Whereas the Classical law was made by burghers on the basis of practical experience, the Arabian came from God, who manifested it through the intellect of chosen and enlightened men. The Roman distinction between _jus_ and _fas_ (such as it was, for the content even of _fas_ had proceeded from human reflection) became meaningless. The law, of whatever kind, spiritual or secular, came into being, as stated in the first words of Justinian’s Digests, _Deo auctore_. The authoritativeness of Classical laws rests upon their success, that of the Arabian on the majesty of the name that they bear.[103] But it matters very considerably indeed in a man’s feelings whether he regards law as an expression of some fellow man’s will or as an element of the divine dispensation. In the one case he either sees for himself that the law is right or else yields to force, but in the other he devoutly acknowledges (“_Islam_” = to commit, devote). The Oriental does not ask to see either the practical object of the law that is applied to him or the logical grounds of its judgments. The relation of the cadi to the people, therefore, has nothing in common with that of the prætor to the citizens. The latter bases his decisions upon an insight trained and tested in high positions, the former upon a spirit that is effective and immanent in him and speaks through his mouth. But it follows from this that their respective relations to written law--the prætor’s to his edict, the cadi’s to the jurists’ texts--must be entirely different. It is a quintessence of concentrated experience that the prætor makes his own, but the texts are a sort of oracle that the cadi esoterically questions. It does not matter in the least to the cadi what a passage originally meant or why it was framed. He consults the words--_even the letters_--and he does so not at all for their everyday meanings, but for the _magic_ relations in which they must stand towards the case before him. We know this relation of the “spirit” to the “letter” from the Gnosis, from the early-Christian, Jewish, and Persian apocalyptic and mystical literature, from the Neopythagorean philosophy, from the Kabbalah; and there is not the slightest doubt that the Latin codices were used in exactly the same way in the minor judicial practice of the Aramæan world. The conviction that the letters contain secret meanings, penetrated with the Spirit of God, finds imaginative expression in the fact (mentioned above) that all religions of the Arabian world formed scripts of their own, in which the holy books had to be written and which maintained themselves with astounding tenacity as badges of the respective “nations” even after changes of language.[104]

But even in law the basis of determining the truth by a majority of texts is the fact of the consensus of the spiritual elect, the _ijma_.[105] This theory Islamic science worked out to its logical conclusions. We seek to find the truth, each for himself, by personal pondering, but the Arabian savant feels for and ascertains the general conviction of his associates, which cannot err because the mind of God and the mind of the community are the same. If _consensus_ is found, truth is established. “_Ijma_” is the key of all Early Christian, Jewish, and Persian Councils, but it is the key, too, of the famous Law of Citations of Valentinian III (426), which the law-men have universally ridiculed without in the least understanding its spiritual foundations. The law limits the number of great jurists whose texts were allowed to be cited to five, and thus set up a canon--in the same sense as the Old and New Testaments, both of which also were summations of texts which might be cited as canonical. If opinions differed, the law of Valentinian laid it down that a majority should prevail, or if the texts were equally divided, the authority of Papinian.[106] The interpolation method, used on a large scale by Tribonian for the Digest of Justinian, is a product of this same outlook. A canonical text is in its very idea true and incapable of improvement. But the actual needs of the spirit alter, and so there grew up a technique of secret modifications which outwardly kept up the fiction of inalterability and which is employed very freely indeed in all religious writings of the Arabian world, the Bible included.

After Mark Antony, Justinian is the most fateful personality of the Arabian world. Like his “contemporary” Charles V he ruined everything for which he was invoked. Just as in the West the Faustian dream of a resurrection of the Holy Roman Empire runs through all the political romanticism that darkened the sense of fact during and beyond the age of Napoleon--and even that of the princely fools of 1848--so also Justinian was possessed with a Quixotic urgency to recover the entire Imperium. It was always upon distant Rome instead of upon his proper world, the Eastern, that his eyes were fixed. Even before he ascended the throne, he was already in negotiation with the Pope of Rome, who was still subordinate to the great Patriarch of Christendom and not yet generally recognized even as _primus inter pares_. It was at the Pope’s instance that the dual-nature symbol was introduced at Chalcedon,[107] a step which lost the Monophysite countries wholly and for ever. The consequence of Actium was that Christianity in its first two decisive and formative centuries was pulled over into the West, into Classical territories, where the higher intellectual stratum held aloof. Then the Early Christian spirit rose afresh with the Monophysites and Nestorians. But Justinian thrust this revival back upon itself, and the result was that in the realms of Eastern Christianity the reformist movement, when in due course it appeared, was not a Puritanism but the _new religion_ of Islam. And in the same way, at the very moment when the Eastern customary law had become ripe for codification, he framed a Latin codex which, for language reasons in the East and for political reasons in the West, was condemned from the first to remain a literary product.

The work itself, like the corresponding codes of Dracon and Solon, came into being at the threshold of a “Late” period, and with political intentions. In the West, where the fiction of a continuing _Imperium Romanum_ produced the utterly meaningless campaigns of Belisarius and Narses, Latin codes had been put together (about A.D. 500) by Visigoths, Burgundians and Ostrogoths for subjugated Romans, and so Byzantium must needs get out a genuine Roman code in opposition. In the East the Jewish nation has already settled its code, the Talmud, while, for the immense numbers of people who were subject to the Emperor’s law, a code proper for the Emperor’s own nation, the Christian, had become a necessity.

For the _Corpus Juris_ with its topsy-turviness and its technical faults is, in spite of everything, an Arabic--in other words, a _religious_--creation, as evidenced in the Christian tendency of many interpolations;[108] in the fact that the constitutions relative to ecclesiastical law, which had been put at the end even in the Theodosian codex, were now placed at the beginning; and very markedly in the preambles of many of the Novels. Yet the book is not a beginning, but an end. Latin, which had long become valueless, now disappears completely from legal life (even the Novels are mostly in Greek), and with it the work so misguidedly written in that language. But the history of the law pursues the way that the Syrian-Roman law-book had indicated to it, and in the eighth century arrives at works in the mode of our eighteenth, such as the Ecloga of the Emperor Leo[109] and the Corpus of the great Persian jurist Archbishop Jesubocht.[110] In that time, too, came the greatest figure of Islamic jurisprudence, Abu Hanifah.