Chapter IX: Conclusion (2)

Finally, the administration of justice by the _Praetor peregrinus_, who doubtless based himself mainly upon the commercial usages of the merchants who from various quarters resorted to Rome, and still more the issuing of provincial edicts by the magistrates who were sent to rule the provinces according to systems which combined some Roman rules and principles with other rules which belonged to the particular province, supplied abundant materials for observing in what points the special and peculiar law of Rome agreed with or differed from the laws of other peoples and states[91]. The jurists were thus led, not by theory, but by the practical needs of the case, to apply and to profit by the Comparative method, no less than by the three other methods above enumerated. And accordingly they did in fact obtain, without any paraphernalia of a Philosophy or Science embodied in separate treatises or ostentatiously taught as a separate subject, those very gifts and aptitudes which a systematic and enlightened scheme of legal education ought to confer. They did not set out with abstractions, like our German and Scottish friends. They did not, like Bentham and Austin, crack a set of logical nuts, in the effort to divide and define the matter and the leading conceptions of law. But they applied to the handling of their own concrete rules and problems a mastery of general principles and a love for harmony and consistency which are essentially philosophical. They were pervaded by the sense of historic growth and change, for had they not before them the relations of the old and the new in many institutions—the development of _Formula_ beside _Legis Actio_, of _Ius Gentium_ beside _Ius Civile_, of _Bonorum possessio_ beside _Haereditas_, of _Longi temporis praescriptio_ beside _Usucapio_? The one thing in which it may be said that a systematic science of law might have helped them was the arrangement and distribution of topics. For this they certainly cared little and did little. But the taste for systematic arrangement was never strong in the ancient world. Perhaps the modern appreciation of it dates back to the scholastic philosophy of the Middle Ages, which spent much thought on what the logicians called Division. Perhaps it has been reinforced by the more recent progress of Natural History, which furnishes in the classification of the animal and vegetable kingdoms the grandest example of orderly schemes of distribution based on scientific lines.

-----

Footnote 91:

There was practically only one set of laws or customs belonging to
highly civilized communities which the Romans could compare with their
own law, those, namely, which they found in the various Greek cities.
These laws and customs, though varying a good deal in detail, from
city to city, seem to have borne a family likeness to one another. The
laws of the Italic cities were probably on the whole similar to those
of Rome herself. But the customs of the Carthaginians, of the Syrians,
and of the Egyptians, had many peculiar features.

-----

This excellence of the Romans in the sphere of concrete law confirms the view we were led to take that the contents of a Philosophy or Science of Law in general are not large, being indeed confined to the defining of the relation of Law to Ethics and other cognate branches of philosophy, and to the examination of some fundamental legal conceptions, important no doubt, but not very numerous. The solid and essential value of legal science begins in the manipulation of the material presented by an actual system of law, in the moulding of the old customs so as to reconcile them with the always changing needs of the people. And this has been the doctrine and practice of the greatest foreign masters of the Roman law in modern times. It was the doctrine of Savigny, who opposed his historical method to the abstractions of the contemporary Hegelians, and it prevailed in the struggle. I remember the way in which it was conveyed to me by one of the greatest of Savigny’s school, Dr. Karl Adolf von Vangerow, to whose brilliant and stimulating lectures I listened at Heidelberg, now many years ago. Inspired by my Scottish and Oxford training with the notion that in order to study a subject rightly one must begin with its metaphysics, I asked the professor, on one of the days when his students were permitted to call on him, what book on the Philosophy of Law (_Rechtsphilosophie_) I ought to read. He raised his eyebrows till they seemed to reach the top of his head, and said with a deprecating wave of his hand, ‘I doubt whether that kind of reading will help you with your legal studies. I see little use in it. But if you really do want to study such a topic——well, there is the _Naturrecht_ of my colleague Herr Dr. Röder: you can look at it.’ Nearly all the jurists to whom the development of modern Roman law in the nineteenth century in Germany has been due have taken a similar view, and have spent their powers either on the same questions as those which occupied the Roman sages or on the application of Roman principles and doctrines to the phenomena and conditions of modern times, and especially of modern commerce. They have been philosophical in their use of the analytic and historical methods, philosophical, that is to say, as compared with Lord Coke or Lord St. Leonards, and they have greatly improved on the division and classification of topics which we find in the Roman books. But they have troubled themselves about the abstract philosophy of law just as little as those two famous judges, or as those august Romans who divided their time between the composition of legal treatises and advising the Emperor on the ordinances which he issued for the whole civilized world.

Not a few of the great Roman jurists (including Julian, Papinian, and Ulpian) sat in the imperial consistory, and were practically not only judges of the highest Court of Appeal but also legislators. An estimate of their scientific merits must include this branch of their activity, whether as settling the form of decrees to be passed by the Senate, or as drafting enactments to be issued in the name of the Emperor. For legal science is not merely either expository on the one hand, or on the other dispensatory and corrective, securing to each what is his, but is also Constructive and Ameliorative, framing rules under which society may advance steadily and smoothly, may get rid of obsolete doctrines, may find new facts adequately dealt with under new rules. It was a great advantage for the Empire, and one which furnished some compensation for the absence of representative legislatures that the business of law-making lay in the hands of competent legal experts. Legislation presents itself to us as being above all things an expression of the will of the people, who know where the shoe pinches them, and have the general interest, not that of a monarch or a privileged class, in their minds. Yet a wise despot, with pure purposes and a command of the best legal advice, may be expected to legislate in the general interest, and most of the legislation of the emperors during the first three centuries, though it was often misguided in the sphere of financial administration, was conceived in the interest of the population at large. What was specially due to the lawyers who advised the Emperor was the policy followed in amending the general private law, and in bringing it into a more orderly and consistent condition. In this respect they vindicated their claim to be truly scientific. The work of law reform went on upon broad principles, unhasting and unresting, till the anomalies and injustice of the old system had been almost entirely removed. Yet there was left for a long time in the provinces a local variety of law which corresponded to and respected the local needs and sentiments of the populations. No passion for a rigid uniformity seems to have blinded the advisers of the Emperor to the truth that the first business of law is to subserve the well-being of the people and to win their confidence as well as command their obedience. In this respect also they were not merely ‘priests of justice,’ as they liked to call themselves, but also worthy servants of science. The Roman Empire maintained itself in the East for more than eleven centuries after the last of the classical jurists. In the West its influence survived its political existence, and its law in particular became the foundation of that which came to prevail over Continental Europe. As it was largely owing to the strength derived from its legal and administrative structure that the Eastern Empire lived so long, so the permanence of the Roman law in the West is some proof of the attachment of the people to it, and so of its intrinsic merits. Both facts are alike a tribute to the scientific character of the system and to the scientific genius of the men who moulded it. For no system could have passed through the changes which the East underwent, or survived the storms which broke upon the West, save one which by the dominance of clear and broad principles and the symmetrical development of rules from those principles had become at once intelligible, flexible, and consistent.

Let us see what are the conclusions to which we have, by this somewhat devious course, been led.

1. There are four chief methods of studying law—the Metaphysical, the Analytical, the Historical, and the Comparative.

2. Each of these has its proper sphere and its distinctive value, even if the two latter are of most general practical service.

3. All four ought to find a place in a complete scheme of legal training.

4. The two former are applicable only to the rudiments and to some particular parts of the subject, the two latter are profitable all through it, and specially so when they can be combined.

5. The Roman jurists pass so lightly over the theoretical side of law that the first method supplies them with little more than a few general phrases. Although their definitions are the result of analysis, they do not formally or of set purpose employ the second. They use the Historical method freely, though almost unconsciously. At one stage in the growth of their law they applied to some extent the Comparative method, being led to it by the facts they had to deal with. But they seldom mention any law but their own.

6. The Romans, though saying little about the broad aspects or so-called Philosophy of Law, do in fact pursue it in a philosophic spirit; and to this spirit the excellence of their system is largely due.

7. Their example shows us that it is not the effort to discuss law in a metaphysical or abstract way that makes a body of law truly philosophical, but rather the power of so framing general rules as to make them the expression of legal principles, and of working out these rules into their details so as to keep the details in harmony with the principles.

In other words, it is Reasonableness, Simplicity, Self-consistency that make the excellence of a legal system, and the best methods of study are those which attune the lawyer’s mind to seek after these qualities, and which enable him to hold a middle course between viewiness and the pursuit of an impossible perfection on the one hand and bondage to the letter on the other.

XIII

THE RELATIONS OF LAW AND
RELIGION

THE MOSQUE EL AZHAR

To the modern European world Religion and Law seem rather opposed than akin, the points of contrast more numerous and significant than the points of resemblance. They are deemed to be opposed as that which is free and spontaneous is opposed to that which is rigid and compulsive, as that which belongs to the inner world of personal conscience and feeling is opposed to that which belongs to the outer world of social organization and binding rights. The one springs from and leads to God, who is the beginning and the end of all religious life; the other is enforced by and itself builds up and knits together the State. Even where the law in question is the revealed Law of God the contrast remains. The efforts which we find in the New Testament, and especially in some of St. Paul’s Epistles, to reconcile the law delivered to Israel with the dispensation of the New Covenant, all point to and assume an antagonism. Grace, that is to say, the spontaneous goodness and favour of God, is felt as the antithesis to the Law; and it is only when human nature has been brought into complete accord with God’s will that the antithesis vanishes, and we have the Perfect Law of Liberty.

This law of liberty, moreover, is not positive law at all, but supersedes that law; for when all men have been so made perfect, the need for human law has ceased, because their several wills, being in accord with the will of God, must needs be also in accord with one another.

This antagonism of Law and Religion has been conspicuous in the relations to each other of the lines of thought followed by the ministers of religion on the one hand and the students or practitioners of law on the other. In the theology of the Reformers of the sixteenth and two following centuries Legalism is a term of reproach and is contrasted with the freedom of the Gospel. Readers of the _Pilgrim’s Progress_ will remember the part played in it by old Mr. Legality. The clergy have been apt to dislike lawyers, to accuse them of cramping the freedom of the Church, and of desiring to bind it in State fetters. Erastianism, of which some lawyers and statesmen have been known to be proud, is a name of dark reproach on ecclesiastical lips, while the legal profession on its part, though it has always had to yield precedence to the other gown, conceives that the Church needs to be strictly controlled, gladly seizes occasion for limiting the action of her ministers, often suspects them of trying to evade or pervert the law, and is prone to bring accusations, more or less railing, against them, as seeking to compass their (possibly excellent) ends by irregular or even illegal methods.

But in earlier times, and in many countries, the two lines of thought, the two branches of learning, the two professions, whether as teaching or as practising professions, were either united or deemed to have a close affinity. In the lowest forms of organized society, such as we find among the aborigines of Canada and South Africa, the first kind of profession that appears is usually that of the wizard or practitioner of magic, and the rudiments of a priest are developed out of the medicine man, who represents the most rudimentary form of the physician. But in this stage of progress there is no religion properly so called, and the usages that prevail and which are the material out of which law will grow, are too few, too rude, and too often interrupted by violence, to form a system of settled and harmonized rules. When, however, Religion and Theology begin to emerge from the superstitions of the savage state, and when custom, already settled, and growing more complex with the progress of culture, has enabled civil society to organize itself in institutions, Law and Theology are usually found in close affinity. Law everywhere begins with Custom. Now many of the Customs which form Law are concerned with worship, because the relations they regulate are relations depending on religion. The Family is a religious as well as a natural organism, for it is often sacred, and in many peoples is held together by the common worship which its members owe to the spirits of their ancestors. Hence the maxims that regulate marriage, and the relation of parents to children, and the devolution of property, have a religious basis, and are precepts of religion no less than rules of law. To take vengeance for the killing of a near relative is a duty which the pious son or brother owes to the ghost of the slain; while on the other side the slaughter has created a legal right the enforcement of which, by compelling the payment of a proper compensation to be exacted from the slayer or his kinsfolk, will also satisfy the religious obligation. Other relations of men to one another not primarily religious become so by being placed under supernatural protection. Where a promise or agreement is to be rendered specially binding, the party engaging himself takes an oath invoking the Divine Power, and perhaps takes it at a shrine, or (as in Iceland) on a temple-ring, or (as in the Middle Ages) on the relics of a saint. These contracts are not confined to private affairs. Treaties are made in the same solemn way. Compacts such as that for the single combat of Paris and Menelaus in the _Iliad_ [92], are placed under the sanction of the gods by a formal appeal to them as witnesses. And when a person who had violated such an oath dies suddenly, his death is ascribed to the anger of the Powers to whose keeping his promise had been committed[93]. In such cases the priest of the deity invoked is apt to become the interpreter of the obligation undertaken, or the arbiter as to how far it has been performed. Possibly he is made the keeper of an object for which safe custody is desired, or the depositary of an object whose ownership is disputed. Sometimes, indeed, it is rather within the breasts of chiefs or kings (since they act as judges and exercise executive power) than in those of priests that the knowledge of customs and maxims is deemed to reside. But in these cases the royal office has itself, if not a priestly, yet a sacred character, and the priest plays no leading part in the political or social system. The nature of the religion, and its more or less mystical tendency, have of course a good deal to do with the place allotted to the priesthood in early societies.

-----

Footnote 92:

Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to
the Rivers and to the Earth.

Footnote 93:

Thus we are told by an early Irish annalist that ‘the sun and the wind
killed Laoghaire (king of Ireland in the time of St. Patrick) because
he broke his oath to the men of Munster.’

-----

Where legal rules take the form of written records embodying what is held to have been delivered to a people either directly by the deity or through sages recognized as inspired or guided by some divine power, the sanctity of law reaches its maximum. It is then a part of religion, and those who know it and expound it have a religious no less than a legal function.

In such documentary records Law and Religion are often so closely interwoven as to be scarcely separable. Many rules are secular in one aspect, religious in another, so that it may be doubted which kind of motive prompted them, which kind of object they were designed to secure. A regulation of ceremonial purity may have its, perhaps forgotten, origin in considerations of a sanitary nature. A sacrifice prescribed as an atonement for sin may also operate as a civil penalty. Offences against the community may be deemed primarily offences against the deity and so dealt with; and a frequent punishment for what we should now call crimes is to devote the culprit to the wrath of the powers of the nether world, or to deprive him of the protection of those who rule the upper world, and therewith expose him to outlawry, the oldest of all legal sanctions.

In nations living under the influence of such ideas, the exponents of Law and Religion tend to be the same persons, because these two branches of public administration are conceived as being the same, or at least two different sides of the same thing. Such persons may or may not be priests performing sacrifices or consulting the deity through oracles, or omens, or a sacred lot. But they are the depositaries of the sacred traditions, and it is they who interpret those traditions and apply them to concrete cases. As such they are usually among the ablest and most educated persons in the community, sometimes prominent members of the ruling class.

Yet Religion must not in such a state of society be conceived as the dominant power, which gives birth to Law. In early societies the duties and acts which belong to the external or secular side of life are more important than is the part of life concerned with the emotions felt towards the deity, whether of reverence, love, or fear. But in the observance of all the established customs and in the performance of all the prescribed ceremonies, that which is pleasing to the gods is not separated even in thought from that which is salutary for the community. The service of the deity consists, apart from occasions of orgiastic excitement, not in the emotional attitude of the soul, but in the discharge of the duties recognized as owed to the family and the community, duties which are more or less moral according to the character of the religion—for righteousness may hold a higher or a lower place among them—but which, whether they relate on the one hand to sacrifices offered and fasts observed, or on the other hand to the fulfilment of all that the tribe or the State expects from its citizens, are external duties. In most early nations, these duties are prescribed not by religious emotion, but by settled usages and rules which have the sanction alike of the State whose welfare is involved in their observance, and of the unseen Powers that protect it. The people have not yet begun to distinguish by analysis the three elements of Law, Morality and Devotion, though here and there the voices of lofty spirits, such as the prophets of Israel, are heard proclaiming the supremacy of the law of righteousness as the true expression of the Will of God, and obedience to it as the truest service that can be rendered by His creatures.

The relation borne by Law, Morality, and Worship, each to the other, differs widely in different peoples. The student of early society must be always on his guard, like the student of natural history, against expecting a greater uniformity than in fact exists, and against generalizing broadly from a few striking instances. Even so brilliant a speculator as Sir Henry Maine fell into the error of assuming the system of paternal power to be practically universal in certain stages of society. Among our Scandinavian and Low German ancestors, for example, it would appear (so far as our imperfect data go) that the worship of the gods had not very much to do with legal usages and civil polity, though to be sure other influences came in at a comparatively early stage to turn the current of their development[94]. The same may be true of the Gadhelic tribes, though the knowledge we have regarding their usages and worship while still heathen is lamentably scanty. There is, however, in the records of early Rome and of the Greeks, as well as in those of some Eastern nations, a good deal to illustrate the view I have been trying to state.

-----

Footnote 94:

But in Norway the Assembly is usually held at a temple, as in Iceland
the Goði is both a priest and a chief, and the temple is the place
where judicial oaths are taken. See Essay V, vol. i. p. 318.

-----

A striking example of conditions of thought and practice in which religion had (at a comparatively advanced stage) been so involved in law as to be almost stifled by law is furnished by the Jewish people as we find them under Roman dominion. The lawyers referred to in the New Testament[95] (a class of whom there are but few traces before the Captivity) are not priests (though of course a priest might happen to be learned in the law), yet they have a quasi-sacerdotal position as conversant with and able to interpret a body of rules which are of divine origin, and embrace the relations of man to God as well as to his fellow men. Between religious duty and religious ceremony on the one hand and the performance of civil duties on the other there is no line of demarcation: all are of like obligation and are tried by similar canons. Hence piety tends to degenerate into formalism: hence the precisians who insist upon petty externalities and neglect the weightier duties deserve and incur the rebukes of a higher spiritual teaching. It may indeed be said that one great part of the work recorded in the Gospels, regarded on its historical side, was to disjoin Law from Religion or Religion from Law. And this work was performed not merely by superseding parts of the law known as that of Moses, or by giving a new sense to that law, but also by transforming Religion itself, purging away the externals of sacrifice and other ceremonial rights, and leading the renewed and purified soul into ‘the glorious liberty of the people of God.’

-----

Footnote 95:

The γραμματεῖς (scribes), νομικοί (lawyers), and νομοδιδάσκαλοι
(doctors of the law) of the New Testament seem to be different names
for the same class, and identical with the ἱερογραμματεῖς of Josephus.

-----

That majority of the Jewish race which did not accept the teachings of Christ continued for many centuries, scattered and depressed as it was after the destruction of Jerusalem, to treat its ancient law-books and the traditions which had gathered round them as being both a body of civil rules and a religious guide of life. Despite the tendency to formalism which has been noted, there were among the Rabbis of the early centuries A.D. not a few who dwelt upon the moral and emotional side of the Mosaic Law, and who through it sustained the spirit of the sorely tried nation.

In the Christian Church also ceremonies and external observances came before long to play a great part in worship, and were for ages an essential element in the popular conception, indeed in the practically universal conception, of Christianity itself both as a theology and as a religion. The atmosphere which surrounded nascent Christianity was an atmosphere saturated with rites and observances. There were in the primitive Church some few usages and in the New Testament some few texts on which it was possible to erect a fabric of ceremonial worship. But even if these conditions had been absent, the tendencies of human nature to create a body of ritual and to attach a sort of legal sanction to the external duties which custom prescribed would have prevailed.

How far the rites and practices which nearly every branch of the Christian Church has to a greater or less extent enjoined are each of them interwoven with the vital tenets of the faith, is a question not likely to be settled in any future that we can foresee. But the conception of the ‘Kingdom of the Heavens’ as something dissevered from the obligations imposed by legal tradition has also remained ever since in Christianity as a principle of profound significance, which has at different times emerged in various forms to become sometimes a destroying, sometimes a vivifying and transforming force. Such sayings as ‘Where the Spirit of the Lord is, there is liberty,’ or ‘He hath made you kings and priests to God,’ or ‘Ye are not under the Law but under Grace,’ have from time to time roused men to hold themselves delivered from all bonds of custom expounded or rules enforced by ecclesiastical authority.

I will not, however, attempt to follow out the intricate relations between the two conceptions, as they appear in the long course either of Christian or of Jewish annals, but will pass on to consider the phenomena of their connexion in another field, one in which the phenomena are comparatively simple, and lie open to-day to the study of every traveller in a land where the old and the new stand in striking contrast.

The best modern instance of the identity of Religion and Law is to be found in that originally misconceived and subsequently perverted form of Judaism which still prevails extensively over the eastern world, and recognizes Muhamad of Mecca as the last and greatest of the prophets of Jehovah. In Islam, Law is Religion and Religion is Law, because both have the same source and an equal authority, being both contained in the same divine revelation. I cannot better illustrate their union than by giving a short account of an ancient and splendid University where they are taught as one, hoping that so much of digression as is thereby involved will be pardoned in respect of the interest which this famous seat of learning deserves to excite, and of the light which it casts on the early history of the Universities of Europe—of Bologna and Paris, of Padua and Salamanca and Prague, and of our own Oxford and Cambridge.

About three hundred and fifty years after Muhamad, and towards the end of the tenth century of the Christian era, Johar, general of the Fatimite Sultans established at Tunis, conquered Egypt. When he built Cairo (El Kahira, ‘the Victorious’), not far from the decayed Memphis, he founded in the new city a mosque which presently obtained the name of El Azhar, that is to say, ‘The Flowers’ or ‘The Flourishing.’ The Fatimites, belonging to the schismatic sect of the Shiites, were particularly anxious to establish their ecclesiastical position against the orthodox Sunnites, and, just as Protestant princes in the sixteenth century founded universities for the defence of their tenets—as, for instance, Elector John of Saxony set up the University of Jena—so the second Fatimite ruler of Egypt, Khalif Aziz Billah, resolved to attract learned men to his capital. He gathered famous teachers to the Mosque, and there was soon a great afflux of students. Sultan Hakim (probably a madman), who went so far beyond the doctrines of Shiism as to declare himself an incarnation of Ali and a Mahdi, closed El Azhar, and transferred the University to another mosque which he had founded. However, the teaching staff was subsequently brought back to El Azhar (which returned finally to Sunnite orthodoxy with the conquest of Egypt by Saladin in 1171 A.D.), and it has been now for many centuries the greatest University in the Musulman world, being situate in what has been, since the decline of Bagdad, the greatest purely Musulman city[96]. The number of students sometimes reaches ten thousand; at the time of my visit (in 1888) it was estimated at eight thousand.

-----

Footnote 96:

Stambul (Constantinople) is larger, but Stambul has always had a large
Christian element, whereas Cairo was till about thirty years ago
almost wholly Muhamadan. Moreover Cairo was better situated for
drawing students from North Africa and Western Asia than Stambul,
which is almost on the outermost edge of the Musulman world.

-----

The whole teaching of the University is carried on within the walls of the Mosque, a large group of buildings, approached by six gates, and standing in the oldest part of Cairo. The chief entrance is from the Alley (or arcade) of the Booksellers in the Bazaar. At the outer portal, in the portico, the visitor leaves his shoes. To the left of the inner portal I found a noble square hall, said to date from the fourteenth century, as lofty as the chapel of Magdalen College and about as large, though different in shape, with beautiful marbles on the walls, and an aisle separated from the rest of the chamber by a row of tall columns, supporting slightly pointed arches. The sunlight came in through large openings, filled by no glass, under the roof. In the centre there were sitting or kneeling or crouching some eighty or ninety men in an irregular circle, mostly young men, yet many over thirty and some as old as fifty, with their shoes laid beside them on the matting. In front of them, sitting cross-legged on a low wooden throne, was an elderly professor, holding a book in his hands, and appearing to read from it. Now and then a question came to him from the circle, which he answered quickly; but otherwise the audience were perfectly still, and no sound was heard save his own low voice and the beating of the wings of the birds as they flew to and fro above. The book was an authoritative commentary on the Sacred Law, to which he added his own explanations as he read; and he was treating of the four requisites of prayer, especially of the first of the four, viz. Devotional Intent. No one took notes, but all listened with the closest attention. He was the Chief Sheik of the Mosque, and in virtue of his office, also the Sheik-ul-Islam or chief ecclesiastical and legal authority of Egypt, which, being expressed in the terms of an English University, would make him Chancellor, Regius Professor of Divinity and Regius Professor of Civil Law rolled into one, and therewithal also Archbishop of Canterbury and Lord High Chancellor.

In the similar but rather less spacious and ornate room opposite I found another class, smaller, and composed of somewhat younger men, listening to a lecture on what the Muslims call Dealings, _i.e._ civil law. The subject was Wills, and the requisites to the validity of a will, such as the sanity, freedom and full age of the testator, were being explained with reference to a book of authority which lay before the lecturer, a younger man than the Chief Sheik. He spoke with a fluency, clearness and evident power of interesting the class, which reminded me of a brilliant teacher whom I had heard twenty-five years before discoursing on the same subject at Heidelberg.

Led hence under the lofty gateway which gives access to the great court, I saw, like an earlier traveller, characters inscribed above the gate, and was told by my Virgil that their import was—‘Actions must be judged by their intent, and every man shall be requited according to what he purposed’—a maxim which belongs in one sense to religion, in another to law, but requires, like the corresponding phrase of our civilians—_Actus non est reus nisi mens sit rea_—to be carefully defined and qualified before it can be applied, seeing how often good intent is followed by bad result.

The great Court of the Mosque is a quadrangle nearly as large as that of Christ Church, Oxford, and was once, like that of Christ Church, surrounded by arcades resting on columns, of which now only a few remain. There are three tanks for ablutions and a great cistern of Nile water beneath, whence vessels are filled by boys who carry it round among the groups. It is the hour of forenoon rest between the morning lecture and the noontide meal, and a confused din of many voices rises from the six or seven hundred persons scattered through the quadrangle, whose ample space they do not crowd. The men, mostly young, are sitting or lying all over the flagged surface, reading or talking or reciting with a book open before them, many swaying backwards and forwards as they chant, all in the blaze of sunlight. Piles of thin, tough cakes, of which more anon, stand here and there. Through the groups walks a sturdy official bearing aloft a formidable symbol of order, two long and heavy flat strips of leather attached to a stout handle, wherewith he coerces any disturber of the peace of the Mosque. Discipline is easily maintained, for the Oriental, unless violently excited, is submissive to authority, and dangerous only in a mob. Moreover the students are mostly poor, and therefore attentive to their studies. The arcade on the south-east side is filled with knots of boys from eight to fourteen years of age sitting round their teachers, each with a metal slate, a brass ink-horn, and a reed pen; some gathered round a teacher armed with a long palm stick. They read aloud from the slate what they have written, thus learning by heart verses of the Koran, copies of which are set up on wicker stands, because the sacred volume must never be lower than the reader’s waist.

Adjoining the great quadrangle is the Liwan, or hall for prayer and preaching. It is really two parallel halls, partially separated by a wall, and divided into nine aisles by rows of columns nearly four hundred in number, the shafts of granite or marble with carved capitals. They were doubtless brought hither from Christian churches long since destroyed[97], churches that may have echoed to the voices of Athanasius and of Cyril. Along the side towards Mecca are four short recesses (Kiblas) resembling the apses of an early Christian basilica, though much smaller, one for each of the four legal orthodox sects of Muslims. Beside the chief Kibla there is placed, high up on the wall, a small wooden box containing relics, among which is one equally fit to be revered by Jews, Christians and Muslims, viz. a piece of Noah’s Ark. The effect of the hall is due rather to its vastness and to the maze of pillars than to any beauty in form or decorations; for the walls are plain, and the low roof makes the interior more sombre than either the famous mosque of Kêrwan or the still more rich and majestic mosque of the Ommiyad Khalifs at Cordova. As I entered this Liwan, the hour of midday prayers had arrived, and the crowd of students rose suddenly and, turning towards the four Kiblas, performed their devotions. This done, the multitude, passing noiselessly, for every foot is unshod, through the maze of columns, sorted itself into classes, each grouped in an incomplete circle round its own professor. Every regular professor has his column, at whose foot he sits, leaning against it; and here he reads or talks loudly enough to be heard over the din by those near him, for the clamour of many voices is lessened by the amplitude of the chamber. The younger or less privileged lecturers mostly gather their hearers outside in the Court, though I found a class of youths learning the elements of grammar at the foot of one of the Liwan columns. The lectures were mostly on grammar, which has a religious side, because it includes prosody and the proper pronunciation of the Koran. One eminent professor, who was also Select Preacher for the time being, was discoursing on Ibn Malek’s treatise on Arabic Grammar, holding in his hand the treatise, which is a poem of one thousand verses. All the class had copies, and continued to listen with untroubled gravity while a cat walked across between them and the professor. Another teacher, lecturing on logic, was being interrupted by a running fire of questions from his pupils, which he answered with swift promptitude and terseness.

-----

Footnote 97:

The columns of the ancient and most sacred mosque at Kairoan or Kêrwan
(in the territory of Tunis), built by Sidi Okba, the conqueror of
North Africa, were brought from Christian churches, and many from the
great basilica of Carthage, the floor of which has been recently
uncovered.

-----

There are about two hundred and thirty professors, that is to say, persons authorized to teach and engaged in teaching[98]. As in the universities of mediaeval Europe, graduation consists in a certificate of competence to teach; and this is given to those who have spent the prescribed time in study by inscribing in the copy of the book which the graduate has been studying a statement by the teacher that he has mastered the contents of that book. When a certificate of wider attainments is sought, the candidate is examined orally by two or three sheiks. As in the Middle Ages, there are no written examinations; and indeed writing is but little used, the aim of teaching being rather to cultivate the memory. The books studied are always the same, so there is no occasion for examination statutes and Notices of Boards of Studies. The freshman begins with what is called Balagha, the use of language, a subject which comprises grammar, logic (with the elements of metaphysics), and rhetoric. Next follows theology, the Nature of God and the functions of the Prophet, after which comes the Law, including both the precepts of religion as applied in practice and those of what we should call civil or secular law, both of them based on the Koran and the Hadith or sacred tradition. Instruction is no longer given in medicine here. When taught, it was taught, as it is still in the University of Fez, from an Arabic translation of Aristotle. The course prescribed for one who aspires to be a Kadi (Judge of the Sheriat or Sacred Law) is fourteen years, but an even longer time would be needed to fit a man to be a Mufti or doctor of the law. Five or six years, I was told, would qualify a student to become a village schoolmaster, able to teach the elements of religion and to advise the peasants on questions of divorce, just as in rural England the schoolmaster used to draw wills, with much ultimate benefit to the legal profession: and the same length of study might enable a man to become Imam (curate in charge) of a small mosque. Study consists, in every branch, chiefly in learning by heart. Even religion is taught through rules for prayer and alms-giving, which must be exactly remembered. But there is also a large field for the development of subtlety of mind in the casuistical distinctions which form a large part of law, both moral and civil. Neither physical science, nor history, nor any language save Arabic is recognized, nor (which is more surprising) do arithmetic and mathematics now find a place[99].

-----

Footnote 98:

In the session of 1898-9 there were 198 professors and 7,676 students
attached to the Mosque itself (without counting its dependent
Kuttabs).

Footnote 99:

In 1896 (eight years after my visit) instruction began to be provided
in geometry, algebra, arithmetic and geography, but it is given by
secular teachers appointed by the Egyptian Government, not by the
regular staff of the Mosque.

-----

The students come from all parts of the Musulman world, but the large majority from Egypt: and the Muslim legal sect to which most Egyptians belong (the Shafite) is accordingly the most numerous[100], amounting to nearly half the total. They are mostly poor, and live to some extent on the charitable gifts of the citizens, paying nothing for their instruction. But a certain number share in a kind of endowment which deserves notice, because it is the germ of a College—a germ, however, which never grew into a plant.

-----

Footnote 100:

In 1898-9 the numbers of the four sects were as follows:

Shafites—Professors, 86; Students, 3,495.
Hanefites—Professors, 41; Students, 2,168.
Malekites—Professors, 68; Students, 1,983.
Hanbalites—Professors, 3; Students, 30.

-----

The word _Riwak_ (accent on the last syllable), properly a colonnade or corridor, is used at El Azhar to denote an apartment or set of apartments, allotted to certain students as sleeping-quarters. There are in the Mosque buildings many Riwaks, and several are set apart for students coming from some particular countries[101]. There is one for the Syrians, one for the natives of Mogreb (North-West Africa, from Tripoli to Morocco), one for the Kurds, one for the natives of Mecca and Medina (El Haramein), one for the Sudanese of Sennaar, and so forth. Some are well ventilated and comfortable, such as that endowed by Ratib Pasha for Hanefites: some plain and bare. It is of course only in the three or four colder months that a roof is needed; during the summer night quarters _à la belle étoile_ are preferable. Practically, I was told, every student who wished could obtain quarters in a Riwak, because only the poor desire to be so accommodated: and a sleeping-place means no more than a bit of floor on which to spread your prayer carpet and place your chest of books and clothes. But the Riwaks (or most of them) also supply rations of bread to those students who apply for them when they have reached a certain stage of proficiency, that is, have mastered two or three books and obtained a certificate to that effect. These rations consist of wheaten cakes, thin and tough, and are supplied out of endowments which have from time to time been bestowed on the Mosque or on particular Riwaks by pious founders. These wheaten cakes are in fact the very rudest form of what is called in Scotland a Bursary, and in England an Exhibition or Scholarship; and the assignment of a Riwak as lodgings to students from a particular district may be compared with the earliest provision of a dwelling and a pittance for students in England, the acorn out of which there has grown the superb system of the Colleges of Oxford and Cambridge, many of them originally connected with particular counties.

-----

Footnote 101:

Place of birth constituted an important basis of classification in
mediaeval Universities. In Oxford, as in Paris, the students were
divided into the Northern and Southern nations (whence the two
Proctors), and in each of the Universities of Glasgow and Aberdeen
there are still four Nations, a system of organization preserved for
the purposes of the election of a Lord Rector. Nations exist also in
the University of Upsala.

-----

The Mosque, that is to say the University, as distinguished from the particular Riwaks, had at one time considerable endowments, called in Arabic Wakfs (pronounced Wakufs); but a large part of these endowments were seized by Muhamad Ali early in the nineteenth century (about 1820). In respect of them a considerable sum is now paid from the public treasury, and a further income is derived from the Wakfs which not having been seized, are now administered by the Government department in charge of charitable foundations. The present income of such foundations as remain is trifling, and the slender incomes of the senior professors are supplemented by small payments from Government and by gifts from pious persons. The richer students are also expected to offer gifts, and sometimes a charitable citizen will send a sheep to give the poor students a better dinner on a feast-day[102].

-----

Footnote 102:

In 1898-9 the total sum paid to El Azhar out of the public treasury
was LE (Egyptian pounds) 6,611, and out of the administration of the
Wakfs LE5,224, besides a sum of LE1,512 derived from the endowments of
the several Riwaks. The best endowed Riwaks are those of the Turks
(516) and of the Mogrebins (364). I owe these figures to the kindness
of my friend Yacoub Artin Pasha, the energetic and enlightened head of
the educational administration of Egypt. The Egyptian pound is about
twenty shillings and fourpence.

-----

Before leaving the University I was presented to its head, the Sheik El Azhar, whom I found sitting to hear and determine divers matters, his lectures having been disposed of in the forenoon. He was too great a man to rise to receive me, nor is it easy to rise when one sits cross-legged; but he placed his hand upon his heart with a dignified courtesy and invited me to seat myself beside him. His disciples were kneeling round him. He was more like an old Lord Chancellor than an old archbishop, with an air rather of complacent judicial shrewdness than of apostolic unction. When it had been explained to him that I was a lawyer and that law was taught in the Universities of England, he remarked that religion consists in conduct and behaviour, whereto I replied that the Roman jurists stated another side of the same truth when they said, ‘Iuris praecepta haec sunt, _honeste vivere, alterum non laedere, suum cuique tribuere_.’

It was impossible to spend a day in El Azhar without being struck by its similarity to the Universities of Europe as they existed in the thirteenth and fourteenth centuries.

In both an extreme simplicity of appliances. Nothing more than a few buildings capable of giving shelter has been needed here or was needed there: for a University is after all only a mass of persons possessing or desiring learning, a concourse of men, some willing to teach and others eager to be taught.

In both a like simplicity of educational arrangements. Every graduate is, or may be if he likes, a teacher, and graduation is nothing more than a certificate of knowledge qualifying a man to teach.

In both, comparatively slender funds, which however increase slowly by the gifts of private benefactors. The whole establishment of El Azhar costs about £14,000 sterling a year, rather more than half of which goes in salaries to the professors, while about £1,600 goes in prizes and charitable aid to the students. Eight thousand (roughly speaking) are taught there at a cost of £1 15s. per student. The University of Oxford and its colleges (taken together) with about three thousand undergraduate students have an annual revenue of about £333,000[103]; Harvard University in Massachusetts with nearly four thousand students has £235,000 (of which tuition fees contribute £114,000).

-----

Footnote 103:

Of this sum (which has been arrived at after deducting outgoings on
estates, so that as respects this kind of property it represents net
revenue) £55,000 is the revenue of the University and £278,000 the
revenue of all the Colleges, including fees and room rents.

-----

In both, the greatest freedom for the student. He may study as much or as little as he pleases, may select what professor he pleases, may live where he pleases, may stay as long as he pleases, and may be examined or not as he pleases.

In both, a narrow circle of subjects and practically no choice of curriculum. El Azhar teaches even fewer branches than did Oxford or Bologna in the thirteenth century, for in Musulman countries the Koran has swallowed up other topics more than theology, queen of the sciences, and the study of the Civil and Canon Laws did in Europe. But a vast range of matters which are to-day taught in German, in American, and even in English Universities lie outside both the Trivium and Quadrivium and the professional faculties as they stood in the Middle Ages.

In both, little separation between teachers and pupils, and a mixture of students of all ages, from boys of twelve to men of fifty. In Oxford there is a tradition that marbles used to be played by students on the steps of the Schools. Why not, when one sees boys of twelve learning to read the Koran at El Azhar? Oxford may well have been then, like this mosque now, a school for persons of all ages.

In both, a body of men liable to turbulence, and easily roused by political passion. A multitude living together without family ties or regular industrial occupation is prone to fanaticism; and the students of El Azhar, like the Softas at Constantinople, like the monks of Alexandria in the days of Cyril and Hypatia, have sometimes raised tumults; though these would be repressed more savagely here, should they displease the ruling powers, than were those for which Paris and Oxford were famous in days when their scholars were fired by religious or political excitement, and when the movements of public opinion and the tendencies we now call democratic found through the eager crowd of university youth their most free and prompt expression.