in particular in the first five centuries of Islamic rule. It offers a nuanced observation of Near Eastern social arrangements, arguing for the multiplicity of social affiliations, of which membership in a religious community was central but not exclusive.
PART I
Legal Pluralism in Late Antiquity and Classical Islam: Survey and Analysis
CHAPTER 1
A Late Antique Legacy of Legal Pluralism
The present chapter is primarily a survey of the various judicial institutions that were available under late Roman and Sasanian rule, from the late fourth century A.D. to the Arab conquest. The function of this survey is to set the stage for subsequent chapters, which deal with the early Islamic period; it will also serve to establish that a trend of multiple, overlapping legal orders was not unique to the period following the Islamic conquest but characterized Near Eastern late antique societies from early on. A consideration of the various judicial possibilities that were available to the subjects of the two empires highlights the fact that the Roman and Sasanian states were not the sole patrons of legal orders. This picture, described below in detail, conforms to the concept of legal pluralism. While in the later Roman Empire, for example, Roman law was valid in imperial courts and those of rural settlements, the law’s application in the latter was often compromised by customary and indigenous practices.
The people of late antiquity had a range of judicial institutions from which to choose. These varied in their methods, sources of legitimacy, and locations. In addition to imperial and ecclesiastical courts, a host of informal judicial institutions handled disputes and legal transactions. This reality allows us to view the society under discussion in more complex terms, as governed by a constant negotiation of authority among various social powers. At times, negotiation gave way to contention, particularly in the context of authority claims made by religious leaders. Accordingly, with respect to certain well-defined issues, the church fathers and the Rabbanite sages fiercely guarded the boundaries of their respective jurisdictions.
Legal pluralism exists across a number of legal orders as well as within a single legal order. Whereas the bishop court was part of the Roman legal apparatus following its formal endorsement in the fourth century, the judicial roles assumed by abbots and monks were not; this is only one example of the prevalence of “weak” and “strong” forms of legal pluralism that will be discussed below. Both forms, however, support the idea of a society whose members operated within more than one legal order and were able to choose from a variety of legal institutions. Admittedly, the people of the period did not possess such a schematic and all-encompassing perception of their institutions and most likely did not draw clear-cut distinctions between what is later described as “central versus provincial,” “secular versus religious,” or “formal versus informal” institutions. But for the present purposes, it is precisely this schematic analysis of late antique legal orders and their judicial institutions that enables us to consider their rise and formation as well as the manner in which they related to one another. “Legal pluralism is a concomitant of social pluralism,”1 and it is this dynamic of social control and social opportunism that should be kept in mind throughout. Whatever their motives were, clients turned to a diverse group of legal authorities. Their ability to bring their suits before more than one judicial institution raises a variety of social questions. Such a choice reflects not only the subordination of litigants to a multiplicity of judicial authorities but also their affiliation with a multiplicity of social circles.
Judicial Institutions and Practices in the Eastern Roman Empire
Referring to the governor of the Mesopotamian province of ‘Āsrā‘inē (Osrohene) who held office in 497-98, the anonymous author of the early sixth-century Chronicle of Pseudo-Joshua the Stylite noted that every Friday the Roman official “would sit in the martyrion of Mār John the Baptist and Mār Addai the Apostle and settle lawsuits free of charge.”2 The image of a Roman governor presiding over judicial proceedings outside the imperial courtroom in a martyrion provides a rare glimpse into late Roman judicial arrangements in the eastern provinces. The church was situated only a short distance from the Roman law courts in the southwestern quarter of Edessa.3 Yet the fact that the governor chose to pass his Fridays settling disputes in a church—moreover, one dedicated to a martyr—rather than in his formal courtroom brings to the fore some of the features of late Roman judicial practices. While the legal authority of the governor suggests the implementation of Roman law, the chosen venue of the martyrion reflects the interplay of imperial law and indigenous sentiments.
At least in theory, the citizen of the late Roman Empire could choose to settle disputes before an imperial magistrate, a military commander, a landlord, a village headman, a bishop, a monk, or even a recluse.4 Yet despite what may seem to be a highly decentralized imperial setting made up of an amalgamation of diverse institutions, things were not as fluid in practice. Rather than an absent imperial government, lying largely in major urban centers and military compounds, the image is of a sophisticated administrative scheme channeled through the services of local forces.5 Roman rulers sought to maintain control over their vast empire by enhancing reciprocal ties with members of local elites.6 The latter repaid the approval and sanction of the imperial government with loyalty to the empire and its laws.7 It is this principal premise of adaptation rather than stagnation that is the basis of the present analysis of late Roman judicial institutions. In addition, the present discussion includes another type of judicial institutions: out-of-court solutions that were not always formally sanctioned by the Roman state. Here, judicial services were rendered by a diverse group of individuals whose social capitals allowed them to assume informal judicial prerogatives.
A mixture of judicial offices, formal and informal, required an ongoing process of administrative adjustments. These adjustments tended to obscure administrative boundaries, making it unclear whether a bishop was issuing a judgment within the formal setting of an episcopal court or by virtue of his personal ties with members of his congregation. Similarly, the Justinianic decree, mentioned below, making it mandatory to hold a copy of the Scriptures in an imperial courtroom and declaring the imperial law to be of divine nature, may have added to a blurring of distinctions between ecclesiastical and secular courts.8
Imperial Courts
Caroline Humfress, in her discussion of dispute resolution under the late Roman Empire, quotes a constitution from 529 that emphasized the emperor’s role as the “sole maker and interpreter of the laws.” According to Humfress, while past emperors presented themselves as such, it was only under Justinian that an attempt was made to “make this rhetoric a reality.”9 By the time of Diocletian (fl. 284-305), the second highest judicial authority to the emperor was the provincial governor who presided over the courts as a first resort.10 Because of the size of their jurisdiction and overwhelming load of responsibilities, the governors often delegated judicial authority to their deputies. Another way of considering this delegation of power is to classify deputies as “lesser judges.” These officials dealt with affairs of a local nature because of their greater acquaintance with the affairs of local communities. The lesser judge is seen as precursor to the later-known defensor civitatis of the fourth century. The office is first noted in the end of the third century and is known to have included judicial authority before the fourth. The evolution of the defensor as a judicial post is viewed in modern scholarship as an imperial attempt to provide effective legal representation for those who were thus far denied, for whatever reason, the services of the imperial judiciary.11 At the same time, the improvement in judicial services helped improve the notion of an imperial presence in urban centers.12 If not from
