The Rule of Laws, page 13
Roman law slowly flowed into the provinces, where local administrators published edicts and legal decisions, and quite ordinary citizens began to initiate legal processes.68 Many regarded the legal system as a benefit of Roman occupation, along with improved architectural techniques, aqueducts, and baths, innovations that even reached the wilds of northern Britain. But some writers could see that Roman officials were using law as a tool of control. Tacitus, in his commentary on the administration of Britain, declared that what Britons mistook for ‘civilization’ was really an aspect of their slavery.69 And, commenting on the Romans’ difficulties in Germany, one second-century writer declared that ‘it is more difficult to govern a province than to acquire one, for they are conquered by force, but they must be retained by law’. Two centuries later, another writer attributed Roman success in Arabia to the emperor Trajan, who had ‘compelled [Arabia] to obey our laws, after having often crushed the arrogance of its inhabitants’.70 Although nominally a benefit and an aspect of civilization, law had also become a tool of political control.
By the fifth century, emperors and their administrators in both east and west were making efforts to rationalize the complex edifice of Roman law. In 426, the western emperor Valentinian III specified the jurists whose opinions were to be regarded as authoritative, and in 438 the eastern emperor Theodosius II compiled a collection of imperial laws enacted over the previous century.71 A century later, his successor, Justinian I, ordered a comprehensive codification, to include both imperial laws and jurists’ opinions. Like the Chinese emperors, Justinian declared that his Corpus Iuris Civilis would bring law and order to the whole empire, that the laws would be valid for all time, and that he would allow no further juristic interpretations to muddy the legal waters. But it was a brash statement, an aspiration to unchallengeable legal authority, that ignored the status that law had already acquired.
OVER THE COURSE of a millennium, Roman law was and meant a great many different things. At the time of the Twelve Tables, the laws inscribed on bronze tablets gave Rome’s citizens a set of basic rules about how they should be treated and punished and how they could bring cases to court and seek relief from debt. And these rights went along with their participation in great decision-making assemblies. Their laws, leges, were instruments of government, by which the citizens could influence public affairs and the activities of their officials. As legal procedures became more elaborate, judges and praetors stipulated precise formulae for legal cases. These then became subject to debate and a matter of scholarship in the hands of the jurists. They made the law, the ius, into an intellectual exercise. It was the sophistication of their opinions that would so impress medieval European scholars. But throughout most of Roman history, law was also a marker of civilization. The law was originally a tool that Rome’s citizens used in their pursuit of justice, but by Cicero’s time it was considered a benefit enjoyed by all citizens. And Caracalla munificently extended it to all free imperial subjects.
Later emperors claimed that ‘the emperor is free from the laws’, princeps legibus solutus est. But Justinian’s Corpus Iuris also stated that the emperor should declare himself to be bound by the law, as a mark of his imperial authority. And it called jurisprudence ‘knowledge of things human and divine’.72 Justinian’s assertion of absolute legal authority was tentative at best. A sense that law, ius, represented higher principles, that it should provide resources for citizens and constrain the ruler, was not eclipsed by even the most autocratic emperors.
When Justinian’s Corpus Iuris was rediscovered, several centuries later, it came to represent civilization for medieval European scholars, too, inspiring the laws that eventually came to dominate the world. But elsewhere lawmakers pursued more cosmological visions of order, particularly as a new religion founded in the deserts of Arabia gave birth to the most recent of the great legal traditions to take shape.
CHAPTER FIVE
JEWISH AND ISLAMIC SCHOLARS
God’s Path for the World
When the Persian emperor Cyrus led his armies into Mesopotamia in 538 BCE, he razed its cities and largely destroyed their ancient civilizations. But Mesopotamian legal techniques were not so easily eliminated. They had already served as models for the Israelite priests, who made laws with firmly religious purposes, working out the rules that God had given his chosen people. Adapting the Mesopotamian forms to realize a religious vision for their societies, the priests crafted rules for prayer, ritual observance, and cleanliness alongside social rules designed to ensure everyday justice. These were developed over the centuries into the great works of Jewish law.
The Jewish laws, in turn, inspired what became an entirely separate religious legal tradition, that of the Muslims. In both, religious experts were the interpreters of the divine law, as they remain to this day, explaining the rules that tell ordinary Jews and Muslims how to follow God’s path for the world. As in the Hindu world, these laws concentrate on duties far more than on justice or discipline. And, like the Hindu brahmins in India, the legal scholars always claimed to be able to sit in judgement on kings, caliphs, and sultans.
THE LAWS IN the books of the Pentateuch instructed the Israelites how to live ritually pure lives, worshipping a single God in the right ways, eating only food that was clean, and acting justly towards their fellow Israelites. They were laws for a single people. But as religious leaders, the priests created laws with a very different purpose and character from those of the Greek and Roman citizens and, indeed, from those of the Mesopotamian lawmakers who had inspired them. Like the Hindu brahmins, they had a religious authority quite independent of the political power of Saul, David, and the other early kings. But the Israelite lawmakers were working in a very different social and political context to their Hindu counterparts and it was not their object to insist on a social hierarchy. Many of the Israelites were still nomadic, often at odds with neighbouring tribes, and they had just a few kings before their lands were taken over by powerful conquerors: Assyrians, Babylonians, Persians, and then Romans. Throughout these shifts in power, the Israelites’ laws helped to create a sense of unity and identity among their scattered tribes, including the people captured and transported to distant lands.
Assyrians and neo-Assyrians dominated the lands of Israel and Judah into the sixth century BCE and may have inspired the earliest Israelite lawmaking. When the neo-Babylonian Nebuchadnezzar besieged Jerusalem, he transported many Israelites back to Babylon, where they worked, at least initially, as slaves. But some prospered and stayed on in the city, even when the Persian conqueror, Cyrus, allowed them to reestablish their own homeland. Meanwhile, others had formed colonies in Egypt after earlier periods of dislocation. So Jewish populations were already scattered when the Romans occupied Palestine in 63 BCE.1 After the Jewish revolt against imperial occupation in 70 CE, when the Romans destroyed their temple in Jerusalem, many Jews fled their homeland and joined the long-established colonies in Egypt. Others travelled to lands around the Mediterranean as far as Spain, or moved on from Egypt into North Africa. It did not cause an unprecedented flood of migration, but the second destruction of their temple made Jews more conscious of the distinction between themselves and the gentiles among whom most now lived. They felt it ever more important to insist upon their unique relationship with God and their responsibility towards ‘all Israel’, that is, to all Jews, wherever they lived.
New religious scholars now emerged, rabbis rather than temple priests, who were concerned about the threat to their people’s identity and systems of belief. After their violent destruction of the temple in Jerusalem, the Roman authorities had softened their stance towards the Jews and recognized their leader, generally a rabbi, as a prince, the nasi, allowing him to establish his own court.2 The Persians had also protected the Jews’ academies in Babylon and recognized Jewish laws in the province of Yehud. Possibly inspired by the written laws quoted by Roman governors and administrators, the rabbis now decided to consolidate the unwritten norms and ritual practices of their people, which had grown up around the rather scanty laws of the Pentateuch. They realized they needed to create a systematic programme to which all could commit. As tradition has it, they gathered in a vineyard in Palestine, where they decided to record the teaching of the Torah, their law, for future generations.
The written Torah was found in the first books of the Hebrew Bible, particularly Exodus, Leviticus, Numbers, and Deuteronomy, with their detailed rules on ritual and dietary practices. But the oral Torah was enshrined in the customs and traditions of the Israelites as they had developed over the centuries. The scholars now worked through their texts, interpreting and extending the rules to incorporate what had become accepted custom. By 200 CE, just as Hindu scholars were writing the first Dharmashastras, Rabbi Judah the Prince was able to bring this work together into a compendium that he called the Mishnah. Written in Hebrew, the language of scholarship, the text contained a concise set of laws in six parts: on ‘seeds’ (agriculture), ‘feasts’ (religious festivals), ‘women’ (betrothal, marriage, divorce, and adultery), ‘damages’ (criminal and civil claims and procedures), ‘hallowed things’ (temple dues), and ‘cleanliness’ (purity). It combined practical rules and religious laws into a single system.
Over the following centuries, the rabbis continued to interpret the Torah, writing commentaries in the widely spoken Aramaic and founding academies in both Palestine and Babylon. Here, in the fifth and sixth centuries CE, scholars produced two great works, the Jerusalem and Babylon Talmuds. In these elaborate texts, which they carefully inked onto valuable parchment, they placed a section of the Hebrew Torah in the centre of a page and surrounded it with Aramaic commentaries in a smaller script. The Italian glossators would do the same in their commentaries on Justinian’s works several centuries later. By this stage, an important sect of Jews, the Qaraites, had already divided from those who followed the rabbis, the Rabbanites, and they rejected the authority of the Talmud. But the rabbis’ collective body of work on law and religion, known as the halakha, became authoritative for the majority of Jews and continues to be recognized to this day.
Practically wherever the Jewish diaspora settled, their rabbis poured out further quantities of scholarship on the Talmud. Most recognized the rabbinical academies in Jerusalem and Babylon and sent queries to their leading scholars, the Geonim.3 They asked for advice on tricky points of biblical or Talmudic interpretation, or on practical issues raised by the lives that Jewish people were now leading in very varied contexts, and the Geonim replied with written opinions. Their responsa, written in Hebrew, contained scholarly advice, rather like the opinions that Roman jurists had given and that the Indian brahmins were offering farther to the east. Pragmatically, the Geonim supported and encouraged the work of the rabbis’ courts as they emerged among the diaspora, often referring approvingly to the decisions of Jewish elders or the tribunals convened by traders.4
Roman control over the Middle East eventually weakened. Byzantine armies were unable to withstand the onslaught of the Muslim Umayyads when they swept out of Arabia in the seventh century. Moving west, the Umayyads quickly conquered Palestine, where they established an important mosque. But they recognized the Jews as ‘people of the book’, that is, people who had monotheistic scriptures, and allowed their academies, along with their cultural activities and commercial ventures, to continue. From then on, the lives of Jews in the Middle East and North Africa were intertwined with those of the Muslims, as were their laws and their languages.
ISLAM WAS BORN in the seventh century CE on the fringes of the Arabian deserts. The Prophet Muhammad lived and worked here in the small trading cities of Mecca and Medina. He was a member of one of the most important Bedouin tribes, originally camel herders, who still routinely indulged in blood feuds. To the north of the Arabian Peninsula, Byzantine armies were still engaged in periodic warfare with the Sassanians as they vied for control over the fertile lands of Mesopotamia and Syria and the trade routes that connected west and east. Alexander’s conquest was just one among a series of wars between the Persians and Greeks, during which armies, mercenaries, and merchants from both sides arrived and left. Later rulers established cities with monumental buildings, extensive irrigation systems, and expanding trade networks, in which pagans, Christians, Jews, and Zoroastrians, speaking Greek, Aramaic, and Persian, lived side by side.5
The Byzantine and Sassanian armies fought out their last great wars in the seventh century, just as Muhammad was establishing his religious movement on the Arabian Peninsula. Here, the Bedouin tribesmen had continued their pastoralist ways of life, relatively untroubled, in the vast expanses of empty desert. They lived comfortably off herding, supplemented by raiding campaigns, and dominated local trade routes. Thanks to this, their language and poetry spread throughout the peninsula. Even those who settled in the trading towns of Medina and Mecca retained their tribal identities. They mostly worshipped local divinities while tolerating the followers of monotheistic religions, the Christians, Jews, and Zoroastrians who travelled through and settled in the region. When Muhammad began receiving religious revelations in Mecca at the age of forty, in around the year 610, he became convinced that he should speak as a prophet. He proclaimed that Allah, the creator god who existed above and beyond any local deity, should be venerated to the exclusion of all others. Boldly brushing aside ridicule and accusations of private ambition, he promoted his message widely, calling on others to reject their former religious practices and follow his teaching.6 He insisted, above all, on the moral responsibilities of human beings and their duty to obey God. Members of the poorer classes in Mecca, disadvantaged by growing differences in wealth, were readily attracted to his message, but Muhammad also found adherents among rich merchants and members of powerful families, who used their influence and resources to support his work.
In 622 the Prophet moved to Medina, where he acted for some time as a mediator. He continued to build a community of followers, the umma, and with their support he started to defy anyone who opposed his ideas. Eventually he was able to stand up to even the most powerful and hostile Meccan tribesmen. As it grew in number, the umma began to act like a tribe itself, waging wars against its rivals, and by 630 it had forced even the most hostile adversaries to capitulate. Over the next two years, before Muhammad’s death in 632, the umma was able to unite practically all the major tribes of Arabia under his leadership.
Muhammad’s original message in Mecca was about faith, piety, and moral responsibility before God, which he recorded in the Quran. But as he settled in Medina and the umma expanded, Muhammad realized he needed to establish a more uniform social order. After forbidding tribal feuds, he raised taxes to support the poor and made new rules for family relations. He prescribed forms of marriage, set out rules for adoption (which he effectively prohibited), introduced a measure of financial security for wives, and systematized practices of inheritance. But for the most part, the rules and directions he inscribed in the Quran gave moral guidance to people on how best to fulfil existing duties, rather than instituting a radically new social scheme. The rules Muhammad made told people how to arbitrate and enter into contracts, how to determine which enemies should be fought, and how booty should be distributed, and they told men how to treat women, children, orphans, relatives, and other dependents, including slaves.7 But, at best, they were unsystematic directions for individuals, rather than rules about how governors should resolve disputes, or laws that administrators could use to maintain order. Muhammad made few provisions for criminal conduct. He specified penalties for theft, including amputation, and prohibited his followers from drinking wine, playing games of chance, and charging interest. The Quran also contains rules about retaliation and blood money, highway robbery, sexual misconduct, and false accusations of the same, along with directions about the procedures to be followed in contested cases. But the laws on criminal procedure were not at all comprehensive.
These general principles in scattered sections of the Quran might have helped to unite the new community, but Muhammad was not trying to undermine the deeply rooted tribal traditions and forms of mediation that had shaped social relations among the Arab tribes for centuries. His revolution, in these early days, was centred on piety, faith, and moral responsibility more than political control or social reform. But he was paving the way for a more centralized social order.
FOLLOWING MUHAMMAD’S DEATH in 632, his followers continued to consolidate their power.8 They were soon challenging the Byzantine and Sassanian Empires to the north, incorporating the Arab populations into their new community. In a series of highly successful military campaigns, they gradually extended their power over a vast area, which eventually stretched from Egypt and the Mediterranean in the west to the Caspian Sea in the north, and it encompassed most of modern Iran by 656. By now, a caliphate, a single political realm centred on Medina, was forming, and in 661 the first Umayyad caliph assumed the reins of power and moved his capital west, to Syria. After a very troubled start, effectively a civil war, in which the Shi‘i split off from the rest of the umma, this powerful family ruled for over a century. The Umayyads conquered al-Andalus (southern Spain), extended their territories across the Maghreb (northern Africa), and incorporated more of Central Asia. As Muhammad’s message spread, Arabian tribes converted en masse to Islam. Byzantine and Sassanian subjects gradually followed suit, often adopting Arabian cultural practices as they did so. Soon the Arabs ceased to be an occupying force and became the ruling elite of a more unified population. The Umayyads built fabulous mosques and religious schools throughout the region, constructing the magnificent Great Mosque in Damascus, for example, and supported religious scholars, the ulama. In little more than a century, Islam had unified an extensive Middle Eastern population.
