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Tuesday 2 December 2008

Ancient and Modern

Lessons from the ancients

Whether Muslims want elements of sharia law to have the force of civil law or not (not, it is argued in last week’s Spectator), the principle of different jurisdictional codes existing side by side has been with us for thousands of years.

The general principle of private settlement of disputes, on any terms agreeable to all parties, is very ancient. Athenians insisted that an attempt was made at a private settlement before almost any case could be allowed to come to court. In Rome, where the praetors acted rather like chief justices, the praetor peregrinus (apparently) controlled proceedings involving foreigners. If that is so, it suggests that alien cultures somehow needed different treatment.

When Romans took over a province, they were perfectly happy to let local custom prevail over wide areas, but the provincial governor could impose Roman law where he so chose. When Cicero was governor of Cilicia (south-eastern Turkey), he tells us that he followed closely the recommendations made earlier for Asia by Q. Mucius Scaevola, ‘including that one which the natives regard as their charter of liberty, that cases between natives should be tried under their own laws’, while keeping the big issues of finance (debt, interest rates, tax) and property (e.g. inheritance) in his own hands. A different tack was taken in Sicily, where in 132 bc the consul Publius Rupilius enacted a decree which defined precisely what the respective judicial competences of Roman and Sicilian judges would be.

The salient point here is that the Roman governor always made the final decision. It was he who accepted or rejected a suit; he who defined (in a ‘formula’) the terms (Roman, local or a mixture of both) on which it would be settled; and he who decided which judge or judges should reach the verdict. None of this compromised Roman law.

In other words, the use of sharia principles is uncontentious as long as (i) all parties are willing, and (ii) English law is not thereby subverted. What is unacceptable is that sharia is imposed on the unwilling. Equally unacceptable is the idea that arguments based on divine authority should be privileged. Romans would have rejected such a notion with contempt. So should we.

Peter Jones’s Vote for Caesar has just been published.

More articles from: Peter Jones | this section

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