Journal of

Near Eastern Studies

Muhammad and Justinian:

Roman Legal Traditions and the Qurʾā n
JUAN COLE, University of Michigan*

Introduction ninth-century codification of Islamic law as an imperial

project “on the pattern of the Corpus Iuris of Justin-
Two great bodies of law and ethics emanated from Late
ian I,” though his comparison is to the project and
Antiquity, the Codex and Novels of the Roman Em-
not the substance.5 A Justinianic context for the Qurʾān
peror Justinian (r. AD 527–565) and the Qurʾān (circa
itself, however, has not been argued in any extended
AD 610–632). That Near Eastern legal traditions, in-
way. I will attempt to show here, however, that Jus-
flected in the Levant by Roman practices, had an im-
tinian’s Novel 134.13 on the punishments for violent
pact on the development of Islamic law is generally ad-
stealing is paralleled by a Qurʾān verse (The Table, 5:33)
mitted, though the exact mix of the two is contested.1
so closely as to rule out coincidence, and that some
Lena Salaymah argues that Islamic law originated in “a
Qurʾānic law has an imperial Roman background.
common Near Eastern legal culture” and exhibited hy-
The question I pose here is not one of “borrowing”
bridity in its subsequent development.2 Other authors
or “influence,” but of whether the logic of punishment
have drawn attention to the survival of Roman legal
in late antiquity with regard to brigandage operated
regimes in the early Muslim empires.3 Others have es-
similarly in Constantinople and Medina, and if so, why.
sayed comparisons between the two corpora.4 Benja-
The Qurʾān is an original work that draws on many cul-
min Jokisch holds that the Abbasids undertook the
tural contexts, including Arabian, Nabataean, Yemeni,
Ethiopian, Iranian, and Jewish ones, and the body of
* An early version of this paper was given at the conference of the
imperial Roman law is only one such context for it. The
International Qurʾān Studies Association in Tangier, July 29–30,
2019. My thanks to Andrew Marsham and the anonymous referees
more interesting issue has to do with the logic of punish-
for JNES for their comments on an earlier draft. Abbreviations used ment. As Michel Foucault argued of the monarchical
in this article include OCIANA = The Online Corpus of the Inscrip- episteme, crimes were offenses against the body of the
tions of Ancient North Arabia (http://krc.orient.ox.ac.uk/ociana/). sovereign and punishment therefore inscribed on the
1
Crone, Roman, Provincial and Islamic Law (2002); Hallaq, body of the criminal. This inscription does not announce
Origins and Evolution of Islamic Law (2005).
2
that this body is a stable possession of the king; rather it is
Salaymeh, Beginnings of Islamic Law (2016), 101, and more
generally ch. 3 thus marked as a field of contention in which various
3
Papaconstantinou, “‘What Remains Behind’” (2009).
4 5
Al-Azmeh, Islamic Law (2013), 208. Jokisch, Islamic Imperial Law (2007), 617.

[JNES 79 no. 2 (2020)] © 2020 by The University of Chicago. All rights reserved. 0022-2968/2020/7902-0002$10.00. DOI: 10.1086/710188

183
184 ✦ Journal of Near Eastern Studies
types of power jockey constantly with one another.6
Foucault’s insight can help us tease out the significance
of Qurʾān 5:33 in this imperial context.
The quest to understand the Roman heritage of Is-
lamic law is hardly new. Ignaz Goldziher wrote, “The
dogmatic development of Islam took place under the
sign of Hellenistic thought; in its legal system the influ-
ence of Roman law is unmistakable . . .”7 Goldziher
perhaps did the field a disservice with this exaggeration
and failure to specify the periods and types of influence.
Still, he stimulated important further and more contex-
tual inquiries which challenged the premise of the iso-
lation of late antique Arabia from its surroundings. The
early twentieth-century figures pursued this direction
in part to challenge the binary of Aryan and Semitic
culture in the European thought of their time, which
racialized the Qurʾān and Islam as a Semitic Other.8
They have not on the whole so far prevailed, possibly be-
cause many scholars continue to find it difficult to de-
construct the Self/Other divide between Europe and
Arabia. The argument for an Eastern Roman context
for early Islam, however, has been given new life by
the movement to see it as part of late antiquity.9 Impor-
tant subsequent contributions viewed Roman and Is-
lamic law synoptically, most recently those by Andrew
Marsham and Sean Anthony.10 The research findings
here are intended to settle the issue in favor of a Roman
inheritance for some Islamic law, a finding that makes
even more sense if classicist Glen Bowersock is right that
the very early Muslim community actively took sides
6
Foucault, Discipline and Punish (1977); see also Gustafson,
“Inscripta in Fronte” (1997).
7
Goldziher, Islamic Theology and Law (1981), 4.
8
Becker, “Der Islam als Problem” (1910); Schacht, “Foreign El-
ements” (1950). Salaymeh, Beginnings of Islamic Law (2016), 91,
makes the good point that Goldziher and Becker, by locating origins
of Islamic law in Graeco-Roman traditions, were implicitly attacking
Ernest Renan’s racial theory of an absolute division between Aryan
and Semitic culture.
9
Neuwirth, Qurʾan and Late Antiquity (2019); Cole, “Paradosis
and Monotheism,” (2019); Cole, Muhammad (2018); Bowersock,
Crucible of Islam (2017); Crone, Qurʾā nic Pagans (2016), vol. 1;
al-Azmeh, Emergence of Islam (2014); Shoemaker, Death of a
Prophet (2011); Sarris, Empires of Faith (2011), ch. 7; Howard-
Johnston, Witnesses to a World Crisis (2010); Donner, Muhammad
and the Believers (2010) and Donner, “Historical Context of the
Qurʾān” (2006), 21–39.
10
Marsham, “Public Execution” (2011): 120–21; see also for con-
tinuities between Roman and later Muslim penal practices, Marsham,
“Attitudes to the Use of Fire” (2015), and Anthony, Crucifixion and
Death (2014).
with Rome.11 I would go further and suggest that
Muhammad’s polity in the Hijaz initially formed part
of what Garth Fowden called the “Byzantine common-
wealth,” comprising Axum, Armenia, Iberia (eastern
Georgia), and other powers which usually allied with
Constantinople against Sasanian Iran.12 Although Fow-
den saw Christianity (even its Miaphysite branch) as
one basis for Eastern Rome’s soft power, the members
of the commonwealth ranged against Sasanian Iran
during the great war of 603–629 included not only
Miaphysite Ethiopia but also the pagan Onoq Khaga-
nate of Central Asia. If the commonwealth could en-
compass the Khaganate, it is hard to see why it could
not also include a non-Christian member like Muham-
mad’s incipient polity in the Hijaz.
Arabophone Romans
The Arabic-speaking clans of Syria, the Transjordan,
Palestine, and the northern Hijaz had been under Ro-
man rule for more than four centuries when Justinian
issued his Codex, and researchers are discovering that
the Eastern Roman Empire shaped their lives much
more powerfully than historians had once thought.13
Direct Roman rule in the Hijaz itself after the fall of
the Nabataean kingdom in 106 is increasingly attested
by archeology. Michael A. Speidel observes, “A Roman
military camp recently discovered in the city of Hegra
[Hijr], as well as several Latin, Greek, and Nabataean
inscriptions, suggest that Roman soldiers seamlessly oc-
cupied the city as the Nabataean kingdom was taken
over.”14 Likewise, even beyond the empire, the arche-
ologists excavating at the Kinda capital of Qaryat al-
Faw have demonstrated a late antique Arabia which
had substantial interactions with Hellenistic culture, dis-
covering statuettes of Greek deities such as Artemis,
Herakles, and Harpokrates.15 The Hijaz retained its
links with the empire via its trade connection to Trans-
jordan and Arabia Petraea even after imperial authorities
11
Bowersock, Empires in Collision (2012), ch. 3; Bowersock,
Crucible of Islam (2017), ch. 6
12
Fowden, Empire to Commonwealth (1993), 100–137.
13
Bowersock, Roman Arabia (1983); Millar, Roman Near East,
31 BC–AD 337 (1993); Pollard, Soldiers, Cities, and Civilians
(2002); Shahid, Byzantium and the Arabs (1995–2010); Fisher, Be-
tween Empires (2011) and Rome, Persia, and Arabia (2019); and
Fisher, ed., Arabs and Empires before Islam (2015).
14
Speidel, “Rom und die Fernhandelswege durch Arabien”
(2019), 58–59.
15
Al-Ansari, “Qaryat al-Faw” (2019), 185.

pulled the garrisons out in favor of dependence on pro-
Roman Arabophone tribes.
Some of the thousands of Safaitic Arabic inscriptions
of the first four centuries of the common era advert to
the Roman emperor.16 One, found in Syria, said, “By
Nuʿmān son of Khabyṯ son of Nasṛ . . . of Ḍayf and he
set up a standing stone for ʾṬʿ the year that Caesar sent
reinforcements to the province and put the [province]
in good order.”17 This ancient rock inscription shows
how this rural population saw themselves as well as their
pagan values and worship as benefiting from participat-
ing in the empire. The inscriptions display anxiety about
the security of the frontier: “By Ẓaʿn son of Kh ̣asman
son of Ẓann of the lineage of Ḍayf, who was a com-
mander the year Caesar ejected the Persians and so,
Allāt, may he enjoy peace and security.”18 Another carv-
ing from these centuries speaks of “the year word was
sent to Caesar that people of the Roman Empire died
and Damascus burned.”19 This phrase displays the geo-
graphic imaginary of the unknown Arabophone author.
The inscription likely concerns a raid into the Roman
Empire’s Near Eastern territories by the Sasanians or
their foederati, accompanied by large civilian casualties
and by arson in the great caravan city. It also shows a
provincial instinct to appeal directly to the Roman em-
peror in response.
The integration of the Arabic-speaking tribes into
the empire increased over time, as they largely con-
verted to Christianity and some came to serve as border
guards (limitanei) or tribal adjuncts ( foederati) to the
Roman legions.20 Arabophone long-distance merchants
16
See in general Al-Jallad and Jaworska, Dictionary of the
Safaitic Inscriptions (2019), 111, (entry for “qsr”).
̣ Nabataean in-
scriptions mostly predating the Safaitic show locals mentioning “Cae-
sar,” but usually only for purposes of establishing a date: Ferguson
and Nehmé , “Nabataean ‘Caesar’ ” (2014): 37–42.
17
See “Nʿmn bn ḫ byṯ ” in OCIANA (http://krc.orient.ox.ac.uk
/ociana/corpus/pages/OCIANA_0035837.html); translation slightly
altered for clarity. Also cited in Macdonald et al., “Les inscriptions
safaı̈tiques de Syrie” (1996): 453–58, D. A standing stone or nasab ̣
is a square featureless rock inhabited by a deity.
18
See “Zʿ̣ n bn kh ̣s1mn” in OCIANA (http://krc.orient.ox.ac.uk
/ociana/corpus/pages/OCIANA_0016759.html); translation slightly
altered for clarity. A fragment of this inscription is cited in Clark,
New Safaitic Inscriptions (1987), 110, n. 86.
19
See “Bnʾlh bn ʾs1bn” in OCIANA (http://krc.orient.ox.ac.uk
/ociana/corpus/pages/OCIANA_0031070.html), and Al-Jallad, “Ear-
liest Mention of Damascus” (2018): https://twitter.com/safaitic/sta
tus/1029723995917168642?lang=en, accessed June 2020.
20
Graf, “Saracens and the Defense” (1978): 13–14; Hoyland,
“Arab Kings” (2009).
Muhammad and Justinian ✦ 185
and even some pastoralists knew Greek.21 There is some
evidence, as well, for the integration of urban Arabo-
phone families into the empire. In the sixth century,
Constantinople directly ruled and taxed cities such as
Petra, the capital of Palaestina Salutaris. It did not turn
civil administration over to Jafnid phylarchs, as some
earlier historians had assumed. The recently-discovered
Petra Papyri of the sixth century show an Arabophone,
Chalcedonian Orthodox family running a church and
maintaining rich orchards and other properties, taking
pride in Petra’s position in the Eastern Roman Empire,
and using Greek for their correspondence.22 The con-
clusion seems inescapable that Petra by that time had
Arabophone residents even if they subsisted as a minor-
ity among Aramaic-speakers. This evidence further sug-
gests the trilingualism of some Arabic-speakers, who
knew the Aramaic vernacular and the koine Greek of
towns and cities alongside their native tongue.
The sixth century witnessed a further integration of
the Arabophone peoples into the empire. The emperor
Justinian attempted to recover all the territory of the
Roman Empire at its height, and to reduce the power
of provincial elites in favor of Constantinople.23 Justin-
ian recognized as phylarchs the paramount Jafnid chiefs
who coordinated the levies of Arabic-speaking tribes
drawn from the Banū Ghassān, Banū Kalb, Banū Judhām
and others in eastern Syria, the Palestine eparchies, and
the Transjordan. Contrary to what some earlier historians
alleged, these foederati, who served alongside the Ro-
man army in guarding the Limes Arabicus, the line of
fortresses protecting Roman cities from Bedouin and
Iranian raids, did not have a territorial realm.
They had not erected an Arab “kingdom” but rather
held a special layered position under duces or military
commanders of garrisons in the Levantine eparchies.
They must have known enough Greek to interact with
their colleagues and superiors. From about 528, Justin-
ian recognized al-Ḥ ārith, son of al-Jabala IV, as phylarch
in Arabia Petraea and Palaestina Secunda, and he held
this position until 569.24 Al-Ḥ ārith’s brother, Abū
21
Al-Jallad and al-Manaser, “New Epigraphica from Jordan II”
(2016); Villeneuve, “Greek inscriptions” (2019).
22
Al-Jallad, “Arabic of Petra” (2018); Al-Ghul, “Preliminary
Notes” (2006); Jaakko Frö sé n, et al., eds., The Petra Papyri (2002–
2018). For an argument that Greek was an urban standard in the Le-
vant in the Eastern Roman Empire, see Millar, Greek Roman Empire
(2006). The Petra Papyri reinforce this argument.
23
Sarris, Economy and Society (2006); Bell, Social Conflict (2013).
24
Greatrix, “Les Jafnides” (2105); Liebeschuetz, East and West
in Late Antiquity (2015); Fisher, Between Empires (2011); Whittow,
186 ✦ Journal of Near Eastern Studies
Karib, served as phylarch in Palaestina Salutaris, which
stretched through the west of Transjordan to the Negev
and Sinai, and may have at least notionally included the
Hijaz.25 Abū Karib, according to Prokopios, bestowed
some of the Hijaz on the emperor:
This coast immediately beyond the boundaries of
Palestine is held by Saracens who have been set-
tled from old in the Palm Groves. These groves
are in the interior, extending over a great tract
of land, and there absolutely nothing grows ex-
cept palm trees. The Emperor Justinian had re-
ceived these palm groves as a present from Abo-
chorabus [Abū Karib], the ruler of the Saracens
there, and he was appointed by the emperor cap-
tain over the Saracens in Palestine.26
We cannot precisely locate the territory in the Hijaz
that Abū Karib ceded to Constantinople, since the only
description given is that the inland oasis towns had date
orchards. This is a description which might fit Tabuk
and Hijr, but also would apply to Yathrib, famed from
622 as Medina (the City, i.e., of the Prophet).
Prokopios of Caesarea, a Palestinian, had the disdain
for Arabic-speaking peasants and pastoralists (“Sara-
cens”) typical of urban writers in that era.27 He dismissed
the Hijaz as ungovernable and useless in practice to Jus-
tinian. The likelihood is, however, that Western Arabia
did provide resources to the empire, and that Constan-
tinople wielded substantial influence there in the mid-
sixth century, given the revived Roman strength in
Transjordan and Syria and the archeological evidence
for prosperity in southern Transjordan. Large numbers
of Arabic-speakers resident in the Eastern Roman Em-
pire came under the sway of its laws and customary
practices and adopted them into their habitus, a long-
term phenomenon that could easily have influenced
their cousins beyond the Limes Arabicus.
By the 530s, Justinian had grown concerned about
poor governance and insecurity in the provinces, in-
cluding the eparchy of “Arabia” (southern Syria and
“Late Roman/Early Byzantine Near East” (2010), ch. 2; Shahid,
Byzantium and the Arabs (1995–2010); Caldwell, Between State
and Steppe (2001); Eger, Islamic-Byzantine Frontier (2014).
25
Shahid, Byzantium and the Arabs (1995–2010), 1:124–28;
Edwell, et al., “Arabs in the Conflict between Rome and Persia”
(2015), 230–43.
26
Proc., De Bell. Pers., I, 180–81; translation quoted from Dew-
ing, Procopius (1914).
27
Grafton, “ ‘The Arabs’ in the Ecclesiastical Historians” (2008);
Athanassiadi, “Arabia through Greek Eyes” (2019).
northern Transjordan), with its capital at Bostra, which
was a center for trade down to the Hijaz. In 536, he
wrote in Novel 102:
We have, therefore, looked also at the province of
Arabia, and enquired into the reason for its low
yield to the public treasury, despite its highly fer-
tile soil; and also for our being besieged by a mass
of petitioners, all of them lamenting robberies,
injustices or other depredations. What we have
found to blame as being the cause of the trouble
is the weakness in the governorship.28
He complained that the dux or commander of the
Bostra garrison had more or less held the hapless civil
governor hostage. The dux drew strength militarily in
this period from the Jafnid phylarch al-Ḥ ārith and his
tribal levies, and this extra biopower may well have con-
tributed to his ability to dominate the civilian governor.
It seems likely that the city had Arabophone residents,
as did Palmyra to its northeast, since we know that
some phylarchs kept personal property there at a resi-
dence.29 As with his other provincial reforms, Justinian
in Novel 102.2 appointed a governor (μοδεράτερος)
with stronger administrative powers. Justinian said of
his new governor in Bostra, “He will not allow either
the admirable dux, or the phylarch or any of the pow-
erful houses, or even . . . our divine household itself to
inflict any detriment on our taxpayers.” This passage
suggests that al-Ḥ ārith had been mulcting residents.
Justinian insisted on the regular collection of taxes
and the imposition of social order in the frontier city:
“neither in Bostra nor anywhere else are people to
abandon themselves to rioting and civil disorder, or
to turn what in ancient times were occasions for relax-
ation and entertainment into bouts of murderous in-
sanity.”30 The emperor here condemned the rowdiness
of sports fans, the notorious green and blue “circus” or
arena factions who often rioted over the outcomes of
chariot races at the hippodrome. A major riot such as
this in Constantinople itself early in Justinian’s reign
had even challenged his rule. Some of the turbulence
in Bostra, however, may have derived from occasionally
28
Corp. Jur. Civ. 102; all translations of this work quoted from
Miller and Sarris, trans., Novels of Justinian (2018).
29
For Jafnid property in Bostra, see John of Ephesus, Eccl. Hist.,
III, 3.42 (trans. Smith [1860], 241). For Palmyra see Sartre, “The
Arabs and the Desert Peoples” (2008), 501–502 and sources cited
(n.b., I am not alleging that Palmyra was an “Arab” city).
30
Corp. Jur. Civ. 102.1.

disgruntled tribesmen; though they provided support
for the dux when the gold and honors flowed freely
to them, they could just as easily provide disorder when
disappointed of these.
The later Abbasid literary tradition, which is generally
silent on Roman connections to the Hijaz, does contain
an anecdote pointing to their significance. Sometime in
the late sixth or early seventh century, a Christian of
the al-Asad sept of the Quraysh confederation in Mecca,
ʿUthmān b. al-Ḥ uwayrith, is alleged to have traveled to
Constantinople.31 He sought investiture as a phylarch
(Ar. mā lik) of the Tihama or west Arabian coast. If this
journey occurred, he would likely have been petitioning
Maurikios (r. 582–602) or Phokas (602–610), before
the fall of Antioch to the Sasanian armies in 611 made
travel from the Hijaz to Constantinople difficult. There
were precedents for ʿUthmān’s quest for authority
among Arabophone peoples in the Roman hinterland.
In 580, Tiberios II had brought the Jafnid phylarch al-
Mundhir III (the son of al-Ḥ ārith) to his court in Con-
stantinople and bestowed an honorary crown on him.32
ʿUthmān b. al-Ḥ uwayrith, many years later, promised
safety to the caravan routes linking the Arabian Penin-
sula to the Roman Empire. The emperor is alleged to
have backed this attempt to secure the Hijaz for Rome,
given Sasanian dominance in Yemen. On his return to
Mecca, as Abbasid-era authors tell the story, ʿUthmān
initially gained some traction with this claim to be a cen-
tral leader. In the end, however Zumʿa b. al-Aswad b. al-
Mutṭ alib
̣ blocked him, arguing that the tradition in the
Tihama was to oppose any central political authority.
This late, orally-transmitted anecdote cannot be proven
from any contemporary primary source such as inscrip-
tions or Greek accounts. If it contains even a kernel of
truth, however, it points to continued Roman influence
in west Arabia during Muhammad’s lifetime. (ʿUthmān
was a cousin of his wife, Khadı̄ja, and Zumʿa was his first
cousin).
Some accounts of Muhammad (c. 567–632) by
seventh-century Christians situate his career in part in
the Roman Near East. Ps.-Sebeos calls him a “mer-
chant” and gives him a special attachment to Pales-
tine.33 The late seventh-century writer Jacob of Edessa
depicts Muhammad as pursuing long-distance trade
31
Ibn Bakkār, Jamharat Nasab Quraysh (1962/1381), 425–26;
Lecker, “Monotheistic Cousins” (2017): 367–71.
32
John of Ephesus, Eccl. Hist., III, 5.15–18; Shahid, Byzantium
and the Arabs (1995–2010), 1: 354–56.
33
Thompson, Armenian History (1999), 95–96.
Muhammad and Justinian ✦ 187
from the Hijaz to the Roman Empire, writing, “Mu-
hammad went down for trade to the lands of Palestine,
Arabia, and Syrian Phoenicia.”34 Some Muslim writers
of the Abbasid period (750–1258) also speak of such
northern commerce.35 They contend that from 610,
Muhammad began his religious mission in Mecca as a
prophet, preaching his new scripture, the Qurʾān.
A mid-eighth-century Muslim work goes beyond
speaking of Muhammad’s travels in Roman territories
to alleging his partisanship for Constantinople in its
two-and-a-half decade-long war with Sasanian Iran
(603–630). The Qurʾān (Rome 30:1–6) contains the
following passage:
Rome lies vanquished in the nearest province. But
in the wake of their defeat, they will triumph after
a few years. Before and after, it is God who is in
command. On that day, the believers will rejoice
in the victory of God; he causes to triumph
whomever he will, and he is the Mighty, the Mer-
ciful. It is the promise of God; God does not break
his promises, but most people do not know it.
According to one of the earlier extant commentaries
on the Qurʾān, that of Muqātil b. Sulaymān of Balkh
(d. 767), these verses speak of the Iranian advance into
Palestine and Transjordan in 613–614.36 Although it
has until recently seldom been read this way, the verse
identifies the triumph of Emperor Herakleios (r. 610–
641) over Iran’s Khosrow II (r. 591–628) as the victory
of God himself, in which Muhammad’s followers will
exult. Bowersock observed, “It seems as if, for a pre-
cious instant, we are listening to an early Islamic voice
proclaiming Arab support for the Christian Empire of
Constantinople.”37
Rome 30:1–6 recalls the Safaitic inscriptions of ear-
lier centuries in which Arabic-speakers praised the Cae-
sars for bringing order to the Near East and alerted
them to Sasanian or pro-Sasanian attacks on Damascus.
There is some literary evidence beyond the Qurʾān itself
for the believers around Muhammad having been pro-
Roman. Muqātil b. Sulaymān asserted,
Rome and the Iranians fought, and Rome was
vanquished, and this news reached the prophet
and his companions in Mecca and was grievous
34
Quoted in Hoyland, Seeing Islam (1997), 165.
35
Anthony, Muhammad and the Empires of Faith (2020), ch. 2.
36
Muqātil b. Sulaymān, Tafsı̄r (2002), 3:406.
37
Bowersock, Empires in Collision, 61.
188 ✦ Journal of Near Eastern Studies
for them. The pagans rejoiced and gloated and
confronted the companions of the prophet, say-
ing, “You are people of the Book and the Ro-
mans are people of the Book, but our brethren
the people of Iran have triumphed over your sib-
lings from the Roman Empire.”38
Although ninth-century Abbasid writers sometimes
contended that Muhammad came into conflict with
Constantinople, their works show no awareness that
Sasanian Iran occupied the Near East from 613 until
(likely) early 630, meaning that for virtually the Proph-
et’s entire ministry, the Hijaz had no border with the
Roman Empire. Their accounts of Medinan armies
taking on the Romans late in the Prophet’s life are there-
fore implausible and filled with anachronisms and tell-
ing errors.39 The Qurʾān continues to laud Christians
into what are thought to be its latest chapters (e.g., The
Table 5:82, which calls followers of Jesus “the nearest in
love” to Muhammad’s believers).40 This pro-Roman,
pro-Christian political orientation of the Qurʾān (de-
spite its Unitarian critique of the Christologies of the
time) helps situate the way in which it affirms some Ro-
man law.
The Roman context of the Arabophone peoples is
largely absent from the later Abbasid depictions of the
region. Most ninth-century Muslim authors carefully
isolate the Hijaz from outside influences and depict it
as culturally “empty,” perhaps for the purpose of Mus-
lim apologetics in preserving Islam from charges of out-
side influence. Montgomery has shown that academ-
ics have often accepted this depiction.41 Yet seeing the
Arabic-speakers as having been for centuries deeply in-
tertwined with a Hellenized Near East ruled from Con-
stantinople is an important prologue to understanding
the relationship of the Arabic Qurʾān to Roman culture.
Amputation, Exile, and Violent Robbery
Foucault argued in his early writings that, in the pre-
modern world, for a criminal who had injured the
body of the sovereign, punishment for his crime was
38
Muqātil b. Sulaymān, Tafsı̄r, 3:402.
39
Powers, Zayd (2014), ch. 3; Astren, “Re-reading the Arabic
Sources” (2009).
40
Some point to an apparently late anti-Christian verse, Repen-
tance 9:29, but I argue that it addresses militant pagans at Ḥ unayn
and has been widely misinterpreted: Cole, Muhammad (2018),
179, 303 n. 7.
41
Montgomery, “Empty Ḥ ijāz” (2006).
the exaction of revenge, but also a way of making the
wounded monarch whole. At the same time, punish-
ment often came at the edge of the same sword the
sovereign deployed for victories at arms. If anything,
Foucault underestimated the degree to which patrimo-
nial emperors took the offense personally.42
Although it later became an iconic symbol of the
Muslim legal tradition, the amputation of a limb in pun-
ishment for a crime was originally a Roman practice.
Citing previous legislation from centuries before, the
Codex of Justinian 6.1.3 said, “Whenever fugitive slaves
are seized while going over to the barbarians, they are
either to be mutilated by the amputation of a foot or
condemned to the mines or inflicted with some other
punishment at will.”43 In an early Novel (17.8), Justin-
ian instructed his officials regarding tax-agents who did
not keep careful books for the estate properties on
which they made demands and the amounts received,
“You will threaten them with a heavy fine and with am-
putation of a hand, if they do not, at least in future,
comply unfailingly with what have always been their in-
structions, though not hitherto observed.”44 The tax-
agents are menaced with amputation not, presumably,
for sloppy record-keeping, but out of suspicion of
peculation. With regard to scribes who dared transcribe
the works of Severus, the anathematized former Bishop
of Antioch, Justinian ordered (Novel 42.1.2): “they
are to know that the penalty for those who copy his
works will be amputation of the hand.”45 The chronicler
John Malalas asserted that during the consulship of
Decius, the emperor sent a decree to Athens that “gam-
ing” should not “be allowed in any city, for some gam-
blers who had been discovered in Byzantion had been
indulging themselves in dreadful blasphemies. Their
hands were cut off and they were paraded around on
camels.”46 The gamblers may have been throwing dice
for divination purposes, an activity sometimes associ-
ated with dissidence.
Aggravated stealing accompanied by the use of
force—including robbery, banditry, and piracy—could
42
Foucault, Discipline (1977), 48–50; Dean, Signature of Power
(2013), 26–28, 74–75.
43
Cod. Just. 6.1.3; translation quoted from Frier, ed., Codex of
Justinian (2016); Smith and Cheelham, A Dictionary of Christian
Antiquities (1893), 1:244.
44
Corp. Jur. Civ. 17.8; for the context of this decree in Justinian’s
“reform program,” see Sarris, Economy and Society (2006), 210.
45
Corp. Jur. Civ. 42.1.
46
Malalas, Chron., 18.47; translations quoted from Jeffreys,
et al., Chronicle of John Malalas (1986).

also be punished by the amputation of a limb, though
Justinian also considered a whole range of other penal-
ties appropriate as well. In the long Novel 134 of the
year 556, paragraph 13 said: “for violent assault, with
or without weapons, indoors, on the highway or at sea,
we command that the offenders are to undergo the pen-
alties of the law.”47 The Novel mentions four possible
punishments for robbery: death, amputation of a limb,
the vague “chastisement” (σωφρονίζεσθαι, castigatur)
by other means, and banishment. If the infraction did
not rise to the level of a capital crime or require ampu-
tation, Justinian permitted the other punishments, in-
cluding exile or “chastisement by other means.” In the
case of nonviolent theft such as pilfering or embezzle-
ment, the article entirely prohibits amputation and the
death penalty (a departure from 17.8, in which he pre-
scribed amputation for unacceptable record-keeping by
tax officials).
There is some literary evidence for the implementa-
tion of these practices. Romans had practiced banish-
ment as a punishment for a very long time by the sixth
century, but Christian Roman authorities after Con-
stantine may have favored it because they saw it as more
merciful than execution or corporal punishment, and
more reversible in case magistrates later wished to show
clemency to a repentant criminal. Officials in the Chris-
tian Roman Empire often favored islands as the place of
exile.48 An Arabophone phylarch imposed a less-than-
Christian form of exile, however, on Samaritans in Pales-
tine who staged a major revolt in 529. After he repressed
it in 531, John Malalas writes, “the Saracen phylarch of
the Romans took 20,000 boys and girls as booty from
the Samaritans; he took these as prisoners and sold them
in Persian and Indian territory.”49 Selling the Samaritans
into slavery probably falls under the rubric of banish-
ment. Note that “India” for Malalas refers to the littoral
of the Red Sea down to Axum and Yemen, so that some
of these Samaritans likely ended up as household slaves
in the Hijaz, where it would have been understood that
these rebels had been enslaved and exiled by the Eastern
Roman Empire for plunder and banditry.
Arabic-speaking tribes in the empire later saw the
practical implementation of a gentler exile with regard
to one of their own. When heir-apparent Maurikios ac-
cused phylarch Mundhir III of secretly working with
the Sasanian empire during a failed invasion of Meso-
47
Corp. Jur. Civ. 134.13.
48
Washburn, Banishment (2013), 28, 136, 159.
49
Malalas, Chron., 18.35.
Muhammad and Justinian ✦ 189
potamia around 581, he had the leader of the Saracen
foederati arrested. Ultimately, Tiberios II sent him with
his family into exile in Sicily. Relatives and partisans of
Mundhir rose up throughout the Near East as a result,
and even killed the dux of Bostra.50
Execution and the cutting of limbs also appears in
the literary sources. John Malalas said that in 556 an-
other major rebellion of Samaritans and Jews broke
out in Caesarea Maritima, the capital of Palaestina
Prima. The chronicler alleges, “they attacked the Chris-
tians of the city and killed many of them. They attacked
and plundered the churches. When the governor of the
city went out to help the Christians the Samaritans at-
tacked and killed him in the Praetorium and looted all
his possessions.”51 The wife of the dead governor man-
aged to get to Constantinople, where she pleaded with
Justinian for an imperial intervention. He ordered his
governor of the East, Amantios, to intervene. He went
to Caesarea Maritima with his troops. John Malalas adds,
“Amantios searched for and found those who had com-
mitted the murders. He hanged some, beheaded others
or cut off their right hands, and confiscated others’ prop-
erty.” In this instance of rebellion and brigandage,
Amantios imposed two of the four possible punishments
detailed in 134.13, that is, execution and cutting off a
limb. The third punishment mentioned, i.e., having their
property expropriated, likely fell under the rubric of
“chastisement.” John of Ephesos alleges that Tiberios II
(r. 574–582) had the murderer of a former bishop of Je-
rusalem, Eustokhios, thrown to wild beasts, after which
local authorities had his hands and feet cut off.52
Short of execution, there are few more dramatic in-
scriptions of the power of the sovereign on the body of
the offender than the amputation of a limb. This pun-
ishment is attested in the sixth-century Roman Empire
both in legal texts and literary sources. That it should
later appear in the Qurʾān is not a sign of the exotic
character of the latter, but of its situatedness in the le-
gal matrix of Roman late antiquity. Its imposition by
Amantios on rebellious Samaritans, if John of Malalas’
report can be credited, shows that it served not only as a
criminal but also a political punishment, underlining
50
John of Ephesus, Eccl. Hist, III, 3.40–43; Shahid, Byzantium
and the Arabs (1995–2010), 1:354–56; Fisher, Between Empires
(2011), 175–78; Theophyl. Sim., Hist., 3.17, Whitby and Whitby,
trans.; Whitby, The Emperor Maurice (1988), 272–74.
51
Malalas, Chron., 18:119; see Rabello, “Samaritans in Iuris
Civilis” (1997).
52
John of Ephesus, Ecclesiastical History (1860), 229 (III, 3.35).
190 ✦ Journal of Near Eastern Studies
Foucault’s point that in pre-modern monarchical sys-
tems, the two were intertwined.
Brigandage and Rebellion
It is time to place the relevant language from Novel
134:13 side by side with the Qurʾān’s chapter of The
Table 5:33. I have set the exact parallels in boldface.
The Novel said, of violent stealing:
In the case of a crime such that the law condemns
the guilty to death, the criminal is to suffer the
penalty imposed by the force of law, but if the of-
fence is not such as to merit death, he is to be
chastised by other means, or sent into exile;
and if the character of the offence demands am-
putation of a member, only one hand is to be
amputated.
The Table 5:33 reads:
The recompense of those who make war on God
and his prophet and promulgate brigandage in
the land is to be killed, or crucified, or to have
their opposing hand and foot cut off, or to be
exiled from the territory.
The punishments permitted in the Qurʾān for violent
stealing, of execution, amputation, or exile, are precisely
the same as those mentioned in Novel 134.13, and the
match is so exact as to rule out coincidence. This partic-
ular verse shows such close kinship with the Novel as to
raise the question of whether the Qurʾānic text contains
an endorsement of an epitome of Justinian’s 134:13,
made perhaps by provincial magistrates in eparchies
near to the Hijaz.
How unlikely this concordance is to be a coinci-
dence is underlined if we consider the other major legal
system of that time, that of Sasanian Iran. Punishments
for highway robbery and theft in Sasanian, Zoroastrian
law do not overlap nearly as exactly as the Qurʾān and
the Novel of Justinian. The Book of Tansar notes, “ ‘El-
ephant’ refers to his ordering that highway-robbers and
heretics be cast beneath an elephant’s feet. The ‘Cow’
was a cauldron made in the shape of a cow. Lead was
melted in it and a man cast into it.”53 The Sasanians also
flogged or cut off the noses of thieves and allowed their
victims to sue and receive compensation from robbers.
More rarely, those found guilty of crimes (though not
53
Boyce, trans., Book of Tansar (1968), 48.
necessarily of highway robbery) were burned alive, cut
to pieces, hung by the feet, stoned, or blinded.54 These
punishments must be gleaned from scattered legal and
literary sources, and there is no single text laying out
a series of them in the way Novel 134.13 and The Ta-
ble 5:33 do.
It may be possible to gain a deeper understanding of
The Table 5:33 by situating it in early seventh-century
West Arabia. Nicolai Sinai and Walid A. Saleh have re-
cently argued for taking account of the biography of
Muhammad in that understanding, reviving an ap-
proach which scholars have little deployed in recent de-
cades during the era of revisionist hyper-skepticism.55
But new methods and findings have vindicated the Mus-
lim historiographical tradition’s dating of the Prophet’s
ministry to roughly 610–632 in West Arabia. What are
clearly first-century AH Muslim inscriptions have been
discovered in the vicinity of Mecca and Medina, some
dated.56 Early Qurʾān manuscripts have been identified.57
New methods and findings have brought forward the
likely date of some of the earlier Muslim accounts of Mu-
hammad’s life, though scholars dispute how far.58
The Qurʾān itself, our only primary source for the
early community, recounts how the believers around
Muhammad, having been expelled to Medina from
Mecca by bellicose pagans, fought three major battles,
fending off or attempting to weaken their Quraysh foes.
The later tradition gives 622 as the date of the emigra-
tion to Medina, and dates the major battles between
624 and 627. After the acquiescence of Mecca to the
Prophet in January of 630, a polity formed around
him with the cities of Medina and Mecca at its core.
Political momentum in Western Arabia swung to Mu-
hammad, who received a large number of delegations
from clans pledging fealty to him, whether as believers
or allies.59
54
Perikhanian and Garsoian, ed. and trans., Farraxvmart i
Vahraman (1997), 49; Canepa, “Punishments, Persian” (2018);
Macuch, “Judicial and Legal Systems” (2012).
55
Sinai, “Muh ̣ammad as an Episcopal Figure” (2018); Saleh,
“Preacher of the Meccan Qurʾān” (2018).
56
Al-Rāshid, Al-S ̣uwaydirah (2009); Saʿid and Baytar, Nuqū sh
Hismā (2018); Imbert, “L’Islam des pierres” (2011); Lindstedt
“Who is in, Who is Out” (2019).
57
Sadeghi and Goudarzi, “Sanʿaʾl and the Origins of the Qurʾan”
(2012).
58
Gö rke and Schoeler, Die ä ltesten Berichte (2008); Shoemaker,
“In Search of ʿUrwa’s Sira” (2011); Gö rke, Motzki, and Schoeler,
“First Century Sources?” (2012); Anthony, Muhammad (2020).
59
Cole, Muhammad (2018), chs. 6–7.

If the later accounts are correct, and the Qurʾān itself
gives some credence to this depiction, it appears that
pastoralists feared central government of a sort that
they saw forming around Muhammad at Medina, and
some cobbled together tribal coalitions to forestall
the rise of a new state that might subject them. The ma-
jority of the population in the Hijaz consisted of settled
townspeople and villagers, but mobile pastoralists in
the region remained powerful. The chapter of The Ta-
ble is typically dated to the last years of Muhammad’s
life, roughly 630 to summer 632, a time of Roman re-
surgence after the victory over Iran. The appeal of im-
perial notions of law and order to the new and fragile
community of Muhammad’s believers in the lawless
Hijaz would be easy to understand. It is indicated in
the Qurʾān that the community of believers that had
gathered around Muhammad suffered from brigandage
and the rebellion of local tribes. Repentance 9:97 said,
“The Bedouin are the most egregiously pagan and
hypocritical and more likely to remain unaware of the
limits God has set by what he revealed to his messen-
ger, and God is All-Knowing, All-Wise.” The verses in
The Table 5:33 ordering exile, execution, amputation,
or crucifixion for lawlessness likely had a context in
urban-rural conflict.
The later Muslim historiographical tradition holds
that in late January of 630, an alliance of the Hawāzin
tribe that pastured in northeast Hijaz near Sasanian ter-
ritory and the Thaqı̄f tribe of the city of Ṭāʾif gathered
at the dry riverbed of Ḥ unayn to confront Muhammad
and his followers militarily, threatening to expel them
from newly-won Mecca.60 This battle is recounted in
the Qurʾān (Repentance 9:1–29), with Ḥ unayn men-
tioned at 9:25. The tradition holds that Muhammad
and his forces mounted a vigorous defense and defeated
the truculent tribes. The Bedouin campaigns against
the Prophet’s budding polity are viewed in the Qurʾān
as a form of banditry. Configuring rural rebellion as
banditry had a long tradition in the Roman Empire.61
The condemnation of rebellion and brigandry in The
Table 5:33, with its strong resonances with Novel
134.13, likely refers to actions such as those undertaken
by the Hawāzin.
60
Ṭabarı̄, Ta’rı̄kh al-Rusul wa al-Mulū k, (1879), 1654–55,
1669–70; Ṭabarı̄, History of al-Tabari, (1989–2007), 9:1–3, 20–
21. Peters, Muhammad and the Origins of Islam (1994), 238–39;
Cole, Muhammad (2018), 173–80.
61
Blumell, “Beware Bandits!” (2007).
Muhammad and Justinian ✦ 191
Given that Roman law penalized aggravated rob-
bery (ληστεία) with these punishments, I believe we
now have a definition of fasā d in The Table 5:33, to
wit, brigandage, banditry, or plunder—the violent ex-
propriation of property. (Many words in the Qurʾān
are polysemous, and fasā d is elsewhere sometimes used
to mean “corruption.”) This definition of fasā d (and
perhaps especially al-fasā d fı̄ al-ard )̣ as violent theft
in the light of the similarity between Justinianic law
and the Qurʾān is supported by Joseph 12:73, where Jo-
seph’s brothers protest, “They said, by God, you know
that we did not come to commit fasā d in the land
(linufsida fı̄ al-ard ̣) and we are not thieves (sā riqı̄n).”
Here the text, by using a parallelism, defines the phrase
for us as involving stealing. This connotation would
also make sense of a verse such as The Cow 2:27, which
complains of tribes who violated their peace treaty
with the Prophet in the early 620s in Medina, saying,
“Those who break the covenant of God after swearing
to it, and sever what God has ordered to be joined,
and commit fasā d in the land (yufsidū na fı̄ al-ard ̣)—
they are the losers.” That is, such tribes had not only re-
pudiated the Prophet’s sovereignty by breaching their
treaty with him, but had likely gone on to engage in
raiding. Something more than mere “corruption” is fur-
ther indicated in The Cow 2:30, where the angels pro-
test to God about creating Adam and admitting him to
the garden of Eden, “Will you place therein one who will
commit fasā d therein (yufsidu fı̄hā ) and shed blood?” By
this parallelism, the verse associates fasā d with mayhem.
The Cow 2:251 celebrates David’s victory over Goliath
and the Philistines, adding, “Had God not checked some
of the people by the means of others, the earth would
surely have become subject to plunder ( fasadat); but
God is bounteous unto all beings.” Most translators have
given “the earth would have been corrupted” here,
which is vague. Surely the text means to indicate that
the Philistines would have engaged in looting had they
defeated David. Finally, the association of amputation
of the hands with theft is affirmed in The Table 5:38,
which allows that punishment for “stealing,” both for
males and females. Verse 5:33 also applies these penalties
to those who violently attack the prophet’s new commu-
nity, i.e., those who commit rebellion and banditry. As
used in the Roman Empire, the Greek equivalent of
fasā d, ληστεία, encompassed both meanings of brig-
andage and political rebellion.62
62
Ibid., 4.
192 ✦ Journal of Near Eastern Studies
Later Muslim legal scholars termed such acts of
highway robbery and banditry h ̣irā ba, whereas they
called rebellion baghy.63 The term h ̣irā ba also comes
from The Table 5:33, deriving from the verb “to make
war on” (that is, on the Prophet and his community).
The preference of Abbasid jurists for h ̣irā ba to describe
brigandage perhaps obscured this part of the semantic
field of fasā d for later generations. However, Muqātil
b. Sulaymān (d. 767), writing after 750, did gloss fasā d
in The Table 5:33 as “killing and taking property.”64
That Muhammad sentenced rebels to exile is indi-
cated in The Gathering 59:1–3, which speaks of a for-
tified village of monotheists who had allied militarily
with the Prophet’s truculent pagan attackers in Mecca,
referring to them as “those who paganized among the
People of the Book.” The later Muslim exegetical tra-
dition and the Prophet’s biographers identified them
as Jews of the Banū al-Nad ̣ı̄r, though there is nothing
in the Qurʾān to suggest that these perfidious mono-
theists were Jews.65 In any case, the Qurʾān said that
these enemies of Medina had been convinced that their
fortifications would protect them, but that the Proph-
et’s forces came at them from a direction they were
not expecting, and so they fled. The later Muslim tra-
dition maintains that this treasonous community of
monotheists was sent into exile in Syria.
There are just two differences with regard to punish-
ments for brigandage between the language of Novel
134:13 and that of The Table 5:33. One is that the
Qurʾān continues to permit amputation of more than
one limb, as in pre-556 Roman practice. (Justinian
would not have had to insist that only one limb be
taken unless magistrates commonly ordered the ampu-
tation of more).
The other difference between Novel 134.13 and
The Table 5:33 is that in the Qurʾān, the fourth punish-
ment, “chastisement,” is specified as crucifixion. The
Arabophone peoples knew of this penal practice, since
two pre-Islamic Safaitic inscriptions mention crucifix-
ion.66 Although the Codes of Theodosius and Justinian
63
Marsham, “Public Execution” (2011): 101–111 (which antici-
pated my argument in this paper, though without reference to the
Novels of Justinian); Haleem, Exploring the Qurʾā n (2017), 92–93.
64
Muqātil b. Sulaymān, Tafsı̄r (2002), 1:473.
65
Cole, Muhammad, 140–43; Maʿmar ibn Rāshid, The Expedi-
tions (2014), 66–67; Ṭabarı̄, Tafsı̄r al-Ṭabarı̄ (2001), 22:496–500;
Schö ller, “In welchem Jahr?,” (1996); Schö ller, Exegetisches Denken
(1998), chs. 6 and 7.
66
Al-Jallad and Jaworska, Dictionary of the Safaitic Inscriptions,
129, under “slb;”̣ Al-Jallad, “Crucifixion in Safaitic” (2018).
forbade an elaborate, formal crucifixion of the sort im-
posed on Jesus according to the Gospels, criminals or
their corpses continued to be suspended from wooden
structures or gibbets in the late Roman Empire, and
this practice continued into the Muslim era.67 John of
Ephesos alleged that a General Theophilos had some Sa-
maritan rebels in the revolt of 556 crucified, and that he
also decades later imposed this punishment on a rem-
nant of powerful pagans in Heliopolis (Baalbek) who
had been mistreating lower-class Christians in the Bekaa
Valley.68 Roman authorities prescribed crucifixion for
political crimes against the emperor. In the Qurʾān
(7:124, 20:71, 26:49), Pharaoh is sometimes reimagined
as a late antique Roman Caesar, threatening to impose
amputation and crucifixion on court magicians who de-
serted him for Moses and joined his Hebrew slave revolt
(recalling the Codex of Justinian 6.1.3). This punishment
therefore may be mentioned in the Qurʾān in connection
with banditry and rebellion directed at Muhammad’s bud-
ding polity, as at Ḥ unayn in 630, as a claim on sovereignty
paralleling that of the neighboring Caesars.
Conclusion
Situating the Qurʾān in Late Antiquity still faces many
conceptual and methodological hurdles. The Muslim
exegetical and chronicle traditions largely exclude the
Roman Near East as a primary background for the text,
proposing an idealized Arabian context for the scrip-
ture. That the Muslims created an empire that came
into constant conflict with Byzantium perhaps made
it hard for later generations to imagine that the Qurʾān
grew up in the late Roman commonwealth and politi-
cally favored Constantinople and the Christians. In
turn, many nineteenth and early twentieth-century Eu-
ropean academics, steeped in Orientalism and Aryan ra-
cial theory, took little interest in this approach, given
that they put the “Semitic” Qurʾān solidly under the
sign of the Other, making it difficult to conceive it as
a Roman document. After all, they thought of Rome
as the wellspring of Western Christian culture and iden-
tity. Ignaz Goldziher, C. H. Becker, and Joseph Schacht
were exceptions to this sensibility, but until recently
found few successors. In part, the subsiding of this ap-
proach had to do with its early exponents making overly
large claims for the Roman inheritance, which is only
67
Anthony, Crucifixion and Death (2014), chs. 2, 4; Marsham,
“Attitudes to the Use of Fire” (2015), 109.
68
John of Ephesus, Eccl. Hist., III, 3.26–28.

one of the contexts for the Qurʾān. Some passages in
the Muslim scripture cannot, however, be understood
without taking Roman culture and politics into account.
Power, whether imperial or prophetic, structured
these punishments, catching the bodies of the wayward
in a legal matrix even as individuals often rebelled against
these formal norms. Both Justinian’s Codex and Novels
and the Qurʾān conform to Roman practice in offering a
number of alternative possible punishments for an in-
fraction and leaving the choice of which to implement
to local authorities. We also know that authorities often
set aside the formal legislation and proceeded on a prag-
matic and ad hoc basis, imposing lighter sentences than
the constitutions decreed. It is difficult to know, given
the paucity of documentary sources for the first centu-
ries of Muslim rule, how frequently the state penalized
crimes such as armed robbery with the Qurʾānic (or we
might say Justinianic) punishments. Anthony has shown
that the later sources allege that the Umayyads (658–
750) carried out dozens of crucifixions, especially for
political rebellion. Rebellions constantly broke out over
that century, however, and the sources mention rela-
tively few instances of crucifixion for such a long period
and such a large area, stretching from Spain into Central
Asia.69
None of the later Muslim exegetes and jurisprudents
of the Abbasid era refers to a Roman background to or
context for The Table 5:33. These scholars, inhabiting
a very different world and often migrating east, obvi-
ously had lost touch with the historical realities of the
early seventh century. They are not just poor guides
to the Qurʾānic period, but appear to be what literary
critics call unreliable narrators, telling stories about it
that guide us away from the truth. Those revisionists
such as the late Patricia Crone, who entertained the se-
verest doubts about the value of the information in the
later sources, are at least somewhat vindicated here,
even if their skepticism about the dating and venue of
the Qurʾān has proven unwarranted.70
Foucault’s “ceremony of submission” is apparent in
the punishments for robbery and rebellion in both the
Justinianic and Qurʾānic texts. Justinian wanted to pe-
nalize only two forms of non-violent theft by amputa-
tion: dishonest record-keeping by tax officials, with an
implication of embezzlement from the emperor, and
attempts by slaves to run away (which he may also have
69
Anthony, Crucifixion and Death (2014), chs. 5–6.
70
Patricia Crone, “Two Legal Problems” (1994).
Muhammad and Justinian ✦ 193
seen as a form of theft from the crown). Otherwise, he
specifies this punishment especially for brigandage. In
the Qurʾān, it is the penalty for robbery and pillage and
for rebellion “against God and his Prophet.” In most in-
stances, then, amputation appears to be a late-antique
Roman punishment for the use of force by a private in-
dividual. This usurpation inevitably challenges the au-
thority of the state, which as Max Weber pointed out,
has a monopoly on the legitimate use of force.
What are we to make of the Qurʾān mandating virtu-
ally the same punishment for committing robbery or
mounting a military campaign against the Prophet as
Novel 134.13 prescribes for highway robbers and pi-
rates who offended the emperor? In light of Foucault’s
insight that such deeds are viewed as crimes against the
body of the monarch, we can discern in the Qurʾān a
claim on sovereignty. That the Muslim scripture appro-
priates the Caesars’ punishment of crucifixion under-
lines a Qurʾānic political claim on parallel power. The
embryonic Muslim polity may well have been making
a bid to join the Eastern Roman commonwealth that
grouped Constantinople and its allies (including non-
Chalcedonian Armenia and Axum and the pagan Onoq
Khaganate) against Zoroastrian Iran. Medina’s mirror-
ing of some Roman legal practices is consonant with
this aspiration.
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