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1 The lawful and the just

1 The lawful and the just

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122 LAW AS MEASURE



respected for both their sound judgment and their knowledge of custom. Schacht

(1964:7–11) gives the instance of the role of the hakam in Arabic society in preIslamic and early Islamic times.

Tension might arise between a dominant social class (such as the patricians in

Rome, exclusively the source of members of the college of pontiffs) that reserved

for itself the right to make such authoritative pronouncements and the rest of the

community, especially if the latter suspected that group memory was being

manipulated in the interests of the dominant class. Law and concrete morality start

to part company at this stage (see Section 2.4). What gives people the idea that what

is ‘lawful’ in the sense of an authoritative pronouncement is not ‘lawful’ in the

sense of valid custom is memory (or hearsay) of how things used to be done, a

memory that is usually shaped by a shared understanding of how things are

supposed to be done.

There is commonly a vocabulary, similar in force and function to the English

words ‘just’ and ‘unjust,’ that gives expression to that understanding and allows

contrasts to be drawn between the quality of social arrangements that do obtain

and those that it is felt should obtain. In ancient Greece, closely corresponding

terms were dik and adikia. In Arabic (and hence throughout the Islamic world),

adl contrasts with jwar, and each has multiple near synonyms expressing

different shades of meaning (Khadduri 1985:6). Native Hawaiians apply the term

pono to appropriate conduct and relations between people in general and

pono ole to what was not (Pukui et al. 1972: Vol. 1, 60–78). In ancient Rome,

the term ius (iuris) expressed what it was for matters to be as they should

between households or private individuals, and iniuria was something contrary to

that state of affairs.

As legal systems develop, this vocabulary often expresses what the law is (at

least in intent) as well as what it should be. In urbanized Rome of later centuries,

for example, the iura prœdiolum (laws of small holdings) governed relationships

between people living in dense housing in cities or villages A jurist of the second

century CE wrote of

the ius of building houses higher and obstructing the light of neighboring

houses, or not doing so, because it obstructs their light; the ius of streams

and gutters, that is, of a neighbor taking a stream or gutter overflow

through his yard or house; and the ius of admitting into one’s property

someone else’s drains.

(translated from the Institutes of Gaius in Tuck (1979:9))

In most cases, there was no ‘law’ in the sense of statutes governing any of these

arrangements; what was right (ius) and wrong (iniuria) for neighbor to inflict on

neighbor was preserved in the memories and memoranda of legal specialists

known as jurists.

Traditions in Rome and historical evidence in Athens indicate that tensions

over what was ‘lawful’ in the sense of authoritative declaration and what was



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‘lawful’ in the sense of ‘just’ gave rise to pressure to have a public written record

of the law in order to ensure stability. In Rome the outcome was the ‘Twelve

Tables’ (mid-fifth century BCE), but in allowing this much codification, the

patricians conceded relatively little. The Twelve Tables provided a code that was

by no means comprehensive, presupposing rather than formulating Roman

institutions such as the legal powers of a father (paterfamilias) over his family,

and many of its ‘rules’ were little more than concrete paradigms (to kill a person

caught thieving on one’s property at night is lawful) or ways of settling doubtful

points of procedure (such as that following failure to respond to a summons) (Stein

1966:7–8). The vast bulk of Roman private law and legal procedure remained

unwritten, or at least unpublished, and controlled by jurists, who remained until

late in the republican period priests of the college of pontiffs. Even when the role

was secularized, it was filled almost exclusively by members of the patrician

class. These individuals were private citizens in the sense of holding no public

office but were consulted at all stages of litigation, and their authoritative

pronouncements on interpretation of the Twelve Tables, on procedure and on

precedent had far more influence over the outcome of cases than any action by a

magistrate (ibid.).

When the law is declared, the community as a whole or its senior members

(elders, sometimes of both sexes, sometimes all adult males) might, depending

on the authority structure of a society, be asked to acknowledge a public

declaration as authoritative. In Rome, the power to formulate leges was jealously

guarded by members of the patrician class, who formed the senate, but once

formulated leges were put to (‘asked of) the populus (adult males with sufficient

property to have the right to bear arms; Weber 1978:772) and if accepted the

result was a lex rogata (‘law that has been asked’). This procedure was not, at

least in its initial stages, thought of as legislation in our understanding of the term,

i.e. as ‘law making’; rather it was law finding, determining what the law

(custom) already was and had always been (Stein 1966:24).2

To understand the force of the word lex (plural: leges) and its relation to ius,

both of which, like the German words Gesetz and Recht (see Section 2.1), may in

some contexts be translated as ‘law,’ it is important not to overestimate the

importance of written texts. Stein (ibid.: 9–10) mounts a convincing case for

rejecting the etymology offered by St Thomas Aquinas in the quotation at the

head of this chapter and for accepting instead that the root of lex is the verb

legere, meaning to read (out loud) or to declare, and he argues that public

declaration is at the heart of the Roman concept of lex:

The characteristic feature of lex as a form of ius was not only that it

formulated the ius into a rule but also that it authoritatively declared that

formulation to the public. A statement by a private person of what he

conceived to be ius was liable to be questioned. In a lex the whole group

have committed themselves to a definite statement of ius, which can no



124 LAW AS MEASURE



longer be challenged. It has passed out of the exclusive possession of a

particular group.

(ibid.: 13)

What is or is not ius is an objective state of affairs, about which individuals may

make mistakes, but a publicly agreed formulation is authoritative.

A public declaration, written or otherwise, of what is deemed to be correct

conduct or procedure (positive law) has the utility and the drawbacks of a rough

and ready measuring device adopted by a crew on a building site. At least there

is a common standard with which to work, and for some purposes (having a

stable unit of length in terms of which to express relations between various

dimensions of the intended project) this is good enough. For other purposes,

shortcomings in the standard (e.g. of straightness) may interfere with achieving a

common purpose and have to be rectified. Normally, however, such a standard is

not open to the suspicion that some members of the crew have fixed it to their

advantage.

Statements of the law are likewise human artifacts and can be recognized as

such by people whether they believe such statements represent discoveries (law

finding) or decisions (law making). For some purposes, it is enough that people all

do something in a similar fashion (e.g. all drive on the same side of the road,

whether left or right); in some cases, it would seem that departure from a norm

should not be acceptable, even if everyone departs in the same way (e.g.

awarding contracts to the highest briber instead of the lowest bidder). What is the

status of the concepts like ‘just’ or ‘ius’ or ‘ adl’ that are used to point out

shortcomings in the prevailing legal standards (in positive law)? Are they, like

fashion or etiquette, a sense of what things should be like that simply happens to

be shared by most members of a community? Or are they, like ‘circular’ and

‘right-angled,’ concepts that transcend culture? And even if they do transcend

culture, are people required to live by them; or could a society dispense with

them, as it might dispense with ‘circular’ and ‘right-angled,’ if it had no use for

round wheels and square corners?

Authoritative pronouncements about what is binding custom are (end of

Section 4.4) a species of measures of right. Conduct that conforms to the

pronouncements is right; conduct that does not conform is, relative to the

pronouncements, wrong. But such pronouncements may in turn be assessed

relative to local variants of similar concepts that are found in a variety of cultures

and the pronouncements found wanting. What sort of measure are people

reaching for? The evaluative concepts commonly assess both conduct and

character; there are just and unjust people, as there is just and unjust conduct. Is

the related ‘measure of virtue’ what is involved here?

It may be that when people reject an authoritative pronouncement as ‘unjust,’

they are appealing to what a person with an exemplary character would have said

or done. As we will see in the next section, more emphasis is traditionally placed

on the characters of judges in Islamic legal thinking than on procedure, and in



LAW AS MEASURE 125



the end reliance on the ‘measure of virtue’ may be unavoidable, but if we are to

clarify the basis for criticizing authoritative pronouncements, something needs to

be said about what just and fair-minded judges and legislators can be expected to

do and not do. Perhaps judges and legislators can be expected to look out for the

common good or the public interest, apply a ‘measure of the good,’ and if they

are manifestly not doing so, their pronouncements can be criticized.

Both Christian and Islamic thinkers took human pronouncements of what is

lawful to be assessed in terms of how well they served the end of promoting true

religion and general welfare. St Thomas Aquinas (thirteenth century) endorsed

the view of St Isidore of Seville (early seventh century) that the law should foster

religion, be helpful to discipline and further the common weal (IaIIæ Q95 A3).

Islamic jurists, according to Khadduri (1984:135–41), took the point of law to

be, besides that of indicating the path (sh ri a, also the word for Islamic law) to

God’s justice, that of promoting public welfare and protecting public interest,

and the development of good character. However, secular legal thinkers not only

exclude any goals or values based on religious belief but are also nowadays

reluctant to appeal to conceptions of the common good on the grounds that in

complex societies these are not sufficiently widely shared, are open to

fundamental disputes and belong in the arena of politics rather than the

institutions of justice.

Another possibility is that authoritative pronouncements of law are to be

assessed by a further ‘measure of right,’ one internal to the concept of law. Some

developments in legal institutions seem to appeal to what feels right to our

rational capacities, based on the formal (but nevertheless aesthetic) principles of

consistency, balance and reciprocity (see Section 3.4). Is this perhaps the source

of the measure that is indicated by the words ‘just’ and ‘unjust’? This suggestion

is reinforced by the close association of words like ‘just’ with words like ‘equal’

as well as the familiar Western icon for justice, the balance scale. The Arabic

adl includes the meanings ‘equal,’ ‘equivalent,’ ‘equalize,’ ‘balance’ and

‘counterbalance,’ along with ‘straightening’ and ‘correcting,’ (ibid.: 6). Ỉquus in

Latin includes the meanings ‘level,’ ‘equal,’ ‘fair’ and ‘just’; iniuria (an

injustice) has iniquitas (meaning ‘unequal’—root of the English word ‘iniquity’)

as a near synonym. In trying to identify the trait of character indicated by the

broad sense of the word ‘justice’ (dikaiosun in Greek), Aristotle remarks:

both the lawless (paranomos) man and the grasping (pleonek s) and

unequal (anisos) man are thought to be unjust (adikos), so that evidently

both the law-abiding (nomimos) and the equal (isos) man will be just

(dikaios). The just, then, is the lawful and the equal, the unjust the

unlawful and the unequal.

(1129a34–b1)



126 LAW AS MEASURE



Just retaliation (the lex talionis; see Section 3.4) is achieved when harm done to

one party is balanced equally by harm done in return, even if it would be

preferable to balance harm with some form of compensation.

If the urge to seek balance and reciprocity in human relations is a product of

our capacity for rational thought, might refined uses of those capacities generate

a precise and substantive concept of justice in the way that refined uses of the

same capacities have turned ‘straight,’ ‘right-angled’ and ‘circular’ into

geometric concepts? Aristotle reports that an earlier school of mathematically

oriented philosophers, the Pythagoreans, had defined justice (dikaiosun ) as the

simple form of reciprocity found in the lex talionis (1132b22–23). The appeal of

this simple concept, Aristotle noted, was that many think that a man should

‘suffer what he did’ (1132b26), a principle that he attributed to a Cretan source

(‘the justice of Rhadamanthus’). Aristotle himself thought that this was an

inadequate definition and offered one using the more sophisticated mathematical

concept of proportion (1131a29). This proposal would have appeared to

Aristotle’s contemporaries as the product of a more refined use of reason, for

another meaning of the Greek word logos (discourse, reason) is ‘proportion,’ the

ratio of two numbers, and the Latin word ratio, which gives us our word ‘ratio,’

has a similar range of meanings—it is both the ratio of two numbers and the human

capacity for the kind of thought we call ‘reasoning.’

The reciprocity that sustains social solidarity, Aristotle explains in the Ethics

(1132b30–5), is that on the basis of proportion, not of equality. Proportion

provides the basis of fair exchange (barter or for money), but it not only allows

for proportional compensation instead of strict application of the lex talionis, it

also allows only equals to be treated equally. The proportionality between what

people high in the social hierarchy can demand from those beneath them and

what those beneath can expect by way of reciprocal return is determined (and in

part sustains) differences in rank. The biblical statement of the lex talionis goes

on (Exodus 21: 26–7) to specify that if a man strikes a servant so that the servant

loses an eye or a tooth, the man does not suffer the loss of an eye or tooth but is

required to free the servant. In Rome, the Twelve Tables prescribed half the

compensation for personal injury for a serf as for a freeman (Kunkel 1973:8).

Aiyar (1935:93) compares ancient Hindu law, which fixed compensation for the

life of a member of the warrior class (kshatriya) at a thousand cows, that of a

trader or cattleman (vaishya) at a hundred cows and that of a servant (sudra) at

ten, with laws of the Bretons and Scots, which put a value of a thousand cows on

the life of the king of the Scots, a hundred cows on the son of an earl or thane

and sixteen cows on the life of a peasant (villein). For social unequals, unequal

remedies are prescribed. In a more egalitarian society, this appears to be a

travesty of justice.

What counts as reciprocity, how a balance is to be struck, does not, initially at

least, seem to be something like ‘equal in weight’ that transcends culture. Before

drawing conclusions, however, we need to look more closely at the procedures



LAW AS MEASURE 127



that lead to authoritative pronouncements of what the law in general is or what is

required in disputed cases.

6.2

Procedures, rules and particulars

Oracles and kadis, precedents and statutes

Law begins as binding custom, and an ostensibly authoritative pronouncement of

what such custom requires (in general or on particular occasions) can be

challenged not only by claiming that conforming to the pronouncement would

not result in justice but also on the grounds that it is capricious or self-serving.

Such challenges can be forestalled by procedures that demonstrate the

pronouncement’s connection to what it is supposed to represent, binding custom.

This might be done by attempts to connect directly to sources (gods or founders)

of the tradition, by valid living embodiments of the tradition (people who are

‘true’ in the way wheels are round) or by appeal to (usually written) records of

the tradition.

Weber, whose writings on the sociology of law are a rich repository of details

about a variety of legal traditions, created a classification of legal orders, or ways

in which law is determined, based on four ideal types (1978: 976–7). It did not

matter whether any actual legal system fitted comfortably into one of Weber’s

types; his classification served as a means of identifying the relevant features of

actual systems, which might well have the features of more than one ideal type.

The type that Weber regarded as most primitive was characterized by its use of

procedures, such as oracles and ordeals, to connect directly to the sources

(natural, divine or historical) of its tradition. For example, in a classic

anthropological study from earlier in this century, Evans-Pritchard (1937)

describes the poison oracle of the Azande of Central Africa. These people

produced a substance from a forest creeper with a toxicity that varied in a highly

random way and administered this poison to chickens (and occasionally to

humans) to settle questions. ‘No important venture is undertaken without

authorization of the poison oracle. [It is used] in important collective

undertakings, in all crises of life, in all serious legal disputes, in all matters

strongly affecting individual welfare’ (ibid.: 261). Ancient Romans studied the

behavior of birds (auspices) and the entrails of sacrificial animals (harupices) in

a similar spirit. Stein (1966:4) suggests that the etymology of ius (iuris) derives

from the oaths sworn by parties on such occasions—iurare is to swear an oath—

both to ensure by invocation and to bear solemn witness to the fact that the

outcome would represent the will of the gods.

Such procedures appear superstitious, although if we subtract the background

belief that the outcome reflects the will of the ‘powers that be,’ a random device

such as tossing a coin or drawing straws is, in circumstances where competing

claims are agreed to have equal weight, accepted as a fair or just way to resolve

an issue. But where there is no agreement that competing claims have equal



128 LAW AS MEASURE



weight, the parties have to believe that somehow the oracle or ordeal determines

the relative merits of their claims. The parties involved, it should be noted, would

see only that ‘the powers that be’ favored one side over the other, not the reason

why, and the procedure is thus not ‘rational.’ If either a judge or a jury in our

courts were to look at an individual case and pronounce a verdict without having

reasons that relate the verdict to other cases or general principles, they would

function in much the same way as an oracle, and where the verdict in court is the

outcome of emotional appeals on behalf of plaintiff and defendant, the outcome

has much the same standing as that of a trial by ordeal.

A similar observation applies to the second of Weber’s four types. Here,

instead of rituals designed to communicate directly with the sources of tradition,

certain individuals, such as the elders of the tribe or the old Arabic hakam (see

Section 6.1), are consulted because they are regarded as living embodiments of

the tradition and the qualities (e.g. of justice) that it is taken to sustain. But for

their accumulated experience, a pronouncement from them in the absence of any

reasoning in support of it would be little better than a oracle. However, if these

specialists are believed to have acquired, through a long education or process of

self-cultivation, a stable disposition imbued with the traditions of their culture,

the result might not qualify as ‘rational,’ but it would certainly not be rank

superstition to believe that the outcome accurately reflects tradition.

Weber (1978:976) applied the term ‘Kadi-justice’ to this type of adjudication.

The term derives from the title of an early Islamic magistrate, a q d , established

by the Umayyads (seventh-eighth centuries CE) to perform the role traditionally

filled by the hakam—in effect bringing a hitherto private institution under

government control (Schacht 1966:24–5). That a kadi speaks from an

extraordinary accumulation of history, tradition and taste (see Section 4.2)—in

this case better characterized as the accumulation of scripture (the Qur n and

had th), Islamic law (sh ri a) and personal piety—is what distinguishes his

pronouncements from a charismatic source in the strict sense of a ‘direct line to

god.’3

If, instead of simply pronouncing a verdict or recommendation, legal experts

cite identifiable concrete precedents as reasons for their decisions or draw

analogies between previous cases and those before them, Weber (1978:976)

called this ‘empirical justice.’ Actual q d s did engage in this form of reasoning

to support their adjudications, although a great deal more emphasis was placed

on a q d ’s reputation for being a just judge (q d adl) than on the process by

which the decision was reached (Khadduri 1984: 145). If records of precedents

are carefully kept and systematically used, the practice of empirical justice could

be, Weber said, ‘sublimated and rationalized into a “technique”’ (ibid.). This

technique forms an important part of any sophisticated legal institution, and its

mastery (both of the body of precedent and how to use it) is a key constituent of

the education of legal professionals.

Although actual q d s did practice ‘empirical justice,’ the practice does not

necessarily presuppose or build on ‘Kadi-justice.’ In Weber’s ideal typography,



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