"Just Law" as Rhetorical Trope

Jurisprudence

Assignment #2

Was law in ancient times less fair, less just than 21^st Century law?

First, we have to ask what law is. Law is a set of rules promulgated by a legitimate, general authority. By legitimate, I mean an authority which is generally accepted as legitimate by those over whom it exercises its authority. By general, I mean to exclude cases like the mafia and backgammon clubs. Therefore, the fact that something is not promulgated by a legitimate authority does not mean it’s unjust, it means it’s not a law. However, the term ‘unjust law’ is sometimes used in this sense (sense one).

So what else could we mean when we call a law unjust? It seems that we mean to refer to some general notions of morality which we assume our audience holds. It doesn’t matter to this analysis whether there is some actual morality underlying our audience’s beliefs, only what they believe. Rhetoric using the term ‘unjust law’ is meant either to change that law internally (through, say, an elected legislature) or to change that law externally (through, say, the use of force). This we can call (sense 2).

It is clear that, were we to describe the laws of ancient Babylonia, they are either not unjust, or the term unjust does not simply apply. There is no reason to think they were unjust in sense one, since there is no reason to think that the Babylonians viewed their monarch as illegitimate (to the extent they thought about it at all). Moreover, there’s no point in trying to get the ancient Babylonians to change their laws. They’re dead.

However, perhaps we could envision what a contemporary of the Babylonians might say to criticize their system. This allows for some sort of meaningful criticism. But there’s no reason to think that a contemporary would have any more meaningful criticisms of Babylonian law than a contemporary of our society would have of ours. So there is no reason to think that Babylonian law is any more unjust than ours.

Let me close by addressing one additional issue. One might say that we’re better off because we’ve outlawed things like slavery, which are very clearly bad. However, this cuts both ways. It’s true that we’ve outlawed slavery, and I’m happy to assume that that’s good. However, we also made usury legal. In other words, there are some things we believe should be illegal that the ancients didn’t, like slavery. However, there are also some things the ancients believed should be illegal that we don’t, like usury. So it seems that, even if it’s legitimate to proceed by comparing different ethical beliefs of this sort, such a comparison will only show the systems to be incommensurate.