A significant number of scholars believe that the ascendancy of the West started in the eighteenth century, and though powered by a variety of scientific and technological breakthroughs, was either a lucky outcome of random historical forces, or the result of borrowings from the “East.” Writers in this camp focus on economic factors, ignore the unique Western origins of modern science, and ignore the legal and institutional foundations that enabled Western civilization to continue on its ascendant path.1
Such accounts are based on many historical fallacies, as, for example, in John Hobson’s claim for The Eastern Origins of Western Civilisation. To cite only two examples lacking historical support, Hobson claims that the “institutions [my emphasis] that stimulated” various commercial and financial advances were “first developed in the East but later assimilated by Europeans.”2 Likewise, Hobson believes that the “major technologies and technological ideas” that spurred British industrial development were “all diffused across from China.”3
A central problem of the “Easternists” is their neglect of the European political, economic, and legal revolution of the twelfth and thirteenth centuries. That omission includes a vast range of writings by early modern historians, both specialists in law and historians of science who have documented that Europe underwent an unprecedented revolution from the twelfth to the fourteenth centuries. That transformation set Europe on a unique developmental trajectory in law, science, self-government, and economy. No comparable intellectual and institutional transformation occurred in Asia—neither in China nor the Muslim world—during this same era. No one has presented any evidence to show that Europe’s move toward parliamentary democracy, constitutionalism, election by consent, and formalized due process of law had any input from outside Europe.
Moreover, these institutional structures represent the heart of what Western civilization considers its central and unique achievements. Likewise, the Scientific Revolution and the relentless pursuit of scientific and economic progress originated in the West, which for more than a century have been powering the globalization process. The cultural institutions that created the open and public study of the natural sciences in Europe were absent in the Islamic world and China. But that takes us ahead of our collective history.
The Revolution of the Middle Ages
Europe in the Middle Ages experienced an unparalleled structural transformation resulting in such new organizational principles and political ideas as constitutional government, consent in political decision making, the right of political and legal representation, the powers of adjudication and jurisdiction, and even the power of autonomous legislation. Aside from the Scientific Revolution and perhaps the Reformation, no other revolution has been as significant for new social and political developments as the legal revolution of the European Middle Ages. By laying out the conceptual foundations for new institutional forms in legal thought, it prepared the way for the scientific and economic advances that were to come.
Three pillars of this transformation were the creation of a new legal science—the ius commune that spread across Europe—the creation of new collective actors and entities, and the discovery and articulation of due process of law.
The new science of law was the result of simplifying, modifying, and transforming the Roman corpus juris civilis by medieval legal scholars, who sought to reconcile the many contrasting and sometimes contradictory elements of Roman law with the Bible, canon law, and German and other regional laws as well. The most important architect of this transformation was Gratian, a monk who produced what he called a Harmony of Discordant Canons, issued about 1140, that soon became a canonical text throughout Europe.4
The second element of this reform was the gestation of many new legal concepts, above all the legal recognition of the rights of collective actors—legally autonomous entities. Sometimes called “fictive legal personalities,” these included cities and towns, charitable organizations, professional associations of doctors and lawyers, universities, and merchant guilds—all of which could create their own rules and regulations. These new entities were treated as collective individuals, and they had a new bundle of rights: to own property, to sue and be sued, and to make their own rules and regulations, i.e., to act as legislative entities. Such entities had the right to be represented by attorneys in courts, and before the king’s court regarding taxation.5 Furthermore, these entities were said to be governed by the principle of “what concerns all should be considered and approved by all”—a Roman maxim.6
While today we think of corporations as significant primarily for commercial enterprises, their original impact was in the sphere of public law, where their presence radically transformed the basis of political, constitutional, and economic life in Europe. For these new entities established the foundations for parliamentary democracy. The first European parliament was founded in 1188 in Spain, quickly followed by many other regional parliaments in Spain, and then in Portugal, Sicily, southern France, Paris in 1298, and the Estates General in 1302 as parliaments became a pan-European institution.7 The effort to establish constitutional regimes in which the people were deemed to have a legitimate voice was a great struggle carried on across Europe from the Middle Ages onward, culminating in the revolutionary political thought of Scotland, Holland, France, and then England in the sixteenth and seventeenth centuries.8
No parallel process whereby parliamentary democracy, constitutionalism, and self-governance came to dominance took place in the Islamic world, China, or India, largely because they had no preexisting legal structure equivalent to Roman civil law.9
The third element in this transformation was the articulation of what continues to be understood in the West as due process of law. While Roman civil law contained elements of formal legal procedure, the consensus today is that no such procedures, if they were ever written, were passed down to medieval scholars.10 The European medievals spelled out what due process meant, how it was to be applied, when, and for whom. By the end of the twelfth century this new system was formally codified as the ordo iudiciarius: the system of legal procedures.11
European legal doctrine (as articulated by scholars in legal treatises, established in court cases, and articulated in papal decretals) stipulated that every trial must involve a plaintiff and a defendant, advocates for those two parties, the appearance of witnesses, the presence of court recorders such as clerks, proctors, and notaries who record the names of those present at the trial, and so on.12 This was established legal procedure by the twelfth century’s close—all worked out by legal scholars usually attached to the schools and emerging universities, and not just as a matter of “customary practice,” but ensconced in major textbooks, Tancred’s Ordo iudiciarius (1214–1216) and Durand’s Mirror for Judges (Speculum iudiciale) (ca.1271), and papal letters and statements (concilia) circulated across Europe.
It is also notable that virtually all records—initial complaints to the court (the libellius), summonses, testimony, reports, or contracts—were presented in writing and filed away. These records became part of the official court records, kept by proctors or notaries in an official location, always bearing the signature or seal of the acting court or head official, not, as in the case of Islamic law, irregularly maintained by the judge or his clerk in the “qadi’s diwan,”13 the judge’s private files usually maintained in his home. So insecure were such documentary arrangements in Islamic law that until the last decade of the twentieth century, specialists in Islamic law had concluded that such records did not exist. Very few have ever been uncovered, and it was only among the Ottomans after the sixteenth century that the “court in cities and towns was to be held in a building” for that purpose.14
Romano-canonical procedure specified that each court was meant to run according to a calendar, that once the plaintiff’s complaint was presented, the presiding judge would establish a date for a hearing along with specified sessions for the hearing of the testimony of witnesses. All proceedings were determined by a court schedule, not the whim of the plaintiff.15 Furthermore, the opposing advocates prepared a list of questions to be put to the witnesses by the judge (or official examiner) for close questioning individually in private. Every effort was made by the interrogatories provided to the judge and by the opposing attorneys to separate direct evidence from hearsay testimony. The witnesses were sworn to tell the truth, “the whole truth and nothing but the truth about everything they knew in connection with the action in which they were to testify.”16 They were also cautioned to testify only about events they had seen and heard, “but not about what they believed or thought they heard from others.” This oath-taking to tell the truth, not an oath daring the taker to defy God and face eternal punishment if he testified falsely, was, as Harold Berman pointed out, a new legal conception introduced into canon law by Europeans of this era.17
Oaths in Islamic legal proceedings were entirely different. Generally, oaths were administered only in the absence of other evidence, or if the evidence seemed inconclusive. Then the parties to the dispute could be offered the chance to take an oath. Otherwise, evidence submitted to the court was not accompanied (or preceded) by taking an oath to tell the truth. An oath according to Islamic law was any statement accompanied by the words “by Allah.” That preamble was generally qualified by the words, “the One beside whom there is no God,” or “He who knows what is hidden, just as He knows what is declared.”18 No cross-questioning took place after any party took an oath. The oath was decisory. If the party “with the stronger case” was given the opportunity to take the oath, but he refused, then the oath was offered to the other party. If he swore an oath, he won the case.
An example of such close questioning in Europe comes from the Canterbury Court of England in the thirteenth-century case of Master Robert de Picheford concerning the ownership of a church in the Diocese of Lincoln. The interrogatories submitted on behalf of the defendant Thomas de Neville stated, First, the examiners are to hear what the witnesses say of their own motion and to enquire as to the source of their information about each of the articles [submitted by Master Robert]. If they say that Robert was in possession of the church of Houghton as rector by himself or others from 26 July to 3 August 1268, they are to be asked whether they know this from seeing, hearing, knowledge, belief or public report. If they say seeing, ask where, when, the nature of the possession whether natural or civil, mental or physical, and how long before the feast Robert possessed the church and whether continuously or at intervals.19
First, the examiners are to hear what the witnesses say of their own motion and to enquire as to the source of their information about each of the articles [submitted by Master Robert]. If they say that Robert was in possession of the church of Houghton as rector by himself or others from 26 July to 3 August 1268, they are to be asked whether they know this from seeing, hearing, knowledge, belief or public report. If they say seeing, ask where, when, the nature of the possession whether natural or civil, mental or physical, and how long before the feast Robert possessed the church and whether continuously or at intervals.19
Proctors or notaries, who were sworn officers of the court, were charged with recording all testimony and copying any other material presented to the court. When all testimony was completed, it was to be read out loud in front of the opposing parties by the judge or court official.
Another unique Western innovation unparalleled in Islamic or Chinese law was the advocate as a university-trained legal specialist. There is no term in Arabic for “advocate.”20 In China all legal helpers were seen as “tricksters” and had no formal legal standing.21 The Islamic system allowed an “agent” (wakil) to aid and act on behalf of another person, and to speak for that person, but he did not need to be legally trained to act in that capacity.22 For example, in a case reported in fourteenth-century Morocco, a brother (and nonlegal expert) served as the agent for his sister, whose testimony was thereby omitted, though her testimony was the more important.23 There was no punishment for perjury in Islamic law.24
Likewise there were no formal “associates of the bar” or “officers of the court” to which court assistants and functionaries could be sworn in either Islamic or Chinese law.25 In the Romano-canonical system, advocates were registered and monitored as sworn officers of the court with the stipulation that they had a duty to the court, to the cause of justice, and to the cause of their clients, any of which might conflict. They had to swear not to take on “frivolous or vexatious cases” and also to inform the court if they took on a case that turned out to be flawed.26
By the thirteenth century the new, specialized manuals dealing solely with legal procedure and manuals counseling proper ethical behavior for advocates were used widely throughout Europe. Within Islam, all such considerations were reduced to the requirement of being a good, observant Muslim. The “professional witness” (shâhid) who became attached to courts throughout the Muslim world was chosen and examined by the local qadi (judge) and whose numbers sometimes reached the thousands, with the inevitable claims of corruption.27 More surprisingly, when a qadi died or was replaced, all his professional witnesses could be dismissed and this would give grounds for a reconsideration of all the cases in which he had issued a judgment.28
In short, by the end of the twelfth century court procedure in the ecclesiastical and civil courts had become formal and regularized by procedural norms widely discussed and articulated by scholars across Europe. Anyone attempting to bring a legal case was properly advised to seek the counsel of an attorney, for as one writer put it in 1169: If someone is brash enough to presume to rely on his own devices even though he is inexperienced and does not wish to have an advocate, let him do so. Everyone is free to muck up his own case.29
If someone is brash enough to presume to rely on his own devices even though he is inexperienced and does not wish to have an advocate, let him do so. Everyone is free to muck up his own case.29
Likewise, as the legal scholar Dorothy M. Owen recently put it, in the later Middle Ages a clerk could not resign his benefice, appoint an official deputy, or conduct an election, a layman could not begin or continue a cause in an ecclesiastical court, or bring a will to probate if he did not employ a legally qualified proctor to draw up and present the appropriate documents. A bishop’s or archdeacon’s affairs could only be carried on with legal advice from men skilled in the law (iurisperiti). A royal government needed to be represented in diplomatic business by men skilled in the Roman (civil) law.30
a clerk could not resign his benefice, appoint an official deputy, or conduct an election, a layman could not begin or continue a cause in an ecclesiastical court, or bring a will to probate if he did not employ a legally qualified proctor to draw up and present the appropriate documents. A bishop’s or archdeacon’s affairs could only be carried on with legal advice from men skilled in the law (iurisperiti). A royal government needed to be represented in diplomatic business by men skilled in the Roman (civil) law.30
Restraining Prince and Pope
In addition to the legal transformations set out above, there are still others that have little parallel in non-European legal systems. I shall call this a fourth dimension of the revolutionary process that established broad legal principles across western Europe.
The most important case establishing that these principles applied to the prince as well as ordinary citizens concerned King Henry of Luxembourg and King Robert of Naples. In 1311 King Henry moved to be crowned Emperor of the Holy Roman Empire and in doing so intended to displace Robert of Naples and his kingdom. In the process, Henry condemned King Robert, declaring him a traitor and an outlaw to the empire. Pope Clement V did not agree with these declarations and tried to mediate between the two parties.31
The pope solicited opinions from the best legal scholars and all of them averred that the right of self-defense, both physical and legal, was a right granted by natural law and hence it could not be taken away. The pope declared King Henry’s rulings were without merit and were annulled. Pope Clement went on to issue several more legislative rulings, clearly stating what due process of law entails and how it must not be abridged. In his final ruling, a constitutional document called Saepe contingit, he established these principles, which of necessity must be upheld by the prince. Legal scholars have concurred that this early fourteenth-century legal ruling was “the most important single piece of medieval legislation in the history of summary judicial procedure.”32 By the beginning of the fifteenth century European law had established legal principles restricting the actions not only of the prince, but also the pope.
The principle that the pope, too, is subject to natural law and may not abridge a defendant’s right of self-defense was established in a notorious case involving the Medicis and the attempt of the Pazzi family to eliminate them violently. Pope Sixtus IV had condemned Lorenzo de Medici for a murder without holding a trial. Legal scholars protested that this was not proper procedure. The result was that the pope had to back down while acknowledging that just as Adam of the Bible had to respond to God’s summons to judgment, so too “neither Pope nor Prince could dispense with this part of the judicial process because no one can ignore a precept of divine law.”33
In contrast, Islamic law under the Ottomans—who were the actual inheritors and defenders of traditional Islamic law from the mid-sixteenth century forward—reveals stunning arbitrariness. This can be seen, for example, in the special Ottoman (appellate) courts, the mazâlim or Sultan’s courts that are supposed to right the wrongs of other courts. They had existed from early times but had no constraints, and placed no restrictions on the behavior of the Sultan. As one scholar has put it, “The Sultan makes his verdict freely, he is not bound by the shari’a rules in any way, he does not need to hear both parties—or even one of them—before passing his sentence.”34 This seems profoundly arbitrary, given there is nothing in the sharia that would place restraints on an Islamic ruler, since such an official had never been imagined in the Koran or the sayings of the Prophet Mohammad. The sharia “had never developed the necessary procedures or writs that would bring the prince or executive power to account for actions committed outside the law.”35 Furthermore, there is a long tradition in Islamic regions, both “East” and “West,” of Islamic judges actually assuming the position of ruler of a city or town. Such rulerships also became dynasties,36 something not conceivable in European law.
It took time for the rule of law as we understand it to become widely and deeply established; nevertheless, the institutional apparatus had been constructed, and civil and ecclesiastical courts were set up across Western Europe. Let us not forget that the lords of England forced King John to submit to Magna Carta (in 1215), which likewise restricted his sovereign powers and required the establishment of a jury system for legal proceedings. Indeed, the jury system itself was a remarkable legal invention of this period that had counterparts in Germany, the Low Countries, and Scandinavia, but did not emerge in Chinese or Islamic law.
Law, Commerce, and Self-Government
Two other domains were profoundly changed during the civilization-wide transformation of the Middle Ages. From a legal viewpoint, it is imperative for those engaged in business dealings that they have a secure sense of their rights of ownership, the possibility of regulating trade, and the availability of legal officials who can authoritatively adjudicate business conflicts. What happens, for example, if a business partner dies? Islamic law dictates that if any partner dies or withdraws, the partnership of the enterprise completely dissolves,37 whereas European business partnerships and corporations have lives of their own in law.
Economic historians have shown that during this same period of time, especially in Holland and the Low Countries, villages and urban conclaves were forming in which people were acting collectively to self-govern, to regulate collectively-owned grazing grounds known as “the commons,” to govern the use of grinding mills, riverways, and other assets that were considered jointly owned by the community. Such communities formed their own judicial bodies; bought, sold, and rented property; and hired clerks, even an occasional police officer and other agents who worked for the collective public enterprise.38
To us this seems normal, but this kind of legitimate communal self-organization, bound by law with articulated rights and prerogatives, was unprecedented. This new legal arrangement proved to be a boon to the rise of early modern capitalism, to the broad commercial revolution of the thirteenth and fourteenth centuries, which would include all sorts of new collective trading entities: extra-familial firms (otherwise known as legally recognized companies) as well as joint stock companies and formally organized banks whose records constituted legal documents available to public scrutiny.39
One will look in vain within Islamic or Chinese law for legal ordinances that gave money lenders, in the sense of bankers, legal autonomy and transformed their private records into publicly available notorial documents having legal standing in courts, as was established by Western law and its bankers in the twelfth and thirteenth centuries. Given the absence of the idea of a fictive personality—a legally autonomous entity—in either Islamic or traditional Chinese law, there is no evidence, contrary to what Hobson suggests, that there was any borrowing of the fundamental legal institutions that set Europe on a new course of political and economic development during this era.
Recent scholarship has added considerable weight to the assertion that Europe’s legal revolution in all its dimensions contributed measurably to the economic ascendance of Europe in the early modern period in comparison to other parts of the world.40 Whether one attributes a causal link between the new legal science or the rise of the universities and the teaching of the new legal system, the evidence suggests that the availability of the new legal system, with its unique set of adversarial courts and procedures, greatly facilitated economic growth in Germany and other parts of western Europe.41
Legally Autonomous Universities
Finally, the uniqueness of Europe’s universities, which served as incubators for the pioneers of modern science, must be mentioned. Unlike the Islamic madrasas, the universities of Europe were not “pious endowments” (waqfs) that could not be changed, but legally autonomous entities that could make their own rules and regulations and teach Greek natural philosophy. The madrasa movement was designed to ensure the passing on of the “transmitted sciences,” study of the Koran and hadith and the discipline of fiqk (jurisprudence). The central figure in the madrasa was a legal scholar, not the philosopher or the theologian (mutakallim). Aristotelian natural philosophy was not invited in.42 It could be said that some students copied works in the exact sciences and that some scholars attached to the madrasas taught the exact sciences privately, but evidence is lacking that Aristotle’s natural philosophy, above all his Physics, was taught in the madrasas.
By teaching the natural books of Aristotle from the twelfth to the seventeenth centuries, Europe’s universities instilled a fundamental intellectual curiosity that persists to the present; that same spirit of innovative inquiry did not take hold outside of Europe.43 One might even suggest that the effect of studying natural philosophy in Europe in the period leading up to 1600 was so strong that many of the pioneers of the seventeenth-century revolution were highly educated laymen, not scholars attached to the universities. This is not to suggest that the universities of Europe had become less important, but rather that the ethos of science had jumped the bounds of strict university employment and gave birth to the Scientific Revolution.44
The origins of Western civilization were, indeed, Western. During the twelfth and thirteenth centuries, a new civilization-wide structure came into place. In its deepest and most profound sense, this underlying institutional structure was fundamentally legal in nature. Because the medieval Europeans built upon and transformed the Roman corpus juris civilis, they created a civilization that simply had no counterpart in other civilizations. There was no corpus juris civilis in China, India, or the Islamic Middle East, no preexisting legal institutions that could be borrowed and plugged into the European institutional structure. The new European structure rested on entirely different foundations that shaped its unique conceptions of due process of law, constitutionalism, and the notion of election by consent that became central to the parliamentary process. Likewise, these concepts underlay all forms of self-governance. Such ideas were absent elsewhere. No legal notions outside Europe articulated the idea of legally autonomous entities such as public corporations, business enterprises, parliaments, or professional associations.
In the realm of the intellect, there were no educational structures built on the same notions of legal autonomy in which natural philosophy as conceived by the Greeks could be taught while gestating the modern scientific ethos. As a consequence, in the early seventeenth century there was no scientific foundation outside of Europe for understanding the heliocentric basis of modern astronomy, the pneumatic basis of pumps and hence developing steam engines, or electricity and electrical studies. Claims mentioned in the beginning of this article that Europe borrowed scientific and industrial ideas from China in the seventeenth and eighteenth centuries fall very wide of the mark.