The divine law disadvantage – Guest Post by Lorenzo

By Legal Eagle

[LE: Something I often wonder about when studying history is: why do certain civilisations develop in certain ways, and others (which are equally technologically advanced, if not more so) do not develop in the same way? I suppose it’s one of the reasons why I enjoy speculative fiction so much: speculative fiction plays a game of what if x had occurred? How would history be different?

Our regular commenter, Lorenzo, has written a post about why Europe had an industrial revolution and other societies did not. He concludes that an important part of why a society can change and adapt centres around the perceived origin of its laws. If a society sees its laws as divinely ordained, then it is very hard to change such laws to accomodate changing social and economic circumstances. If, however, a society sees its laws as a human creation which can be changed when social and economic conditions change, then it is much easier to change the law to make it more efficient and responsive to changed circumstances. This allows a society to be flexible and to develop faster. Lorenzo’s hypothesis is that divine law is a distinct disadvantage when it comes to becoming economically prosperous, because it makes changing the law much more difficult: it limits the possibilities of evolution in the law and invokes absolute authority to prevent people from changing the law.]

Of the various centres where urban civilisation developed — the Andean mountains and coasts, Mesoamerica, North-East Asia, South-East Asia, the Indian Subcontinent, the Middle East, Europe—why was it the cultures of the Atlantic littoral of Europe who first created global history (by connecting all parts of the globe so that, for the first time, human civilisations and cultures were directly aware of the entire rest of the globe) and then transformed human societies by that explosion in the creation and use of capital we call ‘the Industrial Revolution’? Why was Japan the first culture not of the Atlantic littoral (or descendant societies) to achieve industrialisation?

Why not … ?
Why not the Middle East—where the original production revolution, the agricultural revolution, first began and which dominated human invention until about 500BC? Why not China—the continental civilisation with the strongest history of political unity and which dominated human invention for about two millennia (from 500BC to about 1500AD)? Why not India, long a world-leader in metallurgy and mathematics? For, in history, why x? questions come with linked why not y? questions.

We can dismiss the urban civilisations of the Americas as contenders, for they were too isolated. At the time the conquistadors arrived, their civilisations were at about the level of early Pharonic Egypt. The wheel was in very limited use, they had little metal technology while the Andean cultures had not yet developed writing. They had generated states capable of generating considerable economic surpluses beyond subsistence and applying them to vast building projects; projects which both expressed elite power and ensured the surplus was directed to the purposes of the elite. In protein-starved Mesoamerica, this included a ready supply of protein to the elite. (You didn’t think they wasted all those human sacrifices, did you? Religion, like other human ideologies, has a way of selecting for elite convenience.) But the urban civilisations of the Americas were not contenders for anything but being laggard civilisations; witness their devastation by disease and massive disruption by small but much better equipped (both technologically and in range of experience) European forces.

Which leaves the Eurasian contenders. The question is: how did the selection processes of history act in a way that selected for the relevant characteristics? We know the who; the question is how and why?

Selection in history
For the selection processes of history to work, there had to be social possibilities to work upon and pressure to select for the relevant characteristics. Viewed in this way, clearly the post-Roman Atlantic littoral cultures had major long-term advantages. They were on the edge of Eurasia, protected by geography from regular conquest by outsiders; this gave time for long-term institutional learning to take place rather than suffering regular institutional “flattening”. Geography worked against political unity, setting up strong, sustained competition between polities, creating competitive pressures. They represented a range of cultures that developed a variety of institutional forms, which gave a wider range of possibilities for the selection processes of history to work from. They had enough commonality (such as a shared scholarly language—Latin—and a shared religion—Latin Christianity) for movement of people, ideas and capital between polities to be comparatively easy. This intensified the selection processes. Being on the Atlantic littoral—given, prior to railroads, transport by water was enormously cheaper than transport by land (probably by a factor of about 15: i.e. it cost the same to go 100km by land as it did 1500km by sea)—was an enormous exploration, trade and conquest possibility advantage. (One might argue that this water advantage persists.)

Other centres of urban civilisations had some of these features, but none had the full package. The Middle East and China had too much political unity, which greatly lessened competitive pressure and selection possibilities. Northern India suffered too many invasions: also something of an issue for the Middle East and Northern China. South-East Asia had a long period of a dominant polity (the Khmer Empire: see also) and, ironically, both too much institutional similarity (so less for selection processes to work upon) and insufficiently permeable cultural links (so less intensity in competitive processes).

The area of urban civilisation that had the next highest combination of these factors to Atlantic littoral Latin Christendom was—surprise, surprise—Japan. While notionally a unitary state, in practice local provincial lords had sufficient power for Japan to experience a form of “competitive federalism” while the split between Mikado and Shogun, between tenno and bakufu, added to the legal pluralism. It had less cultural and institutional diversity to work from than Europe. But once it was able to “piggy-back” on the results of historical selection processes on the Atlantic littoral and descendant polities, it was away.

Why not India?
A region that might have been something of a contender was southern India, which was largely shielded from the regular invasions that northern India suffered. India certainly developed a technologically, intellectually and religiously vibrant set of polities and cultures—India had a richer tradition of mathematics and philosophy than China, while its metallurgy was as good as or better than anywhere else’s. It was never, however, a serious contender for the “break out” that Atlantic littoral Europe achieved.

India lacked the range of political forms that Europe had (but so did everywhere else: though India did develop at least one state that used the elective principle). It also shared a specific disadvantage with the Islamic Middle East—a strong concept of divine law, with the Brahmin Laws of Manu, the Manusm?ti. Having a concept of law as divinely ordained is a barrier to institutional evolution. Outside the areas where Islam became dominant, Eastern Eurasia also lacked such a concept: law was a human matter. But China was hobbled by too much political unity, South-East Asia by too much autocracy suffering too little mutual cultural permeability. Once again, Japan—with its parallel tenno and bakufu court systems, its law-making local lords—came closest to Europe’s advantages.

The burden of divine law
Judaism, Islam and Brahminism embrace conceptions of divine law; that laws emanating from God Himself (or the Divine realm) exist, and are discoverable and applicable by religious authorities (rabbis; mufti and qadi; Brahmins). Christianity, growing up in the highly ordered Roman Empire, did not develop such a conception: in mainstream Christianity, all law — even canon law — is human law, however much it might seek to conform to God’s will. This gave Latin Christendom a great long-term advantage over Islam, since the possibilities of legal experimentation and evolution were much greater.

In Judaism and Islam, the process of creating a community order, including state-building, was intimately tied up with religion. Religion provided the basis of law, hence the strongly territorial roots of both religions. Brahmins provided an accessible form of adjudication not subject to the vagaries of fluctuating rulerships. (This control of adjudication is likely a key reason why Brahminism was able to fight off the Buddhist challenge.)

Imperial Sharia
Starting with the Babylonian exile, and especially after the brutal suppression and dispersion of the Jews by the Romans, rabbis were without any authority except that which the community gave them. Rabbis were mediators without state power: they mediated by consent. This profoundly affected how Jewish law was interpreted, both its operation within the Jewish community and its (lack of claims) about any authority beyond it.

By contrast, within a single generation, Sharia went from being the basis of a local rulership to being an imperial legal order. Sharia proclaims the right not merely to be laws for believers, but over non-believers as well. There is no inherent limit to the ambit of Sharia, both in who it allegedly applies to and how much of life it claims to be able to legislate for. It is law from God and expresses His sovereignty, which has no limits. The Soviets notoriously operated according to the principle “what is ours is ours and what is yours is negotiable” as only The Workers’ State had true legitimacy. If only God’s law has legitimacy, then the same operating principle applies.

This is where the notion of Sharia within Muslim communities as merely “community mediation” breaks down. Leaving aside its pervasive misogyny, its implications within Muslim communities, there is simply no natural or inherent limit to its ambit of operation. Any ambit of operation it may be granted by the wider polity cannot be expected to be final: it is far more likely to be seen as basis from which to negotiate further expansion. Indeed, once the infrastructure of Sharia is given any legal recognition, the likelihood that its operation will stay within those alleged bounds is highly dubious.

This is not a problem entirely limited to Islam, though it is more extensive and intense in Islam. In Israel, pressure from the Ultra-Orthodox is steadily encroaching on the public realm—particularly the rights of women to use and act in public places. But such claims to restrict and control are far more “encoded” in Sharia than they are in Jewish law. That this Ultra-Orthodox civic imperialism in Israel arises from the unintended consequences of a series of exemptions granted to Ultra-Orthodox interests provides a clear warning of not creating sectional privileges, of having a common public policy realm within a specific polity.

The nature and status of Sharia in Islam also means it is harder for Islam to be a religion of the private realm than Christianity. There are no equivalent statements within Islam with the canonical status within Christianity of “render unto Caesar that which is Caesar’s” (Mark 12:16-18) or “he who is without sin, cast the first stone” (John 8: 6-8). In mainstream Islamic thought, any similar statements in the Meccan suras are trumped by the later Medinan suras. Harder, but not impossible, as the example of the Ismailis demonstrates. Of course, they have been in the same situation as Jews—being a permanent minority.

In the modern world, it is not clear that anyone is better off under Sharia (apart from those who gain status and income from its use for adjudication). Obviously, women and non-Muslims are disadvantaged but even male believers are appealing to a legal system which has clearly been surpassed in its capacity for promote economic prosperity and which can only “keep up” by piggy-backing on legal advances made elsewhere. Then there is how relations between men and women, between parents and children, between believers and non-believers, are poisoned by the categorical advantages and disadvantages of Sharia.

Dynamic disadvantage
The commercial limitation of Sharia brings us back to divinely ordained law being a dynamic disadvantage. One has to be careful to not overstate the case. It was not that a system of divinely ordained law absolutely precluded legal evolution—consider the innovative ways the rabbis got around the inability of local Jewish communities to impose the penalties decreed in Jewish law. It was that to have a concept of law as divinely ordained made legal innovation much more difficult, so requiring much more pressure to drive any such evolution. (One can reasonably describe Jewish communities in Christendom and Islam as being under some pressure.)

What a system of divinely ordained law does largely preclude is serious legal variety. One might have, as Islam does, various schools of law. But Islam had nothing remotely like the legal diversity of Europe. Not only were the selection processes of history slowed down in communities with divinely ordained law, they had far less to work with. This provides a serious long-term disadvantage.

To delineate these effects takes sophisticated scholarship. As in Timur Kuran’s splendid work of economic history, The Long Divergence: How Islamic Law Held Back the Middle East. Kuran carefully assesses the effect of Islamic law, and resulting institutions, on the economic development of the Islamic Middle East. In doing so, he enlighteningly analyses not only why Islamic institutions and commercial organisation stagnated, but also why Europe leapt ahead.

And leap ahead it did. Kuran quotes Angus Maddison’s figures that the Middle East’s share of world GDP was 10% in 1000 but had plummeted to 4% by 1600 and 2% by 1700. By contrast, the West European share surged from 9% in 1000 to 22% in 1700. This is a story of shifting dynamic advantage, unintended consequences and the problems of constrained social learning and legal (and other) experimentation. I review Kuran’s splendid book here, here and here.

The fragmented authority of Europe and its legal diversity, created “self-undermining” institutions that either had to, or chose to, embrace new possibilities, fuelling mutually supporting innovation. The legal unity of far more politically unified Islamic Middle East created self-reinforcing institutions that, while globally optimal for a while (and continued to provide advantages over rival offerings in sub-Saharan Africa, South Asia and South-East Asia) came to lag seriously behind Europe’s innovations and increasing commercial complexity. In many ways, the Commercial Revolution of Europe underpinned and encouraged its Scientific Revolution, its global expansion and led into the Industrial Revolution.

Meanwhile, the Arab world remains mired in autocratic government that sees private sector development as a threat (pdf), stifling economic opportunities and, given the dramatic demographic bulge, generating massive youth unemployment.

Resilience, restraint and social learning
To have stable mass prosperity requires a state that is resilient but restrained. Resilient against threats to order, both internally and externally, but which does not greatly oppress. In particular, there must be other paths to status and wealth than politics; for if politics is the only game in town, the stakes become all-encompassing and too absolute for restrained politics. The resilient restraint of such a state both holds the ring for, and is able to respond to, learning how to do better.

This is a dynamic balance; one that has to be able to evolve and respond to changing circumstances. Divinely-ordained law is a double barrier: it not only greatly limits the evolutionary possibilities and retards the ability to respond but it does so by invoking an authority with absolute claims. Not a good basis for either restraint or for learning how to do better. It is not surprising that civilisations which accepted divinely-ordained law lost out in the evolutionary processes of history.


  1. Ralph Bennett
    Posted March 1, 2012 at 6:00 am | Permalink

    Nice perspective.
    Religions are there for the two “D”s.

    Defence and disease control.

    “Stable mass prosperity requires a state that is resilient but restrained” and my addition, stabilising our species numbers.

  2. Posted March 1, 2012 at 6:44 am | Permalink

    Europe had Rome and England. This was an extraordinary stroke of fortune, particularly as the Romans never — until the rise of Christianity, and then only partly — fell under the anti-mercantile spell of Greece.

    Goods are worth what the parties to the contract agree they are worth. Consensus ad idem. It is a principle for the ages.

  3. frankhunt
    Posted March 1, 2012 at 8:59 am | Permalink

    Anti-mercantile spell of Greece? Please tell me more.

  4. Posted March 1, 2012 at 9:48 am | Permalink

    [email protected] Start with Plato’s Republic. Or Aristotle’s tendency towards contempt for the commercial.

    There were plenty of trading Greeks: in many ways, it was a very commercial civilisation. But not in its thought.

  5. kvd
    Posted March 1, 2012 at 12:01 pm | Permalink

    Terrific post Lorenzo; I’m still working my way through some of the links to bits of the puzzle that I haven’t previously considered. But thank you.

    But can I ask your thoughts on a quite basic question which has always intrigued me: given the Med is basically a closed system with one tiny outlet, and given it has had now well over 2000 years of quite intensive human activity on its shores – how come it is not just an open sewer? I know fish stocks are way down, but the waters always seem so clear.

    I asked this of Jim Belshaw a few months back, after viewing his travel pics around the Greek Islands, but no answer forthcoming. Are we really so insignificant an interruption to the ‘natural’ course of events?

    Not to divert the discussion, but it’s something which has always intrigued me.

  6. Posted March 1, 2012 at 1:21 pm | Permalink

    [email protected] Thanks 🙂

    it has had now well over 2000 years of quite intensive human activity on its shores

    Well, 5000 years on its Eastern end, but who’s counting?

    Until recently, the overwhelming majority of human rubbish was biodegradable. Eventually.

    Also, the population levels were not all that high really. The Roman Empire at its height probably had 60-70 million people in it, and population levels probably did not recover to that level for centuries. (Based on shipwrecks, trade did not recover from it C3rd peak until about the C13th. Based on ice cores, metal smelting levels probably roughly similar.)

    Evaporation rates exceed inflow rates, so there is quite a strong current from the Atlantic to the Mediterranean through the Straits of Gibraltar. (WWII German U-boats I gather could get in but not out.) So, you are right, it is essentially a closed system. But the human impact was limited until recently.

    Apart from the goats: I understand they did dreadful things to coastal and island top soils, but adding nutrients to the Mediterranean probably did not adversely affect the maritime ecology.

  7. kvd
    Posted March 1, 2012 at 1:31 pm | Permalink

    Well that makes some sort of sense – thanks Lorenzo! And I didn’t know that about the U-boats – fascinating!

  8. Jacques Chester
    Posted March 1, 2012 at 2:01 pm | Permalink

    Fascinating, as usual.

  9. Posted March 1, 2012 at 3:13 pm | Permalink

    The business with the U-Boats comes up in a fantastically good tv series called ‘Das Boot’, which is floating around on DVD I’m sure. IIRC there is a scene where two of the submariners are discussing engaging with the Royal Navy and one of them realizes they can get in but not out. One finishes up yelling ‘Gibralter!’ over and over at the other. It is a very frightening scene, because of course you know that Gibralter is British and the German cast (with which you have come to sympathize) are doomed if they try it.

  10. Patrick
    Posted March 5, 2012 at 12:41 pm | Permalink

    In this vein you should add a new blog to your lists/readers:

    They, amongst other things, appear to have pawned the phrase ‘extractive political institutions’ which is one for the ages, I think

    — economic institutions designed to extract resources from the population and businesses for the benefit of a narrow elite


  11. Adrien
    Posted March 5, 2012 at 4:52 pm | Permalink

    this gave time for long-term institutional learning to take place rather than suffering regular institutional “flattening”.

    What, may I ask, is meant exactly by ‘institutional flattening’?

  12. Posted March 5, 2012 at 5:21 pm | Permalink

    [email protected]

    What, may I ask, is meant exactly by ‘institutional flattening’?

    Destruction of institutions, or aborting of their development; typically so as to make control and extraction of surplus easier.

  13. Adrien
    Posted March 6, 2012 at 3:56 pm | Permalink

    Thanks. I just wanted to be certain. I disagree with you somewhat.

    I do agree that the geography of Europe tends to make it harder to establish imperium contra China where two long rivers connect a massive area from western Asia to the Pacific Ocean. This latter culminates in political stability, the former leads, as you say to competition and therefore diversity.

    However the history of the West is for that very reason one of oft-flattened institutions. Whereas China and India absorbed invasions, the Occident tended to crack. The western end of Eurasia has been described as the wild west for good reason.

    I’m not sure the answers to European exceptionalism can be located in the doctrinal differences between Islam and Christianity. Christendom was, in the immediately post-Roman centuries, a dark place of rival warlords and institutionalized superstition. Islam at that time was the place to be for a scientist. In time the Golden Age of Islam ran out of juice and it is we who ‘piggybacked’ on them.

    I think it has far more to do with energy then religion.

  14. kvd
    Posted March 7, 2012 at 3:50 pm | Permalink

    The question is: how did the selection processes of history act in a way that selected for the relevant characteristics? We know the who; the question is how and why?

    I keep coming back to this question of Lorenzo’s but feel it is somehow limited by what I’d call a belief that we are now in some sort of ‘end game of civilization’. In other words, this overview is maybe predicated on the belief that the last 500 years is the ‘last’ advance that will be achieved?

    If you take as some sort of starting point the existence of the well developed urbanised areas of China, India, and Egypt then it seems to me that (disregarding the totally isolated Americas) further advances consistently happened ‘at the edge’ of the existing large urban areas. I mean Egypt begat the Mid East, begat Greece, begat Rome, begat Europe, (can I say?) begat England. And I guess in that sense China ‘begat’ Japan, while India also cross pollinated into the Middle East as I understand it.

    I accept this is simplistic, but it leads to the point I wanted to comment upon.

    I can see this as reasonable in the sense that it is more likely for large unwieldy entities such as China and India (plus maybe Islamic Middle East, a little later?) to more value continuity, stability and status quo over rapid innovation. And it is more likely (probably) that, in seeking to compete with that status quo, each subsequent competing area would highly value innovation where that gave some sort of competitive advantage?

    Therefore I’m saying that Europe/England was the next-in-line recipient of the prime advantage of being ‘at the edge’ of the previous civilization, and the fact that this coincided with the exploration of the entire globe leads to the position that this past 500 years is unlikely to be repeated in terms of the rise and fall of further significant civilizations – until we get off this rock, and into space colonisation.

    Just thoughts from a provocative post…

  15. Posted March 7, 2012 at 4:55 pm | Permalink

    [email protected]

    However the history of the West is for that very reason one of oft-flattened institutions. Whereas China and India absorbed invasions, the Occident tended to crack.

    This is surely quite wrong. China ended up with precious little in the way of institutions between family and state. Europe had vastly more variety in political institutions and much more density and complexity in same.

    I’m not sure the answers to European exceptionalism can be located in the doctrinal differences between Islam and Christianity

    I was, following Kuran, concentrating on the very different attitudes to law. This was something with very long-haul effects. It is perfectly true that Islam was well ahead of Europe for some centuries. But, over the very long run, it is the dynamic possibilities which tend to win out over static differences.

    The issue of science is similarly complicated. When Islam was the connecting civilisation, it became cutting edge because a whole lot of ideas where being brought together and fruitfully interacting. However, where all three of the monotheisms had some version of the “God’s will v natural order” debate (centred around Aristotelianism) it is conspicuous that the Aristotelians broadly won in Christendom and Judaism (notably Aquinas and Maimonedes) but definitely lost in Islam (al Ghazali capturing the mainstream rather than ibn Rushd aka Averroes).

    Islam stagnates, economically, instiututionally, intellectually, technologically. Europe didn’t.

    [email protected] Basically yes: one can explain current dominance, future dominance will rest on information not yet available.

  16. Adrien
    Posted March 7, 2012 at 5:08 pm | Permalink

    China ended up with precious little in the way of institutions between family and state.

    I’m no sure what you mean by institutions but the basic form and territory of the country have remained in place for quite a while, while Europe went thru constant turmoil until recently.

    But, over the very long run, it is the dynamic possibilities which tend to win out over static differences.

    Dynamism is more creative than stasis true.

    Islam stagnates, economically, instiututionally, intellectually, technologically. Europe didn’t.

    But Europe did stagnate, economically and technologically for quite a while.

  17. Posted March 7, 2012 at 6:36 pm | Permalink

    [email protected]

    I’m no sure what you mean by institutions but the basic form and territory of the country have remained in place for quite a while, while Europe went thru constant turmoil until recently.

    Territorial boundaries are not what I mean by institutions. While definitions vary, I generally prefer the sort of approach set out by Douglass North.

    Also, the territorial continuity of China is easily exaggerated. China has had considerable periods of disunity.

    But Europe did stagnate, economically and technologically for quite a while.

    No, Europe regressed: not the same thing. The notion that medieval (or even later Dark Age) Europe was either technologically or economically stagnate is a misnomer.

  18. Adrien
    Posted March 8, 2012 at 5:40 pm | Permalink

    No, Europe regressed: not the same thing.

    Yeah much worse.

    Also, the territorial continuity of China is easily exaggerated. China has had considerable periods of disunity.

    None as bad Europe.

  19. Posted March 9, 2012 at 1:06 pm | Permalink

    [email protected] Unity was not a long-run advantage for China and disunity was a long-run advantage to Europe.

  20. Adrien
    Posted March 10, 2012 at 12:39 pm | Permalink

    Lorenzo, I agree. I believe the key to Western European ascendency is a long period of chaos and war followed by stabilization at a certain lucky moment.

    I believe this is, finally, lucky for the planet because, well, better British common law being imposed by imperial decree than Mandarin imperial decree, or Sharia.

  21. Posted March 11, 2012 at 1:42 pm | Permalink

    [email protected] Stabiisation? When did that happen? The “long peace” of the C19th saw the unification of Germany and Italy, for example.

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