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The Origins of Law

By Abel Merawi

Origins-of-LawFebruary 26, 2020 (Ezega.com) – Conflict is part of human interaction and the arguments to resolve it can take various forms. Conflict that begins at the individual level expands into group. In our attempt to find solutions we claim that it is according to or against the law. The law has become synonymous and equivalent to justice. Upon close scrutiny, we begin to discover that our sense of justice finds its origin in the law. This takes away the objective element of justice since the law is a product of various human assumptions that vary across space and time.

In the course of history, various laws were formed in different societies. Though there are some similarities, the laws of each society are different in many aspects for they reflect the unique physical and social realities of each society. Nevertheless, there are similarities of pattern or approach in the formulation or acceptance of laws between societies, which can be classified into three: from nature or divine power; from conscious construction of human beings; and from the spontaneous order of society. These classifications represent approaches to law rather than specific laws. It should be noted that our laws stem from the assumption we have about the place or position of humans on earth and the proper interaction between them.

The oldest approach of human beings towards laws is related to nature and divine power. The society we are currently part of has gone through various changes. It is said to have developed from small tribes formed through kinship. Since there is a close relationship amongst tribe members, having a common goal of life was possible. In such formation, the laws were not formulated to guide individuals but the tribe as a whole. The action of members is considered to be just or lawful if it contributes to the common goal. Property laws were also considered collectively since the land and any other possession was supposed to be shared collectively. As the tribe expands, the link between the growing members of the tribe is strengthened by the belief in ancestral spirits and other shared beliefs. Francis Fukuyama in ‘The Origin of Political Order’ states, “Ritual in turn helps to delineate communities, marking their boundaries and distinguishing them from one another.”

The constant struggle of human beings with nature for survival leads to an interpretation of the world. The lack of understanding about nature makes us superstitious, which leads to the formation of beliefs. In the tribe, disease or drought is likely to be interpreted as a punishment from nature or ancestral spirits. Thus, the members begin to develop moral codes to please the divine powers, which lead to rituals and finally religions. The law will then reflect not the will of the people but the assumed will of the ancestral spirits. Accordingly, the tribal leaders will formulate laws in accordance with their interpretation of nature and divine powers. As the tribe merges with other tribes peacefully through marriage or violently through wars, the rules of the dominant tribe become the law. When we fast forward and examine the laws of kingdoms, we see that the laws reflect the same tribal assumption held about nature and divine spirits.

In order for a king to rule vast empires, laws are necessary. The assumption of the ruling class about nature and gods leads to the formation of laws. For instance, the Babylonian king Hammurabi in mid-1700 BC codified the laws of Sumer and Mesopotamia by claiming that the god named Anu has sent laws for the people. The same is true of Ethiopian kings who claimed kinship to King Solomon and ruled the people as chosen by God. The laws were taken to be divine and opposing them was equivalent to opposing God. In most countries, the end of monarchy marked the beginning of socialism and other totalitarian governments that constructed laws of their own.

When tribes and kingdoms became the thing of the past, human beings also began to take matters of legislation into their own hands. The process of lawmaking through human intellect is broadly represented by constructivist theory. Laws were considered as human constructions based on how powerful rulers and intellectuals viewed the nature of humans beings. The various forms of totalitarianism, especially socialism, and ‘The Social Contract’ theory of Jean Jacques Rousseau can be prime examples. The hubris of intellectuals is mostly expressed in lawmaking because it implies a complete understanding of nature and society. This is dangerous since it relies on knowledge of the world, which nobody possesses. For instance, socialists assume that material equality is the highest goal of life and makes laws to attain it by any means necessary. Rousseau also assumed that society began with a conscious agreement between every member of society that led to the formulation of laws. Socialism is wrong because the laws focused on end results by forgetting the means, and the assumed social contract was wrong because it is imaginary. Francis Fukuyama shows the problem of such an approach by stating, “Putting the theory after the history constitutes what I regard as the correct approach to analysis: theories ought to be inferred from facts, and not the other way around.” Laws originating in this manner lead to totalitarianism since they violate individual rights while forcing nature to conform to theory.

The gradual progress of society has presently given birth to a third approach to law. This is a promising and successful approach that relies on the spontaneous order of society, becoming the foundation of liberal democracy. Up until the present, this is the best option because it respects human rights. With a promise to return to the broad topic of spontaneous order and liberal democracy in the future, only the fundamental principles are discussed here. Simply put, the spontaneous order of society admits human ignorance and views society as an evolutionary process. F.A. Hayek in his book ‘Law, Legislation and Liberty’ explains, “This structure of human activities constantly adapts itself, and functions through adapting itself, to millions of facts which in their entirety are not known to anybody.” Laws are thus the manifestation of human interaction refined through centuries. For this reason, the legislator only states abstract laws that maintain the existing societal order. This is carried out by stating the rules of the game for everyone to follow instead of end results.

The laws that function well in a tribe may be a threat to the nation and vice versa. The feeling of responsibility for every member of the tribe is necessary since it operates as a family. But if such feeling is allowed in a nation, it can only lead to segregation and favoritism based on ethnicity. Currently in Ethiopia, people are showing strong sentiment to their specific ethnic and religious group. This is a danger to the nation because we cannot act like a tribe and live as a nation. Francis Fukuyama explains, “Once states come into being, kinship becomes an obstacle to political development since it threatens to return political relationships to the small-scale, personal ties of tribal societies.”

Thus, a nation could only function properly when the law is designed to respect the individual rights of citizens. F.A. Hayek argues, “The most important of the public goods for which government is required is thus not the direct satisfaction of any particular needs, but the securing of conditions in which the individuals and smaller groups will have favorable opportunities of mutually providing for their respective needs.” Tribal laws favor groups and totalitarians violate individual rights. Finally, the law can truly represent justice in a spontaneous order realized through liberal democracy, which treats every citizen equally.

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Abel Merawi is Addis Ababa-based contributor for Ezega.com. He can be reached through this form.

Other articles by Abel Merawi:

Determinants of Market Value: Part II

Determinants of Market Value: Part I

Your life Matters Too

Manifestations of Artistic Expression

Achievements vs Natural Accidents

The Grip of Sacrifice

Injustice is Never Justifiable

Education Demands of the Future

Job Security, Life and the Unpredictable Future

The Shift From Racism to Culturism

Sacrificing Meaning for Power?

Culture and Market Forces

Intersubjective Reality

Seeking Cosmic Justice

National Myths: Makers and Destroyers of Nations

Are We Truly Free?

Maturity: The Prerequisite to Freedom and Democracy

Loyalty to Truth, Not to Group

The Value of Work

The Flaws with Ethiopian Political System

Intellectuals and the People

Where Are Our Pathfinders?

The Allegory of the Cave and Its Lessons to Leaders

The Truth Behind Humanity

The Seven Virtues

The Seven Deadly Sins

What is the right thing to do?

Building National Identity

Adey Abeba and the Spirit of Change

Mob Violence

Living the Truth as a Human Being

Hubris - The Tragedy of Not Learning from Others

The Era of Group Mentality: Us vs Them

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