See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/271916825

The “Eastern” Origins of Western Civilization?

Article in Academic Questions · September 2014

DOI: 10.1007/s12129-014-9436-1

CITATION READS

1 2,286

1 author:

Toby Huff
Harvard University
82 PUBLICATIONS 1,802 CITATIONS

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

The Rise of Early Modern Science View project

The Hidden Structures of Modernity View project

All content following this page was uploaded by Toby Huff on 21 August 2018.

The user has requested enhancement of the downloaded file.

Acad. Quest.
DOI 10.1007/s12129-014-9436-1
A RT I C L E S

The “Eastern” Origins of Western Civilization?

Toby Huff

# Springer Science+Business Media New York 2014

A significant number of scholars believe that the ascendancy of the

West started in the eighteenth century, and though powered by a variety
of scientific and technological breakthroughs, was either a lucky
outcome of random historical forces, or the result of borrowings from
the “East.” Writers in this camp focus on economic factors, ignore the
unique Western origins of modern science, and ignore the legal and
institutional foundations that enabled Western civilization to continue on
its ascendant path.11
Such accounts are based on many historical fallacies, as, for example, in
John Hobson’s claim for The Eastern Origins of Western Civilisation. To cite
only two examples lacking historical support, Hobson claims that the
“institutions [my emphasis] that stimulated” various commercial and
financial advances were “first developed in the East but later assimilated

1
Kenneth Pomeranz, The Great Divergence: China, Europe, and the Making of the Modern World
Economy (Princeton, NJ: Princeton University Press, 2000); Jack Goldstone, “Efflorescences and
Economic Growth in World History: Rethinking the ‘Rise of the West’ and the Industrial
Revolution,” Journal of World History 13, no. 2 (2002): 323–89; Andre Gunder Frank, ReOrient:
Global Economy in the Asian Age (Berkeley: University of California Press, 1998); and now John
M. Hobson, The Eastern Origins of Western Civilisation (Cambridge and New York: Cambridge
University Press, 2004). One should perhaps add to this list Prasannan Parthasarathi, Why Europe
Grew Rich and Asia Did Not: Global Economic Divergence, 1600–1850 (Cambridge and New
York: Cambridge University Press, 2011).

Toby Huff is research associate in the department of astronomy at Harvard University and Chancellor
Professor Emeritus of Policy Studies at the University of Massachusetts Dartmouth, North Dartmouth,
MA 02747; thuff@fas.harvard.edu. His latest book is Intellectual Curiosity and the Scientific Revolution:
A Global Perspective (Cambridge University Press, 2011).
 Huff

by Europeans.”2 Likewise, Hobson believes that the “major technologies and

technological ideas” that spurred British industrial development were “all
diffused across from China.”3
A central problem of the “Easternists” is their neglect of the European
political, economic, and legal revolution of the twelfth and thirteenth
centuries. That omission includes a vast range of writings by early modern
historians, both specialists in law and historians of science who have
documented that Europe underwent an unprecedented revolution from the
twelfth to the fourteenth centuries. That transformation set Europe on a
unique developmental trajectory in law, science, self-government, and
economy. No comparable intellectual and institutional transformation
occurred in Asia—neither in China nor the Muslim world—during this same
era. No one has presented any evidence to show that Europe’s move toward
parliamentary democracy, constitutionalism, election by consent, and
formalized due process of law had any input from outside Europe.
Moreover, these institutional structures represent the heart of what Western
civilization considers its central and unique achievements. Likewise, the
Scientific Revolution and the relentless pursuit of scientific and economic
progress originated in the West, which for more than a century have been
powering the globalization process. The cultural institutions that created the
open and public study of the natural sciences in Europe were absent in the
Islamic world and China. But that takes us ahead of our collective history.

The Revolution of the Middle Ages

Europe in the Middle Ages experienced an unparalleled structural

transformation resulting in such new organizational principles and political
ideas as constitutional government, consent in political decision making, the
right of political and legal representation, the powers of adjudication and
jurisdiction, and even the power of autonomous legislation. Aside from the
Scientific Revolution and perhaps the Reformation, no other revolution has
been as significant for new social and political developments as the legal
revolution of the European Middle Ages. By laying out the conceptual

2
Hobson, Eastern Origins, 22. These claims are repeated more recently: John M. Hobson, “Discovering
the Oriental West,” in The Postcolonial Science and Technology Studies Reader, ed. Sandra G. Harding
(Durham, NC: Duke University Press, 2011), 55.
3
Ibid.
The “Eastern” Origins of Western Civilization?

foundations for new institutional forms in legal thought, it prepared the way
for the scientific and economic advances that were to come.
Three pillars of this transformation were the creation of a new legal science—the
ius commune that spread across Europe—the creation of new collective actors and
entities, and the discovery and articulation of due process of law.
The new science of law was the result of simplifying, modifying, and
transforming the Roman corpus juris civilis by medieval legal scholars, who
sought to reconcile the many contrasting and sometimes contradictory elements
of Roman law with the Bible, canon law, and German and other regional laws as
well. The most important architect of this transformation was Gratian, a monk
who produced what he called a Harmony of Discordant Canons, issued about
1140, that soon became a canonical text throughout Europe.4
The second element of this reform was the gestation of many new legal
concepts, above all the legal recognition of the rights of collective actors—legally
autonomous entities. Sometimes called “fictive legal personalities,” these
included cities and towns, charitable organizations, professional associations of
doctors and lawyers, universities, and merchant guilds—all of which could create
their own rules and regulations. These new entities were treated as collective
individuals, and they had a new bundle of rights: to own property, to sue and be
sued, and to make their own rules and regulations, i.e., to act as legislative
entities. Such entities had the right to be represented by attorneys in courts, and
before the king’s court regarding taxation.5 Furthermore, these entities were said
to be governed by the principle of “what concerns all should be considered and
approved by all”—a Roman maxim.6
While today we think of corporations as significant primarily for
commercial enterprises, their original impact was in the sphere of public
law, where their presence radically transformed the basis of political,
constitutional, and economic life in Europe. For these new entities
established the foundations for parliamentary democracy. The first European
parliament was founded in 1188 in Spain, quickly followed by many other
4
Gratian, The Treatise on Laws (Decretum DD. 1–20) with the Ordinary Gloss, trans. Augustine
Thompson, O.P., and James Gordley, intro. Katherine Christensen (Washington, DC: The Catholic
University Press of America, 1993).
5
See Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton,
NJ: Princeton University Press, 1964); and Harold J. Berman, Law and Revolution: The Formation of the
Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 214–21. For the absence of
any of these structures and procedures in Islamic law, see the sources in Joseph Schacht, “Islamic
Religious Law,” in Joseph Schacht and C.E. Bosworth, eds., The Legacy of Islam, 2nd ed. (New York:
Oxford University Press, 1974), 398.
6
Berman, Law and Revolution, esp. 221; Post, Studies in Medieval Legal Thought, chap. 4 and 51ff.
 Huff

regional parliaments in Spain, and then in Portugal, Sicily, southern France,

Paris in 1298, and the Estates General in 1302 as parliaments became a
pan-European institution.7 The effort to establish constitutional regimes
in which the people were deemed to have a legitimate voice was a great
struggle carried on across Europe from the Middle Ages onward, culminating in
the revolutionary political thought of Scotland, Holland, France, and then
England in the sixteenth and seventeenth centuries.8
No parallel process whereby parliamentary democracy, constitutionalism,
and self-governance came to dominance took place in the Islamic world,
China, or India, largely because they had no preexisting legal structure
equivalent to Roman civil law.9
The third element in this transformation was the articulation of what continues
to be understood in the West as due process of law. While Roman civil law
contained elements of formal legal procedure, the consensus today is that no such
procedures, if they were ever written, were passed down to medieval scholars.10
The European medievals spelled out what due process meant, how it was to be
applied, when, and for whom. By the end of the twelfth century this new system
was formally codified as the ordo iudiciarius: the system of legal procedures.11
European legal doctrine (as articulated by scholars in legal treatises,
established in court cases, and articulated in papal decretals) stipulated that
7
See Jan Luiten van Zanden, Eltjo Buringh, and Maarten Bosker, “The Rise and Decline of European
Parliaments, 1189–1789,” Economic History Review 65, no. 3 (2012): 835–61, and Joseph R. Strayer, On
the Medieval Origins of the Modern State (Princeton, NJ: Princeton University Press, 1970).
8
This path has been traced out, among others, by Quentin Skinner, The Foundations of Modern Political
Thought (Cambridge and New York: Cambridge University Press, 1979), esp. vol. 2; and Philip S. Gorski,
“Calvinism and Revolution: The Walzer Thesis Reconsidered,” in Meaning and Modernity: Religion,
Polity and Self, ed. Richard Madsen, William M. Sullivan, Ann Swidler, and Steven M. Tipton (Berkeley:
University of California Press, 2001), 78–104.
9
China’s legal system was entirely a penal system with no zones of legal autonomy. See Derek Bodde,
“Basic Concepts of Chinese Law,” in Law in Imperial China, ed. Derek Bodde and Clarence Morris
(Cambridge, MA: Harvard University Press, 1961), 3–51. For the early history of Indian law, see Donald
R. Davis Jr., The Spirit of Hindu Law (Cambridge and New York: Cambridge University Press, 2010) and
Timothy Lubin, Donald R. Davis Jr., and Jayanth K. Krishnan, Hinduism and Law: An Introduction
(Cambridge and New York: Cambridge University Press, 2010).
10
Hermann Kantorowicz and William Warwick Buckland, Studies in the Glossators of the Roman Law:
Newly Discovered Writings of the Twelfth Century (Cambridge: Cambridge University Press, 1938), 72;
Linda Fowler-Magerl, Ordo iudiciorum vel ordo iudiciarius: Begriff und Literaturgattung (Frankfurt am
Main: V. Klostermann, 1984); Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and
Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993.)
11
Among others, see Kenneth Pennington, “Law, Procedure,” in Dictionary of the Middle Ages, vol. 7, ed.
Joseph M. Strayer (New York: Charles Scribner’s Sons, 1986), esp. 504–5; Pennington, Prince and the
Law; and “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Rivista
internazionale di diritto comune 9 (1998): 9–47; Susan Reynolds, “The Emergence of Professional Law in
the Long Twelfth Century,” Law and History Review 21, no. 2 (Summer 2003): 347–66; and James A.
Brundage, Medieval Canon Law (London and New York: Longman, 1995), chap. 6.
The “Eastern” Origins of Western Civilization?

every trial must involve a plaintiff and a defendant, advocates for those two
parties, the appearance of witnesses, the presence of court recorders such as
clerks, proctors, and notaries who record the names of those present at the
trial, and so on.12 This was established legal procedure by the twelfth
century’s close—all worked out by legal scholars usually attached to the
schools and emerging universities, and not just as a matter of “customary
practice,” but ensconced in major textbooks, Tancred’s Ordo iudiciarius (1214–
1216) and Durand’s Mirror for Judges (Speculum iudiciale) (ca.1271), and
papal letters and statements (concilia) circulated across Europe.
It is also notable that virtually all records—initial complaints to the court
(the libellius), summonses, testimony, reports, or contracts—were presented
in writing and filed away. These records became part of the official court
records, kept by proctors or notaries in an official location, always bearing
the signature or seal of the acting court or head official, not, as in the case of
Islamic law, irregularly maintained by the judge or his clerk in the “qadi’s
diwan,”13 the judge’s private files usually maintained in his home. So
insecure were such documentary arrangements in Islamic law that until the
last decade of the twentieth century, specialists in Islamic law had concluded
that such records did not exist. Very few have ever been uncovered, and it
was only among the Ottomans after the sixteenth century that the “court in
cities and towns was to be held in a building” for that purpose.14
Romano-canonical procedure specified that each court was meant to run
according to a calendar, that once the plaintiff’s complaint was presented, the
presiding judge would establish a date for a hearing along with specified
sessions for the hearing of the testimony of witnesses. All proceedings were
determined by a court schedule, not the whim of the plaintiff.15 Furthermore,
12
Ibid., James A. Brundage, “The Practice of Canon Law,” chap. 10 of The Medieval Origins of the Legal
Profession (Chicago: The University of Chicago Press, 2008), and the sources in the previous note.
Tancred: “the service of advocates is essential in lawsuits,” as cited in Medieval Origins, 171.
13
Wael B. Hallaq, “The ‘Qadi’s Diwan (Sijill)’ before the Ottomans,” Bulletin of the School of Oriental
and African Studies 61, no. 3 (October 1998): 415–36.
14
Wael B. Hallaq, Sharī’a: Theory, Practice, Transformations (Cambridge and New York: Cambridge
University Press, 2009), 343n9. Even in twentieth-century Yemen, there are reports of individuals
involved with court proceedings whose records, having been presented to a judge, were lost because the
judge subsequently died. Such documents seem to be more private than public. Brinkley Messick,
“Literacy and the Law: Documents and Document Specialists in Yemen,” in Law and Islam in the Middle
East, ed. Daisy Hilse Dwyer (New York: Bergin & Garvey, 1990), 64.
15
Richard Helmholz, Marriage Litigation in Medieval England (Cambridge and New York: Cambridge
University Press, 1974), chaps. 4 and 5. The reference here is to a Moroccan case in the fourteenth century,
where the judge did lose control of the case as the plaintiff took matters in his own hands: “Kadijustiz or Qādī-
Justice? A Paternity Dispute from Fourteenth-Century Morocco,” chap. 1 of David S. Powers, Law, Society and
Culture in the Maghrib, 1300–1500 (Cambridge and New York: Cambridge University Press, 2002).
 Huff

the opposing advocates prepared a list of questions to be put to the witnesses

by the judge (or official examiner) for close questioning individually in
private. Every effort was made by the interrogatories provided to the judge
and by the opposing attorneys to separate direct evidence from hearsay
testimony. The witnesses were sworn to tell the truth, “the whole truth and
nothing but the truth about everything they knew in connection with the
action in which they were to testify.”16 They were also cautioned to testify
only about events they had seen and heard, “but not about what they believed
or thought they heard from others.” This oath-taking to tell the truth, not an
oath daring the taker to defy God and face eternal punishment if he testified
falsely, was, as Harold Berman pointed out, a new legal conception
introduced into canon law by Europeans of this era.17
Oaths in Islamic legal proceedings were entirely different. Generally, oaths
were administered only in the absence of other evidence, or if the evidence
seemed inconclusive. Then the parties to the dispute could be offered the
chance to take an oath. Otherwise, evidence submitted to the court was not
accompanied (or preceded) by taking an oath to tell the truth. An oath
according to Islamic law was any statement accompanied by the words “by
Allah.” That preamble was generally qualified by the words, “the One beside
whom there is no God,” or “He who knows what is hidden, just as He knows
what is declared.”18 No cross-questioning took place after any party took an
oath. The oath was decisory. If the party “with the stronger case” was given
the opportunity to take the oath, but he refused, then the oath was offered to
the other party. If he swore an oath, he won the case.
An example of such close questioning in Europe comes from the
Canterbury Court of England in the thirteenth-century case of Master Robert
de Picheford concerning the ownership of a church in the Diocese of Lincoln.
The interrogatories submitted on behalf of the defendant Thomas de Neville
stated,

First, the examiners are to hear what the witnesses say of their own
motion and to enquire as to the source of their information about each of
the articles [submitted by Master Robert]. If they say that Robert was in
possession of the church of Houghton as rector by himself or others

16
Brundage, Medieval Origins, 436.
17
Berman, Law and Revolution, 250.
18
Ibn Rushd, The Distinguished Jurist’s Primer, trans. Imran Ahsan Khan Nyazee (Reading, UK: Garnet
Publishing, 1994), 2:261; also see Powers, Law, Culture and Society, 162–66.
The “Eastern” Origins of Western Civilization?

from 26 July to 3 August 1268, they are to be asked whether they know
this from seeing, hearing, knowledge, belief or public report. If they say
seeing, ask where, when, the nature of the possession whether natural or
civil, mental or physical, and how long before the feast Robert possessed
the church and whether continuously or at intervals.19

Proctors or notaries, who were sworn officers of the court, were charged
with recording all testimony and copying any other material presented to the
court. When all testimony was completed, it was to be read out loud in front
of the opposing parties by the judge or court official.
Another unique Western innovation unparalleled in Islamic or Chinese
law was the advocate as a university-trained legal specialist. There is no
term in Arabic for “advocate.”20 In China all legal helpers were seen as
“tricksters” and had no formal legal standing.21 The Islamic system
allowed an “agent” (wakil) to aid and act on behalf of another person, and
to speak for that person, but he did not need to be legally trained to act in
that capacity.22 For example, in a case reported in fourteenth-century
Morocco, a brother (and nonlegal expert) served as the agent for his
sister, whose testimony was thereby omitted, though her testimony was
the more important.23 There was no punishment for perjury in Islamic
law.24
Likewise there were no formal “associates of the bar” or “officers of the
court” to which court assistants and functionaries could be sworn in either
Islamic or Chinese law.25 In the Romano-canonical system, advocates were
registered and monitored as sworn officers of the court with the stipulation
that they had a duty to the court, to the cause of justice, and to the cause of

19
Norma Adams and Charles Donahue, Selected Cases from the Ecclesiastical Courts of the Province of
Canterbury c. 1200–1301 (London: The Selden Society, 1981), 269.
20
Ronald C. Jennings, “The Office of Vekil (Wakil) in the 17th Century Ottoman Sharia Courts,” Studia
Islamica, no. 42 (1975): 148, http://deenlink.com/books/The%20Office%20of%20Vekil%20in%2017th%
20Century%20Ottoman%20Sharia%20Courts.pdf; and Émile Tyan, Histoire de l’Organisation judiciare
en Pays d’Islam, 2nd ed. (Leiden: E.J. Brill, 1960), 262.
21
Bodde, “Basic Concepts of Chinese Law,” 143, 180, 190n26. See also, Geoffrey MacCormack, The
Spirit of Traditional Chinese Law (Athens: University of Georgia Press, 1996), 25–6.
22
Jennings, “Office of Vekil,” 147–69; and Émile Tyan, “Judicial Organization,” in Law in the Middle
East, ed. Majid Khadduri and Herbert J. Liebesny (Washington, DC: Middle East Institute, 1955), 236–78,
esp. 255ff.
23
Powers, Law, Society and Culture, 30.
24
Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 159.
Tyan, “Judicial Organization,” 257. For Chinese law, see MacCormack, Spirit of Traditional Chinese Law.
25
 Huff

their clients, any of which might conflict. They had to swear not to take on
“frivolous or vexatious cases” and also to inform the court if they took on a
case that turned out to be flawed.26
By the thirteenth century the new, specialized manuals dealing solely with
legal procedure and manuals counseling proper ethical behavior for
advocates were used widely throughout Europe. Within Islam, all such
considerations were reduced to the requirement of being a good, observant
Muslim. The “professional witness” (shâhid) who became attached to courts
throughout the Muslim world was chosen and examined by the local qadi
(judge) and whose numbers sometimes reached the thousands, with the
inevitable claims of corruption.27 More surprisingly, when a qadi died or was
replaced, all his professional witnesses could be dismissed and this would
give grounds for a reconsideration of all the cases in which he had issued a
judgment.28
In short, by the end of the twelfth century court procedure in the
ecclesiastical and civil courts had become formal and regularized by
procedural norms widely discussed and articulated by scholars across
Europe. Anyone attempting to bring a legal case was properly advised to
seek the counsel of an attorney, for as one writer put it in 1169:

If someone is brash enough to presume to rely on his own devices even

though he is inexperienced and does not wish to have an advocate, let
him do so. Everyone is free to muck up his own case.29

Likewise, as the legal scholar Dorothy M. Owen recently put it, in the later
Middle Ages

a clerk could not resign his benefice, appoint an official deputy, or

conduct an election, a layman could not begin or continue a cause in an
ecclesiastical court, or bring a will to probate if he did not employ a
legally qualified proctor to draw up and present the appropriate
documents. A bishop’s or archdeacon’s affairs could only be carried
on with legal advice from men skilled in the law (iurisperiti). A royal

26
Brundage, Medieval Origins, 315.
27
Jeanette A. Wakin, ed., The Function of Documents in Islamic Law: The Chapters on Sales from
Tah
āwī’s Kitāb al-Shurūt
al-Kabīr (Albany: State University of New York Press, 1972), 8.
28
Christopher Müller, “Judging with God’s Law on Earth: Judicial Powers of the Qādī al-Jamā’a of
Cordoba in the Fifth/Eleventh Century,” Islamic Law and Society 7, no. 2 (2000): 169ff.
29
Brundage, Medieval Origins,152.
The “Eastern” Origins of Western Civilization?

government needed to be represented in diplomatic business by men

skilled in the Roman (civil) law.30

Restraining Prince and Pope

In addition to the legal transformations set out above, there are still others
that have little parallel in non-European legal systems. I shall call this a
fourth dimension of the revolutionary process that established broad legal
principles across western Europe.
The most important case establishing that these principles applied to the
prince as well as ordinary citizens concerned King Henry of Luxembourg
and King Robert of Naples. In 1311 King Henry moved to be crowned
Emperor of the Holy Roman Empire and in doing so intended to displace Robert
of Naples and his kingdom. In the process, Henry condemned King Robert,
declaring him a traitor and an outlaw to the empire. Pope Clement V did not
agree with these declarations and tried to mediate between the two parties.31
The pope solicited opinions from the best legal scholars and all of them
averred that the right of self-defense, both physical and legal, was a right
granted by natural law and hence it could not be taken away. The pope
declared King Henry’s rulings were without merit and were annulled. Pope
Clement went on to issue several more legislative rulings, clearly stating
what due process of law entails and how it must not be abridged. In his final
ruling, a constitutional document called Saepe contingit, he established these
principles, which of necessity must be upheld by the prince. Legal scholars
have concurred that this early fourteenth-century legal ruling was “the most
important single piece of medieval legislation in the history of summary
judicial procedure.”32 By the beginning of the fifteenth century European law
had established legal principles restricting the actions not only of the prince,
but also the pope.
The principle that the pope, too, is subject to natural law and may not
abridge a defendant’s right of self-defense was established in a notorious case

30
Dorothy M. Owen, The Medieval Canon Law: Teaching, Literature, and Transmission (Cambridge and
New York: Cambridge University Press, 1990), 2.
31
This case has been spelled out in considerable detail by Kenneth Pennington in “Due Process,” 9–47,
and in Prince and the Law.
32
Stephan Kuttner, “The Date of the Constitution ‘Saepe,’ the Vatican Manuscripts and the Roman Edition
of the Clementines,” Mélanges Eugène Tisserant 4 (1964): 427. Technically, the ruling concerned
“Summary proceedings,” special proceedings held in unusual circumstances, possibly entailing threats of
violence and/or public harm.
 Huff

involving the Medicis and the attempt of the Pazzi family to eliminate
them violently. Pope Sixtus IV had condemned Lorenzo de Medici for a
murder without holding a trial. Legal scholars protested that this was not
proper procedure. The result was that the pope had to back down while
acknowledging that just as Adam of the Bible had to respond to God’s
summons to judgment, so too “neither Pope nor Prince could dispense
with this part of the judicial process because no one can ignore a
precept of divine law.”33
In contrast, Islamic law under the Ottomans—who were the actual
inheritors and defenders of traditional Islamic law from the mid-sixteenth
century forward—reveals stunning arbitrariness. This can be seen, for
example, in the special Ottoman (appellate) courts, the mazâlim or Sultan’s
courts that are supposed to right the wrongs of other courts. They had existed
from early times but had no constraints, and placed no restrictions on the
behavior of the Sultan. As one scholar has put it, “The Sultan makes his
verdict freely, he is not bound by the shari’a rules in any way, he does not
need to hear both parties—or even one of them—before passing his
sentence.”34 This seems profoundly arbitrary, given there is nothing in the
sharia that would place restraints on an Islamic ruler, since such an official
had never been imagined in the Koran or the sayings of the Prophet
Mohammad. The sharia “had never developed the necessary procedures or
writs that would bring the prince or executive power to account for actions
committed outside the law.”35 Furthermore, there is a long tradition in
Islamic regions, both “East” and “West,” of Islamic judges actually assuming
the position of ruler of a city or town. Such rulerships also became
dynasties,36 something not conceivable in European law.

33
This is the judgment of the fifteenth-century legal scholar Francesco Accoli, said to be the greatest legal
scholar of his time, as paraphrased by Pennington, Prince and the Law, 188. See also, Lauro Martines,
April Blood: Florence and the Plot against the Medici (Oxford and New York: Oxford University Press,
2003).
34
Knut S. Vikør, Between God and the Sultan: An Introduction to the History of Islamic Law (London:
Hurst & Co., 2004), 191–93; Tyan, “Judicial Organization,” 263–69.
35
Fazlur J. Ziadeh, Lawyers: The Rule of Law and Liberalism in Egypt (Stanford, CA: Hoover Institution
on War, Revolution, and Peace, Stanford University, 1968), 149.
36
Maribel Fierro, “The Qādī as Ruler,” in Saber religioso y poder político en el Islam: Actas del simposio
internacional, Granada, 15–18 octubre 1991 (Madrid: Agencia Española de Cooperación Internacional,
1994), 71–116; and Samuel Miklos Stern, “The Constitution of the Islamic City,” in The Islamic City: A
Colloquium, ed. Albert Habib Hourani and Samuel Miklos Stern (Philadelphia: University of
Pennsylvania Press, 1970), 25–50, esp. 34–35.
The “Eastern” Origins of Western Civilization?

It took time for the rule of law as we understand it to become widely and
deeply established; nevertheless, the institutional apparatus had been
constructed, and civil and ecclesiastical courts were set up across Western
Europe. Let us not forget that the lords of England forced King John to
submit to Magna Carta (in 1215), which likewise restricted his sovereign
powers and required the establishment of a jury system for legal proceedings.
Indeed, the jury system itself was a remarkable legal invention of this period
that had counterparts in Germany, the Low Countries, and Scandinavia, but
did not emerge in Chinese or Islamic law.

Law, Commerce, and Self-Government

Two other domains were profoundly changed during the civilization-wide

transformation of the Middle Ages. From a legal viewpoint, it is imperative
for those engaged in business dealings that they have a secure sense of their
rights of ownership, the possibility of regulating trade, and the availability of
legal officials who can authoritatively adjudicate business conflicts. What
happens, for example, if a business partner dies? Islamic law dictates that if
any partner dies or withdraws, the partnership of the enterprise completely
dissolves,37 whereas European business partnerships and corporations have
lives of their own in law.
Economic historians have shown that during this same period of time,
especially in Holland and the Low Countries, villages and urban conclaves
were forming in which people were acting collectively to self-govern, to
regulate collectively-owned grazing grounds known as “the commons,” to
govern the use of grinding mills, riverways, and other assets that were
considered jointly owned by the community. Such communities formed their
own judicial bodies; bought, sold, and rented property; and hired clerks, even
an occasional police officer and other agents who worked for the collective
public enterprise.38

37
The classical statement of these rules is Abraham Udovitch, Partnership and Profit in Medieval Islam
(Princeton, NJ: Princeton University Press, 1970).
38
Among others, see Tina De Moor, “The Silent Revolution: A New Perspective on the Emergence of
Commons, Guilds, and Other Forms of Corporate Collective Action in Western Europe,” International
Review of Social History 53, supplement S16 (December 2008): 179–212; Bas van Bavel, “The Medieval
Origins of Capitalism in the Netherlands,” BMCN/LCHR 125, no. 2 (2010): 45–79, esp. 60–66,
http://www.knhg.nl/wpcontent/uploads/Bavel_Bas_van_The_._Medieval_Origins_of_Capitalism_in_
the_Netherlands.pdf.
 Huff

To us this seems normal, but this kind of legitimate communal self-

organization, bound by law with articulated rights and prerogatives, was
unprecedented. This new legal arrangement proved to be a boon to the rise of
early modern capitalism, to the broad commercial revolution of the thirteenth
and fourteenth centuries, which would include all sorts of new collective
trading entities: extra-familial firms (otherwise known as legally recognized
companies) as well as joint stock companies and formally organized banks
whose records constituted legal documents available to public scrutiny.39
One will look in vain within Islamic or Chinese law for legal ordinances that
gave money lenders, in the sense of bankers, legal autonomy and transformed
their private records into publicly available notorial documents having legal
standing in courts, as was established by Western law and its bankers in the
twelfth and thirteenth centuries. Given the absence of the idea of a fictive
personality—a legally autonomous entity—in either Islamic or traditional
Chinese law, there is no evidence, contrary to what Hobson suggests, that there
was any borrowing of the fundamental legal institutions that set Europe on a new
course of political and economic development during this era.
Recent scholarship has added considerable weight to the assertion that
Europe’s legal revolution in all its dimensions contributed measurably to the
economic ascendance of Europe in the early modern period in comparison to
other parts of the world.40 Whether one attributes a causal link between the
new legal science or the rise of the universities and the teaching of the new
legal system, the evidence suggests that the availability of the new legal
system, with its unique set of adversarial courts and procedures, greatly
facilitated economic growth in Germany and other parts of western Europe.41

39
Abbott Payson Usher, “The Origins of Banking: The Primitive Bank of Deposit, 1200–1600,” Economic
History Review 4, no. 4 (1934): 399–428; and The Early History of Deposit Banking in Mediterranean
Europe (Cambridge, MA: Harvard University Press, 1943). Raymond de Roover, “The Lingering
Influence of Medieval Practices,” Accounting Review 18, no. 2 (1943): 148–51, esp. 149; and “The
Commercial Revolution of the Thirteenth Century,” Bulletin of the Business Historical Society 16 (1942):
34–39.
40
For estimates of comparative world economic development, see “Historical Statistics of the World
Economy, 1–2008” at Groningen Growth and Development Centre, “Angus Maddison (1926–2010),”
http://ggdc.net/maddison/Maddison.htm.
41
For a test of the proposition that legal rules and legal scholarship had an impact on European economic
development, see Davide Cantoni and Noam Yuchtman, “Medieval Universities, Legal Institutions, and
the Commercial Revolution,” NBER Working Paper 17979 (Cambridge, MA: National Bureau of
Economic Research, 2012), http://nber.org/papers/w17979; and Hans-Bernd Shäfer and Alexander J.
Wulf, “Jurists, Clerics and Merchants: The Rise of Learned Law in Medieval Europe and Its Impact on
Economic Growth” (working paper, March 30, 2013), available at SSRN: http://ssrn.com/abstract=
2242110.
The “Eastern” Origins of Western Civilization?

Legally Autonomous Universities

Finally, the uniqueness of Europe’s universities, which served as

incubators for the pioneers of modern science, must be mentioned. Unlike
the Islamic madrasas, the universities of Europe were not “pious endowments”
(waqfs) that could not be changed, but legally autonomous entities that could
make their own rules and regulations and teach Greek natural philosophy. The
madrasa movement was designed to ensure the passing on of the “transmitted
sciences,” study of the Koran and hadith and the discipline of fiqk
(jurisprudence). The central figure in the madrasa was a legal scholar, not the
philosopher or the theologian (mutakallim). Aristotelian natural philosophy was
not invited in.42 It could be said that some students copied works in the exact
sciences and that some scholars attached to the madrasas taught the exact
sciences privately, but evidence is lacking that Aristotle’s natural philosophy,
above all his Physics, was taught in the madrasas.
By teaching the natural books of Aristotle from the twelfth to the seventeenth
centuries, Europe’s universities instilled a fundamental intellectual curiosity that
persists to the present; that same spirit of innovative inquiry did not take hold
outside of Europe.43 One might even suggest that the effect of studying natural
philosophy in Europe in the period leading up to 1600 was so strong that many
of the pioneers of the seventeenth-century revolution were highly educated
laymen, not scholars attached to the universities. This is not to suggest that the
universities of Europe had become less important, but rather that the ethos of
science had jumped the bounds of strict university employment and gave birth to
the Scientific Revolution.44

Conclusion

The origins of Western civilization were, indeed, Western. During the

twelfth and thirteenth centuries, a new civilization-wide structure came into
42
A.I. Sabra, “The Appropriation and Subsequent Naturalization of Greek Science in Medieval Islam: A
Preliminary Statement,” History of Science 25 (1987): 223–43; and “Science and Philosophy in Medieval
Theology: The Evidence of the Fourteenth Century,” Zeitschrift für Geschichte der Arabisch-Islamischen
Wissenschaften 9 (1994): 1–42. For a summary of the organization and teaching within the madrasas, see
my The Rise of Early Modern Science: Islam, China and the West (Cambridge and New York: Cambridge
University Press, 1993) and Intellectual Curiosity and the Scientific Revolution: A Global Perspective
(Cambridge and New York: Cambridge University Press, 2011), chap. 6.
43
For more details on the considerable disparity of scientific achievement in Islam, China, and the West,
see Intellectual Curiosity, esp. chap. 12 and the epilogue.
44
Ibid. Also see Toby Huff, “Some Historical Roots of the Ethos of Science," Journal of Classical
Sociology 7, no. 2 (2007): 193–210.
 Huff

place. In its deepest and most profound sense, this underlying institutional
structure was fundamentally legal in nature. Because the medieval Europeans
built upon and transformed the Roman corpus juris civilis, they created a
civilization that simply had no counterpart in other civilizations. There was
no corpus juris civilis in China, India, or the Islamic Middle East, no
preexisting legal institutions that could be borrowed and plugged into the
European institutional structure. The new European structure rested on
entirely different foundations that shaped its unique conceptions of due
process of law, constitutionalism, and the notion of election by consent that
became central to the parliamentary process. Likewise, these concepts
underlay all forms of self-governance. Such ideas were absent elsewhere.
No legal notions outside Europe articulated the idea of legally autonomous
entities such as public corporations, business enterprises, parliaments, or
professional associations.
In the realm of the intellect, there were no educational structures built on
the same notions of legal autonomy in which natural philosophy as
conceived by the Greeks could be taught while gestating the modern
scientific ethos. As a consequence, in the early seventeenth century there was
no scientific foundation outside of Europe for understanding the heliocentric
basis of modern astronomy, the pneumatic basis of pumps and hence
developing steam engines, or electricity and electrical studies. Claims
mentioned in the beginning of this article that Europe borrowed scientific
and industrial ideas from China in the seventeenth and eighteenth centuries
fall very wide of the mark.

View publication stats