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December 5 - December 25, 2021
But all the Islamic legal traditions pursued similar goals, emphasizing the ideal of individual responsibility before God, and they were generally tolerant of one another. Most ordinary Muslims accepted the authority of the madhhab that prevailed in their region, looking to its scholars for guidance on their own legal problems and ethical dilemmas.20
In theory, at least, Islamic scholars only recognized four ‘roots’, or sources, of law: the Quran itself, little though it had to say about law; the sunna of the Prophet, or what were accepted as records of his activities; the results of reasoning by analogy; and the conclusions of an established community of scholars, on the assumption that they had correctly reasoned from established sources. Custom and practice inevitably contributed a great deal to the reasoning of both scholars and judges, but these were not officially recognized as sources of law.21 Scholars continued to develop new
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The more pious scholars were reluctant to allow the caliphs to have too much authority. They considered that they, the ulama, were the true heirs of the Prophet, and that the law was found in their reasoning, not in a caliph’s decrees. It was they who should determine how people conducted prayers and rituals, how they should behave in markets and commercial ventures, and how they should act ethically as good Muslims. The duties of the caliph and his officers, in their view, were to maintain the mosques, preserve order in the market, and defend the frontiers of the realm.
The ulama insisted on the rule of law, and especially the word of God, which was authoritative above all else.
Like the Roman jurists, Nawawi developed the law intellectually, using hypothetical examples to clarify categories and rules and draw distinctions between them. Many other scholars were, like Nawawi, concerned with clarifications and distinctions, considering such topics as the status of the children of divorced parents and whether a mother could retain custody of them. Such questions helped them to refine the categories used by earlier scholars and explain their significance.
Analysing the law was ‘the most noble approach to God, the highest act of obedience, the most pressing category of the good, the most secure act of worship, and the most worthy thing to do’. The law was a ‘scintillating sea, a treasury of subtleties, a garden’, and the task of the scholars was to make this ‘multi-faceted jewel’ sparkle.
The muftis heard petitions from ordinary people and responded with fatwas, short legal opinions explaining what they could or could not do in particular situations. They advised on such things as correct procedures for inheritance and the enforcement of problematic contracts; they also provided opinions for qadis on tricky questions of evidence or law that arose in court. Jurists would often act as muftis, but their tasks when playing these two roles were distinct. As Nawawi said, the fatwa of a mufti was concerned with particulars, descending from the abstraction of the law into the reality
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The jurist’s was the highest authority, he explained, because the scholar dealt in universals, coming closest to the divine law, while the mufti’s work was complicated by the consideration of particulars. The qadi was even closer to the messy reality of daily life.
Like Jewish law, the Islamic fiqh was a religious project. In both, lawmakers adopted casuistic forms when they gave guidance to ordinary people and included rules that judges could use to resolve disputes and regulate social relations, and that merchants could use to shape contracts. But like the Hindu brahmins, the scholars were more concerned with duties than rights, and the most powerful rulers never seriously challenged the hierarchy of religious authority.
The Jewish and Islamic systems of law never had any lasting central authority, or even, in the case of the shari‘a, foundational legal texts. They endured and developed during periods of repeated political turmoil, when jurists held their own against confident sultans and invading warlords. Based on a moral vision for the world, they proved their resilience time and again.
When the Roman armies withdrew from northern Europe in the fifth century of the common era, they took with them their systems of government and their laws. Gallic, Celtic, and Anglo-Saxon tribesmen had little use for complex sets of legal rules.
But the new governors of the western Roman territories were leaders of nomadic tribes, used to moving around with small groups of trusted noblemen and engaging in long-running feuds with their rivals.
Still, they were impressed by the grandeur of the Roman emperors and decided to create their own legal codes. Initially, they did little more than write out basic lists of injuries and compensation, but they were promising justice, as the Romans had done before them. Eventually, their assorted rules, customs, and ideas developed into the sophisticated European systems that came to dominate the world. But it was centuries before they produced anything like a coherent body of law.
His laws clearly reflected local concerns, particularly the relations between different classes of nobles, but Euric’s adviser, Leo, had trained as a Roman lawyer and gave the code a distinctly Roman veneer. Since law applied to people, rather than territories, the new rulers also felt they should have different laws for themselves and their Roman subjects.
The prologue to this code, known as the Lex Salica, declares that with the aid of God the Franks had decided to establish peace and prevent litigation, so that they might surpass their neighbours in the quality of their justice as well as the force of their arms.
But there the resemblance ends, and the code continues with the compensation payments typical of tribal dynamics.
It reads very much as a record of customs, which it probably was, and reflects the practices of a feuding society, one without a strong state, where offences were matters of private wrong. There is no evidence that any of these codes had a direct impact on the resolution of disputes. Written in Latin, they were more like gestures to Rome, markers of civilization, and attempts to create a common identity among the new coalitions of tribal groups than practical instruments designed to assist judges resolving conflicts.
These codes aspired to reflect local customs. The kings heard the most important legal cases, but Roman systems of taxation had largely broken down, and with them the capacity for extensive centralized administration. Urban councils and local landowners therefore took responsibility for settling most conflicts.
Notaries continued to use Roman legal forms to record important transactions, including sales and gifts of land, divorces, adoptions, and disputes over labour, keeping alive parts of the Roman legal tradition.
If they wanted to introduce new practices, the Frankish kings now issued edicts, known as capitularies. Some of these confirmed decisions made by councils of bishops; others were rules for the whole population, to be read out at local assemblies. The majority simply contained instructions to administrators.
He did not have the administrative apparatus to reproduce Roman systems of government, with its Senate, officials, judges, and courts, but he could make laws. The Lex Salica might have started as a list of penalties and tribal customs, but a Latin text could be presented as something grander, the work of an authoritative king. It demonstrated that the ruler was governing properly, as the Roman emperors had done before him. Lawmaking, as one scholar has put it, was an exercise in image-building.13
The ninety clauses of this code specify compensation payments for ‘affronts’, both material harm and insults to a freeman’s honour, such as sleeping with a high-status woman from his household. The laws recognized status, specifying certain privileges for the king and his men, granting various protections to the churchmen, and distinguishing freemen from slaves. Aethelberht added a few clauses on religious misconduct, recognizing his duty to protect the new church as well as his people. But the code was little more than a list of monetary equivalents for different injuries.
His laws defined what mattered among the Kentish freemen, most importantly the levels of compensation they could honourably accept, so that they could live together in peace.
Gradually, the kings began to control more areas of public life, defining more crimes and developing more complex legal procedures.
And, like his Germanic counterparts, Alfred used prestigious Roman forms for his laws, but they reflected existing traditions. All the kings confirmed the tribal order at the heart of their new kingdoms by making explicit important practices of compensation. But Alfred went further, not just invoking the laws of the Bible but also recording a number of the judgements made by his councils.
His laws combined rules based on custom with records of real cases, which gave the laws a somewhat haphazard form. But, written in the Anglo-Saxon vernacular, they were relatively accessible to the local populations.17
Like other Anglo-Saxon kings, Alfred was fully aware of his duty to maintain the order ordained by God. Kings had to uphold minimum standards of Christian observance if they were to avoid plagues and overcome their enemies. It was their duty to ensure peace, and this primarily meant controlling theft.
As in the Visigothic and Burgundian territories, the new rulers expected that Roman citizens would continue to rely upon Roman laws. But the administrative classes had been devastated by the turmoil of the previous decades, and intricate Roman rules and practices must soon have seemed irrelevant.
When they drafted charters to record important transactions, such as the manumission of slaves, sales of land, leases, and marriages, they insisted on precise words and phrases, which might have served to give their documents authority in legal disputes. Roman legal forms, in this way, continued to shape social relations.
Growing diversity among different classes of people also called into question many of the older laws and legal categories. People began to question patterns of land distribution, trading practices, and traditions of inheritance, and they began to bring more problems to the courts. All of this encouraged the judges to look beyond the Lombard laws, seeking inspiration in the ideas and principles of the Roman texts and the writings of the jurists who were studying them.
At the same time, the church was developing its own rules and legal practices, largely based on Roman sources. Its courts asserted authority over any issue that touched on a matter of sin, including adultery, perjury, forgery, family law, even loans and interest.
His Decretum (Decree) made the canon law look much more systematic, and the scholars began to take it seriously, embarking on interminable debates about its relation to the ‘civil law’. Most universities now taught both. In England, the Archbishop of Canterbury recruited a Lombard scholar to assist him with the resolution of disputes, and the text this scholar compiled for his students became the basis for legal training in the new university at Oxford. The civil law had now acquired such prestige that no European university thought it worthwhile to teach any of the laws that were actually
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The civil law had an authority, based on its ancient history and intellectual sophistication, that even the emperors respected.
In England, the Anglo-Saxon kings had based their law codes largely upon custom and their own edicts. After the conquest of 1066, the new Norman king, William I, issued some new edicts, but he put his administrative resources into the great survey that became the Domesday Book, rather than new laws.
The new judges toured the country holding eyres, large gatherings in which they reviewed recent events, investigated complaints against local officials, and heard legal cases. To guide their procedures, Henry introduced new writs. These specified the written forms in which legal claims had to be made, rather as the Roman formulae had done. In these ways, the king and his judges began to systematize legal practices and the principles they applied, gradually establishing a new ‘common law’.
This case indirectly prompted Henry to introduce an important new writ, the action of novel disseisin, which governed the procedures for making claims to land.28 In these ways, ideas and principles from the Roman civil law crept in to English practices. But their influence was limited.
He declared that he was describing the ‘English law’, which, although not written, was, as he explained, the law applied in the kings’ courts. He insisted that the English common law constituted a system of its own, just like the civil law then being developed in Bologna and applied by the courts of Paris.
In practice, recognizing the new writs, Henry’s judges developed standard approaches to land ownership, inheritance, wardship, the status of widows, and other concerns of the landowning classes. Gradually their work extended to the legal affairs of less wealthy citizens, including tenants, who might use the new writs to resist claims by their lords.
Ignoring the example of the civil laws, they were content to let the English law develop through the system of writs. There was a strong sense that the English common law was based on ancient custom, and when the barons wanted to challenge the power of King John, they felt entitled to create a legal document to limit his powers, the Magna Carta.
The kings could nevertheless issue decrees to supplement the courts’ practices. Major pieces of legislation, such as the Magna Carta, introduced legal reforms in all sorts of areas.
But for the most part, it was the judges of the kings’ courts who developed the common law. Over the following centuries, they became more specialist, developing and refining the system of writs and gradually extending their jurisdiction to cases traditionally heard by local courts.
In substance, of course, much of the law applicable in England and Wales was not so different from the laws that emerged in continental European countries, and the legal scholars at the Universities of Oxford and Cambridge consolidated the reputation of the civil law as one of the most prestigious subjects. But in the precedents and procedures used by English advocates and the institutions in which they trained, the English common law followed a different path, and it remained distinct.
Most Germanic codes were haphazard lists of rules and judgements, customs were codified in random ways, and Roman laws and ideas were introduced into contexts in which they patently had no relevance. But kings throughout Western Europe were inspired by the grandeur and sophistication of the Roman tradition and they adopted its forms, aspiring to the authority of the historical emperors.
The main divergence between the civilian and common laws came after the rediscovery of the Corpus Iuris Civilis, which gave the civil law status and authority within the Holy Roman Empire and the kingdoms of France and Spain.
Over time, English law developed, rather as Roman law had, from a combination of writs, decrees, and recorded cases.
the European rulers promised that their laws would bring peace and order to their people. There was also a sense that law represented a higher order, the order of God invoked in coronation oaths, the intellectual order of Roman law, and the order of justice. And this was an order that people considered the rulers should enact and respect. It laid the basis for ideas about the rule of law.
The earliest lawmakers, who crafted the rules that developed into the great legal systems, were all trying to order the world around them. But they were pursuing very different visions.
The Mesopotamian kings promised to bring justice to their people; the Hindu brahmins explained the principles of the dharma to guide a body of religious adherents; and Chinese rulers wanted to impose peace and order in unsettled times. These projects of justice, duty, and discipline emerged quite independently, and at first quite modestly.
For most people, it was their relationship with their immediate king that counted. All freemen were expected to enter into a client relationship with one of them and join his túatha. The kings consulted their freemen in public assemblies when they needed to form treaties, issue edicts, recruit soldiers, or resolve legal disputes. The ‘half free’ had less autonomy and were bound more closely to their kings, who granted them use of land and livestock.
The lawyers specialized in reciting proverbs and maxims, passing on everyday wisdom about good and bad behaviour, morality, and social relations in memorable, often obscure sayings.
