Classical law is a law of bodies . In the general stock composing the world it distinguishes bodily Persons and bodily Things and, like a sort of Euclidean mathematic of public life, establishes ratios between them. The affinity between mathematical and legal thought is very close. The intention, in both, is to take the prima facie data, to separate out the sensuous-incidental, and to find the intellectually basic principle the pure form of the object, the pure type of the situation, the pure connexity of cause and effect. Life, in the Classical, presents itself to the critical waking-consciousness of the Classical man in a form penetrated with Euclidean character, and the image that is generated in the legal mind is one of bodies, of positional relations between bodies,and of reciprocal effects of bodies by contact and reaction just as with Democritus's atoms. It is juristic statics.
The first creation of "Arabian" law was the concept of the incorporeal person.
Here is an element entirely absent in Classical law, and appearing quite suddenly in the "Classical" jurists (who were all Aramaeans), 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 Sachsenpiegel . 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, and presently it soars to the conception of a triune Godhead of three Persons.
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 ," 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 were infidels who ensconced themselves with their own laws in another field of law.
When in 212 the Aramaean Caracalla, by the Constitutio Antoniana , gave Roman citizenship to all inhabitants except dediticii peregrins, 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. 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 [Roman] 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 Cassar's time, Christian baptism meant for him now-- entry into the leading nation of the leading Culture. The Persians of the Sassanid period no longer conceived of themselves, as their predecessors of Achaemenid times had done, as a unit by virtue of origin and speech, but as a unit of Mazdaist believers, vis-a-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 Mandeans and Manichaeans, 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 Sabaea, 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 today-- 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 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……
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. The "Classical" jurists (160-220), Papinian, Ulpian, and Paul, were Aramaeans, and Ulpian described himself with pride as a Phoenician 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, 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" -- 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 Perian, 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.