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• IX: Obedience
• Note to the Above Essay On the Application of the Theory of Obedience to the Fundamental Definitions of Jurisprudence.
• X: The Nature of Sovereignty
• XI: The Law of Nature
• XII: The Methods of Legal Science
• XIII: The Relations of Law and Religion the Mosque El Azhar
• XIV: Methods of Law-making In Rome and In England
• XV: The History of Legal Development At Rome and In England
• XVI: Marriage and Divorce Under Roman and English Law
• XVII: Inaugural Lecture 1 the Academical Study of the Civil Law
• XVIII: Valedictory Lecture Legal Studies In the University of Oxford

XIII

THE RELATIONS OF LAW AND RELIGION

THE MOSQUE EL AZHAR

To the modern European world Religion and Law seem rather opposed than akin, the points of contrast more numerous and significant than the points of resemblance. They are deemed to be opposed as that which is free and spontaneous is opposed to that which is rigid and compulsive, as that which belongs to the inner world of personal conscience and feeling is opposed to that which belongs to the outer world of social organization and binding rights. The one springs from and leads to God, who is the beginning and the end of all religious life; the other is enforced by and itself builds up and knits together the State. Even where the law in question is the revealed Law of God the contrast remains. The efforts which we find in the New Testament, and especially in some of St. Paul’s Epistles, to reconcile the law delivered to Israel with the dispensation of the New Covenant, all point to and assume an antagonism. Grace, that is to say, the spontaneous goodness and favour of God, is felt as the antithesis to the Law; and it is only when human nature has been brought into complete accord with God’s will that the antithesis vanishes, and we have the Perfect Law of Liberty.

This law of liberty, moreover, is not positive law at all, but supersedes that law; for when all men have been so made perfect, the need for human law has ceased because their several wills, being in accord with the will of God, must needs be also in accord with one another.

This antagonism of Law and Religion has been conspicuous in the relations to each other of the lines of thought followed by the ministers of religion on the one hand and the students or practitioners of law on the other. In the theology of the Reformers of the sixteenth and two following centuries Legalism is a term of reproach and is contrasted with the freedom of the Gospel. Readers of the Pilgrim’s Progress will remember the part played in it by old Mr. Legality. The clergy have been apt to dislike lawyers, to accuse them of cramping the freedom of the Church, and of desiring to bind it in State fetters. Erastianism, of which some lawyers and statesmen have been known to be proud, is a name of dark reproach on ecclesiastical lips, while the legal profession on its part, though it has always had to yield precedence to the other gown, conceives that the Church needs to be strictly controlled, gladly seizes occasion for limiting the action of her ministers, often suspects them of trying to evade or pervert the law, and is prone to bring accusations, more or less railing, against them, as seeking to compass their (possibly excellent) ends by irregular or even illegal methods.

But in earlier times, and in many countries, the two lines of thought, the two branches of learning, the two professions, whether as teaching or as practising professions, were either united or deemed to have a close affinity. In the lowest forms of organized society, such as we find among the aborigines of Canada and South Africa, the first kind of profession that appears is usually that of the wizard or practitioner of magic, and the rudiments of a priest are developed out of the medicine man, who represents the most rudimentary form of the physician. But in this stage of progress there is no religion properly so called, and the usages that prevail and which are the material out of which law will grow, are too few, too rude, and too often interrupted by violence, to form a system of settled and harmonized rules. When, however, Religion and Theology begin to emerge from the superstitions of the savage state, and when custom, already settled, and growing more complex with the progress of culture, has enabled civil society to organize itself in institutions, Law and Theology are usually found in close affinity. Law everywhere begins with Custom. Now many of the Customs which form Law are concerned with worship, because the relations they regulate are relations depending on religion. The Family is a religious as well as a natural organism, for it is often sacred, and in many peoples is held together by the common worship which its members owe to the spirits of their ancestors. Hence the maxims that regulate marriage, and the relation of parents to children, and the devolution of property, have a religious basis, and are precepts of religion no less than rules of law. To take vengeance for the killing of a near relative is a duty which the pious son or brother owes to the ghost of the slain; while on the other side the slaughter has created a legal right the enforcement of which, by compelling the payment of a proper compensation to be exacted from the slayer or his kinsfolk, will also satisfy the religious obligation. Other relations of men to one another not primarily religious become so by being placed under supernatural protection. Where a promise or agreement is to be rendered specially binding, the party engaging himself takes an oath invoking the Divine Power, and perhaps takes it at a shrine, or (as in Iceland) on a temple-ring, or (as in the Middle Ages) on the relics of a saint. These contracts are not confined to private affairs. Treaties are made in the same solemn way. Compacts such as that for the single combat of Paris and Menelaus in the Iliad1 , are placed under the sanction of the gods by a formal appeal to them as witnesses. And when a person who had violated such an oath dies suddenly, his death is ascribed to the anger of the Powers to whose keeping his promise had been committed1 . In such cases the priest of the deity invoked is apt to become the interpreter of the obligation undertaken, or the arbiter as to how far it has been performed. Possibly he is made the keeper of an object for which safe custody is desired, or the depositary of an object whose ownership is disputed. Sometimes, indeed, it is rather within the breasts of chiefs or kings (since they act as judges and exercise executive power) than in those of priests that the knowledge of customs and maxims is deemed to reside. But in these cases the royal office has itself, if not a priestly, yet a sacred character, and the priest plays no leading part in the political or social system. The nature of the religion, and its more or less mystical tendency, have of course a good deal to do with the place allotted to the priesthood in early societies.

Where legal rules take the form of written records embodying what is held to have been delivered to a people either directly by the deity or through sages recognized as inspired or guided by some divine power, the sanctity of law reaches its maximum. It is then a part of religion, and those who know it and expound it have a religious no less than a legal function.

In such documentary records Law and Religion are often so closely interwoven as to be scarcely separable. Many rules are secular in one aspect, religious in another, so that it may be doubted which kind of motive prompted them, which kind of object they were designed to secure. A regulation of ceremonial purity may have its, perhaps forgotten, origin in considerations of a sanitary nature. A sacrifice prescribed as an atonement for sin may also operate as a civil penalty. Offences against the community may be deemed primarily offences against the deity and so dealt with; and a frequent punishment for what we should now call crimes is to devote the culprit to the wrath of the powers of the nether world, or to deprive him of the protection of those who rule the upper world, and therewith expose him to outlawry, the oldest of all legal sanctions.

In nations living under the influence of such ideas, the exponents of Law and Religion tend to be the same persons, because these two branches of public administration are conceived as being the same, or at least two different sides of the same thing. Such persons may or may not be priests performing sacrifices or consulting the deity through oracles, or omens, or a sacred lot. But they are the depositaries of the sacred traditions, and it is they who interpret those traditions and apply them to concrete cases. As such they are usually among the ablest and most educated persons in the community, sometimes prominent members of the ruling class.

Yet religion must not in such a state of society be conceived as the dominant power, which gives birth to Law. In early societies the duties and acts which belong to the external or secular side of life are more important than is the part of life concerned with the emotions felt towards the deity, whether of reverence, love, or fear. But in the observance of all the established customs and in the performance of all the prescribed ceremonies, that which is pleasing to the gods is not separated even in thought from that which is salutary for the community. The service of the deity consists, apart from occasions of orgiastic excitement, not in the emotional attitude of the soul, but in the discharge of the duties recognized as owed to the family and the community, duties which are more or less moral according to the character of the religion—for righteousness may hold a higher or a lower place among them—but which, whether they relate on the one hand to sacrifices offered and fasts observed, or on the other hand to the fulfilment of all that the tribe or the State expects from its citizens, are external duties. In most early nations, these duties are prescribed not by religious emotion, but by settled usages and rules which have the sanction alike of the State whose welfare is involved in their observance, and of the unseen Powers that protect it. The people have not yet begun to distinguish by analysis the three elements of Law, Morality and Devotion, though here and there the voices of lofty spirits, such as the prophets of Israel, are heard proclaiming the supremacy of the law of righteousness as the true expression of the Will of God, and obedience to it as the truest service that can be rendered by His creatures.

The relation borne by Law, Morality, and Worship, each to the other, differs widely in different peoples. The student of early society must be always on his guard, like the student of natural history, against expecting a greater uniformity than in fact exists, and against generalizing broadly from a few striking instances. Even so brilliant a speculator as Sir Henry Maine fell into the error of assuming the system of paternal power to be practically universal in certain stages of society. Among our Scandinavian and Low German ancestors, for example, it would appear (so far as our imperfect data go) that the worship of the gods had not very much to do with legal usages and civil polity, though to be sure other influences came in at a comparatively early stage to turn the current of their development1 . The same may be true of the Gadhelic tribes, though the knowledge we have regarding their usages and worship while still heathen is lamentably scanty. There is, however, in the records of early Rome and of the Greeks, as well as in those of some Eastern nations, a good deal to illustrate the view I have been trying to state.

A striking example of conditions of thought and practice in which religion had (at a comparatively advanced stage) been so involved in law as to be almost stifled by law is furnished by the Jewish people as we find them under Roman dominion. The lawyers referred to in the New Testament1 (a class of whom there are but few traces before the Captivity) are not priests (though of course a priest might happen to be learned in the law), yet they have a quasi-sacerdotal position as conversant with and able to interpret a body of rules which are of divine origin, and embrace the relations of man to God as well as to his fellow men. Between religious duty and religious ceremony on the one hand and the performance of civil duties on the other there is no line of demarcation: all are of like obligation and are tried by similar canons. Hence piety tends to degenerate into formalism: hence the precisians who insist upon petty externalities and neglect the weightier duties deserve and incur the rebukes of a higher spiritual teaching. It may indeed be said that one great part of the work recorded in the Gospels, regarded on its historical side, was to disjoin Law from Religion or Religion from Law. And this work was performed not merely by superseding parts of the law known as that of Moses, or by giving a new sense to that law, but also by transforming Religion itself, purging away the externals of sacrifice and other ceremonial rights, and leading the renewed and purified soul into ‘the glorious liberty of the people of God.’

That majority of the Jewish race which did not accept the teachings of Christ continued for many centuries, scattered and depressed as it was after the destruction of Jerusalem, to treat its ancient law-books and the traditions which had gathered round them as being both a body of civil rules and a religious guide of life. Despite the tendency to formalism which has been noted, there were among the Rabbis of the early centuries ad not a few who dwelt upon the moral and emotional side of the Mosaic Law, and who through it sustained the spirit of the sorely tried nation.

In the Christian Church also ceremonies and external observances came before long to play a great part in worship, and were for ages an essential element in the popular conception, indeed in the practically universal conception, of Christianity itself both as a theology and as a religion. The atmosphere which surrounded nascent Christianity was an atmosphere saturated with rites and observances. There were in the primitive Church some few usages and in the New Testament some few texts on which it was possible to erect a fabric of ceremonial worship. But even if these conditions had been absent, the tendencies of human nature to create a body of ritual and to attach a sort of legal sanction to the external duties which custom prescribed would have prevailed.

How far the rites and practices which nearly every branch of the Christian Church has to a greater or less extent enjoined are each of them interwoven with the vital tenets of the faith, is a question not likely to be settled in any future that we can foresee. But the conception of the ‘Kingdom of the Heavens’ as something dissevered from the obligations imposed by legal tradition has also remained ever since in Christianity as a principle of profound significance, which has at different times emerged in various forms to become sometimes a destroying, sometimes a vivifying and transforming force. Such sayings as ‘Where the Spirit of the Lord is, there is liberty,’ or ‘He hath made you kings and priests to God,’ or ‘Ye are not under the Law but under Grace,’ have from time to time roused men to hold themselves delivered from all bonds of custom expounded or rules enforced by ecclesiastical authority.

I will not, however, attempt to follow out the intricate relations between the two conceptions, as they appear in the long course either of Christian or of Jewish annals, but will pass on to consider the phenomena of their connexion in another field, one in which the phenomena are comparatively simple, and lie open to-day to the study of every traveller in a land where the old and the new stand in striking contrast.

The best modern instance of the identity of Religion and Law is to be found in that originally misconceived and subsequently perverted form of Judaism which still prevails extensively over the eastern world, and recognizes Muhamad of Mecca as the last and greatest of the prophets of Jehovah. In Islam, Law is Religion and Religion is Law, because both have the same source and an equal authority, being both contained in the same divine revelation. I cannot better illustrate their union than by giving a short account of an ancient and splendid University where they are taught as one, hoping that so much of digression as is thereby involved will be pardoned in respect of the interest which this famous seat of learning deserves to excite, and of the light which it casts on the early history of the Universities of Europe—of Bologna and Paris, of Padua and Salamanca and Prague, and of our own Oxford and Cambridge.

About three hundred and fifty years after Muhamad, and towards the end of the tenth century of the Christian era, Johar, general of the Fatimite Sultans established at Tunis, conquered Egypt. When he built Cairo (El Kahira, ‘the Victorious’), not far from the decayed Memphis, he founded in the new city a mosque which presently obtained the name of El Azhar, that is to say, ‘The Flowers’ or ‘The Flourishing.’ The Fatimites, belonging to the schismatic sect of the Shiites, were particularly anxious to establish their ecclesiastical position against the orthodox Sunnites, and, just as Protestant princes in the sixteenth century founded universities for the defence of their tenets—as, for instance, Elector John of Saxony set up the University of Jena—so the second Fatimite ruler of Egypt, Khalif Aziz Billah, resolved to attract learned men to his capital. He gathered famous teachers to the Mosque, and there was soon a great afflux of students. Sultan Hakim (probably a madman), who went so far beyond the doctrines of Shiism as to declare himself an incarnation of Ali and a Mahdi, closed El Azhar, and transferred the University to another mosque which he had founded. However, the teaching staff was subsequently brought back to El Azhar (which returned finally to Sunnite orthodoxy with the conquest of Egypt by Saladin in 1171 ad), and it has been now for many centuries the greatest University in the Musulman world, being situate in what has been, since the decline of Bagdad, the greatest purely Musulman city1 . The number of students sometimes reaches ten thousand; at the time of my visit (in 1888) it was estimated at eight thousand.

The whole teaching of the University is carried on within the walls of the Mosque, a large group of buildings, approached by six gates, and standing in the oldest part of Cairo. The chief entrance is from the Alley (or arcade) of the Booksellers in the Bazaar. At the outer portal, in the portico, the visitor leaves his shoes. To the left of the inner portal I found a noble square hall, said to date from the fourteenth century, as lofty as the chapel of Magdalen College and about as large, though different in shape, with beautiful marbles on the walls, and an aisle separated from the rest of the chamber by a row of tall columns, supporting slightly pointed arches. The sunlight came in through large openings, filled by no glass, under the roof. In the centre there were sitting or kneeling or crouching some eighty or ninety men in an irregular circle, mostly young men, yet many over thirty and some as old as fifty, with their shoes laid beside them on the matting. In front of them, sitting cross-legged on a low wooden throne, was an elderly professor, holding a book in his hands, and appearing to read from it. Now and then a question came to him from the circle, which he answered quickly; but otherwise the audience were perfectly still, and no sound was heard save his own low voice and the beating of the wings of the birds as they flew to and fro above. The book was an authoritative commentary on the Sacred Law, to which he added his own explanations as he read; and he was treating of the four requisites of prayer, especially of the first of the four, viz. Devotional Intent. No one took notes, but all listened with the closest attention. He was the Chief Sheykh of the Mosque, and in virtue of his office, also the Sheykh ul Islam or chief ecclesiastical and legal authority of Egypt, which, being expressed in the terms of an English University, would make him Chancellor, Regius Professor of Divinity and Regius Professor of Civil Law rolled into one, and therewithal also Archbishop of Canterbury and Lord High Chancellor.

In the similar but rather less spacious and ornate room opposite I found another class, smaller, and composed of somewhat younger men, listening to a lecture on what the Muslims call Dealings, i.e. civil law. The subject was Wills, and the requisites to the validity of a will, such as the sanity, freedom and full age of the testator, were being explained with reference to a book of authority which lay before the lecturer, a younger man than the Chief Sheykh. He spoke with a fluency, clearness and evident power of interesting the class, which reminded me of a brilliant teacher whom I had heard twenty-five years before discoursing on the same subject at Heidelberg.

Led hence under the lofty gateway which gives access to the great court, I saw, like an earlier traveller, characters inscribed above the gate, and was told by my Virgil that their import was—‘Actions must be judged by their intent, and every man shall be requited according to what he purposed’—a maxim which belongs in one sense to religion, in another to law, but requires, like the corresponding phrase of our civilians—Actus non est reus nisi mens sit rea—to be carefully defined and qualified before it can be applied, seeing how often good intent is followed by bad result.

The great Court of the Mosque is a quadrangle nearly as large as that of Christ Church, Oxford, and was once, like that of Christ Church, surrounded by arcades resting on columns, of which now only a few remain. There are three tanks for ablutions and a great cistern of Nile water beneath, whence vessels are filled by boys who carry it round among the groups. It is the hour of forenoon rest between the morning lecture and the noontide meal, and a confused din of many voices rises from the six or seven hundred persons scattered through the quadrangle, whose ample space they do not crowd. The men, mostly young, are sitting or lying all over the flagged surface, reading or talking or reciting with a book open before them, many swaying backwards and forwards as they chant, all in the blaze of sunlight. Piles of thin, tough cakes, of which more anon, stand here and there. Through the groups walks a sturdy official bearing aloft a formidable symbol of order, two long and heavy flat strips of leather attached to a stout handle, wherewith he coerces any disturber of the peace of the Mosque. Discipline is easily maintained, for the Oriental, unless violently excited, is submissive to authority, and dangerous only in a mob. Moreover the students are mostly poor, and therefore attentive to their studies. The arcade on the south-east side is filled with knots of boys from eight to fourteen years of age sitting round their teachers, each with a metal slate, a brass ink-horn, and a reed pen; some gathered round a teacher armed with a long palm stick. They read aloud from the slate what they have written, thus learning by heart verses of the Koran, copies of which are set up on wicker stands, because the sacred volume must never be lower than the reader’s waist.

Adjoining the great quadrangle is the Liwan, or hall for prayer and preaching. It is really two parallel halls, partially separated by a wall, and divided into nine aisles by rows of columns nearly four hundred in number, the shafts of granite or marble with carved capitals. They were doubtless brought hither from Christian churches long since destroyed1 , churches that may have echoed to the voices of Athanasius and of Cyril. Along the side towards Mecca are four short recesses (Kiblas) resembling the apses of an early Christian basilica, though much smaller, one for each of the four legal orthodox sects of Muslims. Beside the chief Kibla there is placed, high up on the wall, a small wooden box containing relics, among which is one equally fit to be revered by Jews, Christians and Muslims, viz. a piece of Noah’s Ark. The effect of the hall is due rather to its vastness and to the maze of pillars than to any beauty in form or decorations; for the walls are plain, and the low roof makes the interior more sombre than either the famous mosque of Kêrwan or the still more rich and majestic mosque of the Ommiyad Khalifs at Cordova. As I entered this Liwan, the hour of midday prayers had arrived, and the crowd of students rose suddenly and, turning towards the four Kiblas, performed their devotions. This done, the multitude, passing noiselessly, for every foot is unshod, through the maze of columns, sorted itself into classes, each grouped in an incomplete circle round its own professor. Every regular professor has his column, at whose foot he sits, leaning against it; and here he reads or talks loudly enough to be heard over the din by those near him, for the clamour of many voices is lessened by the amplitude of the chamber. The younger or less privileged lecturers mostly gather their hearers outside the Court, though I found a class of youths learning the elements of grammar at the foot of one of the Liwan columns. The lectures were mostly on grammar, which has a religious side, because it includes prosody and the proper pronunciation of the Koran. One eminent professor, who was also Select Preacher for the time being, was discoursing on Ibn Malek’s treatise on Arabic Grammar, holding in his hand the treatise, which is a poem of one thousand verses. All the class had copies, and continued to listen with untroubled gravity while a cat walked across between them and the professor. Another teacher, lecturing on logic, was being interrupted by a running fire of questions from his pupils, which he answered with swift promptitude and terseness.

There are about two hundred and thirty professors, that is to say, persons authorized to teach and engaged in teaching1 . As in the universities of mediaeval Europe, graduation consists in a certificate of competence to teach; and this is given to those who have spent the prescribed time in study by inscribing in the copy of the book which the graduate has been studying a statement by the teacher that he has mastered the contents of that book. When a certificate of wider attainments is sought, the candidate is examined orally by two or three sheiks. As in the Middle Ages, there are no written examinations; and indeed writing is but little used, the aim of teaching being rather to cultivate the memory. The books studied are always the same, so there is no occasion for examination statutes and Notices of Boards of Studies. The freshman begins with what is called Balagha, the use of language, a subject which comprises grammar, logic (with the elements of metaphysics), and rhetoric. Next follows theology, the Nature of God and the functions of the Prophet, after which comes the Law, including both the precepts of religion as applied in practice and those of what we should call civil or secular law, both of them based on the Koran and the Hadith or sacred tradition. Instruction is no longer given in medicine here. When taught, it was taught, as it is still in the University of Fez, from an Arabic translation of Aristotle. The course prescribed for one who aspires to be a Kadi (Judge of the Sheriat or Sacred Law) is fourteen years, but an even longer time would be needed to fit a man to be a Mufti or doctor of the law. Five or six years, I was told, would qualify a student to become a village schoolmaster, able to teach the elements of religion and to advise the peasants on questions of divorce, just as in rural England the schoolmaster used to draw wills, with much ultimate benefit to the legal profession: and the same length of study might enable a man to become Imam (curate in charge) of a small mosque. Study consists, in every branch, chiefly in learning by heart. Even religion is taught through rules for prayer and almsgiving, which must be exactly remembered. But there is also a large field for the development of subtlety of mind in the casuistical distinctions which form a large part of law, both moral and civil. Neither physical science, nor history, nor any language save Arabic is recognized, nor (which is more surprising) do arithmetic and mathematics now find a place1 .

The students come from all parts of the Musulman world, but the large majority from Egypt: and the Muslim legal sect to which most Egyptians belong (the Shafite) is accordingly the most numerous2 , amounting to nearly half the total. They are mostly poor, and live to some extent on the charitable gifts of the citizens, paying nothing for their instruction. But a certain number share in a kind of endowment which deserves notice, because it is the germ of a College—a germ, however, which never grew into a plant.

The word Riwak (accent on the last syllable), properly a colonnade or corridor, is used at El Azhar to denote an apartment or set of apartments, allotted to certain students as sleeping-quarters. There are in the Mosque buildings many Riwaks, and several are set apart for students coming from some particular countries1 . There is one for the Syrians, one for the natives of Mogreb (North-West Africa, from Tripoli to Morocco), one for the Kurds, one for the natives of Mecca and Medina (El Haramein), one for the Sudanese of Sennaar, and so forth. Some are well ventilated and comfortable, such as that endowed by Ratib Pasha for Hanefites: some plain and bare. It is of course only in the three or four colder months that a roof is needed; during the summer nights quarters à la belle étoile are preferable. Practically, I was told, every student who wished could obtain quarters in a Riwak, because only the poor desire to be so accommodated: and a sleeping-place means no more than a bit of floor on which to spread your prayer carpet and place your chest of books and clothes. But the Riwaks (or most of them) also supply rations of bread to those students who apply for them when they have reached a certain stage of proficiency, that is, have mastered two or three books and obtained a certificate to that effect. These rations consist of wheaten cakes, thin and tough, and are supplied out of endowments which have from time to time been bestowed on the Mosque or on particular Riwaks by pious founders. These wheaten cakes are in fact the very rudest form of what is called in Scotland a Bursary, and in England an Exhibition or Scholarship; and the assignment of a Riwak as lodgings to students from a particular district may be compared with the earliest provision of a dwelling and a pittance for students in England, the acorn out of which there has grown the superb system of the Colleges of Oxford and Cambridge, many of them originally connected with particular counties.

The Mosque, that is to say the University, as distinguished from the particular Riwaks, had at one time considerable endowments, called in Arabic Wakfs (pronounced Wakufs); but a large part of these endowments were seized by Muhamad Ali early in the nineteenth century (about 1820). In respect of them a considerable sum is now paid from the public treasury, and a further income is derived from the Wakfs which not having been seized, are now administered by the Government department in charge of charitable foundations. The present income of such foundations as remain is trifling, and the slender incomes of the senior professors are supplemented by small payments from Government and by gifts from pious persons. The richer students are also expected to offer gifts, and sometimes a charitable citizen will send a sheep to give the poor students a better dinner on a feast-day1 .

Before leaving the University I was presented to its head, the Sheik El Azhar, whom I found sitting to hear and determine divers matters, his lectures having been disposed of in the forenoon. He was too great a man to rise to receive me, nor is it easy to rise when one sits cross-legged; but he placed his hand upon his heart with a dignified courtesy and invited me to seat myself beside him. His disciples were kneeling round him. He was more like an old Lord Chancellor than an old archbishop, with an air rather of complacent judicial shrewdness than of apostolic unction. When it had been explained to him that I was a lawyer and that law was taught in the Universities of England, he remarked that religion consists in conduct and behaviour, whereto I replied that the Roman jurists stated another side of the same truth when they said, ‘Iuris praecepta haec sunt, honeste vivere, alterum non laedere, suum cuique tribuere.’

It was impossible to spend a day in El Azhar without being struck by its similarity to the Universities of Europe as they existed in the thirteenth and fourteenth centuries.

In both an extreme simplicity of appliances. Nothing more than a few buildings capable of giving shelter has been needed here or was needed there: for a University is after all only a mass of persons possessing or desiring learning, a concourse of men, some willing to teach and others eager to be taught.

In both a like simplicity of educational arrangements. Every graduate is, or may be if he likes, a teacher, and graduation is nothing more than a certificate of knowledge qualifying a man to teach.

In both, comparatively slender funds, which however increase slowly by the gifts of private benefactors. The whole establishment of El Azhar costs about £14,000 sterling a year, rather more than half of which goes in salaries to the professors, while about £1,600 goes in prizes and charitable aid to the students. Eight thousand (roughly speaking) are taught there at a cost of £1 15s. per student. The University of Oxford and its colleges (taken together) with about three thousand undergraduate students have an annual revenue of about £333,0001 ; Harvard University in Massachusetts with nearly four thousand students has £235,000 (of which tuition fees contribute £114,000).

In both, the greatest freedom for the student. He may study as much or as little as he pleases, may select what professor he pleases, may live where he pleases, may stay as long as he pleases, and may be examined or not as he pleases.

In both, a narrow circle of subjects and practically no choice of curriculum. El Azhar teaches even fewer branches than did Oxford or Bologna in the thirteenth century, for in Musulman countries the Koran has swallowed up other topics more than theology, queen of the sciences, and the study of the Civil and Canon Laws did in Europe. But a vast range of matters which are to-day taught in German, in American, and even in English Universities lie outside both the Trivium and Quadrivium and the professional faculties as they stood in the Middle Ages.

In both, little separation between teachers and pupils, and a mixture of students of all ages, from boys of twelve to men of fifty. In Oxford there is a tradition that marbles used to be played by students on the steps of the Schools. Why not, when one sees boys of twelve learning to read the Koran at El Azhar? Oxford may well have been then, like this mosque now, a school for persons of all ages.

In both, a body of men liable to turbulence, and easily roused by political passion. A multitude living together without family ties or regular industrial occupation is prone to fanaticism; and the students of El Azhar, like the Softas at Constantinople, like the monks of Alexandria in the days of Cyril and Hypatia, have sometimes raised tumults; though these would be repressed more savagely here, should they displease the ruling powers, than were those for which Paris and Oxford were famous in days when their scholars were fired by religious or political excitement, and when the movements of public opinion and the tendencies we now call democratic found through the eager crowd of university youth their most free and prompt expression.

Finally, in both, a kind of teaching and study which tends to the development of two aptitudes to the neglect of all others, viz. memory and dialectic ingenuity. The first business of the student is to know his text-book, if necessary to know every word of it, together with the different interpretations every obscure text may bear. His next is to be prepared to sustain by quick keen argument and subtle distinction either side of any controverted question which may be proposed for discussion. As the habit of knowing text-books thoroughly—and the knowledge of Aristotle and the Corpus Juris possessed by mediaeval logicians and lawyers was wonderfully exact and minute—made men deferential to authority and tradition, so the constant practice in oral dialectical discussion made men quick, keen, fertile, and adroit in argument. The combination of brilliant acuteness in handling points not yet settled, with unquestioning acceptance of principles and maxims determined by authority, is characteristic of Muhamadan Universities even more than it was of European ones in the Middle Ages, and tended in both to turn men away from the examination of premises and to cast the blight of barrenness upon the extraordinary inventiveness and acuteness which the habit of casuistical discussion develops. And the parallel would probably have been closer could it have been drawn between the Musulman Schools, not as they are now, but as they were during the great age in Bagdad in Spain and in Egypt, and the schools of Western Europe in the days of Abelard or Duns Scotus. For El Azhar to-day impresses one as a University where both thought and teaching are in a state of decline, where men gnaw the dry bones of dogmas and rules which have come down from a more creative time.

To what causes shall we ascribe the striking contrast between the later history of schools which at one time presented so many similar features? Why has Musulman learning stood still in the stage it reached many centuries ago, while Christian learning, developing and transforming itself, has continually advanced? Why has El Azhar actually gone back? Why does it accomplish nothing to-day for the deepening, or widening, or elevating of Musulman thought?

Of racial differences I say nothing, because to discuss these would carry us too far away from our main subject. Their importance is apt to be overrated, and they are often called in to save the trouble of a more careful analysis, being indeed themselves largely due to historical causes, though causes too far back in the past to be capable of full investigation. Here it is the less necessary to discuss them, because many races have gone to make up the Musulman world, and some of these had attained great intellectual distinction before Islam appeared. Nor will I dwell on the tremendous catastrophe which overwhelmed the Musulman peoples of Western Asia in the twelfth, thirteenth, and fourteenth centuries, when many flourishing seats of arts and letters were overwhelmed by a flood of barbarian invaders, first the Seljukian Turks, then the Mongols of Zinghis Khan, then the Ottoman Turks whose rule has lain like a blight upon Asia Minor, Syria, and Irak for the last fourteen generations of men. Before the Seljuks and the Mongols came, philosophy and learning, science and art, had in some favoured spots reached a development surpassing that of contemporary Christian states, a development which in the schools of Irak and of Persia had wandered far from orthodox Musulman traditions, but which certainly showed that Islam is not incompatible with intellectual development. That culture, however, which had adorned the days of the earlier Khalifs, decayed even in Spain and in Barbary, where it was not destroyed by a savage enemy. It was not strong enough to recover itself in Syria, Asia Minor, or Egypt, and could neither elevate and refine the Turk nor send up fresh shoots from the root of the tree he had cut down. Even in Persia, though Persia remained a national kingdom, preserving its highly cultivated language and its love of poetry, creative power withered away. While therefore giving full credit to the Arabs, Syrians, and Persians of the earlier Musulman centuries for their achievements, we are still confronted by the fact that the soil which produced that one harvest has never been able to produce another. Scarcely any Musulman writer has for five hundred years made any contribution to the intellectual wealth of the world. Even the Musulman art we admire at Agra and Delhi, at Bijapur and Ahmedabad, was largely the work of European craftsmen. The majestic mosques of Constantinople are imitations of Byzantine buildings. Thus we are forced back upon the question why the Universities of Islam, with all that they represent, have languished and become infertile.

Among the causes to be assigned we may place first of all the greater intellectual freedom which Christianity, even in its darkest days, permitted. The Koran, being taken as an unchangeable and unerring rule of life and thought in all departments, has enslaved men’s minds. Even the divergence of different lines of tradition and the varieties of interpretation of its text or of the Traditions, has given no such opening for a stimulative diversity of comment and speculation as the Christian standards, both the Scriptures themselves, the product of different ages and minds, and the writings of the Fathers, secured for Christian theology.

In the second place, the philosophy, theology, and law of Islam have been less affected by external influences than were those of Christian Europe. Greek literature, though a few treatises were translated and studied by some great thinkers, told with no such power upon the general movement of Musulman thought as it did in Europe, and notably in the fifteenth and sixteenth centuries; and Greek influence among Muslims, instead of growing, seems to have passed away.

Thirdly, there has been in the Musulman world an absence of the fertilizing contact and invigorating conflict of different nationalities with their diverse gifts and tendencies. Islam is a tremendous denationalizing force, and has done much to reduce the Eastern world to a monotonous uniformity. The Turks seem to be a race intellectually sterile, and like the peoples of North Africa in earlier days, they did not, when they accepted the religion of Arabia, give to its culture any such new form or breathe into it any such new spirit as did the Teutonic races when they embraced the religion and assimilated the literature of the Roman world. Only the Persians developed in Sufism a really distinct and interesting type of thought and produced a poetry with a character of its own; and the Persians, being Shiites, have been cut off from the main stream of Musulman development, and have themselves for some centuries past presented the symptoms of a decaying race.

Lastly, the identification of Theology and Law has had a baleful influence on the development of both branches of study. Law has become petrified and casuistical. Religion has become definite, positive, frigid, ceremonial. Theology, in swallowing up law, has itself absorbed the qualities of law. Each has infected the other. In El Azhar theology is taught as if it were law, a narrow sort of law, all authority and no principle. Law is taught as if it was theology, an infallible, unerring, and therefore unprogressive theology. Religious precepts are delivered in El Azhar as matters of external behaviour and ceremony. Some of the duties enjoined, such as prayer, are wholesome in themselves; some, such as almsgiving, are laudable in intention, but beneficial in result only when carried out with intelligence and discrimination; some, such as pilgrimage to Mecca, are purely arbitrary. All, however, are dealt with from the outside: all become mechanical, and the precise regulations for performing them quench the spirit which ought to vivify them. The intellect being thus cramped and the soul thus drilled, theology is dwarfed, and its proper development arrested. It is not suffered to create, or to help in the creation of, philosophy: and accordingly in El Azhar, philosophy, in that largest sense in which it is the mother of the sciences, because embodying the method and spirit whence each draws its nutriment, finds no place at all.

We are thus brought back to that general question of the relations of religion and law in the Musulman world from which, in the interest naturally roused by the sight of a University recalling the earlier history of Oxford and Cambridge, I have been led to turn aside.

The identification of religion and law rests upon two principles. One is the recognition by Islam of the Koran as a law divinely revealed, covering the whole sphere of man’s thought and action. Being divine it is unerring and unchangeable.

The other is the promulgation of this revelation through a monarch both temporal and spiritual, Muhamad, the Prophet of God.

Since the revealed law is unerring, it cannot be questioned, or improved, or in any wise varied. Hence it becomes to those who live under it what a coat of mail would be to a growing youth. It checks all freedom of development and ultimately arrests growth, the growth both of law and of religion.

Since the revelation comes through a prophet who is also a ruler of men, a king and judge, as well as an inspired guide to salvation, it is conveyed in the form of commands. It is a body of positive rules, covering the whole of the Muslim’s conduct towards God and towards his fellow men.

Three results follow of necessity.

Religion tends to become a body of stereotyped observances, of duties which are prescribed in their details, and which may be discharged in an almost mechanical way. The Faith is to be held, but held as a set of propositions, which need not be accompanied by any emotion except the sense of absolute submission to the Almighty. Faith, therefore, has not the same sense as it has in the New Testament. It is by works, not by faith (save in so far as faith means the acceptance of the truths of God’s existence and of the prophetic mission of Muhamad) that a Muslim is saved. There is little room for the opposition of the letter and the spirit, of the law and grace, for religion has been legalized and literalized. Nevertheless there is in many Muslims a vein of earnest piety, and a piety which really affects conduct. Those Westerners who have praised Islam have often admired it for the wrong things. They admire the fierce militant spirit, and the haughty sense of superiority it fosters. They undervalue the stringency with which it enforces certain moral duties, and the genuine, if somewhat narrow piety which it forms in the better characters.

Law becomes a set of dry definite rules instead of a living organism. It is a mass of enactments dictated by God or His mouthpiece, instead of a group of principles, each of which possesses the power of growth and variation. The two motive powers, whether one calls them springs of progress or standards of excellence, which guided the development and made the greatness of Roman Law, the idea of the Law of Nature and the idea of Utility, as an index to the law of nature, are absent. There is no room for them where the divine revelation has once for all been delivered. Reason gets no fair chance, because Authority towers over her. Forbidden to examine the immutable rules, she is reduced to weave a web of casuistry round their application. It is only through the interpretation of the sacred text and of the traditions that the Law can be amended or adapted to the needs of a changing world: and one reason why the Musulman world changes so little is to be found in the unchangeability of its Sacred Law. The difficulties which European Powers have found in their efforts—efforts which to be sure have been neither zealous nor persistent—to obtain reforms in the Ottoman Empire, are largely due to the fact that the Sacred Law has a higher claim on Muslim obedience than any civil enactment proceeding from the secular monarch.

Such a system will obviously give little scope for the development of a legal profession. Advocacy is unknown in Musulman countries. The parties conduct their respective cases before the Kadi1 . They may produce to him opinions signed by doctors of the law in favour of their respective contentions, but the only notion the Musulman (i.e. the non-Occidentalized Musulman) can form of an advocate in our sense of the word is a paid, and presumably false, witness.

The community suffers politically. The duty of unquestioning obedience, and the habit of blind submission to authority, dominate and pervade the Musulman mind so completely that its only idea of government is despotism. Nothing approaching to a free ruling assembly, either primary or representative, has sprung up in a Musulman country; and it would need almost an intellectual revolution to make such a system acceptable or workable there2 .

Finally, it is a consequence of the system described that there is an absolute identity of State and Church. The Church is the State, but it is a highly secular State, wanting many of the attributes we associate with the Church. It commands as a matter of course the physical force of the State, and needs no special anathemas of its own. Its priests, so far as it can be said to have priests, are lawyers, and its lawyers are priests, and its students graduate from the University into what is one and the same profession. As the Church is pre-eminently a militant Church, born and nursed in war, its head, the Khalif, is also of right supreme temporal sovereign. The Pope is Emperor, and the Emperor is Pope. They are not two offices which one man may fill, as the Emperor Maximilian wished to be chosen Pope. They are one office. And accordingly when any spiritual pretender arises, claiming to be a prophet of God, he becomes forthwith, ex necessitate terminorum, a temporal ruler, like the Mahdi of the Sudan at the present moment (1888). The only exception to this absolute identification of Church and State (which is of course a fact making most powerfully for despotism) is to be found in the incompetency of the Khalif to pronounce upon the interpretation of the sacred law. This attribute of the Pope is lacking. The spiritual head of the Musulman world, for this purpose, and therewith also its legal head, is a lawyer, the Sheik-ul-Islam, to whom it belongs to deliver authoritative interpretations of questions arising on the law, i.e. on the Koran and the Traditions. Such an opinion is called a Fetwa. Against it even a Khalif cannot act without forfeiting his right to the obedience of his subjects, so when any Sovereign claiming to be Khalif wishes to do something of questionable legality, he takes care to procure beforehand from the Sheik-ul-Islam a fetwa covering the case. Being in the Khalif’s power, the Sheik rarely hesitates, yet he is in a measure amenable to the opinion of his own profession, and might be reluctant to venture too far. So too the Khalif, though he might depose a recalcitrant Sheik (were such a one ever to be found), and replace him by a more pliant instrument, must also have regard to public sentiment, a power always formidable in the sphere of religion, and the more formidable the more the mind of a people is removed from the influence of habits properly political, and is left to be coloured by religious feeling.

Islam these owes features of its religion, its law and its politics to its source in a divine revelation complete, final, and peremptory. But it is not the only religion that has a like source. The Musulmans class three religious communities as Peoples of the Book. The other two are the Jews and the Christians. Of the Jews I have spoken already. Their system, as it stood at the time of our Lord’s appearing, resembled in many points that which Islam subsequently created, though there was never in it any complete identification of the spiritual and the secular power, because it had a regular hereditary priesthood, which, though for a time acting as leader and ruler, had no permanent coercive secular authority. The Jewish system had, moreover, in the words of the Prophets and in the Psalms influences complementary to the Mosaic law and the Traditions, and corrective of any evils which might spring from undue respect for the latter. Moreover, the historical development of that system was checked by external conquering forces, which ultimately deprived it of the chance of becoming a temporal power.

What, however, shall we say of Christianity? Why has the course of its history been so unlike that of Islam? Why has its origin in a divine revelation not impressed upon it features like those we have been considering? I must be content to indicate, without stopping to describe, a few, and only a few, of the more salient causes.

The Christian revelation as contained in the Old and New Testaments is not, except as regards sections of the Mosaic law, a series of commands. It is partly a record of events, partly a body of poems, partly a series of addresses, discourses, and reflections, speculative, hortatory, or minatory, and mostly cast in a poetic form, and partly a collection of precepts. These precepts are all, or nearly all, primarily moral precepts, which are addressed to the heart and conscience, and they proceed from teachers who had no compulsive power, so that such authority as the precepts possess is due only to their intrinsic worth, or to the belief that they express the Divine will. Especially in the case of the New Testament (though the same thing is essentially true of the Prophets) the precepts are directed not so much to the enjoining of specific right acts fit to be done as to the creation of a spirit and temper out of which right acts will naturally flow. Had the Pentateuchal law been taken over bodily into Christianity, things might have been different, though the other elements of the revelation would have kept its influence in check. But fortunately among the forces that were at work in the primitive Church, there were some strongly anti-Judaic, so any evil that might have been feared from that quarter was averted.

It is impossible to make a code out of the New Testament. The largest collection of positive precepts, delivered with the most commanding authority, is that contained in the fifth, sixth, and seventh chapters of St. Matthew’s Gospel. But these are so far from being laws in the ordinary sense of the word that no body of Christians has ever yet come near to obeying them. Indeed hardly any body of Christians has ever seriously tried to do so. They are obviously addressed to the heart and intended not so much to prescribe acts as to implant principles of action.

Similarly the Epistles are either moral exhortations and expositions of duty or else metaphysical discussions. Neither out of them can any code be framed which a lawgiver could attempt to enforce. Even on the external observances of religion and constitution of the Church, so little is said, and said in such general terms, that Christians have been occupied during the last four centuries in debating what it was that the authors of the Epistles meant to enjoin.

After the canonical Scriptures come the Fathers of the Church, whose writings were at one time universally, and by a large part of Christendom still are, deemed to enjoy a high measure of authority. They may be compared to those early Musulman writers from whom the traditions of Islam descend, or to the early recorders of and commentators on those traditions. The Fathers, however, did not generally affect to lay down positive rules, but were occupied with exhortation and discussion. Neither out of their treatises could a body of law be framed, nor did any one think of doing this till long after their day. Even then it was as guides in doctrine and discipline, not as the source of legal rules, that they were usually cited.

Christianity began its work not only apart from all the organs of secular power, but in the hope of creating—indeed for a time, in the confidence that it would create—a new society wherein brotherly love should replace law.

Before long it incurred, as a secret society, the suspicion and hatred of the secular power, and had indeed so much to suffer that one might have expected its professors to conceive a lasting distrust of that power in its dealings with religion. This, however, did not happen. So soon as the secular monarch placed his authority at the disposal of the Church, by this time organized as a well-knit hierarchy, the Church welcomed the alliance, and began ere long to invoke the help of carnal weapons. This was the time when she might in her growing strength have been tempted to impose her precepts upon the community in the form of binding rules. But the field was already occupied. She was confronted and overawed by the majestic fabric of the Roman law. In the East that law continued to be upheld and applied by the civil authorities. In the West it suffered severe shocks from the immigration of the barbarian tribes; but as it was associated with Christian society, the Church clung to it, and was in no condition for some centuries to try to emulate or supersede it. When the time of her dominance came in the eleventh, twelfth, and thirteenth centuries, she did indeed build up a parallel jurisdiction of her own, with courts into which laymen as well as clerks were summoned, and she created for these courts that mass of decrees, almost rivalling the Civil Law in bulk and complexity, which we call the Canon Law. In the canon law there may seem to be an analogue to the sacred law of Islam. But the resemblances are fewer than the differences. The canon law never had any chance of ousting the civil law, which had already entered on a period of brilliant development and potent influence at the time when the decrees of earlier Councils and Popes were beginning to be formed into a systematic digest of rules; and temporal rulers were generally able to hold their own against Popes and archbishops. Moreover the canon law, being partly based on or modelled after the Roman civil law, escaped some of the faults that might have crept into it had it been erected on a purely theological foundation. The Church was already so secularized that its law was largely secular in spirit, and ecclesiastical jurists were at least as much jurists as they were churchmen. The question propounded in the twelfth century, whether an archdeacon could obtain salvation, shows that the churchman who betook himself to legal business was deemed to be quitting the sphere of piety. Thus law, canon as well as civil law, remained law, and religion remained religion. The canon law is the law of the Church as an organized and property-holding society or group of societies. It is the law for dealing with spiritual offences. It is the law which regulates certain civil relations which the Church claims to deal with because they have a religious side. But there is no general absorption of the civil by the ecclesiastical, no general lowering of the spiritual to the level of the positive, the external, and the ceremonial. In the fifteenth and sixteenth centuries the New Learning and the great ecclesiastical schism removed the danger, if danger there ever was, that there should descend upon Christianity that glacial period which has so long held Islam in its gripe.

[1 ]Il. iii. 276-280. The appeal in this case is to Zeus, to the Sun, to the Rivers and to the Earth.

[1 ]Thus we are told by an early Irish annalist that ‘the sun and the wind killed Laoghaire (king of Ireland in the time of St. Patrick) because he broke his oath to the men of Munster.’

[1 ]But in Norway the Assembly is usually held at a temple, as in Iceland the Goði is both a priest and a chief, and the temple is the place where judicial oaths are taken. See Essay V.

[1 ]The γραμματει̑ς (scribes), νομικοί (lawyers), and νομοδιδάσκαλοι (doctors of the law) of the New Testament seem to be different names for the same class, and identical with the ἱερογραμματει̑ς of Josephus.

[1 ]Stambul (Constantinople) is larger, but Stambul has always had a large Christian element, whereas Cairo was till about thirty years ago almost wholly Muhamadan. Moreover Cairo was better situated for drawing students from North Africa and Western Asia than Stambul, which is almost on the outermost edge of the Musulman world.

[1 ]The columns of the ancient and most sacred mosque at Kairoan or Kêrwan (in the territory of Tunis), built by Sidi Okba, the conqueror of North Africa, were brought from Christian churches, and many from the great basilica of Carthage, the floor of which has been recently uncovered.

[1 ]In the session of 1898-9 there were 198 professors and 7,676 students attached to the Mosque itself (without counting its dependent Kuttabs).

[1 ]In 1896 (eight years after my visit) instruction began to be provided in geometry, algebra, arithmetic and geography, but it is given by secular teachers appointed by the Egyptian Government, not by the regular staff of the Mosque.

[2 ]In 1898-9 the numbers of the four sects were as follows:

Shafites—Professors, 86; Students, 3,495.

Hanefites—Professors, 41; Students, 2,168.

Malekites—Professors, 68; Students, 1,983.

Hanbalites—Professors, 3; Students, 30.

[1 ]Place of birth constituted an important basis of classification in mediaeval Universities. In Oxford, as in Paris, the students were divided into the Northern and Southern nations (whence the two Proctors), and in each of the Universities of Glasgow and Aberdeen there are still four Nations, a system of organization preserved for the purposes of the election of a Lord Rector. Nations exist also in the University of Upsala.

[1 ]In 1898-9 the total sum paid to El Azhar out of the public treasury was LE (Egyptian pounds) 6,611, and out of the administration of the Wakfs LE5,224, besides a sum of LE1,512 derived from the endowments of the several Riwaks. The best endowed Riwaks are those of the Turks (516) and of the Mogrebins (364). I owe these figures to the kindness of my friend Yacoub Artin Pasha, the energetic and enlightened head of the educational administration of Egypt. The Egyptian pound is about twenty shillings and fourpence.

[1 ]Of this sum (which has been arrived at after deducting outgoings on estates, so that as respects this kind of property it represents net revenue) £55,000 is the revenue of the University and £278,000 the revenue of all the Colleges, including fees and room rents.

[1 ]Whether this system tends to facilitate the bribing of judges, almost universal in countries ruled by a Musulman monarch, quaere.

[2 ]I do not mean to suggest that races like those of Arabia, Syria, and Persia, may not under the contact and stimulus of European literature and thought again develop an intellectual life of their own. But it can hardly be a life on the orthodox lines of Islam. The first thing to be hoped for is that Syria and Asia Minor may get rid of the Turk, who has never shown himself fit for anything but fighting.