Vail Daily column: A time before law
March 25, 2014
We all take for granted that there's "law." And there always has been, I suppose, if you count the law of the jungle and the law of physics and however many other "natural laws" there may be. But what of what we think of when we say, "the law"? What do we mean, why does it exist, and, like a legal big bang theory, what existed before the "law"?
If you read these columns, you know I like to start at the beginning, so let's start first with defining what it is when we think about "the law".
Black's Law Dictionary (I know, I know, this is a little like a Higgs Boson defining the Big Bang but nonetheless, we've got to start somewhere and, anyway, what if a Higgs could talk?) defines the word "law" as follows: "That which is laid down, ordained or established. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules or action or conduct prescribed by controlling authority and having binding legal force."
Let's take this in little bites.
"Laid down" or "ordained" sounds a mite high-falutin'. The law of men — which is what we're dealing with here — is not the law of God or whatever higher (or random) authority you may believe in. Law, as we think of it, is created by the particular society, culture and milieu in it is formed and come to exist. Laws are different from one nation to the other precisely because each nation and each culture has differently evolved. Think if you will of the Amanda Knox trial and re-trial and re-re-trial which while apparently hunky-dory under the Italian system of law, we'd consider double (and perhaps triple) jeopardy. So as a general precept, law reflects the culture in which it's steeped and from which it has arisen. The "ordained" part is just a little fancy and bloviated for my thinking. I, however, generally like the "established" part; law is put in place but more than just "put in place"; it is a living, breathing thing that morphs, grows and changes.
Why formal law has arisen in all "civilized" societies (and I use the term "civilized" with great care and deference to less modern societies from whom we may have a valuable thing or two to learn) is because, without it, business and social intercourse are, if not impossible, then are rendered at least extremely difficult to exercise.
KNOWING THE RULES
An example here might help.
Say we're marching out to the gridiron for a game of touch … or tackle. But you don't know which. My team kicks off. Or maybe yours does. From the 20 or the 30 or midfield. But neither of us knows. Say when the ball is kicked, it has to be caught on the fly. Or after one bounce. Or two. Or it doesn't matter. But none of the 22 of us on the field — or should we each have 13 players instead of 11? — knows. As you might expect, this could lead to just a bit of confusion.
And so it is with law. If there were no law — no set rules, expectations and standards — we would never know what to expect.
Law exists for certainty and for the sake of peace. If we all agree — at least generally — what the rules are, then we've got less of a beef if the known rules are applied to us even if unfavorably. This, in turn, engenders social harmony.
LAW PROVIDES CERTAINTY
A key part of the definition is the aspect of casualty; if you take this action, a certain consequence will follow. This too is a key aspect of law. Human beings like/crave/need certainty. As clawless, fangless, naked hominids among the raging beasts, this is simply in our DNA. We are wired to think in terms of cause and effect. This and thus are tied together. If I do this, the likely consequence is that. Law provides this certainty.
A big part of the law is the part of the definition that provides that it is "prescribed by controlling authority" and has "binding effect," which means, in essence, that the "controlling authority" will enforce the rules.
Think of this sad hypothetical if you will: Say the Axis Powers had prevailed in the World War II instead of the Allies. Would the laws be different? He who makes the cheese decides what kind of cheese to make.
So what was there before "the law"as we think of it? From my reading and going on my own suspicions and understanding of human nature, there was always law. Tribal law, village law, the law imposed by elders, the law mandated by religion or belief, but law, nonetheless in one form or another. Whether the laws were strong or weak depended on the particular social order. The less authority invested in one form or social congress or another, likely the more flexible and open to interpretation was the law. Only when the commanding authority had the means to enforce the law did law stiffen its backbone and become what we now think of as the institution and the body of law. And, hey, by the way, the advent of writing — instead of relying solely on oral history — likely helped accelerate the development of law into something tangible, reliable and real. It always helps when you can point to something and say, "See, that's it!"
Was there a time before what we think of as the law? I suspect once our hominid ancestors started yapping to one another in intelligible ways, the law developed quickly. Formal law, I'm sure, took a little longer. Only with the "might" of authority fully formed, was law born into a solid and reliable entity. And, by my lights anyway, we are all the better for knowing what the rules are before we play the game.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.