Law, originally imposed by family and community leaders in the form of taboos and obligations, became more complex as societies developed. As a formal system, law was linked to the spread of both government and writing.
There is no way to establish to what degree concepts of right and wrong are innate, evolutionary, or developed within society. People argue either that they developed as part of religious practice or that they pre-date religion. But it is clear that by the time that the first laws were written, they served in part to record what a society did and did not judge permissible, and that this varied with the needs and values of the society. Laws were also a codification of those values that leaders or governments wanted to impose upon their subjects, but over time they would also come to be a restraint on the absolute power of the government. In ancient Athens, for example, the Draconian constitution, or Draco’s code, was created in response to the unfair and arbitrary modification of oral laws by the aristocracy in the 7th century BCE . The Magna Carta (1215) marked a parallel moment in English history because it set limits on royal power.
Legal codes have varied as to whether they reckoned a criminal act to be an offence against the individual or community, or else against the state. This connects to the distinction between retributive justice (where the law defines how a lawbreaker should be punished) and restorative justice (where lawbreakers must make good the harm they have done). Many early legal codes incorporated a strong retributive streak. For instance the code of the Babylonian king Hammurabi (dating from 1754 BCE , one of the earliest legal codes that can still be studied in detail) ordains ‘an eye for an eye, a tooth for a tooth’, in wording very similar to the law of Moses in the Old Testament. However it also required compensation for crimes of property, as did both the earlier Code of Ur-Nammu in Sumer, and the Jewish Pentateuch. In Rome the Law of the Twelve Tables (450 BCE ) required a convicted thief to repay twice the value of the goods they had stolen.
Laws didn’t deal exclusively with crime and punishment. They also provided peaceful means of settling disputes and (in those societies that recognized private ownership) as a means to record the ownership of property. They also included rules for how contracts and trades should be regulated.
‘At his best, man is the noblest of all animals; separated from law and justice he is the worst.’
Aristotle, Politics , Book 1 (4th century BCE )
Legal codes have also varied in their balance between protecting the rights of citizens, and imposing duties. For instance, protecting free speech or religious practice has been an important part of the law in some societies, while in others the law has included religious requirements or banned certain kinds of public discourse, such as criticism of the government, or statements regarded as blasphemous. Some codes have specified duties such as fixed terms a citizen must serve in the army. And many legal codes have included laws that restrict personal freedom on specifically moral or religious grounds. For instance homosexuality has been (and remains) illegal in many countries, no matter if practised between consenting adults. The tension between protecting rights and imposing responsibilities on citizens also relates to arguments about the legitimacy of government itself (see here ).
Such debates continue. Current legal systems include both retributive and restorative elements, and countries worldwide vary as to how they balance rights and responsibilities, and how authoritarian their approach to lawmaking is.