SYSTEMS OF LAW 35

histories of civilizations of a new generation that eventually arose out of
the ruins of the universal state in which the resuscitated law had formerly
been current; but this broad general resemblance between the respective
posthumous fortunes of the Justinianean Corpus luris and the Islamic
Shan'ah is diversified by differences of detail due to differences between
the Roman Empire and the Arab Caliphate in the several points of their
antecedents, their origins, their structures, and their relations to the
higher religions that propagated themselves within these universal
states' frontiers.

The difference between the Roman Empire and the Arab Caliphate
that had the greatest effect in giving different turns to the posthumous
histories of the Roman Civil Law and the Short*ah was that the Arab
conquerors who built the Caliphate and gave this oecumenical empire
an oecumenical law were likewise the missionaries of Islam, so that, in
the Caliphate, Religion, Law, and Government were all in the same
hands from the outset, in sharp contrast to the history of the relations
between these three activities in the Roman Empire, where an oecumen-
ical government and an oecumenical law, created by pagan hands, had
set hard in their pagan mould before the Roman imperial regime found
itself constrained to come to terms with an exotic Christian Church
against which this pagan Hellenic universal state had been fighting a
losing battle for a quarter of a millennium ending in the generation of
Constantino.

The common purpose of providing the legal currency for a universal
state was, it is true, reflected in certain similarities in the respective
processes of evolution through which these two oecumenical systems of
law arrived at their final forms. The Slutri'ah in the Age of the Caliphate,
like the Roman Law in the Imperial Age, owed its development largely
to jurists recruited, not from the ruling people itself, but from these
empire-builders* subjects; and in both episodes of legal history the im-
perial jurists who had thus made their way up from below drew freely
upon their indigenous social heritage in carrying out their arduous task
of transfiguring the archaic and fragmentary traditional law of conquerors,
who had been marchmen in the Roman case and transfrontier barbarians
in the Arab case, by smoothing away its rugged edges and filling in its
lacunae until they had succeeded in making out of this unpromismgly
incongruous material a legal system more or less capable of serving the
complicated and sophisticated needs of the society on which the empire-
builders had imposed their own law by right of conquest,1 Owing, how-
ever, to the difference in the respective historical relations of Christi-
anity and Iskm to the founders of the oecumenical states that were their
original political frameworks, the outcome of two otherwise more or less
similar episodes of legal history was in the one case a still essentially
pagan Corpus Ivris Romam Imtinianeum and in the other case a Short*ah
m which the ingenuity of non-Arab jurists had not only eked out a most
inadequate Arab customary law by surreptitiously introducing elements
of Oriental Roman Law and other legal systems previously current

* The evolution of the Roman Law haa been sketched in VI. vii. 362-3 *nd 265-8;
the evolution of the Sharl'ah hat been sketched ibid,, 288-91.