This article's interpretation of the prehistoric record is deeply out of touch with mainstream scholarship regarding these parts of pre-history and ancient history. When Kar states in the abstract that "I will be arguing that these ancient developments 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," Kar is greatly understating the extent to which the conclusions reached are not accepted by scholars whose primary fields of research are more closely aligned with the study of this part of prehistory.
Kar also fails to give sufficient credit to the fact that we know, even with the latest developments in this fast advancing branch of research, very, very little about the social structure and laws of these ancient civilizations, even though we know much more than we once did about their genetics, their tools and technologies, the chronologies and geographic range of their civilizations, and their linguistic affiliations.
The Abstract
The paper (open access) is Robin Bradley Kar (University of Illinois College of Law) Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization (University of Illinois Law Review, Vol. 2012, No. 5, p. 1499, 2012). The lengthy abstract is as follows:
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, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, now accumulated 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 findings 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 traditional 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 civilizations to arise within our natural history as a species (viz., the “Harappan” or “Indus Valley” Civilization), and the people in this region must have therefore developed some of the very first cultural traditions that were specifically adapted to sustaining large-scale civilizations with incipient law.
I will be arguing that these ancient developments 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 Eurasian 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 prehistory 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 origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance 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, however, 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 findings 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 employed in the current literature are, moreover, typically identified from the historical record and therefore fail to detect any relevant relations that might have arisen in human prehistory. They tend to focus on a conception of law as a set of publicly stated rules and procedures that are largely exogenous to the underlying cultural traditions and psychological attitudes that tend to support flourishing legal systems. They therefore fail to detect the kinds of emergent cultural traditions (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 throughout 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 agricultural living with large-scale civilizations and incipient legal traditions. 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 legal institutions have worked so well while others have not. This work can also be used to identify a number of important but underappreciated features of Western traditions that are shared with these broader Eurasian traditions and have been playing a critical — if underappreciated — 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.
The Mainstream View Is That The Harappans Did Not Influence Western Civilization
The mainstream view, which is widely held, would see the Proto-Indo-European civilization of the Pontic-Caspian steppe that really expanded in territory during the Bronze Age (or in a minority view that reaches the same conclusion on Harappan influences, a Proto-Indo-European civilization that originated in Anatolia and was the source of the earliest Neolithic migrants to Europe) as the most direct ancestor of Greco-Roman civilization.
The mainstream view in the field is that Harappan civilization had only a minimal influence on non-Indo-Aryan parts of the Indo-European cultural tradition (with the possible exception of an indirect influence of the recently rediscovered Tocharian civilization of the Tarim basin in China that Indo-Europeanist Mallory believes may have received some of its irrigated agriculture concepts from via Bactrian trade partners).
Thus, the mainstream view is that the Indo-European cultures of the Greeks, the Celts, the Romans, the Germanic peoples, the Slavs, the Hittites, the Armenians, and even the Persians, probably received virtually no Harappan influences.
Hebrew Culture Had No Harappan Influences
There is also an almost a universal consensus that Harppan civilization had no influence or connections at all with the ancient Hebrews. The earliest Hebrew states and the ethnogenesis of a people who saw themselves as "Hebrews" or "Jews" in what is now called Israel arose in the Iron Age (i.e. after 1200 BCE and before the fall of Rome), centuries after Harappan civilization had ceased to exist. The language shift of the Sumerian empire of Mesopotamia that coincided with the rise of the Semitic language speaking Akadian Empire in Mesopotamia ca. 2000 BCE, following one of the worst droughts in recorded history in the region, came at a time when the Harappan civilization was in its final centuries and trade between Mesopotamia and the Indus River Valley had declined.
The branch of the Semitic language family (which is part of the Afro-Asiatic language macro-family rather than the Indo-European language macro-family) that gave rise to both the Arabic and Hebrew languages was a sister language to Akkadian, rather than a descendant of Akkadian, and probably broke off to be a distinct branch of the Semitic languages at all sometime after the Harappan empire collapsed.
There are strong identifiable Sumerian cultural influences in the Torah, and in particular, in much of the book of Genesis (for example, the Creation story, the Garden of Eden, Noah's flood, and the Tower of Babel), and in the story of the birth and early childhood of Moses (which closely parallels an earlier legend of the birth and early childhood of one of the more famous Sumerian kings). But, there is no reason to think that the Sumerian influences on Western Civilization that were received via the adoption of Christianty which adopted the Torah as part of its scripture, had a Harappan source that was incorporated into Sumerian civilization and from there into linguistically Semitic Mesopotamian civilization and from there into the Torah. Moreover, there is even less reason to believe that these residual Mesopotamian cultural contributions that were incorporated into the Torah have had any actual impact on law or legal theory in Western Civilization (indeed, most of the formative period for the parts of legal thinking in Western Civilization that survived the fall of the Roman Empire, with the possible exception of family law, pre-date any meaningful Hebrew cultural contribution to Western culture).
Hebrew cultural influence on Western Civilization was quite minor prior to the destruction of the Temple in Jerusalem in 70 CE, when the Jewish diaspora gave rise to a mass migration of Jews from their modest Levatine kingdoms to places across the Roman Empire. Most of the Hebrew cultural influence on Western Civilization comes from the branch of early Rabbinic era Judaism that became Christianity which grew rapidly in popularity in various Rome Empire cities in the 100s and 200s CE, and was adopted by Roman Emperor Constantine as the empire's state religion in 325 CE. But, Christianity was syncrenistic and incorporated into its Rabbinic Jewish core rituals and concepts from other sources some of the most notable of which are the Platonic philosophy, practices from the cult of Mithras, and practices from the cult of Dionysis. The particular branch of Judaism that became Christianity also reflects Zoroastrian religious influences that had accreted to this particular sect member's theology and dualistic worldview in the period between the writing of the last books of the Hebrew Bible and the earliest writing of the Christian New Testament.
There Is No Harappan Legal Tradition To Draw Upon
A huge problem with any effort to gain insight into modern legal legacies from Harappan culture, even if there were any, is that we simply have no idea from any historical accounts what the laws of this civilization were like at a level of detail sufficiently great and sufficiently reliable to make any real inferences relevant to law then or now. There are some short Harappan written materials out there to be read, although we don't know if they had any legal content, but none of them have been deciphered. And, the Harappan writings that we do have are overwhelmingly too short to have been very useful surviving legal texts or literature.
In the somewhat analogous field of Minoan language documents, we are further along in making some sense of what the ancient writings mean, and those mostly consist of accounting records.
Moreover, even in places that could plausibly have been influenced by Harappan legal culture at some point in time, intervening civilizations have had such profound cultural impacts that any deep substrate influence of a Harappan legal culture would be nearly impossible to discern.
For example, in the area from Bactria to the Indus River Valley that the law review article argues for as a locus through which Harappan influence could have impacted the formative period of Indo-European culture, there have been Uralic hunter-gatherer, Pre-Indo-European pastoralist, Indo-Iranian pastoralist, East Asian Turkic, Byzantine, Mongolian, Muslim, pre-Soviet Russian, and Soviet Russian waves of cultural influences that virtually eliminated or almost completely diluted any cultural impact of a hypothetical very old strata of Harappan cultural influences in the area.
This area was at the very fringe of the literate world in the early historic era, so the earliest written accounts from ancient Greek and Roman writers are often brief, vague, fuzzy, inaccurate and confused.
The Mainstream View of Harappan Civilization
The mainstream view of Harappan civilization is that it is one of the earliest offshoots of the Fertile Crescent Neolithic revolution (i.e. invention of farming, herding and pottery), reaching the Indus River Valley around the same time that the Neolithic revolution was extended to Egypt, about a thousand years after it appears in the Fertile Crescent (i.e. the Levant, Southern Anatolia and Mesopotamia).
The mainstream view is that its language survives only in undeciphered written impression, many of which were seals that may have been only a proto-script and not a full literary language, and that the Harappan language had very little substrate influence on the Indo-Aryan languages, i.e. Sanskrit and its many modern descendants such as Hindi and Urdu. It is acknowledged, however, that Harappan worldviews and religious concepts may have had meaningful influences on the Hindu religion in the early Vedic period around 1500 BCE when Indo-European populations conquered their collapsed civilization and imposed their language and some of their religious and cultural ideas on the remnants of the Harappan people.
It is generally assumed that the Harappan language was not part of the Indo-European language family. Some people speculate that the Harappan language may have been a source for the Dravidan languages and possibly also related to the Elamite languages of ancient Southwestern Iran, but the case that the Dravidan languages are an isolate not related to any other known living or extinct language, or has some other source, is at least as solid.
Sumerian records indicate that there was regular maritime commerce between the Indus River Valley and Sumeria via the Persian Gulf during the Copper Age, that they spoke a non-Sumerian language, and that there were Harappan expatriate communities of traders in the Sumerian cities closest to the Persian Gulf.
Archaeological records from the Indus River Valley strongly suggest that the entire civilization experienced little intra-community warfare and may have been a unified country or federation of city-states until it collapsed. For example, apart from a few frontier trading posts, Harappan cities were not walled. Recent research has revealed evidence of social stratification, active trading networks between its cities and into the neighboring Bactria and Sumeria and Western Deccan Pennisula regions that employed at least a proto-script of abstract seals with semantic meaning for commercial purposes, and some evidence of what may have been criminal violence, domestic violence or mercy killing of individuals with sickness (interpretations vary). Harappan cities showed evidence of considerable urban planning, perhaps even on the level of early Roman cities.
Many Harappan cities were along a river near the Pakistan-India border which was probably called by its Vedic name, the Sarvasti River, that dried up rapidly not long before the Indo-European Aryan peoples arrived ca. 1500 BCE. This ecological catastrophe was probably pivotal in the collapse of Harappan civilization and probably opened the door to their conquest.
The mainstream view is that the cultural legacy of Harappan civilization, to the extent that there is one at all that is distinguishable in modern civilization, manifests itself in those aspects of South Asian Hindu culture that differ from those cultural characteristics that were shared by all of the Indo-European societies.
For example, while the Hindu Brahmin caste has been shown with genetic evidence to have had a disproportionate Indo-European superstrate influence relative to other castes in India, the underlying caste system structure of Hindu India may very well be a Harappan cultural legacy that the conquering Indo-Europeans (more specifically, the conquering Indo-Aryans), grafted themselves onto at the top.
In the area of religion, the polytheistic Hindu religion differs from other Indo-European pagan religions (e.g. Celtic, Greek, Roman, Norse and Hittite deities), in having had many deities who had forms that were not basically "super"-human. This may have been a legacy of Harappan religious beliefs that were integrated into the polytheistic religion of the Indo-Aryans to form Hinduism.
The furthest historically documented extent of specifically Indo-Aryan (as opposed to the broader Indo-Iranian) branch of Indo-European cultures, that may have carried with them Harappan cultural legacies, was as the ruling class of the Mittani Empire that was contemporaneous with the Bronze Age Indo-European Hittite Empire in Anatolia (ca. 2000 BCE to 1200 BCE), that was located in a region in the general vicinity of the border of modern Turkey with modern Iran. But, this dynasty and its Indo-Aryan cultural influences (particularly in the areas of horse husbandry and chariot driving) had disappeared by around the time of the Bronze Age collapse (1200 BCE), give or take a century or two, and was long gone by the time that the Iron Age classical Greek civilization that is normally seen as foundation to Western Civilization began to emerge.
Out of India Theories and Variants On Them
A not very widely held minority view on Indo-European origins (except among politically motivated Hindu nationalists) sees this language family and the larger proto-Indo-European culture of the people who spoke early version of the languages that subsequently diversified into the Indo-European language families as having been much more profoundly influenced by Harappan civilization.
The law review article appears to be adopting the "Influenced By India" theory in the described below.
Out of India Theories Of Indo-European Origins
Out of India theories of Indo-European linguistic origins have a somewhat undeserved reputation that verges on crackpot status in the field, as the evidence does not so definitively rule them out. But, there are also good reasons to be skeptical of these theories.
But, the law review article referenced below does do its readers unfamiliar with this field a disservice by apparently failing to make clear just how non-mainstream the view that Harappan culture has had an important cultural contribution of any kind to Western Civilization is among linguistics, archaeologists, and other experts in ancient history, prehistory and historical population genetics.
In the most extreme version, the "Out of India" theory of Indo-European origins argues that the Proto-Indo-European language was the Harappan language, and that the Indus River Valley civilization's territory was the urheimat of the Indo-European language family.
In one version of this narrative, the collapse of the Harappan civilization produced a diaspora of Harappans in all directions including the cities of its trade partners in Bactria. These Harappan exiles became a ruling class of the neighboring central Asian pastoralists in a task made easier by their advanced large scale civilization and agricultural knowledge, and this brought about language shift to the Harappan Proto-Indo-European language. Invigorated by the direction of this new ruling class, the resulting Indo-European civilization spread far and wide to eventually become the dominant language family of Europe, India, Anatolia, Central Asia, and South Asia.
An origin of the Indo-European languages in Harappa which was a cultural sphere relatively isolated from other advanced civilization for a very long time, would help to explain the relative lack of an obvious source of a related language from which proto-Indo-European could have split off in the proto-Indo-European place of origin, and would explain the relatively complete compliment of agricultural and maritime words in the proto-Indo-European lexicon that seem out of place in a society of nomadic pastoralists of the European steppe.
An Out of India theory would help explain why the Vedic tradition does not include any allusion to a migration from outside the region or a conquest of their people by outsiders, unlike many other Indo-European legendary histories. This omission is particularly notable given that the Vedic tradition does famously refer to the archaeologically observed transition of peoples in North India from inhumation to cremation of the dead which is often seen as a key marker of the point in time of the arrival of the Indo-Aryans in South Asia.
Similarly, an Out of India theory would explain why it has been impossible to identify a Harappan substrate in early Vedic Sanskrit (by comparison, for example, there is a clear pre-Mycenean Greek Aegean language substrate in Greek). If Harappan is the source language of Indo-European, there would not be a non-Indo-European substrate in Sanskrit, the most direct descendant of Harappan in an Out of India hypothesis.
Ancient DNA and the population genetics of modern populations has shown a strong link between Y-DNA haplogroup R1a, which is passed from father to son, regions of Central Europe, Eastern Europe, the European Steppe and Central Asia that were Indo-European linguistically prior to Bronze Age collapse, and in Brahmin populations of South India where an Indo-European introgression is inferred. Both Y-DNA haplogroup R1 and Y-DNA haplogroup R2 are found in the Indus River Valley, with R2 rather closely tracking areas that would have had strong demographic influence from the Harappans. In an Out of India narrative, Y-DNA haplogroup R originates in the Indus River Valley (or at least has its first major expansion there) and Y-DNA haplogroup R1 is characteristic of the founding population of Harappans who migrate from the Indus River Valley to the Central Asian and European Steppe and come to form the bulk of the expanding population of Proto-Indo-Europeans, with Y-DNA R1b populations branching away and expanding into Western Europe at some point from this source. There are problems with this narrative and the more conventional view is to put the point of the R1a v. R1b divide further back in time and closer to the Pontic-Caspian steppe, but they aren't insurmountable issues.
Autosomal DNA from modern populations in South Asia also reveals that the "Ancestral North Indian" (ANI) component of modern DNA in South Asia, and the "Ancestral South Indian" (ASI) component of modern DNA in South Asia, while largely coinciding with the boundaries of historically Indo-Aryan linguistic areas and historically Dravidian linguistic areas in South Asia, seem to be much older than the hypothetical 1500 BCE event of an Indo-Aryan invasion of South Asia. To the extent that the ANI autosomal genetic component reflects an Indo-Aryan contribution (presumably from outside South Asia in the Kurgan hypothesis and Anatolian hypothesis of Indo-European origins), at least to some extent, the time depth of the ANI component is hard to understand. But, a great time depth of the the ANI contribution to South Asian population genetics is easier to understand if that contribution can be traced through the entire history of the Indus River Valley civilization's presence in South Asia.
Influenced By India Theories
A more moderate variation on the Out of India theory would be an "influenced by India" theory, in which people who were culturally Harappan or Harappan influenced in places like Bactria and Iran added key ingredients to the mix of cultural elements in the Proto-Indo-European culture of the European Steppe or Anatolia (depending upon whose Indo-European Urheimhat theory one adheres to) which helped to propel a previously marginal pastoralist steppe culture into a dominant cultural influence on Western Civilization and beyond. For example, the Proto-Indo-Europeans might have been influenced in agricultural techniques and social organization by Harappan influenced Bactrians early on in a way that spread with the expanding Indo-European culture, without undergoing language shift.
Criticisms of Out Of India and Influenced By India Theories
Some of the early criticism of Out of India theories have origins in a Eurocentric view of the world that was dominant when linguists first began to discover that many modern languages were related to each other in a large, mostly branching linguistic family tree that is now called the Indo-European language family in the 19th century at the height of the European colonial era. Attributing any great cultural accomplishments to the "lesser" peoples whom Europeans ruled seemed unnatural, so cognitive biases prevented a fair condideration of out of India theories.
But, in our current and more enlightened era, there are still solid reasons to be skeptical of both out of India theories and Influenced By India theories.
Most theories of Indo-European linguistic and cultural influences would put the formative region of Indo-European culture to far West to be much influenced by the Westernmost extent of cultural influences from Harappan civilization via its trade partners in Bactria, which may very well not itself have been truly Harappan but merely Harappan influenced. Bactria may have been influential for some of the more eastern branches for Indo-European civilization once it started to expand from a central urheimat, but would likely have had far less influence on the western branches of Indo-European civilization that eventually evolved in the cultures that historians describe as "Western Civilization."
India is at one geographic extreme of the Indo-European linguistic territory, and all other things being equal, one would expect a proto-Indo-European urheimat to be closer to the center of the early Indo-European world. For example, a recent statistical model that attempted to piece together phylogenies of the Indo-European language from scratch (largely mirroring conventional classifications by other methods) have suggested Anatolia as a most likely origin for the Indo-European languages.
Archaeological evidence of strong cultural continuity between ancient civilizations known to have been Indo-European language speaking from historically attested records (e.g. the Hittites, Tocharians and Mycenean Greeks) and prehistoric civilizations whose linguistic affiliations are otherwise unknown support what is known as the Kurgan Hypothesis that trace this chain of cultural continuities back to archaeological civilizations of the Pontic-Caspian steppe around 5,500 years ago, that were early adopters of horse domestication, wheeled transportation, and of metallurgy.
The metallurgical innovations associated with the Bronze Age wave of Indo-European expansion appears from the archaeological record to have been borrowed from non-Indo-European civilizations neighboring the proto-Indo-Europeans and to have their earliest origins in the Caucuses although they do very quickly spread to the Northern outskirts of the Harappan territory and to Anatolia. But, admittedly, it wouldn't take more than a couple of new, very old discoveries of metallurgy technologies somewhere else to invert the apparent direction of technology spread in the archaeological record.
In sum, while the evidence against an Out of India theory of Indo-European origins is not so overwhelming that is is absolutely definitive, and it is possible that an Influenced by India theory could have some thread of truth to it, both theories are on balance disfavored by the available evidence for quite solid reasons.
