legitimacy—even as scholars debated whether he had ‘usurped’ the crown … Coke’s arguments would also be taken up, to dramatic effect, on the other side of the Atlantic … Gradually, the colonies consolidated their legal institutions into more unified systems, recognizing the common law, while their lawyers undertook more specialist training. Indeed, free of the historical complexities of English legal institutions, American lawyers could often develop more systematic and coherent procedures than their counterparts across the Atlantic … In practice, after Independence, American states continued to use and develop the common law they had inherited from their English forebears. By the time of the Declaration, the English common law was so well established in the American courts and their procedures, in the arguments made by lawyers, and in the maxims cited by judges that there was no question of trying to establish any other system. People could no longer take appeals to the Privy Council in London, but they continued to read Blackstone’s Commentaries and to cite English cases in their courts. Ideas about natural law and rights had come together with the practices and principles of the English common law to form the basis for what was to develop into one of the dominant legal systems of the modern world.

And as trade spread around the world, so did laws:

It all began just months after Christopher Columbus’s voyage to America in 1492. At the request of the Spanish monarchs, Pope Alexander VI issued a papal bull in which he granted them ‘dominium’ over all territories in the Western Hemisphere. King Ferdinand and Queen Isabella had recently ‘reconquered’ Granada, the last enclave in Spain held by the Nasrid emirs, and their combined kingdoms enjoyed unsurpassable military strength. Now they lost little time in despatching armies across the Atlantic. Their conquistadors confronted the Aztec Empire in Mexico, followed by the Maya, before moving south to Peru, gradually defeating armies, deposing rulers, and destroying cities. The Spanish conquests were the first in a series of colonial ventures that eventually exported European forms of law throughout the world … During the twentieth century, these ideas became so dominant that new states and postcolonial regimes around the world turned to European models of law. Even those that had not been colonized chose the French Code Civil as the basis for new legal systems, which they hoped would allow them to participate more readily in the new economic and commercial order. Postcolonial states in Latin America had already adopted European models. Brazil’s laws were largely derived from the Portuguese, and these, in turn, influenced Argentina. Meanwhile, the Chilean Civil Code of 1855 was based on the Napoleonic code and the Spanish Siete Partidas, along with elements of canon law. Japan’s nineteenth-century Meiji constitution was based on a German (Prussian) model, and Thailand’s constitutional monarchy, established in 1932, replaced laws derived from the Hindu Dharmashastras with codes based on civil law principles. Similar developments took place in the countries that emerged from the quasi-colonial protectorates of the Middle East which had been established after the fall of the Ottoman Empire in the early twentieth century. Even China, which resolutely followed its own path under Mao, eventually adopted legal forms and practices that essentially followed European forms. As China developed its economy and engaged in international commerce in the late twentieth century, its leaders found they needed laws that international partners could understand. The longest lasting of the ancient legal systems had finally given way to a European model … Europeans felt they needed to justify their activities, and they did so by making claims about the transformations their laws would bring about: efficient administration, private property regimes, individual rights, and the rule of law. It was a promise of civilization. Rulers of the states that later gained their independence, and even those that had never been colonized, eventually came to accept this model of law, turning their backs on centuries of sophisticated legal scholarship and the dynamics by which their own predecessors had maintained order. By the late twentieth century, most had adopted European models and taken their seats at the United Nations.

As Pirie concludes:

Law is a deceptively simple means of ordering the world. It makes explicit the general rules we use to describe how our societies ought to be and those that lie behind our judges’ decisions. This is all the ancient Mesopotamian kings and the earliest Chinese lawmakers were doing when they inscribed rules onto clay tablets and wrote out lists of punishments on long bamboo strips. Their laws were thoroughly unspectacular statements. But, once spelled out and held up for all to see, they made possible a new way to order their societies. Pragmatic statements about compensation, punishment, and duties promised a fairer social order, illustrated the ways in which judges ought to decide cases, spelled out the rulemaking powers of kings, and directed officials on how they should mete out punishments. By making rules explicit, the authors turned their words into laws, and law itself became a social force. Rulers turn to laws because they put people and things, along with their activities, into categories and classes and specify relations between them, enabling more extensive and more effective government. They use laws to define what counts as a crime and an appropriate punishment; they specify how property may be sold, leased, and inherited; they define the conditions for a binding contract or a valid marriage; they confirm social hierarchies, specify who belongs or not, and spell out the unequal rights and duties of those in different classes. Laws, in this way, support regimes of discipline, hierarchy, and centralized control. The simple technique of writing out general rules using abstract categories creates conceptual order, and this order can be a powerful symbol of justice. Promulgating laws is a means to make these goals explicit, to spell out the ways in which they will manage resources, suppress crime, and redistribute wealth—or accomplish whatever currently exercises the public imagination. Laws do not possess any inherent power for good or for evil. Over history, many legal projects have been thoroughly cynical and manipulative. The Germanic kings were trying to acquire the power and status of Roman emperors; Hammurabi was a ruthless warlord who wanted to bequeath a benign image for posterity; lawmaking priests and their institutions often amassed power and resources for their own benefit; authoritarian leaders regularly cite the law to legitimate their actions; and contemporary governments try to convince us that they are more in control of a crisis than they really are. A vision of civilization, competence, and human rights may be a screen for ambition and greed, or simply power … [But] law can be both an instrument of power and a means of resisting it. Heavy-handed rulers may be able to bend law to their will, use it to control and oppress, and justify what they do. But most find that their laws can eventually be turned back against them by anyone who can cite a rule and demonstrate that it has been broken, as long as they can gain access to legal structures and procedures and be heard. Rules can be quoted against the actions of those who would flout them. Dictators may tear up the rulebook, but they cannot do it unnoticed. Obscurity, imprecision, and secrecy are the tools of the autocrat, the mafia boss, and the despot … The rule of law has a long history. It is an achievement of the past four thousand years. But that is a short time in the history of humankind. It has emerged time and again to confront and challenge those who wield power, but it is neither inevitable nor invulnerable. It is also ours to lose.

In the next essay in this series, we’ll explore the best means by which laws are interpreted in a democracy.