Where Does Law Come From?

Where does law come from? Parliament and courts are obvious but incomplete answers. Watch two children arguing over a pencil: “Give it back. It’s mine.” This small sentence already contains ownership, boundaries and a demand that others respect a claim. As ANU legal theorist Professor Desmond Manderson explains, law is not only a set of formal rules. It is also a cultural vocabulary carried through speech, stories, songs, art and myth.

Two ancient stories help us see this. They are not literal sources of British or Australian legislation, but they have helped shape the Western legal imagination and, therefore, the common-law tradition.

The first story comes from Genesis. God creates Adam and Eve and allows them to eat fruit from every tree in the Garden of Eden except the tree of the knowledge of good and evil. The serpent tempts Eve; she eats the fruit and gives some to Adam. Their eyes are opened and they gain knowledge of good and evil. God punishes them and expels them from Eden. Importantly, God does not explain why the fruit must not be eaten. The command is simply given, and it must be obeyed.

The second story is Aeschylus’s Oresteia. It begins with a chain of revenge. Agamemnon sacrifices his daughter Iphigenia. His wife, Clytemnestra, later kills him. Their son Orestes then kills his mother to avenge his father, and the Furies pursue him for matricide. Orestes seeks help from Apollo and then Athena. The problem is almost impossible: a murdered father should be avenged, but a son must not kill his mother. Athena establishes a public trial. The Furies accuse Orestes, Apollo supports him, and a citizen jury divides evenly. Orestes is acquitted.

Yet the story does not finish with the verdict. Athena spends much of the final part persuading the defeated Furies to remain within the city. She gives them an honoured role and they become the Eumenides, or “Kindly Ones.”

Now we can compare the two visions of law. Genesis presents law as command. It comes from a single external authority, creates order and demands obedience. Put simply, its principle is: the law must be obeyed—the “rule of identity or sameness.” The rule remains fixed and applies because it has been laid down. Its great attraction is certainty.

The Oresteia begins with a similar logic—lex talionis, or “an eye for an eye.” But mechanical retaliation cannot solve this case. Two valid demands conflict, and every act of vengeance creates another. Law therefore becomes more than a predetermined rule: it becomes a public process of judgment through which a community can make an imperfect decision and survive disagreement. Put simply, its second principle is: there must be change—the “rule of difference or time.” This is pathei mathos: learning through suffering so that time, experience and changing circumstances can matter.

Procedure alone, however, is not enough. Athena’s reasoning privileges the father over the mother, showing that apparently neutral procedures can still conceal power. Nor is a verdict enough. Winners need no persuasion; losers do. If those who lose feel excluded or unheard, they may abandon the system and return to private vengeance. The Furies receive a place in the city not because they won, but because legal legitimacy depends on keeping even the defeated invested in the shared order.

Together, the stories suggest that law needs both stable rules and accountable judgment: consistency, but also the capacity to learn, change and reconcile.