The Evolution of Justice

Some values our children are born with—at least, that’s how it seems to me—and there is scientific evidence to support them. One of the most evident is an innate sense of justice.

A child erroneously disciplined for breaking a glass pitcher, doesn’t need to be told they have been wrongfully accused and punished. Their little sister, who did break the pitcher and fesses up to it, doesn’t need to be told that her older brother was treated unfairly. A child who tattles on another for kicking someone else, doesn’t need to be told they should tell the teacher (if anything, what they learn is not to tattle).

When people talk about justice, they usually have one of two conceptions in mind. They may ask what makes a just society, either in terms of how it is organized and run or how rights and wealth are distributed. They may also ask how conduct that harms people or society should be punished and how to protect the innocent from the guilty. This essay is concerned with the evolution of law in the second sense: crime and punishment.

It is not necessary to tell people that certain conduct is wrong. As with the example of what children innately know, with the exception of those who are mentally impaired, people know that killing another is wrong, that stealing from another is wrong, that assaulting another is wrong, and that rape and incest are wrong. Possibly, this is a function of empathy, which neuroscience has determined is hardwired into our brains. We feel suffering, and mirror neurons cause us to sense the suffering of others when they have been victimized. Thus, a legal code is unnecessary to establish the wrongfulness of the most egregious acts, what the legal profession calls malum in se crimes. However, a legal code is necessary to inform people what punishments will be meted out to those violating the law in order to deter such conduct.

Rulers have always imposed their will on others. At some point in the history of people living together, rulers had to expand their authority over a broad range of conduct to prevent chaos and conflict within their tribe.

Archeologists have discovered records of laws that go back as far as three to four thousand years. The most famous and complete of these records is the Code of Hammurabi. Hammurabi was the King of Babylon and reigned from 1792 to 1750 B.C.E. His Code is a collection of 282 rules written on a massive black pillar discovered by archeologists in 1901. Although the Code does impose punishment for a small number of crimes, most of the Code regulates family and economic relationships. There were even rules that applied to medical malpractice. A physician who killed a wealthy patient might have his hands cut off, although only financial compensation was owed for killing a slave.

From other records, historians know much more about how the laws were applied in ancient Mesopotamia (which included Babylon). Judges heard cases, scribes often recorded events, witnesses testified under oath, and as Hammurabi’s Code provided, a person’s guilt had to be based upon evidence, an early version of innocent until proven guilty.

Hammurabi’s views of justice are reflected in the rules themselves. His choice of which rules to make public dramatically reflects what activities were most disruptive to society at that time. There was a price to be paid for making a false accusation—death (Rule 3). A judicial error could result in a fine against the judge and removal from the bench (Rule 5). A man who abandoned his wife was required to compensate her and provide support for her children, and she was allowed to “marry the man of her heart” (Rule 137). Rules 128—195 apply to relationships between a wife, her husband, their children, and the wife’s father. Rules 215—223 all address compensation for medical malpractice. Not surprisingly, breaking into a house to steal (Rule 21) and robbery (Rule 22) are capital offenses, but murder is only mentioned in the special case of a man and woman who kill their cheating spouses (Rule 153). When one caused injury to another, some of the Code’s provisions called for an eye for an eye punishment (Rules 196, 197, 200), but in many instances, monetary compensation to the victim or their master was sufficient (Rules 198, 199, 201). While a false accusation made before elders could be punished by death (Rule 3), the elders could just impose a fine on the accuser (Rule 4).

Some scholars have argued that Hammurabi’s Code influenced the laws set down in the first five books of the Hebrew Bible (the Torah), but the 613 laws spread throughout these books are far more comprehensive: they address everything from moral law, social laws, dietary laws, religious and ceremonial laws. In Jewish tradition, these laws were given to Moses at the same time that God gave him the Ten Commandments. These first ten commandments are like the Bill of Rights to the United States Constitution in that they impose rights and obligations, but not punishments nor any means for enforcement.

Moreover, the Mosaic laws went beyond specifying punishment; they also included substantive and procedural protections.

While the penalty for an intentional killing was death (Numbers Chapter 35: v. 16-21), to prevent relatives from seeking revenge for the unintentional killing of their loved ones, six cities were named a refuge for the killer to flee to and be protected. (v. 6, 11-15, 22-25). Moreover, a person could not be put to death based on the testimony of just one person (v. 30).

Finally, in Genesis, the Bible provides an ethical context for the development of the law. In the story of God’s destruction of Sodom and Gomorrah, Abraham says to God that the ruler of the world must rule justly and that God should spare the guilty for the sake of the innocent. (Genesis, Chapters 18 and 19). This is the first articulation of the idea that justice had to be based on principle, not simply the will of those in charge.

The Romans pioneered the practice of systematizing and organizing laws that were later adopted throughout the Western world.

The first effort to codify Roman law occurred between 451 and 449 B.C.E and was engraved on twelve tablets placed in the Forum of Rome. This code is known as the Twelve Tablets. Over the next thousand years, a great number of laws were created by various Roman institutions which led Byzantine emperor Justinian I to create two commissions to compile, simplify, and organize these laws into what became known as the Corpus Juris of Justinian. This expression of Roman Law influenced legal codes in continental Europe from that time until today.

Although there were orators in ancient Greece who could argue on behalf of parties, the first real professional class of lawyers emerged in Rome. They were professionally trained, could be compensated for their work (unlike in Athens), played a critical role in the administration of justice, and in some case, like Cicero, were celebrities.

Over the next 800 years, the meaning of justice was left to philosophers and theologians to debate and, as noted above, focused on the elements of a just society.

The Magna Carta of 1215 was the next legal code to profoundly impact the evolution of justice. Rebellious English nobles threatened war against King John if he did not agree to limits on his power, particularly as to the collection of taxes from nobles and the church. However, the document King John was compelled to agree to went much further, addressing other abuses by the Crown.

The Magna Carta contained provisions that promoted justice for free men (still only a small segment of the population). Property disputes were to be considered in local county courts, and judges were sent to each court four times a year. (Para. 18). (Later changed to once a year in the 1225 revision). Persons could not be punished for violations of the law on an “unsupported complaint” without credible witnesses. (Para. 38). Most famously, Para. 39 prohibited taking or imprisoning freemen without the “lawful judgment of his peer or by the law of the land,” thereby creating the writ of habeas corpus to contest such action by the sheriff. But most importantly, the document established the principle that the sovereign was subject to the rule of law.

They legal systems in Great Britain and Continental Europe were significantly different. In Great Britain, substantive and procedural law were created by judges in a gradual process known as the Common Law. Europe continued to follow Roman Law, which limited judges to whatever legal codes were declared by a nation’s rulers.

But in both systems, philosophers and theologians increasingly advocated for the rights of all people, including those accused of crimes. Their ideas influenced political events as reflected in the English Bill of Rights of 1689 which prohibited cruel and unusual punishment, excessive bail, and arbitrary prosecution and created the rights to a fair trial and to be judged by one’s peers. Similar rights were declared by the National Assembly of France at the beginning of the French Revolution in the Declaration of the Rights of Man of 1789. These include provisions prohibiting arbitrary arrest and requiring a speedy disposition of allegations (Clause 7), punishment only for offenses prohibited by law (Clause 8) and the presumption of innocence (Clause 9).

In the United States judges have repeatedly limited statutes that resulted in arbitrary enforcement. For instance, while there is a general principle that “ignorance of the law is no excuse,” the right to due process of law recognized in the Constitution of the United States has been interpreted by our courts to require that laws provide fair notice of what conduct is proscribed.

While the Supreme Court has receded from the expansive view of the Fourth and Fifth Amendments taken in the 60s and 70s, from the 80s until today, the court has struck down or severely limited statutes enacted by Congress that the court considered overly broad and likely to punish innocent conduct. Moreover, in the last 20 years, the Court undermined Congressional efforts to limit judicial discretion in determining the most appropriate punishment at sentencing.

For victims of crimes, justice means compensation for the harm they suffered and punishment for the person who harmed them. This is true throughout the world.

For the accused, in the United States, justice includes the constitutional rights found in the Fifth and Sixth Amendments—the right to a speedy trial, the right to effective assistance of counsel, the right to remain silent, the right to confront a witness against them, and the right to compulsory process of witnesses compelling their attendance and production of evidence for use in their defense at trial.

As we have seen, such rights are not limited to the United States; they are guaranteed to billions of people across the world, but they are also denied to billions of others.

Today, people can lose their freedom for conduct that was inconceivable hundreds and certainly thousands of years ago. As societies have evolved and become more complex, so have the offenses. Money laundering, drug trafficking, securities fraud, and violations of health care and environmental regulations were simply not crimes in the past. But what has not changed is the principle that only those who are guilty deserve to be punished, and procedures must exist to ensure that the innocent are not punished along with the guilty, principles that are innate to the very notion of justice.