The Long History Of Legal Codes

Though the tracts listed thus far were all defective, each in its own way (some more than others), they offered more in the way of civil society than would the Sunnah (under the aegis of Islam).  To suggest that the Constitution of Medina somehow represented the greatest achievement in political schematics ever devised is risible.  Far from a pinnacle, it was a nadir of civic governance.

About two decades prior to the fabled Medinan charter, two major developments occurred outside of Arabia.  First, Æthelberht of Kent instituted the first formal code of laws for the Anglo-Saxons.  Second, the Yamato prince, Shotoku established the first official Japanese Constitution: the “Kenpo Jushichijo” [Seventeen-Article Charter], thereby inaugurating the Japanese Empire.  That charter was inspired by Confucian principles.  (It would later be amended in 645 by Emperor Kotoku, pursuant to the Taika Reforms.)

By the time Mohammed of Mecca was born, the Byzantine Empire had instituted the “Corpus Juris Civilis” [Body of Civil Law], colloquially known by one of its key parts, the Code of Justinian.  (The tract was based on earlier codes–like the “Institutiones of Gaius” as well as documents now referred to as the “Codex Theodosianus”, “Codex Hermogenianus”, and “Codex Gregorianus”.)  Though significantly flawed by modern standards (Justinian was a Christian theocrat), nobody in the Byzantine Church today insists that we should still adhere to such grossly antiquarian legal codes…even if they were once considered divinely-ordained.

Almost without exception, modern Byzantine (i.e. Eastern Orthodox) Christian leaders recognize that the world has come a long way since the Dark Ages; and wouldn’t dream of demanding the world NOW follow the flagrantly antiquated (once sacrosanct) decrees of their ancient forebears.

In the late 6th century, while the nascent Arabian prophet was coming of age, the (Germanic) Visigoths established the Code of Euric, which was then updated as the Code of Leovigild.

So what of legal systems contemporaneous with the self-proclaimed “Seal of the Prophets”?  Let’s start by looking at the empire directly to the east of Arabia.  While post-Justinian (Byzantine) Rome was a totalitarian theocracy, Sassanian Persia practiced toleration–including freedom of religion.  Shah-an-shah Khosrow routinely  invited Greek philosophers into his domain–even though they were Zoroastrian; as alternate views were more than welcome.

Meanwhile, those who opted not to practice Zoroastrianism were allowed to do so without reproach.  In other words, GENUINE religious freedom was alive and well in Persia…UNTIL, that is, the Mohammedans overtook the region.  (Bear in mind, the caliphate–per its prophet’s example–assiduously embraced the practice of enslaving non-Muslims; and they eagerly crucified heretics / subversives, just as Mohammed had taught.)  Islam did not eliminate slavery; it simply changed the terms by which slavery was to be practiced (i.e. not based on race; but on religious affiliation).

Unlike what would soon be the case in the Islamic world, chattel slavery had been decisively rejected in both (the earlier) Achaemenid and Parthian Empires, as well as in the Sassanian culture of Mohammed’s own day.  Even prisoners of war–who may have been thought of as semi-slaves–were treated comparably well.

In Persia at the time, the most common form of a subjugated people was the domestic servant.  All servants–whether they were male or female–received wages and were allowed to have their own families.  Harming a servant was considered a serious crime.  Not even the king was allowed to abuse his servants.  (And a man abusing his own wife was not tolerated.)  The freeing of such semi-slaves was widely considered to be a good deed; so manumission was encouraged wherever possible.

That accounts for the Persian culture, directly to the east of Arabia.  What about the culture directly to the north?  The (Syriac-speaking, Arab) Nabataeans forbade slavery, and–so far as can be ascertained–supported equal rights for women.  In fact, five centuries prior to Mohammed’s birth, their empire was ruled by a woman (Queen Shaqilath of Petra); and three centuries before his birth, their empire was ruled by another woman (Queen Zenobia of Palmyra).

Both the Sassanian and Nabataean handling of important matters like women’s rights and slavery stands in stark contrast to Mohammed’s penchant for forced concubinage and the enslavement of prisoners of war (the two of which were often one in the same).  Moreover, the subordination of the wife to the husband–already normative in the Hijaz–was continued under Mohammedan protocols.  Even more telling, business ownership by a woman, which regularly occurred in Arabia up until Mohammed’s ministry, ceased to occur once the Sunnah was implemented.  Case in point: Mohammed’s first wife, Khadijah, was a flourishing business-owner long before they ever met (see Appendix 2).

Furthermore, chattel slavery went into overdrive wherever Islam asserted itself.  This was done with the proviso that fellow Muslims could not be enslaved.  This exemption was nothing special, as NO society in history engaged in slavery has ever permitted the systematic enslavement of members of the in-group (however defined).  Those eligible for slavery have always been from some marginalized out-group; as slavery is inherently dehumanizing.  (Again, the Sunnah simply re-cast the terms of immunity: The condition for exemption was based on Faith rather than on race or caste.)

It is a tragic irony that the prohibition against enslaving MUSLIMS only served to augment the enslavement of everyone else.  It should come as no surprise, then, that the “Bakt” treaty between the Islamic rulers of Egypt and the Nubian rulers of neighboring Makuria would be signed within nine years of Mohammed’s death.  The treaty extended the slave trade into the Maghreb; thus paving the way for the booming Barbary slave-trade of the Middle Ages.

But what of the FREEING of slaves?  During the early Roman Empire, there were codes in place for manumission–as with the landmark “Lex Aelia Sentia”.  Indeed, manumission was not an uncommon practice in certain sectors.  As mentioned, the Parthian and Sassanian Empires of Persia had already made the practice of freeing slaves a norm.  (Indeed, the gesture was generally extolled by Persians in pre-Islamic times.)

There is a trope common amongst perfidious Islamic apologists that their prophet somehow discouraged slavery.  The exact opposite was, in fact, the case: In Arabia, a region in which slavery had theretofore been quite rare, the earliest Mohammedans INSTITUTED it.  The notion that the fabled Constitution of Medina was somehow an unprecedented prescription for human emancipation is not only factually incorrect, it is absurd.  The exact opposite was the case.

Just over a decade before the Medinan charter was (allegedly) written, the Edict of Paris was a “capitulare” [legislative act] drafted by Merovingians at the behest of king Chlothar II for the purpose of–among other things–ending corruption in government, affirming the right of women not to be married against their will, ensuring non-Christians could bring legal action against Christians when they’d been wronged, and relegating administrative prerogatives to the local level. {7}

A question arises: Where was the Abrahamic deity when all this was happening?  Æthelberht in Kent.  Prince Shotoku in Edo.  The Merovingians in Frankish lands.  Were denizens of the Hijaz more important than the denizens of Britannia, Japan, and France?  Why the disregard?  Are we to suppose that Arabia had more cosmic significance than both Europe and the Far East?  With a world’s-eye-view of mankind, this doesn’t seem to make sense.

Remarkably, the renown “Tang Code” in China was composed THE SAME YEAR as the fabled Medinan document: c. 624.  By almost any measure, the Chinese code–Confucian in nature–was superior.  It extolled virtue, enjoined fairness, and–like so many law codes before it–denounced corruption and profiteering.  Shall we believe that the Creator of the Universe was focusing more on Arabians than on the Chinese…or on anyone else?  When China’s ruler, Li Shimin of Qin (who would be anointed Emperor Taizong of Tang in 626) was trying to figure out the best solutions for his vast kingdom, where was the Abrahamic deity to guide him? {8}

By most accounts (it is, after all, only speculation), the terms of the Medinan constitution largely had to do with participation in war–a reminder that the initial movement was primarily conceived in a militant cast.  It is even supposed that the topic of war-waging was broached in the document’s opening statement.

Suffice to say: The notion that the Sunnah was somehow a drastic improvement over antecedent alternatives is completely unfounded.  The fact of the matter is that the Koran’s dicta are consonant with totalitarian theocracy.  This is demonstrated today by Saudi Arabia’s Wahhabi monarchy and Iran’s (Shiite) Khomeinist tyranny…along with Daesh in Syria / Iraq, the Taliban in Afghanistan, etc.  Indeed, such odious CONTEMPORARY regimes are perfectly at ease pointing to Islam’s holy book for justification.  We can only presume that–in carrying out their theocratic designs–their inclination is to suppose that they have emulated whatever the Medinan charter may have prescribed.

One of the most touted accomplishments of the Mohammedan code was the outlawing of female infanticide.  However, this was something that much of the world had already been on board with for several centuries.  The problem (insofar as it was systemic) seems to have been unique to Arabia.  (In medieval times, it would become an issue in China.)  In any case, the authors of the Koran did not want followers to murder ANY of their offspring for a fairly obvious reason: multiplying was considered pivotal to the propagation of the Faith.  The relevant Koranic verse (17:31) is about not killing MUSLIM children; it has nothing to do with females per se.  Meanwhile, non-Muslim women and children were routinely slaughtered in conflicts…at least, when they weren’t taken as slaves.

Even the Koranic admonishment against bribery was nothing new.  The most oft-cited “breakthrough” in Medina was the outlawing of graft.  But, of course, ALL totalitarian regimes forbid corruption.  (Want a country with zero corruption today, simply go to North Korea.)  Again, this was no epiphany; as well over a millennium earlier, those who cobbled together the Old Testament knew bribery was wrong.  The Hebrew Bible discouraged it in many places–most notably Exodus 23:8, Deuteronomy 10:17, and Second Chronicles 19:7.  Corruption had already been outlawed since the Roman Republic (via both the “Lex Acilia Calpurnia” and the “Lex Ambitus”).  Legal codes seeking to eliminate bribery go back to the 24th century B.C., with the Code of Urukagina.  (In what is a morphological coincidence, this ancient code sought to establish a political system over “Umma”, an ancient Sumerian city.)

Fast forward to the Hijaz c. 624.  Though the Medinans’ recognition that corruption is ignoble may be applauded, there would have been nothing groundbreaking about the decision to forbid the bribery of officials…ANYWHERE.  That includes the Far East.  The proscription was also well-established in China: In the 6th century B.C., Confucius had likewise discouraged bribery / coercion. {9}  Meanwhile, anti-corruption was one of the hallmarks of the aforesaid “Artha-shastra” in India, which forbade officials from profiteering, while outlining the duties leaders had to the general population (in upholding the commonwealth).

What of the prohibition against usury [“riba”]?  Alas, there was nothing groundbreaking about that either.  Since ancient Athens, usury had been denounced.  In his “Politics”, Aristotle noted, “The trade of the petty usurer is hated with most reason: It makes a profit from currency itself, instead of making it from the process from which the currency was meant to serve.”  We should note that Aristotle’s (“Nicomachean”) ethics was based on virtue, not on following divinely ordained rules.  (In fact, Aristotle made the first strong case that morality needn’t be predicated on any kind of divine command theory.)

The admonishment against usury was further reiterated by Jesus of Nazareth when he upset the tables of the money-changers in the temple–decrying the venue of speculation as “whited sepulchers”.  In other words: This was an old theme by the time it was broached by the authors of the Koran.  I explore the dubious Islamic treatment of usury (“riba”) in the Appendix 1.

So what are we to say of Mohammed’s constitution?  Alas, there is no surviving copy of the fabled Medinan document.  All there remains is a raft of idle speculation.  What exists today is a set of spurious re-creations from well over a century after the fact.  So far as can NOW be ascertained, the contents of the document were utterly unremarkable: mostly municipal ordinances for the day-to-day activities of the local Hijazi community.  Islamic apologists claim that the Mohammedan document ROCKED THE WORLD.  In reality, it did almost nothing of note.

Within eight years of Mohammed of Mecca’s ignominious death (he was poisoned by a Jewess who’s family he’d slaughtered), Byzantine Emperor Leo III (the “Isaurian”) instituted a successful new code of laws: the “Ecloga”.  Two years later, the Lombards instituted the “Edict of Lothari”; while Visigoth King Chindasuinth of Hispania established  an updated (Germanic) “Lex Visigothorum”.  In other words: The world simply kept on producing ever-more-sophisticated systems of legality even after Medina’s apocryphal constitution disappeared into history’s dustbin.

Within 65 years of Mohammed’s ministry, during the reign of Umayyad caliph Abd al-Malik [ibn Marwan], the first post-Antiquity representative democracy was established…in Venice, Italy.  Segmented from the Byzantine and Frankish Empires, the Venetian Republic encompassed Istria and Dalmatia.  Remarkably, it endured for exactly eleven centuries: from 697 to 1797…when the (Roman Catholic) Habsburg dynasty overtook it.  Over the course of a millennium, the medieval republic steadily became more and more liberalized–even in the face of the juggernaut of Saracen piracy (i.e. the Barbary corsairs).  It didn’t help that the small republic also existed in the midst of incessant (Roman Catholic) French hegemony…and in the shadow of the Vatican-controlled “Papal States”…with which it was constantly forced to contend.

There were groundbreaking developments in the Eurasian Steppes as well.  In the 7th thru 10th centuries, the [k]Hazar Empire broke new ground in freedom of religion, institutionalizing religious tolerance to a degree that the world had never before seen.  The Kurultai [alt. “Khuraldai” / “Khuraldaan”] was a Turkic-Mongol political council used throughout the Middle Ages.  (“Khur” meant assemble / discuss; so “khural” meant political assembly / discussion.  The resulting term meant “inter-gathering”.)  These deliberative bodies were likely inspired by the Buddhist “Sangha” councils of Classical Antiquity.

Meanwhile, the “t[h]ing” was a Norse / Germanic municipal assembly (alternately rendered “[al-]t[h]ing” / “lag-t[h]ing” / “gula-t[h]ing”).  It was used by societies across northern Europe throughout the Dark Ages.  The Vikings, who referred to it as the “Haugating”.  References to a “t[h]ing” are found in Old Norse, Old Saxon, and even Old English.  Starting in the 10th century, the Swedish “Jamtamot” (the assembly of Jamt-land) became the first elected parliament in the world.

And the “t[h]ing-vellir” [thing fields; alt. the “al-thing”] was a parliament in Iceland comprised of 64 members established c. 930 by Sveinn Björnsson.  Barring a 45-year hiatus in the early 19th century, it has remained intact ever since.

In medieval times, the Slavic equivalent of this deliberative assembly was the “Veche” [alt. “Wiec”].  The equivalent in Switzerland was the “Landsgemeinde”.  It seems that many cultures recognized the merit of public participation in governance…though genuine democracy was still a long way off.

And so what of the (by-then-defunct) Medinan charter?  Not only was it not at all pivotal in the development of civil society; it would seem that the impresario of the universe HIMSELF did not see fit to ensure its preservation.  This is a key point.  If the Constitution of Medina were so important, then how is it that the Abrahamic deity allowed it to be lost?  Not only was it not propitious; it was completely inconsequential.  Neither the Umayyads nor Abbasids nor any other Islamic empire at any point made any reference to it.

The nearest we find to an Islamic tract on civic matters was composed by the Shiite imam, Ali ibn Husayn Zayn al-Abdin (a.k.a. “Imam Sajjad”) c. 700.  His “Risalat al-Huquq” [Messages On Obligations / Duties] is sometimes misleadingly translated as the “Treatise On Rights”.  If we grant the charitable version of the title (where “haq” is translated as “right”), it sounds rather promising…until we realize that, amongst the fifty kinds of “rights” enumerated, it says absolutely nothing in the way of ACTUAL civil rights.  (The closest to addressing women’s “rights” is a section on how to treat wives and a section on how to treat mothers–all of it addressed to MEN.)

Tellingly, the Constitution of Medina is not the only apocryphal legal document to have made its way into Mohammedan lore.  Almost a century after the fabled Medinan charter was purportedly drafted (c. 720), legend has it that a so-called “treaty of Umar II” (between the caliphate and the Christians of Damascus and/or Jerusalem) was made–primarily regarding the Christians’ status as “dhimmis” within the Mohammedan dominion.  The document was likely a confabulation from the 9th century. {10}

To ascertain how pivotal to the progression of human political wisdom the Constitution of Medina may have actually been (or was not), it is worth touching upon some of the developments in Dar al-Islam that post-date it.  After all, it is fair to ask: Exactly what impact did the fabled Mohammedan charter have?

Take women’s rights.  There are some accounts that the Rashidun Caliph Umar made a woman named Samra bint Nuhayk al-Asadiyya a market inspector in Mecca.  We also hear that a woman named Ash-Shifa bint Abdullah may have been given an administrative position in the local marketplace (that is: dealing with a “souq” in Medina). {11}  Assuming these minor appointments really happened, are we to suppose that it was somehow due to Medina’s Constitution…or, for that matter, due a purported clarion-call for female empowerment hidden somewhere within the Sunnah?  Were these isolated episodes indicative of a sudden wave of feminism, ushering in a major sea-change in women’s rights?

Don’t be silly.

Those two (minor) stations had little if anything to do with political power–as would have, say, a prominent role in a “shura” council.  Suffice to say: There would have been nothing earth-shattering about those two appointments.  Indeed, women have traditionally had managerial roles in bazaars…even in the most patriarchal of societies…and EVEN IN PRE-ISLAMIC ARABIA.  The fact that those two women are now held up as the preeminent examples of female enfranchisement speaks volumes.  (The routine of grasping at straws demonstrates how truly weak the case is.)

When one seeks to offer evidence that female enfranchisement was somehow bolstered by the Mohammedan movement, there isn’t much to find.  (See my series on Female Empowerment.)  The fact that that’s the best historiographers can come up with tells us all we need to know.

Speaking of “shura”, it might be noted that such councils were established in various places in the Muslim world during the late Middle Ages as adaptations of the aforementioned Mongol “Kurul-tai”.  In other words: The establishment of such councils was not originally based on Islamic jurisprudence.  One of the most estimable aspects of sharia was a co-optation of antecedent practices by Tengri-ists.