The Long History Of Legal Codes

FOOTNOTES

{1  Interestingly (and peculiarly), the Laws of Eshnunna, then the Code of Hammurabi, then–over a thousand years after that–the Mosaic Law of the Hebrews (codified in Babylon during the Exilic Period) all contain instructions for what to do when an ox gores a man.  This is a reminder that much of what was composed in Judaic lore was derivative.}

{2  When the prophet, Nathan rebuked David for coveting his friend’s wife (and effectively consigning his friend to death to acquire her), he made no reference to a breach of Mosaic law.  In fact, he was forced to resort to parable (as the optimal heuristic at his disposal) to explain to the king why such a deed was iniquitous.  Even more telling: Second Kings refers to an un-named scroll of laws that the high priest, Hilkiah, found in Solomon’s temple–with diktats that seemed to catch the king of Judah (Josiah) completely off guard.}

{3  A more liberal version of this is that we are all, in our own way, a manifestation of the divine IN THE WORLD.  This might be seen as another way of saying that we are all “one in Christ”, to invoke a Christian idiom.  The problem with contending that we (homo sapiens) have been made in god’s image (where “god” is the Abrahamic deity) is the open question: AT WHAT POINT in the evolution of modern man did this become true?  Were Cro-Magnons made in the image of god?  How about Homo Rhodesiensis / Heidelbergensis?  Homo Erectus / Ergaster?  Was the purported impresario of this long, meandering biological process guiding things to this final destination…a destination he’d had in mind all along?  To wit: At what point, exactly, did primates start qualifying as fully “human”?}

{4  The Mauryan sage known as “Chanakya” (alt. “Kautilya”) served in the court of the Kushan king, Kanishka the Great.  This figure is sometimes referred to as “Vishnu-gupta”, as he is also said to have also advised the great Mauryan king, Chandra-gupta (during his capacity as teacher at the great university of Taksha-shila).  He pioneered Eastern medicine (i.e. “ayurveda”); and also composed the landmark “Niti-shastra”.}

{5  Ashoka was known for eschewing war.  The key precept he touted was: probity trumps power.  He is credited with the adage, “The finest conquest is the conquest of right, not of might.”  In other words: Might does NOT make right; as power is not a barometer for merit / legitimacy.}

{6  Each society used whatever criteria it had established for itself.  That could have pertained to anything from the best way to ensure crop yields (that is: the most effective way to stave off famine) to the best ways to protect territory from incursions (that is: the most effective way to maintain dominion).  Typically, the primary concern was appeasing gods and ensuring the continued glory of the leaders.  But rulers invariably had to contend with how best to organize the daily interactions of the common-folk.  Terrestrial concerns (maintaining socio-economic stability) often took precedence over celestial concerns.}

{7  Sadly, two centuries later, the theocratically-minded Charlemagne would reverse the headway made in religious freedom.  However, he did encourage literacy; and so undertook measures to provide a means of education to the general population.}

{8  Another amazing koinky-dink of history regards the development of Judaic law.  This was exactly the time (variously pinpointed at 589 or 625 A.D.) at which the [c]Hazal Era (comprised of the Zugot, Tanna-im, Amora-im, and Savora-im sub-eras) of Hallakah came to an end and the Geon-im era of Hallakah was inaugurated.  All of it pertained to the Abrahamic deity; so one can’t help but wonder why said deity did not see fit to intercede when it came to those other (presumably sincere) efforts to abide his dictates.}

{9  Confucian ethics was based on personal morality (esp. empathy) rather than on obeying divinely-ordained laws.  It enjoined deference to political authority out of a concern for civic order (that is: as a means for sustaining social cohesion).  While encouraging people to accede to prevailing social norms (for the purpose of maintaining societal stability) and to defer to elders, Confucian thinkers did not insist that people mindlessly follow orders.  The problem is that respect for authority is a precarious matter.  Where does the prudence of acquiescing to those in power end and the prudence of challenging those in power begin?}

{10  This document outlined the terms by which “dhimmi” were to relate to the Muslim polity.  It is presented as a negotiated settlement between the second caliph and the Christians of the Levant (spec. Syria).  However, given the form in which it exists, it could not possibly date to the time of the Rashidun.  Indeed, myriad apocryphal documents populate Mohammedan lore.  One of the most popular is the fabled letter from Mohammed to the “negus” [king; “najashi” in Arabic] of Abyssinia–who was referred to as “Ashama ibn Abjar” in Mohammedan lore (likely corresponding to King Armah of Aksum).  Mohammed is said to have dictated the missive–which would have had to have been written in Syriac.  The Aksumites spoke Ge’ez, an Ethiopic (Semitic) language that may have used a script related to epigraphic South Arabian.  (Ge’ez was the language in which the Garima Gospels were written.)  Meanwhile, the imam, Ali is said to have composed a letter (dictated to Asbagh bin Nabata) addressed to his deputy in Egypt, Malik al-Ashtar.  There were also tales of caliph Umar ibn Al-Khattab composing a letter to the Persian Shah, Yazdgird III, demanding his submission…and of the Shah sending a letter in response.  (The text of both are obvious confabulations.)  In addition, there was supposedly a letter Umar composed to his lieutenant, Abu Musa al-Ashari.  And on and on.  The list of apocryphal documents is as endless in Mohammedan lore as it is in Jewish and Christian lore.}

{11  The term “souq” refers to a bazaar–that is: a street-market typically located in the main town square.}

{12  The “Kitab al-Taj” [Book of the Crown] from the 9th century was more descriptive than prescriptive.  In Islamic history, there were plenty of works that provided commentary on certain matters, yet did not make significant headway in the way of moral / political philosophy (Ibn Miskawayh’s writings come to mind).  Make no mistake: There were laudable thinkers in the Muslim world–especially during its Golden Age.  Avicenna and Averroes come to mind.  But two things must be understood about such estimable figures.  First: Their contributions were primarily in the realm of science (and critical discourse in general); not in political theory PER SE.  Second: Whatever accomplishments they may have made were IN SPITE OF, never because of, any religiosity they may have countenanced.}

{13  This kind of guidebook had a legacy dating back to Xenophon’s “Cyropaedia” (a.k.a. the Education of Cyrus) from c. 400 B.C…and on through Han Fei’s writings from the 3rd century B.C…then Chanakya’s “Artha-shastra” from the 2nd century B.C.  Less estimable works were produced by Muslim writers–as with Al-Ghazali’s “Nasihat al-Muluk” [Council To Princes].  Also note the advice from Kara-Khanid vizier (Yusuf Khass Hajib of Balasagun) for the 11th-century Karluk prince of Kashgar: the “Qutadgu Bilig”.  Such tracts were not exactly watershed moments in the development of political thought.  The genre is now referred to as “Mirrors for Princes”.}

{14  Doctors and teachers–as well as other professionals who provided a public service–were exempted from taxation.  Genghis Khan pioneered cosmopolitanism in many respects.  In addition to promoting women’s rights and religious co-existence, he pioneered international commerce (including the first postal service), thereby reinvigorating the Silk Road.  This was in large part due to his embrace of pluralism.  Also relevant was his effective elimination of piracy; thereby rendering trade-routes across Asia safe from banditry.  It is during this time that paper made its way to the West from China.  Moreover, Genghis set a precedent for secular politics–which would be tragically short-lived, as rulers soon thereafter converted to Islam from Tengri-ism and Buddhism (and, consequently, were obliged to rule in a theocratic manner).}

{15  His work was based–in large part–on the “Riyadh al-Salihin” [Gardens of the Righteous] by Syrian writer, Abu Zakaria Yahya ibn Sharaf of Nawaw (a.k.a. “Imam Nawawi”) from the 13th century.}

{16  Given the chance to–at long last–vote for a president, a disoriented and bumbling Egyptian electorate put a theocrat into power…and then promptly realized the blunder.  This was a reminder that democracy is about far more than simply participating in elections.  (If people vote for a theocratic regime, the result is not democracy.)  And so it went that the Egyptian government reverted back to an authoritarian posture–replete with a theocratic bent and military rule.}

{17  That is…pace the (purported) delivery of Mosaic law at the end of the Bronze Age (though first codified during the Iron Age).  This contributed very little to mankind’s approach to governance.  While it discouraged lying, cheating, theft, and the murder of one’s fellow Hebrews, genocide was permitted.  As if that weren’t bad enough, it encouraged slaughter along racial lines…as well as collective punishment AND visiting the sins of the father on his descendants.  Even as slavery was permitted, the Abrahamic deity had qualms about working on Saturday and bathing a calf in its mother’s milk.  It is difficult to imagine a more deplorable set of directives.}

{18  For more on the conditions for civil society (from a legal perspective), see the work of Ronald Dworkin (esp. his “Taking Rights Seriously”, “Freedom’s Law”, and “Sovereign Virtue”), Kai Nielson’s “Equality and Liberty”, Richard Posner’s “Law, Pragmatism, and Democracy”, and John Rawls’ “Political Liberalism”.  For an accessible history of democracy, see Timothy Ferris’ “The Science of Liberty”.  For insights into legal theory itself, see Lon L. Fuller’s “The Morality of Law” and H.L.A. Hart’s “The Concept of Law”.}

{19  Alas, Sunnah-fetishism (or, alternately, the fetishization of “sharia” / “ahkam”) will persist until an extensive de-mystification project is undertaken (see footnote 20 below).  We might begin such a project by ascertaining how the Sunnah (the teachings / example of the purported “last prophet”) stacks up against, say, the Magna Carta (c. 1215); and then proceed from there.  Another prudent point of departure (if one wants to proceed from ethics rather than political theory) might be from Spinoza’s “Ethics” (1665), the first major treatise to demonstrate that ethics needn’t be based on religious dogmas.  Or we could use as the ultimate benchmark what is arguably the greatest ethical treatise ever composed: Immanuel Kant’s “Groundwork For The Metaphysic of Morals” (c. 1785); which was followed–just two years later–by the drafting of the U.S. Constitution.  By stark contrast, the Constitution of Medina did about as much for civil society as the “Tabula Smaragdina” did for chemistry.  Since the 7th century, scholars struggling to figure out what constitutes civil society have no more cited the fabled Mohammedan document than evolutionary biologists cite the Book of Genesis.  As I hope to have shown here: To suppose that the Constitution of Medina was the apotheosis of the political development of human society requires one to ignore virtually everything that happened in recorded history–before it or ever since.}

{20  There are plenty of examples of confabulated accounts of the Medinan charter–as with M. Lacker’s absurdly titled “The Constitution of Medina: Muhammed’s First Legal Document”.  Bragging about Mohammed’s purported accomplishments with regards to civil rights must become a thing of the past if Progressive Islam is to truly emerge as the predominant zeitgeist in the Ummah.}

{21  This is not to downplay the role that the Dutch, Portuguese, Spanish, and other non-Muslims played in the slave-trade (notably the WASP plantation-owners of the Antebellum American South).  The point here is that–even in the case of William Wilberforce, who lobbied for the 1807 “Slave Trade Act” to curtail the heinous practice–religion PER SE played very little FUNCTIONAL role in abolition.  The Quakers were an illustration of this.  Overall, religiosity did more to deter abolition than to promote it.  To suppose otherwise is to confuse “in spite of” for “because of” when referring to abolitionists who happened to be religious.}

{22  Mosaic law was conceived as a compact with Beth Israel (the Hebrews, who nominally worshipped the Abrahamic godhead).  The notion of making a covenant [Hebrew: “berit[h]”; Greek: “diatheke”; Latin: “foedus”] with the godhead has myriad occurrences throughout history, and around the world.  Indeed, the compact between the Abrahamic deity and the Hebrews–as delivered to Moses–was inspired by the covenant between Assyrian King Esarhaddon and King Baal of Tyre c. 675 B.C.  On the amulets from Hadatu, we read about the Eternal One’s covenant, made by the sons of El…a direct antecedent to the vernacular found in Hebrew liturgy.}