Chapter IX: Conclusion (3)

Finally, in both, a kind of teaching and study which tends to the development of two aptitudes to the neglect of all others, viz. memory and dialectic ingenuity. The first business of the student is to know his text-book, if necessary to know every word of it, together with the different interpretations every obscure text may bear. His next is to be prepared to sustain by quick keen argument and subtle distinction either side of any controverted question which may be proposed for discussion. As the habit of knowing text-books thoroughly—and the knowledge of Aristotle and the Corpus Juris possessed by mediaeval logicians and lawyers was wonderfully exact and minute—made men deferential to authority and tradition, so the constant practice in oral dialectical discussion made men quick, keen, fertile, and adroit in argument. The combination of brilliant acuteness in handling points not yet settled, with unquestioning acceptance of principles and maxims determined by authority, is characteristic of Muhamadan Universities even more than it was of European ones in the Middle Ages, and tended in both to turn men away from the examination of premises and to cast the blight of barrenness upon the extraordinary inventiveness and acuteness which the habit of casuistical discussion develops. And the parallel would probably have been closer could it have been drawn between the Musulman Schools, not as they are now, but as they were during the great age in Bagdad, in Spain and in Egypt, and the schools of Western Europe in the days of Abelard or Duns Scotus. For El Azhar to-day impresses one as a University where both thought and teaching are in a state of decline, where men gnaw the dry bones of dogmas and rules which have come down from a more creative time.

To what causes shall we ascribe the striking contrast between the later history of schools which at one time presented so many similar features? Why has Musulman learning stood still in the stage it reached many centuries ago, while Christian learning, developing and transforming itself, has continually advanced? Why has El Azhar actually gone back? Why does it accomplish nothing to-day for the deepening, or widening, or elevating of Musulman thought?

Of racial differences I say nothing, because to discuss these would carry us too far away from our main subject. Their importance is apt to be overrated, and they are often called in to save the trouble of a more careful analysis, being indeed themselves largely due to historical causes, though causes too far back in the past to be capable of full investigation. Here it is the less necessary to discuss them, because many races have gone to make up the Musulman world, and some of these had attained great intellectual distinction before Islam appeared. Nor will I dwell on the tremendous catastrophe which overwhelmed the Musulman peoples of Western Asia in the twelfth, thirteenth, and fourteenth centuries, when many flourishing seats of arts and letters were overwhelmed by a flood of barbarian invaders, first the Seljukian Turks, then the Mongols of Zinghis Khan, then the Ottoman Turks whose rule has lain like a blight upon Asia Minor, Syria, and Irak for the last fourteen generations of men. Before the Seljuks and the Mongols came, philosophy and learning, science and art, had in some favoured spots reached a development surpassing that of contemporary Christian states, a development which in the schools of Irak and of Persia had wandered far from orthodox Musulman traditions, but which certainly showed that Islam is not incompatible with intellectual development. That culture, however, which had adorned the days of the earlier Khalifs, decayed even in Spain and in Barbary, where it was not destroyed by a savage enemy. It was not strong enough to recover itself in Syria, Asia Minor, or Egypt, and could neither elevate and refine the Turk nor send up fresh shoots from the root of the tree he had cut down. Even in Persia, though Persia remained a national kingdom, preserving its highly cultivated language and its love of poetry, creative power withered away. While therefore giving full credit to the Arabs, Syrians, and Persians of the earlier Musulman centuries for their achievements, we are still confronted by the fact that the soil which produced that one harvest has never been able to produce another. Scarcely any Musulman writer has for five hundred years made any contribution to the intellectual wealth of the world. Even the Musulman art we admire at Agra and Delhi, at Bijapur and Ahmedabad, was largely the work of European craftsmen. The majestic mosques of Constantinople are imitations of Byzantine buildings. Thus we are forced back upon the question why the Universities of Islam, with all that they represent, have languished and become infertile.

Among the causes to be assigned we may place first of all the greater intellectual freedom which Christianity, even in its darkest days, permitted. The Koran, being taken as an unchangeable and unerring rule of life and thought in all departments, has enslaved men’s minds. Even the divergence of different lines of tradition and the varieties of interpretation of its text or of the Traditions, has given no such opening for a stimulative diversity of comment and speculation as the Christian standards, both the Scriptures themselves, the product of different ages and minds, and the writings of the Fathers, secured for Christian theology.

In the second place, the philosophy, theology, and law of Islam have been less affected by external influences than were those of Christian Europe. Greek literature, though a few treatises were translated and studied by some great thinkers, told with no such power upon the general movement of Musulman thought as it did in Europe, and notably in the fifteenth and sixteenth centuries; and Greek influence among Muslims, instead of growing, seems to have passed away.

Thirdly, there has been in the Musulman world an absence of the fertilizing contact and invigorating conflict of different nationalities with their diverse gifts and tendencies. Islam is a tremendous denationalizing force, and has done much to reduce the Eastern world to a monotonous uniformity. The Turks seem to be a race intellectually sterile, and like the peoples of North Africa in earlier days, they did not, when they accepted the religion of Arabia, give to its culture any such new form or breathe into it any such new spirit as did the Teutonic races when they embraced the religion and assimilated the literature of the Roman world. Only the Persians developed in Sufism a really distinct and interesting type of thought and produced a poetry with a character of its own; and the Persians, being Shiites, have been cut off from the main stream of Musulman development, and have themselves for some centuries past presented the symptoms of a decaying race.

Lastly, the identification of Theology and Law has had a baleful influence on the development of both branches of study. Law has become petrified and casuistical. Religion has become definite, positive, frigid, ceremonial. Theology, in swallowing up law, has itself absorbed the qualities of law. Each has infected the other. In El Azhar theology is taught as if it were law, a narrow sort of law, all authority and no principle. Law is taught as if it was theology, an infallible, unerring, and therefore unprogressive theology. Religious precepts are delivered in El Azhar as matters of external behaviour and ceremony. Some of the duties enjoined, such as prayer, are wholesome in themselves; some, such as almsgiving, are laudable in intention, but beneficial in result only when carried out with intelligence and discrimination; some, such as pilgrimage to Mecca, are purely arbitrary. All, however, are dealt with from the outside: all become mechanical, and the precise regulations for performing them quench the spirit which ought to vivify them. The intellect being thus cramped and the soul thus drilled, theology is dwarfed, and its proper development arrested. It is not suffered to create, or to help in the creation of, philosophy: and accordingly in El Azhar, philosophy, in that largest sense in which it is the mother of the sciences, because embodying the method and spirit whence each draws its nutriment, finds no place at all.

We are thus brought back to that general question of the relations of religion and law in the Musulman world from which, in the interest naturally roused by the sight of a University recalling the earlier history of Oxford and Cambridge, I have been led to turn aside.

The identification of religion and law rests upon two principles. One is the recognition by Islam of the Koran as a law divinely revealed, covering the whole sphere of man’s thought and action. Being divine it is unerring and unchangeable.

The other is the promulgation of this revelation through a monarch both temporal and spiritual, Muhamad, the Prophet of God.

Since the revealed law is unerring, it cannot be questioned, or improved, or in any wise varied. Hence it becomes to those who live under it what a coat of mail would be to a growing youth. It checks all freedom of development and ultimately arrests growth, the growth both of law and of religion.

Since the revelation comes through a prophet who is also a ruler of men, a king and judge, as well as an inspired guide to salvation, it is conveyed in the form of commands. It is a body of positive rules, covering the whole of the Muslim’s conduct towards God and towards his fellow men.

Three results follow of necessity.

Religion tends to become a body of stereotyped observances, of duties which are prescribed in their details, and which may be discharged in an almost mechanical way. The Faith is to be held, but held as a set of propositions, which need not be accompanied by any emotion except the sense of absolute submission to the Almighty. Faith, therefore, has not the same sense as it has in the New Testament. It is by works, not by faith (save in so far as faith means the acceptance of the truths of God’s existence and of the prophetic mission of Muhamad) that a Muslim is saved. There is little room for the opposition of the letter and the spirit, of the law and grace, for religion has been legalized and literalized. Nevertheless there is in many Muslims a vein of earnest piety, and a piety which really affects conduct. Those Westerns who have praised Islam have often admired it for the wrong things. They admire the fierce militant spirit, and the haughty sense of superiority it fosters. They undervalue the stringency with which it enforces certain moral duties, and the genuine, if somewhat narrow piety which it forms in the better characters.

Law becomes a set of dry definite rules instead of a living organism. It is a mass of enactments dictated by God or His mouthpiece, instead of a group of principles, each of which possesses the power of growth and variation. The two motive powers, whether one calls them springs of progress or standards of excellence, which guided the development and made the greatness of Roman Law, the idea of the Law of Nature and the idea of Utility, as an index to the law of nature, are absent. There is no room for them where the divine revelation has once for all been delivered. Reason gets no fair chance, because Authority towers over her. Forbidden to examine the immutable rules, she is reduced to weave a web of casuistry round their application. It is only through the interpretation of the sacred text and of the traditions that the Law can be amended or adapted to the needs of a changing world: and one reason why the Musulman world changes so little is to be found in the unchangeability of its Sacred Law. The difficulties which European Powers have found in their efforts—efforts which to be sure have been neither zealous nor persistent—to obtain reforms in the Ottoman Empire, are largely due to the fact that the Sacred Law has a higher claim on Muslim obedience than any civil enactment proceeding from the secular monarch.

Such a system will obviously give little scope for the development of a legal profession. Advocacy is unknown in Musulman countries. The parties conduct their respective cases before the Kadi[104]. They may produce to him opinions signed by doctors of the law in favour of their respective contentions, but the only notion the Musulman (_i.e._ the non-Occidentalized Musulman) can form of an advocate in our sense of the word is a paid, and presumably false, witness.

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Footnote 104:

Whether this system tends to facilitate the bribing of judges, almost
universal in countries ruled by a Musulman monarch, _quaere_.

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The community suffers politically. The duty of unquestioning obedience, and the habit of blind submission to authority, dominate and pervade the Musulman mind so completely that its only idea of government is despotism. Nothing approaching to a free ruling assembly, either primary or representative, has sprung up in a Musulman country; and it would need almost an intellectual revolution to make such a system acceptable or workable there[105].

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Footnote 105:

I do not mean to suggest that races like those of Arabia, Syria, and
Persia, may not under the contact and stimulus of European literature
and thought again develop an intellectual life of their own. But it
can hardly be a life on the orthodox lines of Islam. The first thing
to be hoped for is that Syria and Asia Minor may get rid of the Turk,
who has never shown himself fit for anything but fighting.

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Finally, it is a consequence of the system described that there is an absolute identity of State and Church. The Church is the State, but it is a highly secular State, wanting many of the attributes we associate with the Church. It commands as a matter of course the physical force of the State, and needs no special anathemas of its own. Its priests, so far as it can be said to have priests, are lawyers, and its lawyers are priests, and its students graduate from the University into what is one and the same profession. As the Church is pre-eminently a militant Church, born and nursed in war, its head, the Khalif, is also of right supreme temporal sovereign. The Pope is Emperor, and the Emperor is Pope. They are not two offices which one man may fill, as the Emperor Maximilian wished to be chosen Pope. They are one office. And accordingly when any spiritual pretender arises, claiming to be a prophet of God, he becomes forthwith, _ex necessitate terminorum_, a temporal ruler, like the Mahdi of the Sudan at the present moment (1888). The only exception to this absolute identification of Church and State (which is of course a fact making most powerfully for despotism) is to be found in the incompetency of the Khalif to pronounce upon the interpretation of the sacred law. This attribute of the Pope is lacking. The spiritual head of the Musulman world, for this purpose, and therewith also its legal head, is a lawyer, the Sheik-ul-Islam, to whom it belongs to deliver authoritative interpretations of questions arising on the law, _i.e._ on the Koran and the Traditions. Such an opinion is called a Fetwa. Against it even a Khalif cannot act without forfeiting his right to the obedience of his subjects, so when any Sovereign claiming to be Khalif wishes to do something of questionable legality, he takes care to procure beforehand from the Sheik-ul-Islam a fetwa covering the case. Being in the Khalif’s power, the Sheik rarely hesitates, yet he is in a measure amenable to the opinion of his own profession, and might be reluctant to venture too far. So too the Khalif, though he might depose a recalcitrant Sheik (were such a one ever to be found), and replace him by a more pliant instrument, must also have regard to public sentiment, a power always formidable in the sphere of religion, and the more formidable the more the mind of a people is removed from the influence of habits properly political, and is left to be coloured by religious feeling.

Islam owes these features of its religion, its law and its politics to its source in a divine revelation complete, final, and peremptory. But it is not the only religion that has a like source. The Musulmans class three religious communities as Peoples of the Book. The other two are the Jews and the Christians. Of the Jews I have spoken already. Their system, as it stood at the time of our Lord’s appearing, resembled in many points that which Islam subsequently created, though there was never in it any complete identification of the spiritual and the secular power, because it had a regular hereditary priesthood, which, though for a time acting as leader and ruler, had no permanent coercive secular authority. The Jewish system had, moreover, in the words of the Prophets and in the Psalms influences complementary to the Mosaic law and the Traditions, and corrective of any evils which might spring from undue respect for the latter. Moreover, the historical development of that system was checked by external conquering forces, which ultimately deprived it of the chance of becoming a temporal power.

What, however, shall we say of Christianity? Why has the course of its history been so unlike that of Islam? Why has its origin in a divine revelation not impressed upon it features like those we have been considering? I must be content to indicate, without stopping to describe, a few, and only a few, of the more salient causes.

The Christian revelation as contained in the Old and New Testaments is not, except as regards sections of the Mosaic law, a series of commands. It is partly a record of events, partly a body of poems, partly a series of addresses, discourses, and reflections, speculative, hortatory, or minatory, and mostly cast in a poetic form, and partly a collection of precepts. These precepts are all, or nearly all, primarily moral precepts, which are addressed to the heart and conscience, and they proceed from teachers who had no compulsive power, so that such authority as the precepts possess is due only to their intrinsic worth, or to the belief that they express the Divine will. Especially in the case of the New Testament (though the same thing is essentially true of the Prophets) the precepts are directed not so much to the enjoining of specific right acts fit to be done as to the creation of a spirit and temper out of which right acts will naturally flow. Had the Pentateuchal law been taken over bodily into Christianity, things might have been different, though the other elements of the revelation would have kept its influence in check. But fortunately among the forces that were at work in the primitive Church, there were some strongly anti-Judaic, so any evil that might have been feared from that quarter was averted.

It is impossible to make a code out of the New Testament. The largest collection of positive precepts, delivered with the most commanding authority, is that contained in the fifth, sixth, and seventh chapters of St. Matthew’s Gospel. But these are so far from being laws in the ordinary sense of the word that no body of Christians has ever yet come near to obeying them. Indeed hardly any body of Christians has ever seriously tried to do so. They are obviously addressed to the heart and intended not so much to prescribe acts as to implant principles of action.

Similarly the Epistles are either moral exhortations and expositions of duty or else metaphysical discussions. Neither out of them can any code be framed which a lawgiver could attempt to enforce. Even on the external observances of religion and constitution of the Church, so little is said, and said in such general terms, that Christians have been occupied during the last four centuries in debating what it was that the authors of the Epistles meant to enjoin.

After the canonical Scriptures come the Fathers of the Church, whose writings were at one time universally, and by a large part of Christendom still are, deemed to enjoy a high measure of authority. They may be compared to those early Musulman writers from whom the traditions of Islam descend, or to the early recorders of and commentators on those traditions. The Fathers, however, did not generally affect to lay down positive rules, but were occupied with exhortation and discussion. Neither out of their treatises could a body of law be framed, nor did any one think of doing this till long after their day. Even then it was as guides in doctrine and discipline, not as the source of legal rules, that they were usually cited.

Christianity began its work not only apart from all the organs of secular power, but in the hope of creating—indeed for a time, in the confidence that it would create—a new society wherein brotherly love should replace law.

Before long it incurred, as a secret society, the suspicion and hatred of the secular power, and had indeed so much to suffer that one might have expected its professors to conceive a lasting distrust of that power in its dealings with religion. This, however, did not happen. So soon as the secular monarch placed his authority at the disposal of the Church, by this time organized as a well-knit hierarchy, the Church welcomed the alliance, and began ere long to invoke the help of carnal weapons. This was the time when she might in her growing strength have been tempted to impose her precepts upon the community in the form of binding rules. But the field was already occupied. She was confronted and overawed by the majestic fabric of the Roman law. In the East that law continued to be upheld and applied by the civil authorities. In the West it suffered severe shocks from the immigration of the barbarian tribes; but as it was associated with Christian society, the Church clung to it, and was in no condition for some centuries to try to emulate or supersede it. When the time of her dominance came in the eleventh, twelfth, and thirteenth centuries, she did indeed build up a parallel jurisdiction of her own, with courts into which laymen as well as clerks were summoned, and she created for these courts that mass of decrees, almost rivalling the Civil Law in bulk and complexity, which we call the Canon Law. In the canon law there may seem to be an analogue to the sacred law of Islam. But the resemblances are fewer than the differences. The canon law never had any chance of ousting the civil law, which had already entered on a period of brilliant development and potent influence at the time when the decrees of earlier Councils and Popes were beginning to be formed into a systematic digest of rules; and temporal rulers were generally able to hold their own against Popes and archbishops. Moreover the canon law, being partly based on or modelled after the Roman civil law, escaped some of the faults that might have crept into it had it been erected on a purely theological foundation. The Church was already so secularized that its law was largely secular in spirit, and ecclesiastical jurists were at least as much jurists as they were churchmen. The question propounded in the twelfth century, whether an archdeacon could obtain salvation, shows that the churchman who betook himself to legal business was deemed to be quitting the sphere of piety. Thus law, canon as well as civil law, remained law, and religion remained religion. The canon law is the law of the Church as an organized and property-holding society or group of societies. It is the law for dealing with spiritual offences. It is the law which regulates certain civil relations which the Church claims to deal with because they have a religious side. But there is no general absorption of the civil by the ecclesiastical, no general lowering of the spiritual to the level of the positive, the external, and the ceremonial. In the fifteenth and sixteenth centuries the New Learning and the great ecclesiastical schism removed the danger, if danger there ever was, that there should descend upon Christianity that glacial period which has so long held Islam in its gripe.

XIV

METHODS OF LAW-MAKING IN
ROME AND IN ENGLAND

INTRODUCTORY.

The relations borne by the growth and improvement of the law of a country to that of the constitutional development of that country as a State are instructive in many aspects—instructive where the lines of progress run parallel to one another, instructive also where they diverge. I propose in the following pages to consider them as they concern the organs and the methods of legislation at Rome and in England. The political side of this subject is a very large one, indeed too large to be discussed here, for it would involve a running commentary upon the general history of these two States. I will only remark that the inquiry would show us, among other things, the fact that the progress of Rome from a republic, half oligarchic, half democratic, to a despotism, did not prevent the phenomena which mark the evolution of its legislation from bearing many resemblances to the evolution of legislation in England, where progress has been exactly the reverse, viz. from a strong (though indeed not absolute) monarchy to what is virtually a republic half democratic, half plutocratic. The present inquiry must be confined to the legal side of the matter, viz. to the Organs and the Methods of Legislation regarded not so much as the results of political causes, but rather as the sources whence law springs and the forces whereby it is moulded.

The working of these Organs and Methods may be studied, and their excellence tested, with regard to both the aspects of law itself, its Substance and its Form. The merit of a system of Law in point of Substance is that it be righteous and reasonable, satisfying the moral sentiments of mankind, giving due scope to their activity, securing public order, and facilitating social progress. In point of Form, the merit of Law consists in brevity, simplicity, intelligibility, and certainty, so that its provisions may be quickly found, easily comprehended, and promptly applied. Both sets of merits, those of Substance and those of Form, will depend partly on the nature of the persons or bodies from whom the Law proceeds, that is the Organs of Legislation, partly on the Methods employed by those persons or bodies. But the merits of Substance open up a field of inquiry so wide that it will be better to direct our present criticism of Organs and Methods chiefly to those excellences or defects of the law which belong to its form. I propose to consider these as they worked in Rome, and have worked down to and in our own time in England, assuming the broad outlines of the legal history of both States to be already known to the reader, and dwelling on those points in which a comparison of Rome and England seems most likely to be profitable.