graphical frontiers of the moment — as in the East to-day — 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[1] 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.[2] It came over as learned literature, and in the train of political developments which were quite other than they would have been had Alexander or Cæsar lived longer or had Antony won at Actium. We must look at Early Arabian law from the standpoint of Ctesiphon and not from that of Rome. The law of the distant West had long before reached inward fulfilment — could it be here more than a mere literature? What part did it play, if any, in the active law-study, law-making, and law-practice of this landscape? And, indeed we must further ask how much of Roman — or for that matter of Classical generally — is contained in this literature itself.[3]
- ↑ Lenel, I, 380.
- ↑ Here, as in every line of the history of the "Pseudomorphosis," we are reminded of Christ's parable of new wine and old bottles (Matt. ix, 17), an expression not of mere abstract shrewdness, as it seems to us now, but of intense living force and even passion. It is only one short verse, not obligatory in its context, but leaping out of depths. — Tr.
- ↑ As long ago as 1891 Mitteis (Reichsrecht und Volksrecht, p. 13) drew attention to the Oriental vein in Constantine's legislation. Collinet (Études historiques sur le droit de Justinien I, 1912), chiefly on the basis of German researches, throws an immense amount back on Hellenistic law; but how much, after all, of this "Hellenistic" was really Greek and not merely written in Greek? The results of interpolation-research have proved truly devastating for the "Classical spirit" in Justinian's Digests.
