The Rise of Islam

The most transformative event in Byzantine history - the rise of Islam and the Arab-Islamic expansion which deprived the empire of its wealthy eastern prov­inces (Egypt, Palestine, Syria) and threatened its very existence - postdated Justinian’s codification of Roman law only by a century.

Changes to Byzantine law were more subtle. Secular legislation appears to have been less utilised: in the some three hundred years between Justinian’s reign and the end of the ninth century rarely has legislation survived beyond one or two laws for most emperors. The most important influx of new rules and regulations occurred within canon law at the Council in Trullo in 692. It has been convincingly argued that the emperor who called the council, Justin­ian II (r. 685-695, 705-711), seems to have viewed canon law as a more effective means of effecting imperial propaganda than imperial legislation.^[379] Whatever the merits of this insight, the failure of Justinian’s campaign against the Umayy­ads in the aftermath of the council and the turbulence of his reign more gener­ally seem to have dissuaded later emperors from following his example.

The Trullan canons, which in general show a stark tendency towards cir­cumscribing and purifying the Orthodox community, do touch upon the rela­tionship between Orthodox and non-Orthodox: canon 72 forbade marriage between Orthodox and heretical Christians.^{[380] [381] In addition, the advance of cali­phate had also left its mark on the council participants: canon 39 decreed that John, the bishop of Cyprus, who together with his fellow refugees had settled in an Cypriot exclave in the new city of Nea Justinianopolis on the Hellespont, would retain his episcopal rights over his home see as well as acquiring juris­diction in his new seat.11}

The first major secular lawbook issued in the period after the Arab-Islamic conquests, the Ecloga (�Selection [of the Laws]’), a compilation of private law promulgated by Leo Ill (r. 717-741) and Constantine v (r. 741-775), did not sig­nificantly change the provisions of Justinianic law. It touched upon matters of private law such as inheritance (Title 6), betrothal (Titles 1 and 3), and mar­riage (Title 2), yet it also contained an extensive penal law section (Title 17, the so-called poinalios), which introduced standard penalties for certain crimes, including the increasingly frequent punishment of mutilation. Non-Orthodox are not discussed in the work, and indeed the Ecloga is very much aimed at regulating the internal affairs of a thoroughly Christian Orthodox Empire. Though its legal innovations (for instance with regard to marriage or penal law) have often been much exaggerated by scholars - in essence the Ecloga merely standardised or restated Justinianic law - the language of the lawbook represented a profound break with the Roman past.^{[382] [383] [384] The Ecloga speaks not of Romans but of �Christians', itself a dramatic transformation of the shift in worldview which had occurred over the previous century.}

Though the Ecloga itself can tell us nothing about how non-Orthodox were viewed in Byzantine law, this is not the case with an appendix to the lawbook composed sometime after the promulgation of the Ecloga in 741.

By the time of the Ecloga’s promulgation in the middle of the eighth centu­ry, there would have certainly been sufficient awareness of Islam at the Byzan­tine court to have merited its discussion in new anti-heretical legislation. Yet it seems probable even at this early stage that the adherents of Islam were classi­fied as pagans rather than followers of a deviant Christian sect. John of Damas­cus, the most influential Orthodox theologian to discuss Islam, seems to have classified Muslims, despite some modern views to the contrary, as heathens?⁴

One might have expected changes to anti-heretical legislation, with refer­ence to Islam as well, during a thorough reworking of the Justinianic legal cor­pus undertaken at the end of the ninth century. There was now, moreover, sig­nificantly more knowledge of the tenets of Islam in Byzantium, as demonstrated by the writings of Niketas of Byzantium. Niketas, a prominent intellectual of the great cultural flowering traditionally called the �Macedonian Renaissance', wrote a detailed refutation of Islam on the basis of a (now lost) Greek transla­tion of the Quran - the earliest rendering of this sacred writ from the original Arabic.^[385] Niketas' approach to his subject was highly philosophical, even Aris­totelian.^{[386] [387] [388] Unsurprisingly, a much more profound knowledge of the Muslim creed than that previously demonstrated by John of Damascus is found in this tract.}

Legal provisions dealing with Muslims would also by the end of the ninth century no longer have been theoretical. There were Muslim diplomats, mer­chants, and above all prisoners of war on Byzantine territory in this period. The Arabic geographer Ibn Hawqal (d. ca. 978) in his Surat al-Ard specifies that Muslim prisoners were held in the provinces (themes) of Boukellarion, Op- sikion and Thrakesion, in addition to the Noumera prison in the capital?⁷ In­deed, by far the most important Muslim presence in the empire was to be found in Constantinople?⁸ The patriarch Nicholas Mystikos in a letter to the caliph al-Muqtadir, likely composed inJuly of 922, mentioned that Muslim prisoners even possessed an oratory for their liturgical needs.^[389] The exact date when a Constantinopolitan mosque was built is not known - the tendentious claim found in the tenth-century De administrando imperio that Leo iii had allowed its construction is not credible - but it was certainly in operation by the start of the tenth century and perhaps long before that.^{[390] [391] [392] A somewhat speculative claim on the basis of a surviving inscription that a mosque also likely existed in tenth-century Athens alerts us to the possibility that there may have existed mosques elsewhere in the empire, but the Constantinopolitan mosque is the only one that is firmly attested in the Middle Byzantine period (ca. 800-1200).21}

It is with these considerations in mind that we now turn to examine how Muslims were treated within the great flowering of Byzantine secular law at the end of the ninth century, during the â€?Cleansing of the Ancient Laws'.22 Un­der Basil I (r. 867-886) and his son and successor Leo vι (r. 886-912) Justinianic law was Hellenized (translated from Latin into Greek) and reissued both in concise handbooks (the Prochiron, the Eisagoge, the Epitome legum) as well as a massive Byzantine version of the Corpus iuris civilis, the so-called Basilika (â€?Imperial’ [lawbooks]).

Newer legal restrictions on Jews and non-Orthodox Christian Christians were not introduced and, despite the considerable role of Islam in the Byzan­tine world by the end of the ninth century, not a word is to be found in any of these texts about Muslims or their legal status. Since the Basilika in particular eventually became the preferred standard comprehensive Roman lawbook, in effect this meant that no mention of Islam ever made its way into secular Byz­antine law. For an empire that would be buffeted and eventually conquered by followers of the Prophet Mohammed, this might seem to our eyes like delicious irony. Why did Byzantine emperors and jurists refuse to adapt sixth­century definitions to ninth-century realities?

The answer to this question has little to do with legal pragmatism and in­stead everything to do with the topic of this edited volume: law and empire. Already in Justinian’s day, but even more so by the time of the �Cleansing of the Ancient Laws’, Roman law had become not just the legal framework for this Eastern Mediterranean empire, but also a cornerstone of Byzantine identity. The obvious obsolescence of many laws that were included in the Basilika - references to offices no longer in existence or to provinces no longer under imperial rule - were proudly retained because their inclusion proved that the Byzantines had preserved the Roman legal legacy, warts and all. While the neighbouring Abbasids might lay claim to the philosophical and scientific in­heritance of Antiquity, and the Carolingians might even dare to call themselves emperors, Byzantium’s championing of the Roman political legacy and its in­stitutions was undergirded by its strict adherence to Roman law. The program of the �Cleansing of the Ancient Laws’ was a political measure intended to strengthen this claim. As such, strictly following the letter of Late Roman law was more important than adapting now outdated rules to changed economic and social conditions shortly before the turn of the millennium.

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