Laws and the Rule of Law

By Anjum Altaf

What have we learned from our discussion of the laws of inheritance?

First, that laws pertaining to the same issue can differ across societies and over time.

Second, that laws need not be divinely ordained and fixed for all times and places. The law of primogeniture was introduced in England in 1066 after the Norman invasion because the Norman knights who were awarded land grants did not wish their estates to be diluted by divisions.

Third, laws can have negative and positive effects. The law of primogeniture was unfair because it deprived all heirs except the eldest son from a share in the wealth of the father.However, by removing all uncertainty from the issue of political succession, it provided a lot of stability in society. This was in marked contrast to the fratricidal conflicts that plagued succession in the Mughal Empire.

Fourth, these positive and negative consequences of laws were well understood and thoroughly debated in society. We read the discussion of the law of primogeniture by the English philosopher David Hume (1711-1776). [See here how Hume was affected personally by this law.]

Fifth, we learnt from Sleeman’s account of India that educated people in society were well-read and aware of these intellectual discussions. They not only understood the rationale for the laws in their society but could compare them with the laws that regulated the same subject in other societies. This is the hallmark of the scientific approach to understanding society and its organization which is a pre-requisite for making efficient choices that can improve social welfare.

Sixth, we learnt that the same law can be optimal in one place and suboptimal in another. Thus the Islamic law of equal division of property worked well in Arabia where the main form of property was a divisible and reproductive asset (animals) but less well in India where the main form of property was non-reproductive (land). I was introduced to this idea by Dr. Mekhri.

Although this was not mentioned in the earlier posts, the history of the law of inheritance in America is of great interest. America was colonized largely by disinherited offspring of British aristocracy who had to fend for themselves because of primogeniture. They brought the same law with them to America where it remained in force for a time. However, after much debate and discussion it was repealed. A major reason was that the number of colonists was small and land was not scarce; anybody could move West and stake a claim to new land if they so desired. This reiterates the importance of context in understanding the evolution of laws.

Seventh, the same law can lose its importance or rationale over time. Primogeniture had major economic implications in Europe when land was the prime form of property: England had a powerful landed class, while France was a society of peasant proprietors. This importance declined as the economy developed and the major source of wealth shifted to industry and services. Primogeniture in many European countries has also been amended to make it gender neutral with the move towards equal rights.

Eight, laws can have significant unintended consequences. Primogeniture spurred a wave of innovations in England at the time of the Industrial Revolution because well-educated children of the aristocracy could not live off an inheritance and had to make new careers for themselves. A small number of British managed to rule large portions of the earth because of the industry and energy of this group. Primogeniture also existed in Hinduism but the joint family system inhibited a similar burst of innovations in India.

Primogeniture was intended as a law for inheritance of property but also provided a mechanism to guarantee orderly political succession in England. Islam, which had equal division of property, could not come up with a separate law for political succession and was plagued by conflict throughout its history.

Ninth, open discussion and debate are needed to come up with laws that are needed for the development of society. The fact that there was no divinely sanctioned law for political succession in Islam did not imply that there was no need to find such a law. Today almost all Islamic countries have Constitutions that stipulate non-religiously ordained procedures for the transfer of power. But leaders in Pakistan treat the Constitution as just a piece of paper when it goes against their interests. They can do so because the laws in the Constitution are distant from the traditions and practices of the majority and lack social sanctity. This can be contrasted with the ‘unwritten’ constitution in England based on the body of common law.

Tenth, not having laws is detrimental to society. Without agreed upon laws and general acceptance of them, society comes to be governed by the law of the jungle where might is right and double-crossing the rule of the day; usurpations of power and violations of law are accepted without protest. The rule of law cannot emerge out of a vacuum. Rather, it is the outcome of having individual laws that are familiar and respected and deemed equally applicable to all members of society.

The three earlier posts in this series are here, here, and here.

 

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5 Responses to “Laws and the Rule of Law”

  1. almostinfamous Says:

    They brought the same law with them to America where it remained in force for a time. However, after much debate and discussion it was repealed.

    you easily gloss over several episodes of mass ethnic cleansing and genocide with this point (without even discussing what the spanish did further south). It would be rather unfair to discuss the laws that existed in America without discussing the laws of those that actually lived there before the invaders got there.

    secondly the industrial revolution was not the best thing that could happen given that we have most probably endangered our species’ long term existence because of it – so yet another unintended consequence of primogeniture is that it has doomed us all.

    • SouthAsian Says:

      ai: I wanted to make a very narrowly focused point – that the effectiveness of a law depends upon its context and when the context changes it makes sense to re-examine the law. For this I used the example of primogeniture in England and America – the people were the same but they did not continue to use their old law simply because they were used to it; they modified it to suit the new context. This was to contrast with Muslims who came to India but did not carry out any similar examination of their law of inheritance.

      For the purpose of making this point, I did not think it was relevant to state whether I felt the people themselves were good or not. If I were writing a history of colonization in America I would cover the topics you have raised. I could be wrong in this thinking. Let me know how adding the descriptions would help me make my point better.

      On the Industrial Revolution, the point remains that laws can have unintended consequences and we should try and anticipate them. Whether we approve of them or not is a different issue. Would you recommend that we suppress the conditions that promote innovation because some of the innovations might have negative consequences? If so, would we have to ban education?

  2. Vinod Says:

    I expected something else from the title. You know that ‘Rule of Law’ means quite a bit of something of which there is very little in your article.

    • SouthAsian Says:

      Vinod: I agree. There is only a little bit about the rule of law at the end. In my mind the rule of law is an emergent outcome; a legislature can’t just decide that from tomorrow we are going to have the rule of law. The existence of sound individaual laws, respect for them, and social sanctions for violations, gives rise to the rule of law.

      Let’s talk more about this.

  3. Vinod Says:

    The rule of law is a part political and part legal concept. The making of good quality laws is more of a political and social concept. While making good law is important for the rule of law to be felt meaningfully by the public, theoretically rule of law discourse is not about making good quality law. Rule of law is about the legal and political system and not about individual laws.

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