by Jared Rubin
Following a significant loss of political power by the Abbasid caliphs in 945 CE, there was an understanding between religious and political authorities that the former would determine the norms of social life through personal, criminal, and civil law while the latter had autonomy in external policies.29 Just as religious authority reached this powerful position vis-à-vis rulers, Sunni Islamic doctrine consolidated into four schools named after their founders: Hanafi, Maliki, Shafi’i, and Hanbali. Jurists associated with these schools followed a set doctrine and methodology for making legal decisions. Followers of each school considered the founders to be the “absolute mujtahid” – one who forged new thought consistent with Islamic ideals for all in his school to follow.30 All subsequent mujtahids where supposed to follow in the founder’s direction. With the consolidation of doctrine into schools complete, juristic ingenuity – which had been so vibrant in the first four Islamic centuries and was responsible for dramatically expanding the corpus of Islamic law – began to slow. A large literature suggests that at some point around the tenth century, an informal consensus arose that independent reasoning (ijtihad) – an important method of reinterpretation in the first four Islamic centuries – was no longer an acceptable means of finding truth, and henceforth jurists could only follow precedents.31 Under this theory, juristic ingenuity was stifled in Sunni Islam after the founding of the four schools consolidated what had been widely dispersed judicial authority. Instead of exercising ijtihad, jurists merely accepted previously codified wisdom, which perhaps emerged under very different circumstances. The perceived stagnation in Islamic thought is widely referred to as the “closing of the gate of ijtihad.” If the gate were indeed closed, this was an important development in Islamic legal and economic history; it meant that new laws and policies could not always be created in response to fundamentally new economic exigencies, since it was not always possible that doctrine created in the past could address such problems.
The history of Islamic doctrine on a host of subjects is consistent with this logic, even though some recent scholarship disputes the idea that the “gate of ijtihad” was ever really closed in theory or in practice.32 For instance, the next chapter overviews how Islamic religious authorities initially relaxed restrictions on taking interest on loans, but reinterpretation of doctrine practically ceased around the tenth century. Timur Kuran (2011) notes in great detail how Islamic laws on partnerships, inheritance, and trusts (waqf) remained essentially stagnant after the first few Islamic centuries, and as a result no corpus of law ever emerged that allowed investors to pool their money into large enterprises.
Why did Islamic law stagnate, calcifying around precepts that were relevant for the first four Islamic centuries? The framework presented in the previous chapter provides some answers. To briefly recap the argument of Testable Prediction #4: when rulers rely heavily on the religious elite for legitimacy, they are less likely to adopt changes that threaten the religious elite, and a “conservative” equilibrium can result. In this equilibrium, all nonreligious agents – including the economic elite – have a weak position vis-à-vis rulers in the bargain over new laws and policies. Even as commercial possibilities expand, religious authorities discourage innovations that reduce their power or are contrary to doctrine, which itself was created in an era with different economic and technological possibilities. In turn, religious and secular laws and institutions stagnate; neither is responsive to new exigencies, and rulers address new problems using the old legal and intellectual framework.
This logic provides an alternative explanation for the “closing of the gate of ijtihad” to those preferred by Orientalist scholars like Bernard Lewis who argue that the conservatism of medieval Islamic jurisprudence arose due to some ingrained conservatism or an inability to conceptualize change. The problem may lie with the metaphor itself. The framework proposed here suggests that new interpretations of Islamic law were hardly impossible for jurists to conjure: they simply had little incentive to do so because there was little demand for such interpretations. So, perhaps the following metaphor is more appropriate: the “gate of ijtihad” may have been closed, but the gate was not locked. All that was necessary for the gate to open was for rulers, merchants, producers, or other interested parties to attempt to push it open. Yet, due to the incentives associated with the equilibrium institutions, none of the relevant players had incentive to push the gate open. Observed behavior therefore led to the appearance that the gate was closed and locked – one does not know whether a closed gate is locked until they try to open it. Once this conservative equilibrium emerged around the tenth century, beliefs arose supporting the idea of the gate’s closure, which further reinforced the legitimizing relationship between Muslim religious and political authorities.33
With the onset of stagnation in Islamic thought and institutions, Middle Eastern economies also began to stagnate just as Western European ones took off. Beginning in the twelfth and thirteenth centuries, the center of trade in Western Eurasia slowly moved from the Middle East to the Italian city-states. This shift was the result of Western European institutions evolving in a manner more conducive to commerce than their Middle Eastern counterparts. But why did Western European institutions change in such a manner?
Christian Legitimation after the Fall of Rome
Following the fall of the Western Roman Empire in the fifth century, Western Europe was an economic, technological, and intellectual backwater. Invaders repeatedly sacked Rome in the fifth century, and the western half of the empire ultimately collapsed (unlike the eastern half, which continued for another millennium as the Byzantine Empire). Barbarian Germanic kings ruled over the remnants of the Roman Empire: the Franks spread over northern Europe, the Visigoths dominated the Iberian Peninsula, and the Ostrogoths overtook Italy and parts of southeastern Europe. These kings propagated their rule via coercion by securing the loyalty of the warrior elite.
The one unifying force connecting the Roman Empire to the Germanic kingdoms was the Church. Large swaths of the Roman Empire converted to Christianity in the fourth century following Constantine’s conversion. The Germanic kings were not initially Christian, but they ruled largely foreign populations where Christianity spread under Roman influence. The Church was therefore in a position to serve as a powerful legitimizing agent, if only the kings would adopt Christianity. And adopt Christianity they did. The most important conversion was that of the Frankish king Clovis (r. 481–509) in 496. This was a monumental event in Christian history: prior to Clovis’s conversion there was no major ruler anywhere in the Western Europe who was Christian.34 Clovis employed Christianity to legitimize the expansion of his rule into Visigoth territory. In 507, upon entering into a war with the Visigoths in southeastern Gaul, Clovis claimed, “I take it very hard that these Arians hold part of Gaul. Let us go with God’s help and conquer them.”35 Even more so than the Franks, the Visigoths were foreign, warrior rulers who ruled over a Roman-Christian population in the Iberian Peninsula. Ultimately, the Visigoths converted to Christianity under Recared (r. 586–601), and the Church became an important source of legitimacy until they were overrun by Muslim invaders in 711.36
The Germanic kings destroyed most of the institutions that facilitated public order under the Roman Empire. These rulers did not employ anything like the high-functioning Roman administration to collect taxes or provide local order. Because of the destruction of Roman law and bureaucracy, political rule became highly decentralized. There was simply no large centralized state to speak of in the half-millennium following the fall of the Western Roman Empire. Each of the Germanic kings brought their own unwritten set of laws with them, abandoning Roman law for tribal law.37
Frequent incursions from Viking, Magyar, and Muslim raiders exacerbated these conditions. Without a centralized government with a monopoly on coercive power to protect the masses, local elites with some access to coercive power provided protection for the masses. The feudal elite provided local law, order, and protection t
o the peasant masses in return for labor services, but the protection offered only went as far as the lands under manorial control. There was little law or order in the vast lands outside of the manor, making them extremely dangerous for travelers and merchants. Property rights and security were therefore almost nonexistent outside of the confines of small population clusters. The Frankish kings had little access to taxes and could thus do little to protect roads and bridges or provide safe passage for merchants. Other public goods provided by the Roman Empire, such as irrigation systems, deteriorated rapidly in the absence of centralized power. As a result, economic activity was mostly agricultural and concentrated around self-sufficient manors. Urbanization and trade were almost nonexistent except for some small pockets in northern Italy and Flanders.38 The contrast between early medieval Europe and the Middle East could not be clearer: economies in the latter were ahead of those in the former for centuries following the spread of Islam.
The weakness of centralized political authority in the West between the fall of Rome and the rise of the Carolingian Empire in the eighth century allowed the pope to gain independence and influence that was unattainable under the Roman or Byzantine empires. The Frankish successors of Clovis continued to use the Church to propagate their rule, gaining religious support by giving the clergy vast properties and privileges, especially to powerful bishops, who became great Frankish landholders. An important consequence of this arrangement was realized during the reign of Pope Gregory I (r. 590–604), who, while deferring to the emperor in the East, established the theory that royal power served the Church in the West.39 In the mid-eighth century, the papacy formally aligned the fortunes of the Church with those of the Frankish Empire. Both sides stood to gain immensely from this union – the papacy received protection from repeated attacks by the Lombards, while the Frankish king Pepin gained legitimacy for his disputed kingship. Pepin’s son, Charlemagne, propagated his rule even more strongly via religious legitimacy. He forced the Saxons to accept Christianity, established episcopal sees in conquered lands, and endowed monastic foundations throughout his empire.40 Most famously, in 800 CE Pope Leo III and Charlemagne agreed to swear fidelity to each other, as long each recognized the other as the ruler in their respective realm of influence. On Christmas day of that year, Pope Leo and Charlemagne publicized this agreement through a monumental act of legitimation: the papal coronation, where the pope placed the imperial crown on Charlemagne’s head. Later rulers of the Holy Roman Empire, including its founder, Otto I (r. 962–973), also felt the need to travel to Rome to be crowned by the pope.
This history suggests the existence of an equilibrium in which European rule was propagated in part by the Church and in part by the highly decentralized feudal nobility, who provided military support and local law and order. This did not necessarily mean that the feudal nobility were in a great bargaining position vis-à-vis their rulers. In the parts of Europe where secular rulers were able to expand their power, coordination was too expensive for the decentralized nobility to organize as a group that could negotiate with rulers. Indeed, the first European parliaments did not arise until the late twelfth century. This left the Church to take on a primary propagating role. It was omnipresent and provided an effective and reasonably inexpensive means of legitimacy.
In the late tenth century, the conditions that supported this equilibrium slowly began to unravel. As the population grew throughout the continent, the land under cultivation also increased. Vast reclamation projects and experimentation with new agricultural techniques permitted a modest agricultural surplus, freeing some of the excess population to seek a living in towns.41 This sequence of events was not too different from those in the Middle East a few centuries earlier, where the Arab conquests permitted an increased agricultural yield, which in turn encouraged urbanization. Northern Italy was the first region to undergo an urban revival (see Table 3.2). The burgeoning city-states of Northern Italy were uniquely suited for commercial expansion, as their proximity and ties to the Byzantine Empire and Muslim North Africa – both of which were far more economically advanced than any place in Western Europe – provided opportunities to engage in long-distance commerce that were unavailable elsewhere on the continent. As the wealth of these cities grew – first in Venice and Amalfi, later in Pisa and Genoa – the political power of the economic elite grew in tandem, independent of any larger political authority. Commerce continued to expand to other parts of Europe, and more independent, commerce-focused cities emerged, especially where centralized political authority was weakest, such as in the Holy Roman Empire, where numerous free and independent cities arose during the Commercial Revolution (a term used for the revival of commerce that spread throughout Europe in the tenth–fourteenth centuries). The merchant elite controlled many of these towns and used the local government to further their interests. The most powerful Italian city-states, especially Genoa and Venice, used their wealth and military power to acquire possessions in regions of strategic advantage to the merchant elite.42 And success bred even more success. Abundant commercial opportunities encouraged experimentation in financial instruments (e.g., bills of exchange), organizational forms (e.g., the commenda and Italian family firm), and double-entry bookkeeping, which made “big business” all the more possible and profitable. By 1300, Venice and Genoa were among the largest and most important cities in the Western world, having acquired numerous territories and housing populations exceeding 100,000. Although religion was important in these commercial city-states, the interests of religious authorities were generally subordinate to those of the merchant elite.43
Table 3.2 Ten Most Populous Cities in Western Europe around the Commercial Revolution
Pre-Commercial Revolution: 900 CE Mid-Commercial Revolution: 1100 CE Late Commercial Revolution: 1300 CE
City Population (1,000s) City Population (1,000s) City Population (1,000s)
Rome 40 Paris 65 Paris 250
Venice 37 Venice 58 Venice 110
Naples 30 Florence 45 Genoa 100
Laon 28 Milan 45 Milan 100
Trier 25 Salerno 40 Florence 95
Verona 25 Cologne 35 London 70
Regensburg 25 Rome 35 Naples 60
Mainz 25 London 32 Cologne 54
Cologne 21 Naples 30 Siena 50
Paris 20 Regensburg 30 Barcelona 48
Note: Cities conquered and settled by Muslim empires are not included in this table.
Source: Bosker et al. (2013).
Trade also occurred outside of the city-states and independent cities. As commerce expanded into other parts of Europe, there was more incentive for political authorities to establish boroughs with protections for the property rights of foreign merchants. Merchant guilds (e.g., the German Hansa) negotiated directly with local rulers for protection and property rights, and merchants used their own courts to resolve disputes.44 In the twelfth through fourteenth centuries, fairs became important meeting places – the most famous and important were the Champagne Fairs – where merchants from all over Europe met and exchanged goods and credit contracts.
The expansion of commerce had clear implications for the legitimizing relationship between European religious and political authorities. The intuition from the previous chapter indicated that increased commercial possibilities had the potential to alter the equilibrium legitimizing arrangement by augmenting the costs and benefits of religious legitimation relative to propagation from other sources. The choice faced by European rulers was simple: they could either continue to employ religious legitimacy, and hence the result of the policy bargain would reflect the Church’s interests; or they could give increasing weight to the new commercial classes in the bargain over policy. Testable Prediction #3 provides insight into which option European rulers chose. It indicates that, all else being equal, a medieval European ruler was more likely to choose propagation by the economic elite than a medieval Middle Eastern ruler was. Such a choice diminished the role of religious legitimacy, which was less effective in Weste
rn Europe than in the Middle East.
There were numerous confrontations between the Church and the European political elite over the Church’s role in policy making because of the institutional changes brought on by the Commercial Revolution. As the benefits of religious propagation weakened relative to propagation by merchants and manorial lords, the Church attempted to change the theoretical justification for Christian rule. Throughout the late eleventh and twelfth centuries, the papacy claimed for the first time that the Church bestowed the right of kingship and that the pope therefore had the right to depose rulers. This was a massive change from European justifications for kingship prior to the late eleventh century. Previously, rulers governed Church leaders in matters of religious doctrine. The Church could anoint a king, but the spiritual authority given to the king as a result meant that it was not the Church’s to take away. For instance, in 1067, William the Conqueror asserted that the king had the power to decide whether Norman and English churches should acknowledge the pope and that the king had veto power over ecclesiastical penalties.45 The Church’s gambit ultimately failed. This failure is attributable to one simple fact: unlike the Qur’an, the Bible and other early Christian doctrine established a separate sphere for secular rule, and there was no doctrinal justification for Christian authorities to depose rulers who acted contrary to their wishes.