The Long History Of Legal Codes

Over the course of the Enlightenment and into the Modern Era, developments in the philosophy of civil law occurred in quick succession.  In England, the world’s first enumeration of liberties was enacted in 1628: the “Petition of Right”.  That was enhanced by the “English Bill of Rights” in 1689.  The Scottish “Claim of Right” was passed the same year.  It was also that year that John Locke published his landmark treatises on government (as well as “A Letter Concerning [Religious] Toleration”).

Also in the 17th century, Algernon Sydney published his landmark work, “Discourses Concerning Government”.  And in his “The Tenure Of Kings And Magistrates” (1649), John Milton called for the prosecution of King Charles I with the explication: “A tyrant, whether by wrong or by right coming to the crown, is he who–regarding neither law nor the common good–reigns only for himself and his faction.”

When it came to Progressive structural reforms, it was the Swedes that led the way–establishing a set of foundational laws [“grundlagar”] that enshrined democratic ideals.  In 1719, Sweden incorporated parliamentarianism [“riksdagsordningen”] into their State apparatus; as they recognized the merits of a representative body.  In 1766, Sweden abolished censorship–formally codifying freedom of the press [“tryckfrihets-förordningen”] as well as freedom of expression [“yttrandefrihets-grundlagen”]; thereby legalizing criticism (except–alas–of the church and the royal house).

In 1770, the French thinker, Jean-Charles de Borda (of Aquitaine) pioneered the ranked-choice voting system.   In his “Wealth Of Nations” (March of 1776), Adam Smith emphasized the importance of the State providing public education as a condition for a thriving civil society.

Then came the groundbreaking U.S. Constitution in the summer of 1787 (and its amended “Bill of Rights” four years later).  While groundbreaking, the document left slavery fully in tact; and only afforded the right to vote to white, land-owning men.  (I discuss this more at length in my essay: “America’s National Origin Myth”.)

In France, the very short-lived Constitution was drafted by the Revolutionary National Assembly (before the Jacobins of “the Mountain” went haywire, and took a fascist turn) in 1791.  It guaranteed the right to vote, public education for all, and “the liberty for everyone to speak, write, print, and publish his opinions.”  Alas, Robespierre’s fascistic coop ensured a quick end to that.

Also in 1791, the landmark Constitution of the Polish-Lithuanian Commonwealth was drafted (inspired, in large part, by Rousseau’s “Considerations on the Government of Poland”, composed in 1772).  Both of those constitutions were anti-monarchal (read: anti-authoritarian), and went a long way to conferring power–and civil liberties–to the demos.  Both blueprints balanced power between an executive, legislative, and judicial branch–per the vision of Montesquieu.

Pursuant to history’s most famous slave revolt, Haiti’s Constitution was commissioned in 1805 by a former slave: Jean-Jacques Dessalines.  It declared equality of Africans and their descendants; and did not cite anything having to with the Judeo-Christian tradition.

As society evolved, democracy burgeoned; and NONE of it had anything to do with Abrahamic lore.

Looking back, it is plain to see that the fabled Medinan charter did not exactly rock the world.  Far from serving as an epiphany to mankind, it was not even a blip on the radar.  Not only was the establishment of the Sunnah not a high water mark; it didn’t even leave a faint smudge in the progression of political systems.  Yet the question remains: What DID end up occurring within Dar al-Islam since Mohammed’s ministry?  Let’s do a brief overview.

One of the most notable benchmarks for legality in the Muslim world was “Umdat as-Salik wa Uddat an-Nasik” [Reliance of the Traveller and Tools of the Worshipper]–a tract composed by the Persian “faqih”, Ahmad ibn an-Naqib of Masr in the 14th century. {15}  It soon became the definitive source for the Shafi’i maddhab–the school of jurisprudence that came to dominate Islam.  In keeping with Koranic dictates, it endorsed slavery.  Moreover, it articulated systems of inequality between men and women, as well as between Muslims and non-Muslims…again: all in accordance with the Sunnah.  To this day, this tract enjoys the full endorsement of Cairo’s Al-Azhar University.

As it turned out, it took NINE CENTURIES for the first major (formal) system of legal codes to be established in the Muslim world (that is: if we begin with the purported year of the Constitution of Medina).  In 1525, Ottoman Sultan, Suleyman II commissioned the “Kanun-name” [Book of Laws].  Such timing is rather odd.  That is to say, it is confounding if we are to assume that the Creator of the Universe–FINALLY–sought to furnish mankind with a charter.

Bear in mind: If we are to take Islamic historiography seriously, we are asked to believe that the fabled Medinan charter was supposed to serve as an exemplar for municipal governance for everyone in the world…forevermore; yet it did absolutely nothing for over 900 years.

It should come as little surprise that the “Kanun-name” did not pretend to be modeled on the Constitution of Medina; nor did it even acknowledge the fabled charter’s existence.  Instead, the newfangled Ottoman legal code was based primarily on the Turkic-Mongol “Yassa” system of civic governance. (!)

More than THREE CENTURIES AFTER THAT, the European nations–with Britain leading the way–persuaded the Ottoman Empire to undertake major reforms, known as “Tanzimat”.  Those improvements were formalized in the so-called “Edict of Toleration” in 1844.  The measures included finally bringing an end–at long last–the OFFICIAL slave trade…though slavery was still tacitly tolerated (due to the memetic inertia of the Sunnah).  Additionally, it ceased the most draconian prosecutions of religious minorities.  (Alas, that estimable measure did not do much good for the Armenians seven decades later.)

An Ottoman Constitution was finally drafted in 1876–twelve and a half centuries after the (reputed) Mohammedan Constitution at Medina.  By then, the Enlightenment had come and gone in Europe.  So what was there for the Ottomans to do but base the key elements of their groundbreaking document–the first MODERN constitution in the Muslim world–on European (secular) law?  And so they did.

The Ottoman leadership created a parliament and a system of public education.  Moreover, they established–in direct contravention of Koranic dictates–equal rights for religious minorities.  During the drafting of the document, the Europeans entreated the Ottoman “Sublime Port” to end slavery once and for all; but the Sultan declined.  After all, how could he outlaw that which the protagonist of the Koran AND his last messenger clearly permitted? (!)

That new-and-improved constitutional order would not endure for long, though; as the hidebound Turkish clerisy disapproved of its secular nature; and–as they would again at the beginning of the 21st century–rebuked secular reform in favor of Reactionary politics (read: theocratic rule).

Pursuant to the collapse of the Ottoman Empire, a Muslim-majority nation finally became a parliamentary Republic.  Though it was NOT Turkey; it was Azerbaijan.  Tellingly, this was enabled by the State becoming more SECULARIZED.  Only then were women in the country finally granted suffrage (1919).  This was the first time in the Muslim world that women had ever been given equal political rights to men.  If this is what the “Seal of the Prophets” had envisioned when the charter for Medina was composed almost thirteen centuries earlier, it certainly took a while for the message to finally sink in.

Next came the Egyptian Constitution of 1923, which instituted regular elections to a bicameral legislature, and thus political enfranchisement for all MEN.  It also allowed for a (mostly) free press…though a few blasphemy statutes remained in place.  However, even then, the nation retained its monarchy–though in a diluted form.  Unsurprisingly, that constitutional order would be short-lived as well.  This was in part due to British meddling; yet it was primarily attributable to the fact that–pace the Hizb al-Wafd–Egyptian society was un-prepared for genuine democracy.  This sad fact would be demonstrated once again nine decades later, in 2012, pursuant to the so-called “Arab Spring”. {16}

Soon thereafter (in the late 1920’s and early 1930’s), Mustafa Kemal Atatürk secularized Turkey, thereby making Anatolia the most democratic it had ever been in its history (or, at least since the Hittites over three thousand years earlier).  That would endure until the country reverted to theocracy under Recep Erdogan at the beginning of the 21st century.  (Thanks to the bold reforms of Atatürk–dubbed “Kemalism”–Turkey was able to experience three generations of quasi-democratic governance; though even Kemal harbored ethno-centric views that prevented Turkey from becoming a completely civil society.)

Meanwhile, the last shah of Afghanistan, Mohammed Zahir, liberalized the country by making it more secular.  That would endure until the country reverted to theocracy pursuant to the rise of the Taliban after the civil war of the 1980‘s.

Tragically, Iran reverted back to theocracy in 1979 pursuant to the coup (against the despotic, U.S.-backed “shah”) orchestrated by the Grand Ayatollah, Ruhollah Musavi of Khomeyn (a.k.a. “Khomeini”).  That regrettable eventuality would have never come to pass had the U.S. never overthrown the democratically-elected prime minister, Mosaddegh, in 1953.

The trend here is plain to see: As with everywhere else in the world, the Muslim world was able to make progress toward civil society only insofar as it managed to secularize.  The point is also plain to see: Whenever progress WAS made, the Abrahamic deity clearly had nothing to do with it.

Let’s review: It seems the Creator of the Universe opted NOT to help Sumerian King Urukagina of Lagash when he was issuing his legal code around four and a half millennia ago….NOR was he inclined to help any of the other cultures enumerated above when THEY tried to create the best code possible in the millennia thereafter.  Were none of them worthy?

Century after century after century, in every corner of the world (save a single afternoon in the late 2nd millennium B.C….either on Mount Horeb on the Sinai peninsula…or on the west bank of the Jordan River, on the slopes of Mount Ebal), we are expected to believe that the Abrahamic deity chose to leave mankind in the dark. {17}  This was a deafening silence if there ever was one.

Yet this is a narrative Jews AND Christians AND Muslims are asked to believe.  And according to Islamic lore, the Creator of the Universe finally spoke up (again) in the early 7th century A.D.  And when he decided to do so, it was to Bedouins in western Arabia.  And so far as the Medinan charter went, it was established to enact municipal ordinances for a Hijazi community, many of whom were (Jewish) worshippers still hewing to Mosaic law.

After surveying the grand sweep of historical progress–in fits and starts–over the course of MILLENNIA, it is plain to see that Mosaic law had nothing to do with it.  In fact, when it came to landmark events in the history of political systems, religious dogma only got in the way.

There is a reason that Thomas Jefferson–and later, Martin Luther King Jr.–did not cite the Sunnah when making their case for social justice.  Indeed: “If only we simply did everything the way they did things in Medina during the 7th century” is not a statement that occurs in ANY major treatise on civil rights…since civil rights became a cause célèbre.  This is no conundrum.  There is a very simple explanation for such silence on the matter of reconciling the Halakha OR the catechism of the Roman Catholic Church OR the Sunnah with the most elementary tenets of social justice…let alone of liberal democracy.

And so it was that specious religious dogmas were not invoked when Spinoza composed the “Theologico-Political Treatise” in 1670…or when John Locke composed his two “Treatises On Government” in the 1680’s…or when Montesquieu composed “The Spirit of Laws” in 1748…or when Thomas Paine composed “Common Sense” in late 1775…or when Hamilton and Madison composed their “Federalist” essays in 1788…or when John Stuart Mill composed “On Liberty” in 1859.  (Notably: All these men were Deists.)

To further illustrate the point, we might reference the foundational principles articulated in such works as:

• Hume’s “An Enquiry Concerning The Principles Of Morals” (1751)
• Rousseau’s “Discourse On Inequality” (1754)
• Paine’s “Rights Of Man” (1791)
• Wollstonecraft’s “Vindication Of The Rights Of Women” (1792)
• Kant’s “Religion Within The Bounds Of Bare Reason” (1793)
• Godwin’s “Enquiry Concerning Political Justice” (1793)
• Thoreau’s “On The Duty Of Civil Disobedience” (1846)
• Von Humboldt’s “The Limits of State Action” (1859)
• Mill’s “Considerations On Representative Government” (1861)
• Kropotkin’s “The Conquest Of Bread” (1892)

…to name ten more classic works. {18}  For the landmark achievements enumerated above, we can thank our innate moral compass–what Kant referred to as the divine law within us.  The trend of secular insight continued into the 20th century–from Rocker’s “Anarcho-Syndicalism” (1937) to Rawls’ “A Theory Of Justice” (1971). {19}

Throughout the Middle Ages, the most glaring fact about “sharia” is that the Muslim world excelled in the slave trade more than anyone else in human history.  Indeed, Islam effectively succeeded in turning the institution of chattel slavery into a booming business–to a degree it had never existed before or since.  East Africans were regularly traded to the far corners of the Abbasid Empire…all the way to its best customers in China.

When it comes to appeals to revelation, this single fact is very telling.  During medieval times, and through the 19th century, the Barbary pirates excelled in the slave trade throughout the Mediterranean.  The demise of that booming trade was largely due to European incursions into Islamic domain; not due to more diligently hewing to Islamic “fiqh”…or to a closer reading of Islamic scripture.  The fatal blow to the heinous practice was the process of secularization known as the Enlightenment.

So an obvious question is worth asking: How much shall we laud a doctrine that deprived women of rights and put slavery into overdrive?  In light of EVERYTHING ELSE accomplished by mankind, it is plain to see that holding up the Medinan charter as the zenith of civil society is nothing short of delusional.  One may as well trumpet Claudius Ptolemy’s “Almagest” as the pinnacle of astronomy.  Yet, time and time again, we hear Islamic apologists touting the wonders of their prophet’s remarkable “reforms”…as if they inaugurated the most breathtaking efflorescence of civil rights in human history.  As this survey demonstrates, only a dabble of homework is required to show how spurious many Islamic apologetic claims about the “Sunnah” really are.

We might also wonder: If the Constitution of Medina was so wonderful (nay, a reflection of divine Providence!), then why is it that the Abrahamic deity did not see fit to preserve it for posterity?  The archeological record offers a clear record of all the legal codes enumerated in the present essay going back over 4,600 years; yet all records of THAT particular tract–the ONE that was commissioned by the Creator of the Universe–have completely vanished.

How odd, indeed.

Once one has been exposed to exposition on political theory from the likes of John Stuart Mill, Benjamin Constant, Alexis de Tocqueville, William Godwin, and Mikhail Bakunin (in the 19th century)…or John Rawls, Ronald Dworkin, Amartya Sen, and Sheldon S. Wolin (in the 20th century), one will see that the entire discussion of ANY sacred doctrine’s political value becomes just-plain-silly.  Indeed, after reading all the works mentioned above, any attempt at “fiqh” is recognized to be a fool’s errand. {19}

To suppose that ANY religious creed is somehow superior to the insights found in, say, Thomas Paine’s “Agrarian Justice” (or any of the other seminal works enumerated above) is nothing short of preposterous.

In his seminal essay, “On The Jewish Question”, Karl Marx held that the optimal scenario was one “that made State affairs the affairs of the people, and the political State a matter of general concern.”  In other words: Participatory democracy. 

When Marx was against something, it was invariably because it somehow involved domination / exploitation of one group of people by another.  As with Aristotle, Marx’s ideal citizen undertakes an enterprise with the commonweal as the ultimate end.  In keeping with this, the ultimate end of a legitimate State, is the general welfare, not any particular group.  For Marx, just vs. unjust is a matter of just vs. unjust for all mankind, not for any particular group.  Marx equates society-in-general with the working class (the proletariat).  Echoing Kant’s Categorical Imperative, he referred to the proletariat establishing “a principle for society what society has already made a principle for the proletariat.”  For the “emancipation of man…the proletariat is at its heart” (The Marx-Engels Reader; p. 65).  For more on this, see Appendix 4.

People tend not to see what they’re not looking for.

Through an extremely long, meandering process, PEOPLE–not gods–were able to create ever-better forms of government…in different places…at different times…in different ways.  The process was arduous and messy.  But slowly–in fits and starts–mankind was able to figure out what constituted civil society.

In Iran, the “Majlis” (parliament) was established in 1906–an institution that was quasi-democratic, flouting sharia, and laying the basis for freedom of speech / the press and other civil liberties.  Yet, alas, it was not to be.  Within three years, it was destroyed by Islamic Reactionaries (with religious justification eagerly furnished by the ulema).

As we have seen, throughout history, statesmen accomplished great things when they made use of their critical faculties rather than divine revelation.  Key figures made headway by appealing to their better angels, and thinking for themselves; though not solely OF themselves.

It should now be plain to see that we need to approach sacred lore the same way that we would approach any archaic dogmatic system.  This requires a brutally honest, judicious treatment of long-cherished tenets.  Delusive thinking is worse than useless.  For Progressive religionists, it is plain to see that moving forward entails moving on.  Atavism gets us nowhere.

Ever since the Egyptian vizier, Kagemni put forth the precepts of just governance over 4,600 years ago, mankind has struggled to get things right.  (To keep things in perspective, note that Kagemni’s “sebayt” was composed over TWO THOUSAND YEARS before the Babylonian scribes composed the earliest Judaic scripture.)  From the days of the Sumerians to the day that Eleanor Roosevelt helped draft the U.N. Universal Declaration of Human Rights in 1948, tremendous progress has been made.  We’ve come a long way, but we still have a long way to go.