The history of this Latin-written law belongs after 160 to the Arabian East, and it says a great deal that it can be traced in exactly parallel courses into the history of Jewish, Christian, and Persian literature.[1] The "Classical" jurists (160-220), Papinian, Ulpian, and Paul, were Aramæans, and Ulpian described himself with pride as a Phœnician from Tyre. They came, therefore, from the same population as the Tannaim who perfected the Mishnah shortly after 200, and most of the Christian Apologists (Tertullian 160-223). Contemporary with them is the fixation of canon and text for the New Testament by Christian, for the Hebrew Old Testament by Jewish,[2] and for the Avesta by Persian, scholars. It is the high Scholasticism of the Arabian Springtime. The digests and commentaries of these jurists stand towards the petrified legal store of the Classical in exactly the same relation as the Mishnah to the Torah of Moses (and as, much later, the Hadith to the Koran) — they are "Halakhoth"[3] — a new customary law grasped in the forms of an authoritative and traditional law-material. The casuistic method is everywhere the same. The Babylonian Jews possessed a well-developed civil law which was taught in the academies of Sura and Pumbeditha. Everywhere a class of law-men formed itself — the prudentes of the Christians, the rabbis of the Jews, later the ulemas (in Perian, mollahs) of the Islamic nation — who enunciated opinions, responsa (Arabic, Fetwa). If the Ulema was acknowledged by the State, he was called "Mufti" (Byzantine, ex auctoritate principis). Everywhere the forms are exactly the same.
About 200 the Apologists pass into the Fathers proper, the Tannaim into the Amoraim, the great casuists of juridical Jaw (jus) into the exegetes and codifiers of constitutional law (lex). The constitutions of the Emperors, from 200 the sole source of new "Roman" law, are again a new "Halakhah" laid down over that in the jurists' writings, and therefore correspond exactly to the Gemara, which rapidly evolved as an outlier of the Mishnah. The new tendencies reached fulfilment simultaneously in the Corpus Juris and the Talmud.
The opposition between jus and lex in Arabian-Latin usage comes to expression very clearly in the work of Justinian. Institutes and Digests are jus; they have essentially the significance of canonical texts. Constitutions and Novels are leges, new law in the form of elucidations. The canonical books of the New Testament and the traditions of the Fathers are related to one another in the same way.
As to the Oriental character of the thousands of constitutions, no one now has any doubts. It is pure customary law of the Arabian world that the living
