EuropeNews 1 January 2012 By Fjordman
Professor Erik Anners, a Swedish historian of law, compares the legal profession to engineering and believes that law is the engineering of society. European legal history contains traces of both Greek and Mosaic law, which themselves carried some impressions of earlier civilizations, especially that of Mesopotamia. But European law was formed during the Middle Ages in a meeting between Roman law and other, especially Germanic, customs.
Anners comments that the rational school of law which emerged in Western Europe during the High Middle Ages differed strikingly from that found in Islamic regions, especially considering that they had both encountered the same Roman legal heritage. We have the testimony of an educated Muslim man from Spain travelling in the Crusader kingdoms in the twelfth century and noting, somewhat reluctantly, that the European infidels enjoyed a greater security of law than the contemporary Muslims did with their corrupt qadis, sharia judges. Roman law beginning with the Twelve Tables, the earliest written legislation of Roman law, traditionally dated to ca. 450 BC dealt with matters of inheritance, obligations and contracts, property and individual persons. It forms the basis for the Civil Law codes of most countries of Continental Europe, distinguished from the Common Law of English-speaking countries. In England, Common Law was largely Germanic law. For the Germanic peoples, the tribal assembly (mot or thing) had traditionally elected kings and declared war. However, Germanic customary law designed for non-literate societies proved inadequate to cope with complex urban commerce. Like the Roman Emperors before them, the Christian Emperor Charlemagne and his successors claimed the power to make laws for all their subjects. The Roman Catholic Church applied Canon Law in the Church courts. This was heavily influenced by Roman law. The traditional customs of various European societies gradually blended with Roman customs. Before the coming of Christianity during the Middle Ages, Germanic peoples used to live in pre-state societies where there was no strong centralized authority that could enforce the law, but theft and violent crimes obviously took place in such societies, too, and had to be dealt with somehow. Individuals therefore depended upon their kin and clan for protection. If a person accused of a crime agreed to pay a sum to the victims family and they accepted this, there was peace. This was known as wergeld or wergild (literally: man payment). The word were, meaning man, has been retained from the Germanic language known as Anglo-Saxon (Old English) and is found in the modern English werewolf. Geld is still the Dutch and German term for money, whereas the word means debt in the Scandinavian tongues. Historian Julia Smith explains in Europe after Rome: A New Cultural History 500-1000 that it expressed in monetary terms the slight done to familial pride, reputation, and integrity: the obligation to pay a wergeld imposed upon the offender and his relatives an equivalent degradation. Moreover, Except to the extent that the Roman juridical principle that an individual was solely and uniquely responsible for his own actions may have remained enforceable in some parts of the Mediterranean, early medieval Europe was a feuding culture. Normally, however, wergeld was paid in order to deflect the risk of vendetta. It is noteworthy that the wergeld of a woman was usually roughly equal to that of a man of the same class. This reflects the high traditional status of women in Germanic societies. Not so in Islamic societies, past or present. In 2005, a Saudi Arabian court ruled that the value of a womans life is equal to that of a mans leg. Non-Muslims are often worth even less than this.
The only full members of an Islamic community are Muslim men. Everybody else has fewer rights due to religion, sex or slave status. A Muslim who leaves his Islamic faith and community can be killed with impunity. This can still be a real threat today. Since Islam is not merely a faith but in many ways a military community engaged in an eternal struggle against the enemy camp (all non-Muslims worldwide), those leaving it are like soldiers leaving an army and joining another, rival army. They are viewed as traitors who deserve to be killed.
The idea of blood money, diyya, is mentioned in the Koran, 2.178. In accordance with sharia law, the relatives of a murder victim can choose to claim blood money from the murderer, or pardon him, instead of allowing the execution to go ahead. As we have seen, it was not unusual for pre-state societies to have some form of monetary compensation to be paid in order to avoid the risk of brutal blood feuds. The Vikings, too, once had vendettas and practiced slavery, but they moved on after an urban, literate culture was established in their societies. Ancient practices became fossilized and preserved as an eternal, God-given blueprint for human justice in the form of Islamic sharia law. That is the major difference.
In ancient Mesopotamia, punishment for criminal acts differed from modern practices. It did not mainly emphasize imprisonment or forced labor, but rather physical acts against the person judged to be guilty. The supporting principle was retaliation in kind (Latin: lex talionis). This was passed on to other cultures in the region and influenced what was to evolve as the legal tradition of the Jews. For the Hebrews, this principle was expressed as an eye for an eye. Mutilation was common for a variety of offenses in many different parts of the world. Some of King Hammurabis ancient forms of punishment have influenced Islamic law.
The New Testament did not approve of it, though. In the Sermon on the Mount as contained in the Gospel of Matthew 5:38-5:39, Jesus is quoted as saying that You have heard that it was said, An eye for an eye and a tooth for a tooth. But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also. Jews have long ago abandoned any literal application of this ancient principle, but some Muslims who follow strict sharia law use a literal application of the law of retaliation in kind to this day. For instance, a court in the Islamic Republic of Iran in 2008 ruled that a man who blinded a woman with acid after she spurned his marriage proposals should himself be blinded with acid.
Cases of brutal violence against Muslim women sometimes shock the world, despite the fact that most of them never reach the public eye. A particularly notorious example was a village council-sanctioned gang rape in 2002 of Mukhataran Mai in Pakistan, who refused to accept a forced marriage. Jens Stoltenberg from the Labor Party in Norway has warned against dark medieval forces. Forced marriages or honor killings of disobedient women are frequently referred to as medieval practices by the mass media now, but in medieval Scandinavia and most of Europe such practices were illegal and clearly frowned upon says Professor Ole Jørgen Benedictow. He suggests that we are too often badmouthing medieval Europeans.
The Middle Ages represent a distinct period of European history. Asian societies had no Middle Ages as we think of it. A court-sanctioned rape would be totally unknown in Norwegian law and legal practice throughout Christian times and as far back into pre-Christian times as we are able to track. Rape was a very serious crime, but nobody should take the law into his own hands. Especially after the rise of the state, the legal system was reasonably well-developed and fair for its time.
Forced marriages were generally illegal in medieval Europe. The law assumed that both parties had to consent to the marriage. Although their families could and often did suggest potential marriage partners, both involved parties could veto such suggestions. Adults who ignored the advice of their parents in choosing a marriage partner might risk losing parts of their inheritance, if the court sanctioned this, but that was normally all. Benedictow believes this reveals an ideological emphasis on love as a distinguishing feature of European culture.
A marriage cannot and perhaps should not be based solely on fleeting human emotions. It was also an alliance between families that often involved the inheritance of a farm and usually children. Nevertheless, in addition to the practical aspects of marriage, European societies also stressed the ideal of mutual affection and love between a man and a woman more than many other cultures did at the time. In practices dating back to pagan times, Scandinavian women could get a divorce from very violent and abusive husbands. This right became somewhat limited in Christian times, as the Church restricted access to divorce in general.
When it comes to practices such as forced marriages and honor killings, it is hard to escape the conclusion that we are ultimately dealing with fundamental differences in civilizational level. Some repressive cultural practices and mentalities encountered in Western immigrant ghettos today were unthinkable in Europe even a thousand years ago.