The first creation of “Arabian” law was _the concept of the incorporeal person_.

Here is an element entirely absent in Classical law,[86] and appearing quite suddenly in the “Classical” jurists (who were all Aramæans), which cannot be estimated at its full value, or in its symbolic importance as an index of the new world-feeling, unless we realize the full extent of the field that this Arabian law covered.

The new landscape embraces Syria and northern Mesopotamia, southern Arabia and Byzantium. In all these regions a new law was coming into being, an oral or written customary law of the same “early” type as that met with in the _Sachsenspiegel_. Wonderfully, the _law of individual cities_ which is so self-evident on Classical ground is here silently transmuted into a _law of creed-communities_. It is Magian, magic, through and through. Always _one_ Pneuma, _one_ like spirit, _one_ identical knowledge and comprehension of whole and sole truth, welds the believers of the same religion into a unit of will and action, _into one juristic person_. A juristic person is thus a collective entity which has intentions, resolutions, and responsibilities as an entity. In Christianity we see the idea already actual and effective in the primitive community at Jerusalem,[87] and presently it soars to the conception of a triune Godhead of three Persons.[88]

Before Constantine, even, the Late Classical law of imperial decrees (_constitutiones, placita_) though the Roman form of city law was strictly kept, was genuinely a law for the _believers of the “Syncretic Church,”_[89] that mass of cults perfused by one single religiousness. In Rome itself, it is true, law was conceived of by a large part of the population as city-state law, but this feeling became weaker and weaker with every step towards the East. The fusion of the faithful into a single _jural community_ was effected in express form by the Emperor-cult, which was religious law through and through. In relation to this law Jews and Christians[90] were infidels who ensconced themselves with their own laws in another field of law. When in 212 the Aramæan Caracalla, by the _Constitutio Antoniana_, gave Roman citizenship to all inhabitants except _dediticii_ peregrins,[91] the form of his act was purely Classical, and no doubt there were plenty of people who understood it in the Classical spirit--i.e., as literally an incorporation of the citizens of every other city in the city of Rome. But the Emperor himself conceived it quite otherwise. It made everyone subject to the “Ruler of the Faithful,” the head of the cult-religion venerated as _Divus_. With Constantine came the great change; he turned Imperial Caliph law on to the creed-community of Christianity in lieu of that of Syncretism, and thereby _constituted the Christian Nation_. The labels “devout” and “unbeliever” changed places. From Constantine onwards the quiet transformation of “Roman” law into _orthodox Christian law_ proceeded more and more decisively, and it was as such that converted Asiatics and Germans received and adopted it. Thus a perfectly new law came into being in old forms. According to the old marriage-law it was impossible for a Roman burgher to marry the daughter of, say, a Capuan burgher if legal community, _connubium_, was not in force between the two cities.[92] But now the question was whether a Christian or a Jew--irrespective of whether he was Roman, Syrian, or Moor--could legally marry an infidel. For in the Magian law-world there was no _connubium_ between those of different faiths. There was not the slightest difficulty about an Irishman in Constantinople marrying a Negress if both were Christians, but how could a Monophysite Christian marry a Nestorian maiden who was his neighbour in their Syrian village? Racially they were probably indistinguishable, but they belonged to legally different nations.

This Arabian concept of nationality is a new and wholly decisive fact. The frontiers between “home” and “abroad” lay in the Apollinian world between every two towns, and in the Magian between every two creed-communities. What the “enemy,” the peregrin, was to the Roman, the Pagan was to the Christian, the Amhaarez to the Jew. What the acquisition of Roman citizenship meant for the Gaul or the Greek in Cæsar’s time, Christian baptism meant for him now--entry into the leading nation of the leading Culture.[93] The Persians of the Sassanid period no longer conceived of themselves, as their predecessors of Achæmenid times had done, as a unit by virtue of origin and speech, but as a unit of Mazdaist believers, _vis-à-vis_ unbelievers, irrespective of the fact that the latter might be of pure Persian origin (as indeed the bulk of the Nestorians were). So also with the Jews, and later the Mandæans and Manichæans, and later again the Monophysite and the Nestorian Christians--each body felt itself a nation, a legal community, a juristic person in a new sense.

Thus there arises a group of Early Arabian laws, differentiated according to religions as decisively as Classical laws are differentiated according to cities. In the realm of the Sassanids schools arose for the teaching the Zoroastrian law proper to them; the Jews, who formed an exceedingly large portion of the population from Armenia to Sabæa, created their proper law in the Talmud, which was completed and closed some few years before the _Corpus Juris_. Each one of these Churches had its peculiar jurisdiction, independent of the geographical frontiers of the moment--as in the East to-day--and the judge representing the ground-lord judged only cases between parties of different faiths. The self-jurisdiction of the Jews within the Empire had never been contested by anyone, but the Nestorians and the Monophysites also began, very soon after their separation, to create and to apply laws of their own, and thus by a negative process--i.e., by the gradual withdrawal of all heterodox communities--Roman imperial law came to be the law of the Christians who confessed the same creed as the Emperor. Hence the importance of the Roman-Syrian law-book, which has been preserved in several languages. It was probably[94] pre-Constantinian and written in the chancery of the Patriarch of Antioch; it is quite unmistakably Early Arabian law in Late Classical form, and, as its many translations indicate, it owed its currency to the opposition to the orthodox Imperial Church. It was without doubt the basis of Monophysite law, and it reigned till the coming of Islam over a field far larger than that of the _Corpus Juris_.

The question arises, what in such a tapestry of laws could have been the real practical value of the part of them which was written in Latin? The law historians, with all the one-sidedness of the expert, have hitherto looked at this part alone and therefore have not yet realized that there is a problem here at all. Their texts were “Law” unqualified, the law that descended from Rome to us, and they were concerned only to investigate the history of these texts and not their real significance in the lives of the Eastern peoples. What in reality we have here is the highly civilized law of an aged Culture forced upon the springtime of a young one.[95] It came over as learned literature, and in the train of political developments which were quite other than they would have been had Alexander or Cæsar lived longer or had Antony won at Actium. We must look at Early Arabian law from the standpoint of Ctesiphon and not from that of Rome. The law of the distant West had long before reached inward fulfilment--could it be here more than a mere literature? What part did it play, if any, in the active law-study, law-making, and law-practice of this landscape? And, indeed we must further ask how much of Roman--or for that matter of Classical generally--is contained in this literature itself.[96]

The history of this Latin-written law belongs after 160 to the Arabian East, and it says a great deal that it can be traced in exactly parallel courses into the history of Jewish, Christian, and Persian literature.[97] The “Classical” jurists (160-220), Papinian, Ulpian, and Paul, were Aramæans, and Ulpian described himself with pride as a Phœnician from Tyre. They came, therefore, from the same population as the Tannaim who perfected the Mishnah shortly after 200, and most of the Christian Apologists (Tertullian 160-223). Contemporary with them is the fixation of canon and text for the New Testament by Christian, for the Hebrew Old Testament by Jewish,[98] and for the Avesta by Persian, scholars. It is the high Scholasticism of the Arabian Springtime. The digests and commentaries of these jurists stand towards the petrified legal store of the Classical in exactly the same relation as the Mishnah to the Torah of Moses (and as, much later, the Hadith to the Koran)--they are “Halakhoth”[99]--a new customary law grasped in the forms of an authoritative and traditional law-material. The casuistic method is everywhere the same. The Babylonian Jews possessed a well-developed civil law which was taught in the academies of Sura and Pumbeditha. Everywhere a class of law-men formed itself--the _prudentes_ of the Christians, the rabbis of the Jews, later the ulemas (in Persian, mollahs) of the Islamic nation--who enunciated opinions, _responsa_ (Arabic, _Fetwa_). If the Ulema was acknowledged by the State, he was called “Mufti” (Byzantine, _ex auctoritate principis_). Everywhere the forms are exactly the same.

About 200 the Apologists pass into the Fathers proper, the Tannaim into the Amoraim, the great casuists of juridical law (_jus_) into the exegetes and codifiers of constitutional law (_lex_). The constitutions of the Emperors, from 200 the sole source of new “Roman” law, are again a new “Halakhah” laid down over that in the jurists’ writings, and therefore correspond exactly to the Gemara, which rapidly evolved as an outlier of the Mishnah. The new tendencies reached fulfilment simultaneously in the _Corpus Juris_ and the Talmud.

The opposition between _jus_ and _lex_ in Arabian-Latin usage comes to expression very clearly in the work of Justinian. Institutes and Digests are _jus_; they have essentially the significance of canonical texts. Constitutions and Novels are _leges_, new law in the form of elucidations. The canonical books of the New Testament and the traditions of the Fathers are related to one another in the same way.

As to the Oriental character of the thousands of constitutions, no one now has any doubts. It is pure customary law of the Arabian world that the living pressure of evolution forced under the texts of the learned.[100] The innumerable decrees of the Christian rulers of Byzantium, of the Persian of Ctesiphon, of the Jewish (the Resh-Galuta[101]) in Babylonia, and finally of the Caliphs of Islam have all exactly the same significance.

But what significance had the _other_ part of pseudo-Classical, the old jurists’, law? Here it is not enough to explain texts, and we must know what was the relation between texts, jurisprudence, and court decisions. It can happen that one and the same law-book is, in the waking-consciousness of two groups of peoples, equivalent to two fundamentally different works.

It was not long before it became the habit, not to apply the old laws of the city of Rome to the fact-material of the given case, but to quote the jurists’ texts like the Bible.[102] What does this signify? For our Romanists it is a sign of decadence, but looked at from the view-point of the Arabian world, it is just the reverse--a proof that Arabian man did eventually succeed in making an alien and imposed literature inwardly his own, in the form admissible for his own world-feeling. With this the completeness of the opposition between the Classical and the Arabian world-feeling becomes manifest.