The Complex Origins of Western Legal Traditions

A few months ago, I read an absolutely fascinating book on early human societies, “The Dawn of Everything.” Co-authored by David Graeber and David Wengrow, this book offers a critique of popular views on western civilization and the traditional narratives of mankind’s linear development from primitivism to civilization. It is a long book, but I found it to be fairly easy reading, especially if you are someone who has an interest in anthropology and archaeology. Since finishing it, I have found myself thinking more and more about the origins of society as we now know it. How similar are we to our prehistoric ancestors? Did they think about the same things we do? Maybe they were not worried about car payments or student loans, but it’s not totally out of the question to imagine that they may have wondered and worried over what to eat for their next meal or where they would find themselves in five years’ time.

Once you start pondering the origins of modern man, it is not hard to find scholarship that discusses our ties to ancient society in any given topic – law included. The Law Library has a great collection of books and articles to sate curious minds. Over the past few weeks, I have fallen down a rabbit hole of riveting literature regarding the origins of Western law and civilization. Among the highlights is an article written by University of Illinois professor of law, Robin Bradley Kar, entitled “Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization.” In this lengthy but very engaging article, Kar argues that we should look beyond ancient Rome, Greece, and Israel for the origins of Western legal traditions. Instead, he posits that the roots of Western law go back much further in time and farther east – specifically, back to around 4500 B.C. in the Eastern Iran-Bactria-Indus Valley region. Kar touches on some of the same archaeological evidence that Graeber and Wengrow cover in their book. As someone with more than a passing interest in linguistics, I really enjoyed Kar’s interdisciplinary approach to the question of just how far back we can trace the roots of modern Western legal traditions. While I am not in a position to pass judgment on the accuracy of Kar’s hypothesis, I can attest to the impressive amount of scholarship he cites in building his case. Furthermore, I am compelled by his argument that we should look not as much at the differences between common and civil law traditions, but rather more to their shared, ancient ancestry and what that ancestry may have in common with non-Western legal traditions.

Compared to studying legal systems from the 5th millennium B.C., looking at ancient Greek, Roman, and Israeli law can seem positively easy, given the abundance of primary source materials we have from these later legal systems. Much has been written on how indebted modern legal systems are to these three civilizations. I want to highlight a few works offered through the Library of Congress that address the legal systems of ancient Greece, Rome, and Israel. To start, one of my earliest exposures to Greek law came in a classics class I took as an undergrad. One of the assigned readings for that class was “Lawyers and Litigants in Ancient Athens: The Genesis of the Legal Profession” by Robert J. Bonner. It’s a relatively short work and my favorite part of it is the last chapter on famous trials in ancient Athens. For a concise yet thorough outline of Roman law, I recommend “An Introduction to Roman Law” by Barry Nicholas. To gain insight into law in ancient Israel, I recommend “An Introduction to the History and Sources of Jewish Law.” Finally, I want to recommend a couple of general works on ancient legal systems: “The Anthropology of Law” by Fernanda Pirie and “Ancient Law” by Henry Sumner Maine.

We tend to think that we know all we could possibly need to know about ancient civilizations. But the fact that it is 2022 and we are still discovering new sites, developing new technologies to assist in the work of archaeologists and anthropologists, and producing new publications that ask us to question traditional notions about civilizations and how they have evolved into modern societies, is a testament to the importance of continued research into ancient civilizations. The more I read about prehistoric mankind, the more I am struck by the universality of humanity. Rather than assume that prehistoric humans were less intelligent than modern humans, I have come to appreciate that humanity has always been complex. I also appreciate having resources like the Library of Congress at my disposal so that when I have an itch to research some arcane corner of history, or prehistory, as the case may be, I know that I can find the answers I am seeking in our vast collection or from our staff.

If you have any questions regarding this or any other topics, feel free to ask us using our Ask-a-Librarian service.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.