Law provides us with two tests of a culture’s thinking processes. It defines how misdeeds are to be handled. Small communities did not bother with formal laws; each complaint was handled individually by the elders or by the group as a whole. Even today, some nomadic communities operate under such systems. There are no written laws; instead, the law is part of the cultural heritage, and is most commonly exercised by elders. In such communities, the laws operate as means of avoiding violence. If one party has a complaint against another party, elders from both parties, as well as uninvolved elders, may meet to discuss the case and work out a solution; this is often just as much a diplomatic process as a judicial one. The only enforcement mechanism for such decisions is violence by the prevailing party. Usually such violence by the prevailing party does not trigger retaliatory violence by the family of the victim of the violence.
Because civilized communities are much larger, the direct and personal legal systems used in smaller communities must be replaced with a formal written legal system. In its simplest form, such a legal system consists of a set of simple statements of the form “This crime will get that punishment.” We see many examples of this in Mesopotamian law.
The next improvement in legal systems is the application of abstraction, which allows the legal system to address a broader range of possible crimes. Modern law includes a great many such abstractions, but it has taken thousands of years to develop such abstractions. For example, we use the term “fraud” as an abstraction covering a wide range of crimes in which one person obtains valuables from another by deceptive means. It can mean lying about a item being sold, or making it appear to be better than it really is, selling what one doesn’t actually own, failing to mention an important flaw in the item, and many other variations. The important concept is that we now have an abstract term covering a large range of crimes; we don’t need Hammurabi to spell out each specific example.
But abstraction imposes a cognitive load upon a society. People have to work out whether a crime truly is an instance of the legal abstraction. For example, suppose that the buyer asks the seller about a potential weakness in the product, and the seller offers a lengthy answer that doesn’t really answer the buyer’s question. Nevertheless, the buyer proceeds to purchase the product, then discovers that it does indeed suffer from the weakness that they asked about. Has the seller committed fraud? The seller employed some degree of deception — but was it enough to comprise fraud? This requires some careful reasoning on the part of the judge. This provides us with a measure of just how far down the road of legal rationalism a society has traveled.
The second measure is the means used to determine guilt or innocence. Through most of history, the first means of establishing guilt was a confession from the accused. Inasmuch as a confession of guilt is not in one’s own interest, that confession will be rare, unless the accused is encouraged to confess with the appropriate stimuli. Thus arose the use of torture in judicial processes. The use of torture was typically constrained by a combination of the social rank of the accused and the seriousness of the crime. Thus, slaves in most societies were tortured without constraint; freemen were given some protections; and the aristocracy was usually exempt from torture. The prominent exception was in cases of treason, for which aristocrats were sometimes tortured.
My readings suggest that most societies realized that torture was not a reliable means of obtaining the truth; rather, it was seen as a procedure necessary to obtain the confession required for conviction. In other words, the goal of torture was not truth but expedience. The guilt of the accused was assumed and the torture was merely the means necessary to obtain the required confession.
Often the testimony of witnesses was sufficient to gain a conviction. Usually the court would require testimony from two reliable witnesses, but in a scrape, courts had few compunctions about accepting just one witness. This was sometimes seen as a beneficent act on the part of the court, as it saved the accused the bother of undergoing torture.