ISLAMIC LAW AND ROMAN LAW
The orient a list think that the highest degree of consistency with which Islamic law is compiled is due to the influence of Roman Law. They state:
- That most of the Hanafi propositions are like Roman Law.
- That Roman law was in force throughout Syria. As the Muslims were impressed by their civilization and culture, so it was most, probable that Muslim scholars were influenced by Roman law regarding legal problems.
- Such an exhaustive Fiqh necessitates the help of some other laws of the world.
Muslims got very meager help from the non-Muslims with respect to law. We find several translated books, but they are concerned with philosophy and medicine. We can’t find any law books which were translated into the Arabic in those days. It is quite clear that during that period when Abu Hanifah compiled Fiqh, no such book was translated into Arabic. So it is a baseless idea that he was influenced by legal works of the non-Muslims. The law based on customs was not of such a high caliber as could be labeled as a law. In short, it is not proved by the existing evidence that the Imam got any legal book of Rome or Persia and on its pattern he laid the foundation of Islamic Fiqh. There is no denying of this fact also that all those juridical propositions which were compiled before him, no matter in what form and number, had no significance of science. He got assistance from them but this was such sort of help from which no compiler of the world is free.
Mr. Sheldon Armos, Professor of law in London University, has vehemently advocated in his book, “Roman Civil Law”, the sense of superiority which Europe has all over the nations in general and Muslims in particular. The European authors look down upon the achievements of the Muslims. If they notice some sort of excellence and perfection, they think that this is not a device of Muslims but taken from Greece and Egypt. Mr. Sheldon applied the same principle to Hanafi Fiqh and extended it to the general law of Islam.
The Professor has proved by historical evidence that when Muslims conquered Syria and Egypt there were several colleges of Roman Law. A team of lawyers lived in Qaiseria. Legal education was given in Alexandria. In this way he has tried to prove the influence of Roman Law over Islamic Law.
He based his arguments on the finality of this view that there are so scanty commandments in the Quran that no law can be based on this . Again, he reiterated that Roman Law was already in force in countries conquered by Muslims.
The learned Professor claimed that there were a few commandments in the of the Quran. Its detail is given below:
Do not make God the target of your oaths.
- Do not make God the target of you oaths.
- You can divorce your wives twice then separate them by affecti6n
- The interest receiver will be like one bewitched on the Day of Judgment
- Debt for limited or terminable period should be written
- If you can do justice with your wives, then you can marry more wives but not more than four.
You can divorce your wives twice then separate them by affection.
The interest receiver will be like one bewitched on the Day of Judgment.
Debt for limited or terminable period should be written.
If you can do justice with your wives, then you can marry more wives but not more than four.
4. A male member will get two shares and female will get one. If there are only females then two shares. The husband will get one half.
5. At the time of pronouncement of will, witnesses are essential.
6. There are twelve months in a year.
7. Write a treaty of freedom if you please.
8. The punishment of Zina and backbiting.
No doubt, the Professor is well versed in Roman Law, but his mastery over Islamic law cannot be acknowledged. His view is that there are a, few commandments in the Quran (the detail has been given above). But the actual position is that there are more or less five hundred verses of commandments. Although most of them are about devotion, etc., yet the particular verses containing legal injunctions are not less than one hundred. These verses have been collected and Muslim scholars have written several commentaries on them. The learned Professor is quite ignorant of these books. It is regrettable that he could find only two commandments for marriage and divorce, i.e. number of talaq and number of nikah, but in realty there are so many other injunctions regarding these topics in the Holy Book in detail.
i So far as inheritance is concerned, the learned Professor knows only the share of husband or male who gets double the share of a female. There is a full chapter of inheritance in the Holy Quran, especially the shares and commandments for parents and are explicitly given. The problems of retaliation and blood-money which are given in detail in the Quran, are unknown to him.
He himself acknowledges that in the beginning of Islam, that is, up to the last days of die Rightly-Guided Caliphs Muslims remained secluded from foreign nations and did not get any information about their laws and rules. So according to his version, the institutions of Beirut and Alexandria could not influence Islamic Law. Now the question remains as to those problems which, according to him, are identical to Roman Law, e.g. regarding inheritance. He reiterates that in Islamic Law shares are distributed according to Roman Law. These are the complete shares; one-half, one-fourth, one-fifth, two-fifths, one-third and one-sixth. The same shares are in Roman law. He does not know that these shares are prescribed in the Holy Quran. With respect to the Quran he himself acknowledges that it is immune from the influence of Roman law. No doubt, the shares of some persons are not given in the Quran, but during the days of the Prophet (Peace Be Upon Him) and Caliphs these shares were fixed. The learned Professor thinks that regarding “will” the Islamic law is indebted to Roman Law. In fact, these are the problems of the early days of Islam when Muslims were not influenced by legal teachings and books of non-Muslims. According to him, there are only a few legal commandments in the Quran and Hadith. Now can a big volume of Fiqh be based on them. It compelled him to say that Islamic Fiqh is indebted to Roman. Take it for granted that if legal terms are taken from Roman law there is no ample explanation of Prayer, Fast, Haj, Zakat in the Quran, even then there is a magnificent achievement in this respect. Is Islamic law indebted to Roman Law in this respect also?
Moreover, there are other branches of knowledge in which the Muslim scholars have done a marvelous work. Now all these branches of knowledge are separate sciences. It shows the great intelligence and understanding of Muslims. Have the Muslims learnt these sciences from Romans and Greeks?
The problems of Fiqh which he alleges to be taken from Roman law are the problems of that period in which, according to him, Muslims did not learn anything from the non-Muslims. But even after that period, Muslims are not indebted to any foreign law.
The allegation of the learned Professor is true that during the progressive Abbasid period, Muslims acquired knowledge of different sciences form Greece and Rome. It was one group of scholars. But at the same time there is another group of scholars who, by dint of their knowledge and skill, did not care even to see towards the knowledge of other nations. All those books from Greece and Rome which were translated into Arabic belonged to Philosophy, Medicine, Geometry, Chemistry, Industry, History, Biography, Novels, Fiction, etc., but no legal books were translated. We cannot imagine that the eminent scholars like Abu Hanifa and others believed that which ate part and parcel of Islam should be learnt from Rome and Greece. It is a pity that the Professor did not know the life-sketches and achievements of these scholars, otherwise he could not claim so, Sobhi Mahmassani says:
Now the question arises as to why the Islamic Fiqb and the Roman law? Re identical in some respects. The real position is that this is not particular to Islamic Fiqh only. If we have a comparative study of different legal systems there are some propositions which are common in them and this is but natural because when human nature and requirements thoughout the world are common, it is not strange when laws framed for them are also common.