A Comparative Analysis Of Legal Developments in Roman and Islamic Traditions

Bradley Bosserman

Bradley Bosserman

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TABLE OF CONTENTS

Section
I II III IV V Introduction Methodology The Preceding Eras The Formation of Islam A Comparison of Legal Norms A. Treatment of Womyn, Marriage, and the Family B. Rights of Non-Citizens C. Slavery D. Classes of Citizenry E. Taxes VI VII VIII Sources of Law Church and State Conclusion Bibliography

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3 3 4 7 10 10 14 15 17 18 19 24 26 27

Bradley Bosserman I. Introduction

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Many scholars and citizens of the western tradition view the development of ancient Roman law as one of the most profound and advanced foundations of modern civilization. The belief is pervasive that, not only were the most progressive values of the day enshrined in Roman Statute, but that the very nature of its systemic jurisprudence was unrivaled. It is likely that this opinion is fueled by a general

ethnocentrism along with the influence of modern political orientations that align themselves against much of the Arab world. This paper will seek to address the

aforementioned assumptions by contextualizing Roman Law into the framework of early Islamic Law. This will be achieved through a comparison of legal norms, by discussing the fundamental nature of the competing legal systems, the religious role in both systems, and by analyzing the timeframes by which these systems developed. This investigation will conclude that most of the institutional characteristics thought to be unique to Roman Law were, in fact, shared by the Islamic Legal Tradition and that Arab Law actually outpaced that of the Romans in it’s development of crucial modern legal reforms. II. Methodology In order to make valid comparisons it is necessary to isolate the timeframe of the 6th to 9th century C.E. This window has distinct benefits. This period bore out crucial developments in both Roman and Islamic Law. Roman tradition obviously extends

much farther back, but this method allows for the analysis of the Justinian Code

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through the Ecloga of Leo III.1 The nature of the Justinian Code as a compilation of previous traditions as well as its historical import makes it a logical starting point. The

Ecloga marked a distinct departure in legal thought for the Roman Empire and can be
conveniently analyzed in light of the events occurring in Islamic lands at the exact same time. This timeframe also includes the beginning of Islamic Law and carries it through to the development of most of its modern legal mechanisms. Some scholars, namely Crone, von Kremer, and Schacht2 have described what they view as direct Roman influence on the development of Islamic law but more recent work has disproved most of their analysis or cast serious doubt on their conclusions3. For this reason, this paper won’t complicate the issues by addressing the possible migration of legal tradition. III: The Preceding Eras In order to understand the development of law one must first understand the nature of the systems from which they preceded. Pre-Islamic Arabia was defined by tribal relationships and a wealth of customary tribal law. The Arab peoples had been largely insolated from external hegemonic cultures, which allowed their indigenous

By the early 7th century, much of the Roman law and custom had been lost to the Byzantine Empire. Leo III sought to unify his empire by publishing a legal handbook in Greek. It was the first codified Byzantine Codex and represented significant reform in a number of areas. For more information, see Bury, J B. A History Of The Later Roman Empire. Vol. II. London And New York: Macmillan and CO, 1889. Specifically, Book VI, Ch. II. 2 Crone, Patricia, Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate. Cambridge. Cambridge Press, (1987). Von Kremer, Alfred, Culturgeschichte des Orients unter den Chalifen, 2 vols. (Wien: Wilhelm Braumiiller, 1875-77). Schacht , Joseph, "Foreign Elements in Ancient Islamic Law," Journal of Comparative Legislation and International Law 32 (1950) 3 Hallaq , Wael B., “Review of Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate by Patricia Crone,” Journal of the American Oriental Society, Vol. 110, No. 1. (Jan. - Mar., 1990), pp. 79-91.

1

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traditions to flourish. In this environment, a number of informal legal traditions could be observed. The Tribe functioned as the central political unit in Arabia. In this framework, there was no tribal protection for people outside of any given tribe.4 No domestic social norms were applied to outsiders. Therefore, entire tribes were held accountable for the actions or crimes of any individual members. This situation often resulted in “blood feuds” where the actions of one person could insight years of conflict between warring groups.5 An informal mechanism did exist, however, to deal with inter-tribal disputes, in the form of mediation. A Tribal leader could appoint a Hakam (mediator) who was a trusted person of wisdom to hear both sides of a conflict and render a decision. It was common for tribes to give slaves, animals, or property to be held in trust by the Hakam in order to ensure compliance with his judgment. An interesting characteristic of this mediation process is that a decision by a Hakam was viewed by most groups in the region as the “correct” resolution to that specific point of contention. When the same situation arose later, tribes would recall past decisions in order to determine the correct path. In this way, Hakam’s were creating authoritative statements of normative legal custom.6 This is particularly interesting not only in it’s relative sophistication, but also in light of the absence of any such “case law” being put into practice in the Roman political system during the same time. Familial legal structures during this era were quite loose and informal. Just as Roman marriages lacked much institutional definition until much later, Arab unions were
4

Schacht, Joseph. An Introduction to Islamic Law. Oxford: Oxford University Press, 1964. p. 4 Ibid. p. 5 6 Ibid. p. 8
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Bradley Bosserman regularly created and dissolved with no stigma.

6 Promiscuity and “divorce” were

prevalent as well as the use of slave womyn7[sic] as sexual objects.8 These were the conditions of Arabia that set the stage for The Prophet Mohammed to establish a new vision in Yathrib, later known as Medina. The subsequent creation of the documents known as the Constitution of Medina in 627 C.E. marks the jumping off point for the development of uniquely Islamic legal structures. Meanwhile, Rome had been struggling with the administration of its diffuse legal system. Hundreds of edicts by local magistrates held the majority of sway in

principalities throughout the Empire. The major thrust of the Roman law, since 313 C.E., became the promulgation of Christianity. The formal mechanism of legislation lay with the corrupted Senate, individual magistrates, and with the Emperor who could hand down edicts personally. After a number of false starts, Theodosius II was able to compile a Code of Roman laws that would bring some order to the Empire and the political situation following Constantine.9 This code was completed, and promulgated as law in the Eastern empire in 438, and declared to be the substitute for all the constitutions made since the time of Constantine. In the same year (438) the code was forwarded to Valentinian III, the son-in law of Theodosius, by whom it was laid before
This spelling of women and woman has existed in critical literature since at least the 1970s. Its broad usage is advocated by a number of gender theorists and will be used throughout this paper. See Herbst, Philip. Wimmin, Wimps & Wallflowers: An Encyclopaedic Dictionary of Gender . Intercultural Press, 2001. p. 304. And Cameron, Deborah, ed. The Feminist Critique of Language: A Reader . 2nd ed. New York: Routledge, 1998. Specifically, the chapters by Ehrlich and King. 8 Schacht, (1964). p. 10 9 Long, George. A Dictionary of Greek and Roman Antiquities, John Murray, London, (1875). p. 302-303
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Bradley Bosserman the Roman Senate, and confirmed as law in the Western empire.10

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The Codex of Theodosius was hardly a revolutionary document. It was intended merely to codify the existing norms. Conditions for marriage were still largely nondefined. No formal apparatus of court mediation was present. The day-to-day

principles that guided commercial activity were left out. The Codex was, however, very concerned with the imposition of Christian Orthodoxy and contains 65 decrees directed at heretics.11 IV: The Formation of Islam The Prophet Mohammed fled Mecca in 622 C.E. to emigrate to the city of Yathrib. Mohammed was asked to act as a Hakam for a long running dispute that involved two Arab tribes (the Aws and Khazraj) as well as three prominent Jewish clans, Banu Qaynuqa, Banu Qurayza and Banu Nadir.12 Part of his mediation involved the creation of The Constitution of Medina in 627 C.E. This Code, along with The Qur'an served as a radical departure from the previous legal framework of Arabia and enshrined a new set of values based on justice, piety, and community13. The law that Mohammed created, however, was different from the type of legal administration that was going on in the Roman Empire. Islamic law was much more holistic. It was not simply a penal code of prohibitions and punishments. In fact, it wasn’t a penal code at all. Islamic law was a system of duties; ritual, legal, and moral
10 11

Ibid. p. 304 Mango, Cyril ; Oxford History of Byzantium (Oxford: 2002) pp 105 12 The Cambridge History of Islam (1977), p. 39 13 Aslan, Reza. No god but God: The origins, Evolution, and Future of Islam. New York: Random House, (2006). p. 55

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that stood on the same footing and were situated under religious authority.14 Islam was very specific about which acts were good or bad, and to what degree, but there were very few prescribed punishments for specific transgressions. The Shariah, or Islamic Law, recognize five distinct categories of behavior. First, actions that are obligatory, (wajib) in that their performance is rewarded and their omission is punished. Second, actions that are meritorious (mandub), in that their

performance may be rewarded, but their neglect is not punished. Third, actions that are neutral and indifferent (mubah). Fourth, actions that are reprehensible, though not necessarily punished (makruh). (haram).15 In light of the previous legal and social traditions of the Arabian Peninsula, many of the reforms that Mohammed implemented were quite radical. He required that all administrators arbitrate and serve with justice as their primary concern. To further this end he specifically barred any form of bribery. He suggested that all contracts be put in writing and that any dispute over them would require the calling of witnesses and presentation of proof. He made repayment of loans and fulfillment of contracts a moral obligation. In order to attack the prevailing economic inequality He forbade the taking of interest and established tax-free markets for the trade of goods. He specifically Finally, actions that are forbidden and punished

addressed what would now be called “family law” by regulating how womyn, children, relatives, and slaves could be treated. He strengthened the marriage tie by further institutionalizing it as a means to drastically reduce promiscuity. He formed new laws

14 15

Schacht, (1964). p. 10 Aslan, p. 162

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on divorce and inheritance, allowing womyn to seek divorce and to inherit their husband’s property upon his death. Another crucial reform was to enforce personal responsibility in order to eliminate “blood feuds.”
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Shariah also introduced the fairly sophisticated concept of ikrah, or duress. This notion voided the responsibility of an individual for a crime if they could demonstrate that they were forced under duress to commit it. Specifically, if an unlawful act were committed under fear of death, beating, or imprisonment then the person would be free of any penal sanction.17 This is particularly relevant given that while the notion of ikrah was being developed in Arabia, the use of torture and “induced confession” was relatively wide spread by magistrates and inquisitors throughout the Roman Empire.18 V: A Comparison of Legal Norms The Justinian Code (Codex Justinianus) of 533 C.E. established the final major codification of Roman Law. It incorporated past edicts, excerpted writings from legal scholars, as well as relevant components of former codes and constitutions. The norms enshrined in the Codex Jusinianus held full validity over the empire until the Ecloga of 726 C.E. Given that large portions of this codex are still in existence today, it is easily within our ability to understand much of the nature of Roman Legal structures during the timeframe of early Islam.

A. Treatment of Womyn, Marriage, and the Family
Marriage in the Roman Empire was a relatively loose affair. While there was legal distinction given to married couples, marital unions were determined on a
16

Schacht,(1964). p. 11-14 Ibid. p. 15 18 Peters, Edward. Torture. Philadelphia: University of Pennsylvania Press, 1996.
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functionally de facto basis.19 If two roman citizens were living together as a married couple, with the intent of being married, then they were so. These notions lead to promiscuity and confusion between matriomium and contubernium (being a concubine). This liberal view of marriage (liberum matrimonium) allowed for either party to seek a divorce at any time. Liberum Matrimonium was aided by the unique fact that marriage had no effect on ownership of property. A wife couldn’t commit her husbands credit or sell her husbands belongs. This was a policy that was held so dearly by the Romans that even the Christian Church never sought to challenge it.20 This liberal view of marriage runs counter to the development in Arabia. Mohammed recognized value in the marital union and actively tried to strengthen it. He ended the process where womyn could take on multiple husbands and prioritized the marital family.21 He did allow for bi-directional divorce, but placed a mandatory threemonth wait for a man to divorce his wife as a sort of “cooling off” period.22 Under both systems, a dowry was a common fixture of marriage. Very pertinent distinctions existed, however. The exception to the independent property ownership norms in Rome was that of the dowry, or dos. This fund, which the wife brought into the marriage, was seen legally as the property of the husband.23 In the Islamic system, however, the wife retained ownership of her dowry and also had rights to inherit her

19

Buckland, W W. Roman Law and Common Law. 3rd ed. Cambridge: Cambridge University Press, (1965).p 32 20 Ibid. p. 33 21 Aslan, p. 63 22 Ibid. p. 64 23 Buckland, p. 34

Bradley Bosserman husband’s property upon his death.24

11 These subtle distinctions articulate a very

substantive difference in attitude and legal treatment. The Roman system enshrined the notion of a husband’s dominance (dominus) while the Islamic system conceptualized the relationship more as a difference in roles between relative equals. The Roman family system was extremely patra-dominant. The father had

complete control over his sons in all aspects of their life until he saw fit to release them from his custody. He could determine who and when they married as well as where and how they worked.25 In fact, the legal category of an unemancipated son was

virtually identical to that of a slave. With the exception of military pay, every thing a son owned and any money they made was the legal property of their father.26 This was very distinct from the ideals and policies that Mohammad brought to Arabia. Islam clearly abolished the preexisting conception that children were the property of their fathers.27 A number of specific policy changes supported this ideal. The condemnation of infanticide bestowed a new respect for children’s rights.28 The Qur’an also ended the process of adoption, whereas men could take on legal ownership of unclaimed boys. Islam instructed its community to take a much more inclusive and just view of these orphans, directing that “believers treat children of unknown origin as their brothers in the faith and clients".29

24 25 26 27 28 29

Aslan, p. 64 Buckland, p. 36 Ibid. A. Giladi, saqir, Encyclopedia of Islam, Brill The Qur’an, 6:151 Ibid. 33:4-5

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The last point that will be addressed here is the legal age of marriage. This is only worthy of note due to virtually ubiquitous confusion regarding the age of consent in Islamic law. Under Shariah womyn weren’t eligible for marriage until they had

reached the age of puberty.30 This was consistent with nearly all other societies and civilizations of the age. In fact, Roman law during the same period stated the

acceptable ages of marriage as fourteen for boys and twelve for girls.31 One prominent source of misunderstanding in this regard is Mohammed’s marriage to Aisha. While it is true that she was betrothed to Mohammed when she was nine, there is no reason to think that their marriage was consummated prior to her coming of age.32

B. Rights of Non-Citizens
Managing expansive empires in the seventh, eighth, and ninth centuries necessarily required mechanisms to deal with non-citizens as well as members of diverse religious and cultural traditions. Pragmatically, both empires administered their more distant territories in a similar fashion, granting most residents with access to commercial rights, legal protections, and access to local institutions.33 This, however, was largely a result of local political expediency. Very substantial differences can be found in the official doctrines espoused from the legislative centers of Rome and Mecca. Justinian’s Code overtly decrees that all members of his Empire and subjects of his jurisdiction must be faithful Catholics and threatens dire punishment to anyone who

30 31

Aslan, p. 64 Johnston, David. Roman Law In Context. Cambridge: Cambridge University Press, 1999. p.35 Aslan, p. 65 Buckland

32 33

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holds differing views.34 In fact, the subheading to The Codex’s first book couldn’t be any more clear: “CONCERNING THE MOST EXALTED TRINITY AND THE CATHOLIC FAITH AND PROVIDING THAT NO ONE SHALL DARE TO PUBLICLY OPPOSE THEM.”35 Islam, on the other hand, takes a much more inclusive view. The Qur’an describes Muslims, Jews, and Christians all as being “of the same book” and member of one Ummah, or community.36 Islamic law specifically forbade any Muslim from disrupting the worship of Christians or Jews and granted them protection, as dhimmi, from any persecution.37 The dhimmi were ensured full access to all legal institutions and due process in exchange for the payment of jizyah. Jizyah was a set amount of assessed taxes that was normally equal to or less then the amount of zakat that was obligatory for all Muslims. Historical treatment of Jews will be isolated here as it demonstrates policies that were indicative of “non-citizen rights” as well as serving to dispel widespread and inaccurate views on early Muslim-Jewish relations. The Corpus Juris Civilis

institutionalized the doctrine of "Servitus Judaeorum" or servitude of The Jews. As a result, Jews living in Roman territory were disadvantaged in many ways. They couldn’t hold public office or testify against Christians.38 They were barred from worshiping in

34

Corpus Juris Civilis (The Civil Law, the Code of Justinian), by S.P. Scott, A.M., published by the Central Trust Company, Cincinnati, copyright 1932, Volume 12 [of 17] 35 Ibid 36 Aslan, p. 94 37 Ibid
38

Grayzel, Solomon, The Jewish Quarterly Review, New Ser., Vol. 59, No. 2 (Oct., 1968), p. 93-117

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Hebrew and speaking certain prayers. Many Semitic enclaves were forcibly converted and had their synagogues burned or turned into Catholics churches.39 The Islamic empire’s view of Jews as dhimmi has been previously explicated, but many charge that Mohammad’s early years in Yathrib laid the foundation for centuries of Jewish-Islamic conflict. These allegations, however, stem from a misinformed and unsophisticated understanding of crucial events. Any Jewish tribes that left Yathrib

upon Mohammad’s arrival did so voluntarily and left unharassed with all of their property.40 When Mohammad fell under attack by the Quraysh from Mecca, one of Yathrib’s Jewish houses, Banu Qurayza, supported the invading army with weapons and supplies. Mohammad responded to this sedition by putting Qurayza under house arrest and asking an impartial hakam to arbitrate the dispute. The hakam decided that the criminals were guilty of treason and that the appropriate sentence would be death. Mohammad complied and authorized their execution.41 The occasional portrayal of this as a genocide or even an anti-Jewish measure couldn’t be farther from the truth. Two other prominent Jewish tribes existed in Yathrib at the time and neither thought it appropriate to defend the actions of Banu Qurayza. Additionally, the number of

executions only represented slightly more than one percent of the Jewish population of Yathrib. It wasn’t until the end of the seventh century, under the leadership of Caliph Umar and during a broad movement of islamization, that Jews were peacefully expelled

39 40

Ibid Aslan, p. 92 41 Ibid, p. 94

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from Medina (formerly Yathrib). Even then, the Semitic clans were allowed to leave with their property, possessions, and rights.42 C. Slavery Slavery was a widespread institution throughout most civilizations in the sixth to ninth century. The Roman and Islamic Empires were no exception, although there While

were some characteristic differences in the nature of their slave systems.

inhabitants of conquered territory provided the primary supply of slaves in both societies, their uses, legal status, and general treatment varied. Differing cultural attitudes toward work defined distinctive roles for slaves. In Muslim lands physical labor and general servitude were the normal functions of slaves, while their masters applied their own expertise to trade and commerce. In the

Christian empire, however, the day-to-day operation of trade and business was thought to be a lowly act for people unable to own capital and employees. Because of this, it was quite common for Roman slaves to be given broad authority to transact business on their masters’ behalf.43 The unique result of this system was a relatively educated and cosmopolitan, though poor and disempowered, slave class. The mandates laid out in The Qur’an lead to a number of reforms in the Arabian slave trade. The presumption of freedom had a very real impact on the practice and execution of slavery. Only people captured during battle or those born into slavery were allowed to be enslaved. Muslims, Jews, and Christians were barred from being taken into slavery and slaves had, functionally, the same legal status as impoverished

42 43

Ibid Buckland

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members of the community.44 They had rights to be fed, provided for, and clothed in the same fashion as their masters. They retained the right to call their owners before the court if they were mistreated.45 The Qu’ran also made it clear that owners had a moral responsibility to the fair treatment of their slaves, and if they were unwilling or unable to care for them, then they shouldn’t be allowed to legally keep them.46 The Qu’ran also articulated the nobility and righteousness of freeing slaves whenever possible. Due to these policies and attitudes, Bernard Lewis observes that the nature of Islamic slavery was a "vast improvement on that inherited from antiquity, from Rome, and from Byzantium.47

D. Classes of Citizenry
Roman society was extremely stratified into many layers of economic and social classification. Entrenched aristocracies and corrupt administrators responded to

growing populations and complicated demographics by demarcating the population into proliferate amounts of sub-groups with differing levels of rights and freedoms. During the time of Jusitnian, the legal code required separate treatment for Cives, Latins,

Peregrini, Dediticii, Slaves, etc.48

44

Sikainga, Ahmad A, Slaves Into Workers: Emancipation and Labor in Colonial Sudan, University of Texas Press. (1996). 45 Lewis, Bernard, Race and Slavery in the Middle East. New York: Oxford University Press, (1990).
46

Khalil b. Ishaq, quoted in Levy, Reuben, The Social Structure of Islam. UK: Cambridge University Press. (1957).
Lewis Buckland

47 47 48

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Mohammed, by contrast, actively sought to reduce political and economic hierarchies. The Qu’ran equalized the blood worth of all members of the community. The wealthiest Muslim had the same rights and obligations as the most destitute.49 The creation of tax-free markets and the prohibition on charging interest were specifically designed to combat prevailing class structures.50 In the Muslim Empire there was functionally only two categories of people: The Ummah (Jews, Christians, and Muslims) and Pagans. This was markedly distinct from the myriad classifications in the Roman Empire.

E. Taxes
The necessity of taxation to support large societies had been firmly established by the sixth century. Many different tax schemes were implemented during the phases of the Roman Empire and in its waning days, under Justinian, the poor bore the brunt of burden of sustaining the military and administrative apparatus.51 Logistics required taxes be assessed to territories and sent back to Constantinople. This arrangement allowed landed aristocracy and owners of capital to pass the majority of tax effect on to the workers and peasants. These payments were overtly designed to allow for the ongoing function of the Empire.52 This was very different from the manner that money was excised from members of Muslim territory. The Islamic revolution brought with it new notions of economic justice and equality. One articulation of this was Zakat being one of the five pillars of
49 50

Aslan, p. 58 Ibid. p. 59

Gibbon, Edward. The Decline and Fall Of The Roman Empire – In The East. Volume 4, Chapter XL. (1976-88).
52

51

Ibid

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Islam. Zakat, or alms giving, is similar to the Christian tradition of tithing except that the Church doesn’t serve as an intermediary of the money. All Muslims who meet a minimum threshold of wealth are obligated to pay two-and-one-half percent of their earnings to charity. This money does not go to the State or the Church, it is paid to the needy, in a few predetermined categories; The Poor, being people who can’t afford to provide for their basic needs; The Destitute, people with no income; People Who’s Hearts Are in Need, who are often new Muslims; those who are heavily in debt; and for the freeing of slaves.53 This system was unique in that it obligated the wealthy to pay the largest share and that the money went directly to the needy. The operation of the Empire was largely financed through Jizyah, which was a tax charged to non-Muslim members of the Ummah who lived throughout Islamic territory.54 This has been

described as a “protection tax” although that term in modern usage generally implies extortion. A more accurate view would be that of a traditional income tax that is

charged in order to support the military and structural machinations of the State. VI: Sources of Law When analyzing these two legal systems it’s important to look, not only at the effects of the policies, but also at the manner in which the legislation occurred. On the surface, these two systems appear vastly different. One is thought to be derived purely from rational scholarship while the other is characterized as a product of spiritual whim.

53

Bewley, Abdalhaqq & Abdalhakim-Douglas, Amal, Zakat - Raising a Fallen Pillar, Black Stone Press, (2001). Aslan, p. 94

54

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This section will illustrate how, though differences certainly do exist, neither of the aforementioned generalizations hold very much truth and that a surprising number of similarities can be discovered. A number of crucial sources of law can be identified within the Roman Empire. The first, and most dramatic, was that of the Imperial Decree. The Emperor had

limitless authority to articulate the law of the land.55 By wrapping themselves in the mantle of the Church, Roman Emperors commanded, not only the political power to legislate, but also the religious command to exercise the will of god on earth. In this respect, Imperial decree superceded all other legal determinations and allowed for the shaping of the society with broad strokes. During the Late Republic and Empire much of the legislation originated locally from magistrates. Given the logistical problems with transmitting imperial decrees as well as the need for diverse territories to have some local autonomy, regional functionaries maintained most of the power for creating the legal codes that managed the daily lives of citizens.56 Given the lack of functional case law, or binding legal

precedents, local Praetors were free to pass down their own edicts as long as they didn’t contradict a standing Imperial pronouncement. Scholarly juristic writings where also a common source of legal knowledge and greatly influenced the development of specific legal practices. When Justinian compiled the Corpus Juris Civilis, the majority of the document was a collection of excerpted writings from respected jurists. Prior to the dissemination of the Codex, these writings

55 56

Johnston Ibid

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held sway based on the reputations of their authors. They weren’t legally binding, per se, but it would require a bold magistrate to supplant the opinions of a respected scholar with his own. The final primary source of legislation was common, or customary, law.57 The Roman Empire was sitting atop hundreds of years of history and tradition. In many parts of the empire the best way to settle disputes and manage daily affairs was however their grandparents and great grandparents had done it. Up until the Ecloga of 726 C.E. the vast majority of Imperial Codes were not new legislation as much as they were codifications of existing customary practice. Islamic jurisprudence, or fiqh, developed differently in that it had a very clear point of origin in the early seventh century. The way that Islam was conceived, as a community in Medina around the Prophet Mohammad, is inseparable from the fundamental nature of fiqh and shariah. As explained earlier, Islam is not a penal code, but instead is a way of life with obligations and prohibitions. Because of this, legislation differed from Rome in that it didn’t seek to articulate what was most expeditious, but instead what was right. The Qur’an was the foundational law of Islamic jurisprudence and Mohammad’s life was the model of a righteous existence. The Shariah began to truly develop as a legal system after Mohammad’s death, once the Muslim community needed to answer legal questions independently without being able to simply ask the Prophet. In

Mohammad’s absence the Sunna, or traditions of the Prophet, developed. This was a

57

Ibid

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process by which people documented things Mohammad had said and done to be used as models for behavior in similar circumstances. These stories are known as Hadith.58 A documented chain of custody, so to speak, was attached to each Hadith in an effort to verify it’s authenticity. Over time, however, many Hadith became corrupted,

manipulated, or completely counterfeited to the point that Muslims had little faith in the system. As a result, Muhammad al-Bukhari compiled all of the hadith that he deemed genuine in the ninth century.59 This collection became the authoritative Sunna. During this same time there was also a community of legal jurists that were developing and conducting critical scholarship every bit as rationally as their counterparts in Italy. Initially, the evolving needs of the society lead to the process of

qiyas where scholars would analyze the hadith and Qur’an in order to draw useful
analogies to current political and legal questions. This was a useful mechanism, but proved to have limited utility. Once Islamic legal scholars developed the confidence to make their own normative determinations on issues they developed taqlid. This

theological practice allowed a large community of jurists to come to a consensus on a point of theology or law. These decisions had the effect of binding legal precedents because the larger community of Muslims had faith that a critical mass of scholars would come to the correct conclusion. This process lead to a few differing schools of

figh as groups of scholars came to distinct decisions.
The last source of Islamic legislation was itjihad. This was the process of This allowed a

independent judicial reasoning being applied by a qualified scholar.

58 58 59

Aslan, p. 164 Ibid

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trusted theologist to issue a fatwa, or a legal writing, on a point of contention. These decrees were not legally binding and carried only the reputation of their authors.60 This allowed for a more flexible and dynamic legal tradition, but was temporarily suspended in the tenth century. After considering the legislative mechanisms of the two legal traditions, the expansive differences should be evident, however some striking similarities should also begin to emerge. The use of extrapolation and contexualization is a common theme.

The evolution of Hadith and qiyas was an articulation of a universal desire to apply former wisdom to current questions. A similar process took place in the Roman Empire following the dissemination of the Corpus Juris Civilis. Given the nature of the

excerpted writings, many people tried to analyze the context of the omitted portions. This lead to a comparable form of corruption when different groups tried to bend writings to their own wills via interpolation.61 This trend was so wide spread that the very word interpolation, in modern usage, retains the implication of falsification. The technique of itjihad is also discernably analogous to the juristic scholarship of the Roman Empire. A kindred group of scholars were applying an increasingly

sophisticated mind to the processes, functions, and methods of legal practice. This scholarship existed largely outside of the formal institutions, but garnered an indisputable level of authority from the prominence of the authors. These

methodologies also created an apparatus that was able to advance the level of

60 61

Ibid Johnston

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jurisprudence and harness the creative and intellectual resources of their respective societies. VII: Church and State The role of religion in the politics and praxis of these evolving legal systems has been highlighted throughout this analysis. This should serve to demonstrate, among other things, how truly modern the conception of a secular government is. The

systems of norms that developed were never independent of theological orthodoxy or divorced from conflicts between faithful ideology and secular reason. This last section will serve only to explicate this common experience a little more clearly. Portions of the Islamic system can be contemplated in secular terms, but this type of partition doesn’t do justice to the holistic nature of the tradition. The

fundamental character of Muslim law is to define the manner that most perfectly allows Muslims to live like the Prophet in the service of god. This causes religion to relate to law much differently, but not necessarily less, then the Christian Roman Empire. Roman civilization had an incredibly long history of connecting religion to their political institutions. Even pre-Christian Rome nurtured this symbiotic relationship by perpetuating the belief that “no public action might be undertaken without the express assent of the gods.”62 The citizens entrusted to positions in government and judicial realms were always priests. The politicians understood from the very beginning that if they could control the religious life of the nation then they could use it deliberately as a

62

Hus, Alain, Greek and Roman Religion, New York, Hawthorn Books, (1962) p.126

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tool to mold the entire civilization.63 The Empire’s conversion to Christianity was merely a different edge of the same sword. VIII: Conclusion This comparative analysis has shown how truly revolutionary many of the Islamic reforms were to the legal environment of Arabia. The structures and ideals of civil law that developed from Medina were, in fact, strikingly progressive even as compared to the monolithic Roman Empire. When Leo III crafted the Byzantine Ecloga in 726 C.E. he granted new civil rights to women and children, limited the death penalty, mandated equal judicial treatment for all social classes, and barred the corruption of officials with gifts and bribes.64 These were welcome reforms, indeed, but also a hundred years

behind Islamic law. When individuals contemplate the building blocks of a modern legal system that values rights and justice, perhaps they should focus less on studying emperors and instead go straight to Medina.

63 64

Ibid, p. 127 Ecloga In Encyclopædia Britannica. Retrieved December 4, 2007, from Encyclopædia Britannica Online: http://www.britannica.com/eb/article-9031919 (2007).

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Aslan, Reza. No god but God: The origins, Evolution, and Future of Islam. New York: Random House, (2006). Brill, Giladi, saqir, Encyclopedia of Islam Bewley, Abdalhaqq & Abdalhakim-Douglas, Amal, Zakat - Raising a Fallen Pillar, Black Stone Press, (2001). Buckland, W W. Roman Law and Common Law. 3rd ed. Cambridge: Cambridge University Press, (1965). Bury, J B. A History Of The Later Roman Empire. Vol. II. London And New York: Macmillan and CO, 1889. Cameron, Deborah, ed. The Feminist Critique of Language: A Reader . 2nd ed. New York: Routledge, 1998 Corpus Juris Civilis (The Civil Law, the Code of Justinian), by S.P. Scott, A.M., published by the Central Trust Company, Cincinnati, copyright 1932, Volume 12 [of 17] Crone, Patricia, Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate. Cambridge. Cambridge Press, (1987). Ecloga: In Encyclopædia Britannica. Retrieved December 4, 2007, from Encyclopædia Britannica Online: http://www.britannica.com/eb/article-9031919 (2007). Gibbon, Edward. The Decline and Fall Of The Roman Empire – In The East. Volume 4, Chapter XL. (1976-88). Grayzel, Solomon, The Jewish Quarterly Review, New Ser., Vol. 59, No. 2 (Oct., 1968). Hallaq , Wael B., “Review of Roman, Provincial and Islamic Law: The Origins of the

Islamic Patronate by Patricia Crone,” Journal of the American Oriental Society,
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Johnston, David. Roman Law In Context. Cambridge: Cambridge University Press, (1999). Khalil b. Ishaq, quoted in Levy, Reuben, The Social Structure of Islam. UK: Cambridge University Press. (1957). Lewis, Bernard, Race and Slavery in the Middle East. New York: Oxford University Press, (1990). Long, George. A Dictionary of Greek and Roman Antiquities, John Murray, London, (1875). Mango, Cyril ; Oxford History of Byzantium (Oxford: 2002). Peters, Edward. Torture. Philadelphia: University of Pennsylvania Press, 1996. Schacht, Joseph. An Introduction to Islamic Law. Oxford: Oxford University Press, (1964). Schacht , Joseph, "Foreign Elements in Ancient Islamic Law," Journal of Comparative Legislation and International Law 32 (1950). Sikainga, Ahmad A, Slaves Into Workers: Emancipation and Labor in Colonial Sudan, University of Texas Press. (1996). The Cambridge History of Islam (1977). Von Kremer, Alfred, Culturgeschichte des Orients unter den Chalifen, 2 vols. (Wien: Wilhelm Braumiiller, 1875-77).

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