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Legal Developments in Legal Developments in Legal Developments in Legal Developments in

Roman and Islamic TraditionsRoman and Islamic TraditionsRoman and Islamic TraditionsRoman and Islamic Traditions

Bradley Bosserman

Bradley Bosserman 2

TABLE OF CONTENTS

Section Page

I Introduction 3

II Methodology 3

III The Preceding Eras 4

IV The Formation of Islam 7

V A Comparison of Legal Norms 10

A. Treatment of Womyn, Marriage, and the Family 10

B. Rights of Non-Citizens 14 C. Slavery 15 D. Classes of Citizenry 17 E. Taxes 18 VI Sources of Law 19 VII Church and State 24 VIII Conclusion 26 Bibliography 27

Bradley Bosserman 3

I. Introduction

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

1 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.

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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 5 Ibid. p. 5 6 Ibid. p. 8

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regularly created and dissolved with no stigma. 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

7 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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the Roman Senate, and confirmed as law in the Western

empire.10

The Codex of Theodosius was hardly a revolutionary document. It was intended

merely to codify the existing norms. Conditions for marriage were still largely non-

defined. 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 Ibid. p. 304 11 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). Finally, actions that are forbidden and punished

(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

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 Schacht, (1964). p. 10 15 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.” 16

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 17 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 three-

month 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

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husband’s property upon his death.24 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 Aslan, p. 64 25 Buckland, p. 36 26 Ibid. 27 A. Giladi, saqir, Encyclopedia of Islam, Brill 28 The Qur’an, 6:151 29 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 Aslan, p. 64 31 Johnston, David. Roman Law In Context. Cambridge: Cambridge University Press, 1999. p.35 32 Aslan, p. 65 33 Buckland

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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

38Grayzel, 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 Ibid 40

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

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

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 Ibid 43 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).

47 47 Lewis 48 Buckland

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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 Aslan, p. 58 50 Ibid. p. 59

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

52 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).

54 Aslan, p. 94

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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 Johnston 56 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

independent judicial reasoning being applied by a qualified scholar. This allowed a

58 58 Aslan, p. 164 59 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 Ibid 61

Johnston

Bradley Bosserman 23

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

Bradley Bosserman 24

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 Ibid, p. 127 64

Ecloga In Encyclopædia Britannica. Retrieved December 4, 2007, from Encyclopædia Britannica

Online: http://www.britannica.com/eb/article-9031919 (2007).

Bradley Bosserman 25

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