Law and the state in ‘Near Eastern' legal culture
The pre-Islamic Arabian Peninsula was home to and adjacent to several forms of governance, in some cases overlapping. As is widely acknowledged, pre-Islamic state practices were largely continued after the Muslim conquests.21 Recognition of the adaptation of the administrative bureaucracy, however, has overshadowed recognition of how pre-Islamic ‘law and the state’ set the stage for Islamic ‘law and the state’.
In this section, I will review three state-based legal systems (tribal, Byzantine, and Sasanian) that operated in the region prior to the Islamic movement. For our purposes, the key aspect of all three of these legal systems is that they accommodated legal pluralism by limiting the state legal system’s reach into non-state legal traditions. Thus, tribal legal systems incorporated pagans, monotheists, Jews, and Christians, with their particular legal traditions. Likewise, Sasanian law accommodated Zoroastrian, Christian, and Jewish legal traditions. Byzantine law integrated the legal traditions of Christians, Jews, and pagans. The legal traditions of non-Muslims in Islamic states should be contrasted with the equivalent pre-Islamic frameworks — not in order to suggest ‘borrowing’, but rather to investigate how and why the Islamic legal tradition accepted, modified, or rejected particular aspects of the ‘Near Eastern’ legal model of ‘law and the state’.2.1 Tribal legal system
Tribal law is an underappreciated pre-Islamic legal tradition, in part because of the dearth of historical evidence. Nevertheless, the available historical evidence provides a general outline of how tribal law functioned.22 Common assumptions limit the scope of tribal law to retaliation (qisas), which was itself normative in many pre-modern legal traditions; however, retaliation was only one component of tribal law. Collective responsibility and collective decision making (of tribal councils) were vital parts of the tribal legal tradition.
It is important to recognize that arbitration was not an alternative to courts, but functioned as the primary form of adjudicatory relief.23 Tribal judges (either chiefs or arbitrators) adjudicated individual cases; tribal councils adjudicated particularly important cases.24 There appears to have been some centralized system of courts in the Arabian Peninsula, with a central court in Mecca.25 And there is recognizable continuity in how the judiciary functioned prior to and after the Islamic movement.26The Arabian tribal legal system constituted an umbrella for several legal traditions. Jews in Arabia (both the northwest and the south) may have followed the rabbinic Jewish tradition.27 For example, Babylonian rabbis discussed issues of food and clothing particular to the Arabian context.28 In light of the known relationship between Arabian Jews and Babylonian rabbinic figures, it is possible that some Arabian Jews were educated in the Babylonian academies and, consequently, could convene rabbinic courts. However, we should not assume that Arabian Jews were rabbinic (either by historical or contemporary understandings of the term).29 Within the Arabian Peninsula, Jews were fully integrated within the tribal legal system, including acting as judges (both for Jews and non-Jews).30 There were also Eastern Christian tribes throughout pre-Islamic Arabia.31 Most Christians in the Arabian Peninsula were likely Nestorians or Miaphysites.32 Eastern Christians primarily adjudicated family law issues autonomously.33 Thus, the tribal legal system coexisted with Jewish and Eastern Christian law, as well as other legal traditions.
2.2 Sasanian legal system
Sasanian dominance in the Arabian Peninsula may have been limited to the collection of taxes in some areas, brief political control over Yemen, and an alliance with the Lakhmids (a Christian Arab tribe).34 Yet the Sasanian legal system was likely familiar to the inhabitants of the Arabian Peninsula and the subsequent Islamic empire probably continued many Sasanian practices.
Zoroastrianism was primarily associated with the Sasanian ‘ruling-class’, but it was integral to the Sasanian legal system.35 The integration of Zoroastrian law in Sasanian state law suggests that there was no distinction between divine law and state law.36 Indeed, Zoroastrian clergy were influential in the Sasanian state.37 Zoroastrian jurisprudence relied on the Zoroastrian scripture (the Awesta [sixth century]), oral legal traditions, and legal opinions (including consensus) ofjurists.38 Still, Zoroastrian jurisprudence and the practice of Sasanian courts sometimes overlapped and sometimes differed.39 The Sasanian state applied Zoroastrian criminal law,40 which included capital punishment (often decapitation by sword)41 and recognized both individual and collective liability.42 Apostasy from Zoroastrianism was criminalized because Zoroastrianism was equivalent to the Sasanian ‘political ideology’.43 Much like their Muslim successors, Sasanians collected a poll tax.44 (And also like their contemporaries and successors, the Sasanian state criminalized illicit sexual relations.45) Jews were represented by both the exilarch (chief representative) and the scholars; the exilarch appointed local rabbinic judges.46 The Sasanians recognized a Christian catholicos who had powers similar to that of the Jewish exilarch.47 Non-Zoroastrians had access to both the Sasanian/Zoroastrian courts (which functioned as state courts) and their own communal courts.48 As in the case of the tribal legal system, the Sasanian legal system accommodated multiple, overlapping legal traditions.2.3 Byzantine legal system
Although the Byzantine Empire (330—1453) did not rule directly over the Arabian Peninsula, the Byzantines did form alliances with some tribes (such as the Ghassanids, a Christian Arab tribe) and thereby exerted indirect political control.
More importantly, there were extensive interactions between pre-Islamic Arabs and Byzantines.49 While Byzantine law was taught formally in Syria and in Egypt, it is likely that Byzantine legal ideas spread beyond the limited confines of law schools.50 Byzantine law did not differentiate between state law and Church law, each of which shaped the other.51 Justinian I (r. 527—565) oversaw the formation of four legal sources: the Codex Justinianus, the Digest, the Institutes, and the Novellae Constitutiones. In the decades immediately preceding Islam’s beginning, Byzantine jurists focused on the Institutes and abridgments of the Novels, thereby somewhat neglecting the Codex and the Digest.52 Byzantine ecclesiastical law (specifically, Eastern Orthodox canon law) was a significant aspect of Byzantine legal activity. Two of the more important sources from the period immediately preceding Islam include Collection in Fourteen Titles (sixth century) and Collection in Fifty-One Titles (seventh century; Syria). A crucial component of legal authority in Byzantine canon law is tradition.53 While the poll tax is a known Roman legal category, it is not clear if the Byzantines collected a pre-Islamic poll tax in Egypt and possibly other areas under Byzantine rule.54 Rabbinic courts operated under the Byzantine Empire, but Byzantine law imposed several restrictions on Jews.55 Still, as was the case with the tribal and Sasanian legal systems, the Byzantine legal system coexisted with multiple legal traditions.2.4 From pre-Islamic to Islamic state legal systems
Each of these three state legal systems (tribal, Byzantine, and Sasanian) officially or unofficially aligned itself with a majority community (pagan Arabian, Zoroastrian, or Christian) while acknowledging the legal traditions of minority communities. (I use the terms ‘majority’ and ‘minority’ in terms of power, rather than number.) I suspect that the pre-modern equivalent of ‘tolerance’ does not explain why these states allowed minority communities to operate their own courts or to determine certain internal legal issues.
I propose that these states recognized jurists as the generators of law and viewed states as hosts of juristic legal traditions — whether a majority or a minority legal tradition.In ‘Near Eastern’ legal culture,jurists (or sages, or scholars) were the main producers of law in their respective communities. These specialists in law were socially recognized as responsible for interpreting legal traditions (or scriptural texts) and for transmitting oral law. Master jurists taught their disciples law (often in legal circles) and differences of opinion among master jurists were recorded and studied. Jurists determined consensus and customary legal practices, two significant sources in these regional legal traditions.56 When Islamic legal activity began, it unsurprisingly operated like the other legal traditions in the region: Muslim and non-Muslim jurists were recognized as the craftsmen of their legal traditions. In turn, the Islamic state accepted Muslim and non-Muslim jurists — rather than the state itself — as conveyers of the law. In other words, the absence of a state monopolization on the production of law had significant implications for the nature of ‘Near Eastern’ legal pluralism.
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