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Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization

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Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization KAR (DO NOT DELETE) 10/15/2012 10:07 AM WESTERN LEGAL PREHISTORY: RECONSTRUCTING THE HIDDEN ORIGINS OF WESTERN LAW AND CIVILIZATION Robin Bradley Kar* * Professor of Law and Philosophy, Thomas Mengler Faculty Scholar, University of Illinois College of Law. B.A., Harvard University, J.D. Yale Law School, PhD (Philosophy), University of Michigan. Thank you to the following persons for very useful comments and conversations relating to this topic: Laura Amrhein, Amitai Aviram, Nicholas Biersbach, Edwin Bryant, Chandana and Kisor Chakrabar- ti, Dhammika Dharmapala, Christopher Fennell, Matthew Finkin, Eric Freyfogle, Dan Hamilton, Bob Lawless, John Lindo, Peter Maggs, Lucas Pendry, Larry Ribstein, Jacqueline Ross, Richard Ross, Malcolm Ross, Arden Rowell, Trevor Scheetz, Larry Solum, Suja Thomas, Tom Ulen, and Cynthia Williams. Special thanks for inspiration and thoughtful input go to Mike Ayres, Larry Solum, and my father. All errors are mine. 1499 KAR (DO NOT DELETE) 10/15/2012 10:07 AM 1500 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, re- constructions of human prehistory can prove difficult. Recent ad- vances in a broad range of cognate fields have, however, now accu- mulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory. This Article draws upon and develops these contemporary find- ings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion. On the traditional view, the most important traditions relevant to the rise of Western law and Western Civilization are said to have originated in ancient Greece, Rome, and Israel. This tradi- tional view is, however, based primarily on historical sources, and the reconstructions in this Article suggest that important precursors of these traditions very likely emerged much earlier and much further to the East. In fact, some of the most important traditions relevant to the emergence of large-scale civilizations with the rule of law in the West would appear to represent just one branch a much larger and richer family of traditions, which began to emerge around 4500 BC in the Eastern-Iran-Bactria-Indus-Valley region. Beginning at this early time, this region began to produce one of the very first ancient civili- zations to arise within our natural history as a species (viz., the “Ha- rappan” or “Indus Valley” Civilization), and the people in this region must have therefore developed some of the very first cultural tradi- tions that were specifically adapted to sustaining large-scale civiliza- tions with incipient law. I will be arguing that these ancient develop- ments most likely had a much closer and much more intimate relationship to some of the earliest precursors of Western tradition than has commonly been recognized because these precursors of Western tradition ultimately originated closer to ancient Bactria— which is an area directly adjacent to the Indus Valley—during this very same time period. The reconstructions developed in this Article will thus allow me to decipher what I take to be the most plausible early genealogical shape of our legal family tree, and to suggest a number of important but underappreciated relationships that obtain between our modern Western traditions and a range of other Eura- sian traditions with which the West has typically been contrasted. In today’s world, it is, moreover, especially important that we try to reconstruct the genealogical structure of Western legal prehisto- ry and obtain a better understanding of our deep past. There is now an accumulating body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the KAR (DO NOT DELETE) 10/15/2012 10:07 AM No. 5] ORIGINS 1501 origins of their laws. This literature suggests that legal origin varia- bles can have strong effects on issues as diverse as corporate govern- ance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates. Whether and how a modern society functions best would thus appear to depend at least in part on the origins of their legal traditions. At the same time, howev- er, both the present legal origins literature and much comparative law scholarship distinguish primarily between the civil- versus common- law origins of a nation’s legal system, or between both of these types of Western law and various non-Western legal systems; and the find- ings of this literature have not yet been fully harmonized with the swath of known difficulties that many developing nations have faced in transitioning to large-scale societies with the rule of law regardless of their civil- or common-law origins. The family trees that are em- ployed in the current literature are, moreover, typically identified from the historical record and therefore fail to detect any relevant re- lations that might have arisen in human prehistory. They tend to fo- cus on a conception of law as a set of publicly stated rules and proce- dures that are largely exogenous to the underlying cultural traditions and psychological attitudes that tend to support flourishing legal sys- tems. They therefore fail to detect the kinds of emergent cultural tra- ditions (including the culturally emergent psychological attitudes) that first allowed humans to transition from hunter-gatherer forms of life into larger-scale civilizations with the rule of law. The reconstruction offered here will, by contrast, allow us to see almost half of the large-scale megaempires that have arisen through- out world history—including all those that have arisen in the modern West—as having a shared cultural origin that goes much further back in time. The tradition in question first emerged with some of our very first human forays out of hunter-gatherer living and into settled agri- cultural living with large-scale civilizations and incipient legal tradi- tions. An understanding of this deeper family tree should therefore have important empirical implications. This work can, for example, be used to help explain why certain exportations of Western-style le- gal institutions have worked so well while others have not. This work can also be used to identify a number of important but underappreci- ated features of Western traditions that are shared with these broader Eurasian traditions and have been playing a critical—if underappre- ciated—role in helping to sustain various forms of social complexity and economic development over the course of world history. Hence, this work can help us understand better some of the full causes and conditions of our modern success in the West. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward Westernization that are being felt around the globe. KAR (DO NOT DELETE) 10/15/2012 10:07 AM 1502 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2012 TABLE OF CONTENTS I. INTRODUCTION ..................................................................................... 1503 II. ON THE ORIGINS OF WESTERN LAW AND WESTERN CIVILIZATION ..... 1516 A. The Traditional Origins Story .......................................................... 1516 B. Why the Traditional Story Stops Where It Does, and Why We Need to Look Further Back .............................................. 1520 C. Our Deeper Prehistoric Origins in Indo-European Cultures— The Traditional Story and the Need for an Alternative ................... 1530 D. First Sketch of the Alternative Story—with Our Prehistoric Origins Further to the East ............................................................................ 1536 E. Some Broad Consequences of a Changed Understanding ............... 1543 III. DEVELOPING A GENERAL METHODOLOGY TO RECONSTRUCT OUR TRUE ORIGINS STORY: ON PATTERNS OF LINGUISTIC DIVERSITY, THE EMERGENCE OF MAJOR LANGUAGE FAMILIES, AND TRANSITIONS TOWARD SOCIAL COMPLEXITY WITH INCIPIENT LEGAL TRADITIONS .. 1545 A. Contemporary Patterns of Linguistic Diversity from Around the World ............................................................................. 1546 B. A Panoramic Look at Our Natural History As a Species ................. 1549 C. First Theoretical Prediction: Prehistoric Shifts from Linguistic Diversity to Major Language Families Should Correlate with Our First Transformations Towards Social Complexity with Incipient Legal Traditions .................................................................. 1560 D. Evidence to Support the First Theoretical Prediction ..................... 1563 IV. SPECIFYING THE GENERAL METHODOLOGY: ON THE ROLE OF MAJOR RIVER SYSTEMS IN THE DEVELOPMENT OF THE FIRST MAJOR LANGUAGE FAMILIES AND FIRST CULTURAL TRADITIONS CAPABLE OF SUPPORTING INCIPIENT LEGAL TRADITIONS ............................................................ 1570 A. Two Standard Models of Prehistoric Linguistic Expansion ............. 1573 B. Introducing the New Model: The “Riverine-Agricultural” Model of Prehistoric Linguistic Expansion ................................................
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