This little book is based on a series of lectures given in the academic year 1984–85 at Cambridge, where I was living as Goodhart Professor. They were given to graduate students in law, as part of the LL.M. course in the Faculty of Law. Being based on lectures for students this book does not claim to be a work of profound research. On the other hand, the fact that the students were law graduates meant that I could raise issues in European legal history of a certain complexity not discussed in any exhaustive way in the learned literature. It also meant that I could assume an acquaintance with legal history and thus turn the course into a discussion instead of a monologue, and many issues prompted in this book were first mooted by students' questions. Since my listeners came from the continent of Europe, as well as Great Britain and the United States of America, I had sometimes to explain certain rather elementary facts of the history of the civil law to those who had grown up in the common law and vice versa. It is hoped that the reader will show understanding for this: a course on the history of European law, comprising England as well as the Continent, has, by its very nature, to take account of certain communication problems between the members of these two great families.

SOME FACTS

The historical facts are not difficult to summarise. Various European countries have seen the control of the law pass through various hands, i.e. those of the judiciary, the legislature, or the schools. This is not to say, of course, that there were periods or countries where one such controlled the law exclusively: there has always been some case law, some legislation and some writing about legal matters. Only the fully feudalised era of say the tenth and eleventh centuries on the continent was almost totally devoid of legislation and legal learning. Certain periods and countries, however, have witnessed so marked a preponderance of one of these groups of people that it could be considered the essential ‘maker of the law’. Thus it is clear that the common law was judge-made, that medieval and modern Roman law (which could be called the neo-Roman law of western Europe) was professor-made and that an enormous mass of French revolutionary law was legislator-made.

The reader will notice that there is here a connection with the traditional theory of the ‘sources of the law’. These, as every undergraduate knows, are custom (as fixed and formulated by judgments), legislation and jurisprudence. However, ‘custom’ and ‘case law’, ‘legislation’ and ‘jurisprudence’ will not be treated as abstract intellectual entities, but investigated as the voices of certain groups of people expressing particular social and political forces in society.

Having established in a broad comparative survey what caused the preponderance of judge, legislator or jurist in Europe, I now intend to return to my starting point, the difference between the English common law and the rest of Europe. The reason why the English judiciary played such an exceptional role has been established, but this fact does not by itself explain why the English common law is so different. One can very well imagine an English, judgemade variant of a common European law. Thus one hears that at the present time the same European Community rules are not interpreted similarly on the Continent and in the United Kingdom. Judges' law in one country and legislators' law in others would normally have produced some differences, but these might have been technical only, without involving the substance of the law. To put it in more concrete terms: one can imagine a situation where the substance of European feudal law remained common to all countries, even if its development in the course of the later Middle Ages was the task of the judiciary in some countries and of the legislature in others. Equally one can imagine that more progressive laws corresponding to an urban and commercial society would have arisen through the action of judges in some countries and of kings and estates in others.

The difference between common law and continental law goes much further than that: they were not only developed by different organs, their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman.

This book is concerned with the relative contributions of Roman and provincial law to the Sharīʽa, the holy law of Islam. While Roman law needs no introduction, the term ‘provincial law’ may puzzle the reader. It refers to the non-Roman law practised in the provinces of the Roman empire, especially the provinces formerly ruled by Greeks. In principle non-Roman legal institutions should have disappeared from the Roman world on the extension of Roman citizenship to all free inhabitants of the empire in 212; in practice they lived on and even came to influence the official law of the land. There were thus two quite different sets of legal institutions in the Roman Near East which was to fall to the Arabs, and both need to be considered in discussions of the provenance of the Sharīʽa.

This is not a new observation. It is nonetheless worth stressing it again, for in practice it has been forgotten. There is no literature on the genetic relationship between provincial and Islamic law; and though there are numerous works on the potential contribution of Roman law, their quality is mostly poor: apart from a handful of pioneer works written in the decades around the First World War, practically nothing has been added to our knowledge of the question since von Kremer wrote on it in 1875.

This book, which I have previously announced under the title ‘The Roman Origins of Islamic Clientage’, has its roots in a chapter of my thesis, ‘The Mawālī in the Umayyad Period’, London Ph.D. 1974. (Of the entire thesis it may now be said that in so far as it has not been published, it has been abrogated.) Though the roots are now exceedingly long, I should like to thank Professor B. Lewis for reading the first draft of what was in due course to become this book without reacting so negatively as to kill the idea, for all that it was undoubtedly the most chaotic piece that I have ever written. Michael Cook not only went through the same ordeal, but also read and commented on numerous subsequent drafts and suggested that I add what is now Chapter 2. I should also like to thank the Islamicists at the Hebrew University of Jerusalem for extracts from their concordance of Arabic poetry, Professor S. Moreh for help with the translation of poetry, Professor F. de Jong for help with rare publications, David Powers for making me think about bequests again, Fritz Zimmermann for comments on the first chapter, and Martin Hinds for comments on the entire final draft.

Manumission documents are poorly represented in the Islamic no less than in the Greek papyri (cf. above, Chapter 5, note 16). Only three Arabic manumission documents have turned up so far, and only two of these are complete (cf. A. Grohmann, ‘Arabische Papyri aus den staatlichen Museen zu Berlin’, Der Islam 1935, p. 28; the claim that P. Cair. B. E tarīkh no. 1900 is a kitāba is not correct). None of them dates from the formative period of Islamic law, but P. Berlin 13,002 (a.d. 916), published by Grohmann, ibid., pp. 19ff, is nonetheless of considerable interest. The crucial lines are reproduced as follows in Grohmann's publication (p. 19):

1. 4 innī a ‘taqtuka ‘an dursatī bi-khidmatī mā ‘ishtu

2. 5 fa-idhā muttu mā ha[yyān] Mubārak ḥurr li-wajh Allāh wa'l-dār al-ākhira, lā sabīl ‘alayka iliā sabīl

3. 6 al-walā', fa-inna walā' aka lī wa-liman varithuhu ‘annī…

If we follow Grohmann (pp. 24f), this means:

1. 4 If have freed you from my discipline in my service as long as I live.

2. 5 If I die while [you are al]ive, [you] Mubārak shall be free for the sake of God and the hereafter. Nobody shall have any claims on you except by way of

3. 6 walā'; for your walā' belongs to me and whoever inherits it from me…

In fact, however, neither the transliteration nor the translation can be entirely right.

What happens if a man promises his slavegirl freedom on condition that her first child is a boy, whereupon she has twins, one boy and one girl? This curious question was discussed by Roman and Muslim lawyers alike. Ulpian held that the boy is presumed to have been born first, irrespective of fact, so that the mother is freed and the daughter born free (Buckland, Slavery, p. 487, citing Digest, 34, 5, 10, 1). But this solution was too simple for the Muslims.

‘When someone says to his slavegirl, “if the first child you bear is a boy, then you are free”, and she bears a boy and a girl without it being known who was born first, then half of the mother and half of the girl are freed while the son remains a slave. This is because both of the two [females] are [wholly] freed in one circumstance, namely when the son is born first – the mother in accordance with the condition and the girl by following her mother, who is free by the time she is born. And both remain [wholly] slaves in another circumstance, namely when the girl is born first – the condition having failed. So [when the order is not known], both are half freed and must work off the other half' (Marghīnānī, Hidāya, part ii, p. 62, with a discussion of rules to be followed if the order is disputed)

If the personal clientage of Islamic law did not come from Arabia, where could it have come from? A tie of this kind, i.e. one which arose automatically on manumission, attached the freedman to the manumitter's kin and granted the latter a title to the freedman's estate, was unknown to Akkadian law, ancient Egypt, Jewish law, and, in so far as one can tell, also Sasanid Iran; and though it was probably once a feature of Greek law, this had long ceased to be the case. If the Islamic patronate did not come from Arabia, the only alternative source is Rome.

It is the purpose of this chapter to restate this point in more positive terms. The argument which I shall present is in essence the following. Throughout the Near East, both Roman and non-Roman, relations between manumitter and freedman were shaped overwhelmingly by the so-called paramonē. This institution also plays a major role in Islamic law where, as we shall see, it has been accepted in the modified form of kitāba, and its continuance demonstrates that Arab manumitters did indeed pay attention to the legal practices of their non-Arab subjects. It is undeniable and significant that the influence of the provincial institution on Islamic law is considerably easier to demonstrate than that of its Roman counterpart. But the absence of a patronate of the Roman or Islamic type from pre-Islamic Arabia on the one hand, and the prominence of paramonē throughout the Near East on the other, suggest that if the Arab conquests had not included Roman provinces, there would not have been an Islamic patronate of the type we know.

Introductory

The institution with which this book is concerned regulated the status of freedmen and converts in early Islamic society. All societies must have a policy regarding the admission of outsiders to their ranks, and since slaves are usually recruited abroad, freedmen and other foreigners have often been governed by the same or similar rules from this point of view. Both pose the question whether they should be admitted at all. The answer to this question has sometimes been no. Thus the Athenians withheld citizenship from freedmen and other foreigners alike, assigning the status of metic, or resident alien, to both. But in societies constituted by common faith, adoption of this faith will normally result in the acquisition of membership, however partial at first. Jewish law accords practically the same rights and duties to freedmen and other proselytes as it does to born Jews; and Islamic law similarly grants full membership of the Muslim community to freedmen and converts, some minor disabilities apart: only the dhimmīs, that is the non-Muslim subjects of the Muslim state, are in the position of metics. There is no reason to think that Islamic law ever circumscribed the rights of freedmen and converts in public law, though the Arab conquerors frequently treated them as second-class citizens in practice. But however this may be, this aspect of the question is not of interest to us.

The first scholar to suggest that the muḥtasib perpetuates a Greco-Roman official seems to have been Gaudefroy-Demombynes. In 1939 he declared himself convinced that the ‘Abbāsid muḥtasib was an Islamised version of the Roman aedile (M. Gaudefroy-Demombynes, ‘Sur les origines de la justice musulmane’, Mélanges syriens offerts à René Dussaud, Paris 1939, vol. II, p. 828), and in 1947 he reaffirmed his conviction in a review of E. Tyan, this time adding the terms agoranomos and sāḥib al-sūq (id., ‘Un magistrat musulman: le mohtasib’, Le Journal des Savants 1947, pp. 36f. On the relationship between the Roman aedile and the Greek agoranomos, see B. R. Foster, ‘Agoranomos and muḥtasib’, Journal of the Economic and Social History of the Orient 1970). It was similarly in a review of E. Tyan that Schacht first identified the ‘Abbāsid muḥtasib as an Islamised version of the Byzantine agoranomos, an idea which he was to repeat several times thereafter without reference to Gaudefroy-Demombynes (Schacht in Orientalia 1948, p. 518; id., ‘The Law’, p. 75; id., ‘Droit byzantin’, p. 207; id., Introduction, p. 25. He was familiar with Gaudefroy-Demombynes' article of 1939, cf. Introduction, p. 224, but possibly not that of 1947, unearthed by Foster, ‘Agoranomos and muḥtasib’, p. 128n).

The history of walā'

We are now in a position to attempt an overall survey of the development of the Islamic patronate. Its history may be reconstructed along the following lines.

Once the initial phase of the conquests was over, the Arabs were confronted with the problem of defining the status of non-tribal members of their society. Among themselves, the dividing line between tribesmen and non-tribesmen had largely disappeared. Just as the Persians of Ha jar were accepted as Arabs on the rise of Islam, so weavers, smiths and paramonar servants became warriors on a par with the free. The lowly origins of such persons were not necessarily forgotten, or even forgiven, but they ceased to be a bar to membership: all natives of the peninsula who participated in the conquests as adherents of the new faith were henceforth equal members of a new commonwealth distinguished from the rest of the world by Arab ethnicity, common faith and immense success. It was newcomers recruited from outside the ranks of this commonwealth who posed a problem.

During the early wars of conquest even non-Arabs from outside the peninsula had been able to benefit from this reshuffle of the tribal commonwealth; for as long as the Arabs were eager for proselytes to confirm the truth of the faith and for soldiers to swell their armies, even complete foreigners were eligible for admission as Arabs.

This chapter is intended for the non-specialist who wishes to acquire some familiarity with the nature of Islamic law before proceeding to the argument presented in this book. The specialist reader can go straight to the chapter on walā'.

Immutability

Islamic law is a divine law elaborated and transmitted by private scholars. Whatever the degree to which it had been controlled by caliphs in earlier times, law-finding had ceased to be a caliphal prerogative by late Umayyad times, and the role of the ruler in classical theory is limited to that of patronising scholars (‘ulamā’), appointing judges (qāḍīs), and ensuring that the law is applied. The Sharī'a is thus work of pure scholarship. This has two consequences of major importance.

The first is that the Sharīʽa is immutable. This may be thought to be a consequence of its divine nature, and to some extent it clearly is; but divine origins are not in themselves enough to secure immutability for a legal system. Thus caliphal law was divine law, yet it changed and was acknowledged to do so. Being mouthpieces of God himself, the caliphs could lay down such law as they wished: the law was unchanging only in the sense that it was God's law however much it changed. Unlike caliphs, however, scholars owe their authoritative status to their learning, not to an office or position independent of it: they are authoritative because they know what others have said.