Law as Declarative Performance

I recently became aware of a single pattern in two different and separated historical periods.

Patrick Wormald's The Making of English Law makes a careful argument, based on detailed consideration of all of the surviving codes of law up to the edge of the reign of Henry I as well as surviving records of actual law cases, that the various codes, although both proclaimed and accepted widely, played almost no role in the actual settlement of cases. They seem to have been important primarily as a way of asserting the identity, or the continuation of identity, of a people. The same is true in northern France and the areas of Germanic law generally; only in areas still governed by Roman Law was there a continuation of the relation between published legal codes and actual practice.

Law-giving was part of the template of what a king was like, not only based on Germanic inheritance (represented by the Laws of Ine) but also on the scriptural record associating the king with the dispensation of justice. It allowed the modern king to emulate not just ancient kings, but also God himself.

This fits nicely into arguments like that of Bisson's The Crisis of the Twelfth Century, that there was a fundamental shift towards order from quasi-anarchy at just this time: there is a shift towards legislation having a practical effect (though by no means complete: Magna Carts has much of the same declarative character).

What caught my eye though, a little more recently, was a passage pointing out that the so-called law codes of the ancient near East, of which the Code of Hammurapi is the best known, were not what we think of as law codes at all. "Being stylized collections of typical cases, there is no question that these 'codes' were ever intended to be comprehensive in their scope or sufficiently precise in their formulations. The literary and non-legislative character of these collections is further indicated by the fact that neither the Laws of Hammurapi not the other legal corpora are cited as precedents in the many legal tickets and protocols which have been preserved..." (Fishbane, Biblical Interpretation in Ancient Israel).

So the same pattern appears in Germanic Europe of the late first millenium and the laws of the near East in the first and second millennia B.C.E. The period between, that of the Greeks and the Romans, of Solon and Aristotle and Cicero and the Ten Tables, was a period of what we would recognize as rule of legislated law, culminating in the Code of Justinian and continuing in the Mediterranean basin throughout. (Though late Roman jurisprudence in the East reverts to the precedence of the immediate imperial decree over any written precedents; there is none of Bracton's "The King is under the law because it is the law which makes him a king".)

But this sort of law, law which lawyers would recognize as opposed to "palm-tree justice", is clearly a learned thing, and learned with difficulty. What most people want in most cases is decisions which make them feel good at an immediate gut level, independent of and frequently at odds with more general concerns. This shows up most obviously in criminal and tort law, which correspond broadly to the domains of both sets of codes: you can see it in media reports. In criminal law this tends to take the form of overweighing victim impact statements above the other principles of sentencing (most notably rehabilitation); in tort law, of wanting large settlements where plaintiffs are seriously impacted but where there is little to no evidence of negligence.

At this level, legislation is effectively a form of declarative performance. At its extreme in modern societies, it's statutes declaring something illegal with no mechanism of enforcement, or which enables actions which will have little effect beyond the symbolic (consider Trump's wall). In the ancient world it was legislation as a form of explicit tradition, a way of defining who a given people was - not necessarily by designating boundaries in the way notable in the Hebrew Torah (no mixing fibers, no meat from cloven hooved animals which do not chew the cud, no shellfish) but by asserting a link to an earlier foundational figure. (In the case of the originating figure, Hammurapi or Ine, the agenda is more one of memorializing a reputation as a just judge by recording decisions associated with the ruler.)