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 victim’s 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 woman’s life is equal to that of a man’s leg. Non-Muslims are often worth even less than this.
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