Why Is There Law?

Skeptic: Why do we need laws? Can’t we all just get along?

Fernanda Pirie: That assumes we need laws to resolve our disputes. The fact is, there are plenty of societies that do perfectly well without formal laws, and that’s one of the questions I explore in my work: Who makes the law, and why? Not all sophisticated societies have created formal laws. For instance, the ancient Egyptians managed quite well without them. The Maya and the Aztec, as far as we can tell, had no formal laws. Plenty of much smaller communities and groups also functioned perfectly well without them. So, using law to address disputes is just one particular social approach. I don’t think it’s a matter of simply getting along; I do believe it’s inevitable that people will come into conflict, but there are many ways to resolve it. Law is just one of those methods.

Skeptic: Let’s talk about power and law. Are laws written and then an authority is needed to enforce them, which creates hierarchy in society? Or does hierarchy develop for some other reason, and then law follows to deal with that particular structure?

FP: I wouldn’t say there’s always a single direction of development.

In ancient India, for example, a hierarchy gradually developed over several thousand years during the first millennium BCE, with priests—eventually the Brahmins—and the king at the top. This evolved into the caste system we know today. The laws came later in that process. Legal texts, written by the Brahmins, outlined rules that everyone—including kings—had to follow.

Skeptic: So, the idea of writing laws down or literally chiseling them in stone is to create something tangible to refer to.. Not just, “Hey, don’t you remember, I said six months ago you shouldn’t do that?” Instead, it’s formalized, and everyone has a copy. We all know what it is, so you can hold people morally accountable for their actions.

FP: Exactly. That distinction makes a big difference. Every society has customs and norms; they often have elders or other sources of authority, who serve as experts in maintaining their traditions. But when it’s just a matter of, “This is what we’ve always done—don’t you remember?” some people can conveniently forget. Once something is written down, though, it gains authority. You can refer to the exact words, which opens up different possibilities for exercising power.

“Look, these are the laws—everyone must know and follow them.” But it equally creates opportunities for holding people accountable.

Skeptic: So it’s a matter of “If you break the law, then these are the consequences.” It’s almost like a logic problem—if P, then Q. There’s an internal logic to it, a causal reasoning where B follows A, so we assume A causes B. Is something like that going on, cognitively?

FP: Well, that cause-and-effect form is a feature of many legal systems, but not all of them. It’s very prominent in the Mesopotamian tradition, which influenced both Jewish law and Islamic law, and eventually Roman law—the legal systems that dominate the world today. It’s associated with the specification of rights—if someone does this, they are entitled to that kind of compensation, or this must follow from that. But the laws that developed in China and India were quite different. The Chinese had a more top-down, punitive system, focused on discipline and punishment. It was still an “if-then” system, but more about, “If you do this wrong, you shall be punished.” It was very centralized and controlling. In Hindu India, the laws were more about individual duty: this is what you ought to do to be a good Hindu. If you’re a king, you should resolve disputes in a particular way. The distinctions between these systems aren’t always sharp, but the casuistic form is indeed a particular feature of certain legal traditions.