‘The Rule of Laws’ Review: Codes of Conduct - The Wall Street Journal

An old story: A traveler arrives at a roadside inn late at night and asks for a room. Sorry, the innkeeper says, but the inn is full. The traveler protests that it’s bitterly cold outside. That may be, the innkeeper replies, but safety rules prohibit the inn from going over capacity. The traveler thinks a minute and then asks a question. What if the Queen of England were to walk through the door this minute hoping to stay overnight—wouldn’t the innkeeper find a room for her? Of course, the innkeeper concedes, he would rustle up something under those circumstances. “Well I’ve got news for you,” the traveler says. “The Queen of England isn’t going to walk through the door. So why not give me the room you would have given her?”

In Fernanda Pirie’s “The Rule of Laws,” we see much the same conversation played out not within a few minutes but over four millennia. The law’s relationship to rules; its flexibility in applying them; the debates that codified law inspires; the potential, amid conflict, for compromise or accommodation: Such matters have been evident since the first stirrings of the rule of law at the dawn of civilization.

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The Rule of Laws: A 4,000-Year Quest to Order the World

By Fernanda Pirie

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576 pages

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Early monarchs in Mesopotamia, China and India learned that when law took the form of written words, it would more readily last over time. And when it took the form of general rules, as opposed to narrow proscriptions, it would more easily extend over space. During the ensuing centuries, Ms. Pirie recounts, explorers spread the rule of law to far-flung locales, empires imposed their own version of it on colonies, nations used it to entrench their sovereignty, and diplomats employed it for negotiating international conventions. Written rules, Ms. Pirie shows, can be complex or simple; enforced strictly or allowed to play out in a state of deliberate ambiguity; grounded in custom or religion or Enlightenment principle. Whatever the case—and however imperfectly—the rule of law acts as a bulwark against arbitrary power.

In the course of her survey, Ms. Pirie, a professor of legal anthropology at Oxford, takes us on many an intriguing legal byway. We learn why the laws of kasthruth in ancient Israel permitted the eating of certain kinds of locusts but not others. (Locusts that hop are permissible because they resemble edible animals; locusts that swarm are not.) And we wistfully wonder why we no longer enjoy the “lovedays” of Henry I’s England, when people would resolve their legal disputes by making public declarations of mutual affection.

If Ms. Pirie’s exceptionally rich narrative has a central theme, it centers on a question faced by all societies that have adopted the rule of law: What is the relationship between legal rules and moral values? Over time, Ms. Pirie shows, we find competing answers.

We encounter a Chinese emperor who claimed that his edicts had succeeded in capturing “universal and unchanging moral principles.” And we meet European scholars who believed that they had discovered a “natural law” whose rules embody all of morality. But we also find in Ms. Pirie’s pages those who, like the traveler in the roadside-inn story, deem rules ill-equipped to give full voice to the moral complexities of individual cases. (Is it really morally right to send him out into the cold?). Early Islamic qadis insisted on showing “discretion and judgement” in applying Quranic rules. The 17th-century jurist Matthew Hale likewise worried that “the particulars” of cases “are so many” that they defy any “exact logical method” of resolution.

These two positions—that rules embodying strict moral principles generate right outcomes and that, on the contrary, rules may need suspending to arrive at a moral resolution—do battle to this day. But they are bookended by two others in Ms. Pirie’s account. We must sometimes neglect morality if we want to maintain reliable rules. And as long as the rules are not interpreted rigidly, and morality is not understood strictly, rules and morality can cohere.

Think of the innkeeper, who acknowledges that if the queen showed up he would change the rule. This position might seem morally questionable. But if every rule had to be morally justified to attain the status of law, there would be precious little law—so observed figures such as the Chinese minister Shang Yang and the English philosopher Thomas Hobbes. After all, most societies are arenas of vocal disagreement. To claim that any given law advances morality risks affronting those who differ from it. All we can ask is that the law provide pragmatic rules for living together with no pretense that it always bespeaks moral values.

But there is more to consider. Whatever a rule purports to say, to be a valid law it must express the agreed-upon moral principles that all systems of law must embrace, among them impartiality, fairness and equal application. If the queen would get a room, so should the traveler. Many of the figures in Ms. Pirie’s book, among them contemporary human-rights lawyers, have similarly pressed for their own laws to be read expansively so as to advance broader moral values. But as she notes, rules that are interpreted beyond their constrained literal wording can be unpredictable in their effect.

In documenting these views as they have played out over time, Ms. Pirie reveals something important. Each position checks harmful tendencies in the others: the harshness that descends when the law comprises fixed rules that enshrine uncompromising morality; the messiness that arises when the law moves away from rules; the unjustifiability that emerges when it moves away from morality; the imprecision than can result when both “rule” and “morality” are flexibly interpreted. This debate is unlikely ever to be resolved in favor of one of the perspectives. Nor should it be.

So let’s imagine, in the end, that the traveler kept the innkeeper arguing with him through the wee small hours. And then in the morning, having achieved his purpose of passing the night sheltered from the storm, he went on his way.

—Mr. Stark is the author of “The Consolations of Mortality: Making Sense of Death.”

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source: https://www.wsj.com/articles/the-rule-of-laws-review-legal-history-rights-codes-of-conduct-11639757646

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