On question of
influence of Roman law on Islamic law*
Brunel University
London
Table of content: 1. Introduction. – 2. Gaps in origins of Islamic jurisprudence. – 3. The
issue of structural parallels. – 4. Parallels
in contract law. – 5. Conclusion.
1. – Introduction
The question whether Roman law had any
influence on Islamic law has been discussed by a number of scholars for a
period of three centuries. It has been speculative question from the beginning
and scholars were well aware of that fact.
The proponents of Roman influence can be
divided into two groups: (I) direct influence; and (II) indirect influence.
The proponents of direct influence have
been advocating the view that Roman law had been directly imported and installed
into main body of Islamic law[1].
They went as far as to state that Muslim jurists directly copied Roman legal
books. Moreover, they argued that Islamic law could not have any other source
than Roman law as a benchmark for development of nucleus for Islamic law.
The proponents of indirect influence have
advocated that Roman law had influence on Islamic law only through provincial
systems of law[2].
It was assumed that it could be Jewish law, Syriac law or generally provincial
law that served as a vehicle for transportation of Roman legal doctrines into
Islamic law. Moreover, it has been suggested that Muslim conquerors adopted
these doctrines during conquest and some of them has penetrated through
non-Arab converts, which resided in areas conquered by Muslims.
These camps never thought that Roman
legal concepts could penetrate into Islamic law both directly and indirectly
through various ways. Neither it was opponents of Roman influence, who denied
possibility of any influence of Roman law on Islamic; they would never imagine
that Islamic law could be modified version of any legal system, including Roman
law.
In this article, I argue that Roman law
had influence both directly and indirectly, because both channels of
transmission cannot be mutually excluded. Particularly, I will focus on
juxtaposition of theories on direct and indirect influence and will demonstrate
that both possibilities should not be neglected because penetration of Roman
law was not either organized or uniform. Roman legal concepts penetrated
sporadically and on different levels therefore close examination reveals that
some concepts were Roman and other were non-Roman, mostly local or provincial
and based on customs.
2. – Gaps in
origins of Islamic jurisprudence
One of the most debated issues in
contemporary Islamic studies is a question of dating the origins of Islamic law
and jurisprudence. It has become the issue due to scarcity and unreliability of
sources on early period of Islamic state. The early sources, reliability of
which are not debated that much, are Qur’an, Constitution of Medina and
poetry. Apart from these sources, other sources such as Traditions of Prophet
and Companions were mostly rendered spurious.
Goldziher was first to render traditions
unreliable; not all his findings on hadith can be viewed tenable[3].
Close analysis of early hadith collections and even classic ones reveal that
certain hadiths could not be forged simply because it was impossible to make up
storylines about Prophet, where he dealt with his Companions under certain
circumstances and there is corresponding verse of Qur’an that rejects
possibility of forgery.
Criticisms of Goldziher’s methods
by Sezgin are inappropriate because they are focused not at subject-matter of
hadiths, but mainly methodology, by which, hadiths passed tests of reliability[4].
Same mistake has been committed by Hallaq, not towards Goldziher but Western
critics of hadiths in general[5].
The theory of Roman influence has not
been exaggerated by Goldziher as Crone assumed; Roman law penetrated through
various channels into Islamic law and these channels were mainly provincial
law, as Crone assumed, and books, the fact which has been neglected by majority
of Islamicists. Jokisch also exaggerated when asserted that Muslim jurists
directly used Roman legal principles as benchmark for Islamic legal principles.[6]
The important observation was made by Von
Kremer who contended that although Muslim scholars did not study Roman
lawbooks, there was a continuity of legal practice and that some legal institutions
could have penetrated into Islamic law through Jews[7].
Schacht was correct in suggesting that
majority of legal traditions were forged, yet he committed the same mistakes as
Goldziher, when he generalized his assumption on forgery[8].
Moreover, Schacht was ultimately right when asserted that Islamic jurisprudence
emerged only after 1st century[9].
In fact Islamic jurisprudence, as classic jurists formulated it, emerged only
after Shafii’s monumental ‘Risala’. Shafii is a true founder
of Islamic jurisprudence contrary to assumption of Hallaq[10].
What preceded classic Islamic
jurisprudence was law-making process of early jurists, as Motzki assumed, but
he overemphasized their contribution into development of jurisprudence[11].
One of other mistakes, committed by Motzki is a test of reliability applied to
hadiths collected by Abd al-Razzaq in his Musannaf, as pointed out by Melchert.
If Motzki’s test is correct then all hadiths in Bukhari and other classic
collections of hadiths should be viewed forged without exception[12].
Motzki applied method contrary to methods of classic jurists, according to
which, there should be chain of reliable transmitters in each hadith, in order
to be authentic.
It is safe to assume 5th year A.H. as an
earliest date for beginning of Islamic law, deriving from Qur’anic verse
5:49[13].
Before that date, Arab Muslims used to resort their disputes to Jahili law and
even after it, Jahili law was not completely ousted[14].
Jahili customs used to be applied with new Muslim customs in mixture. Muslim
customs used to be applied constantly according to precedents laid down by
Prophet and his Companions, but majority of them has been discarded and
forgotten.
As Muslim empire expanded, Muslim judges
used to seek for opinions which were based on Islamic customs. Sometimes
sources for such opinions were caliphs, sometimes governors and sometimes
people who presumed to know customs or traditions in this regard. Sometimes
caliphs or governors in order to support their views referred to
Prophet’s opinion and sometimes they supported their opinion, by actually
pre-Islamic custom, believing that it has not been abrogated by Islam[15].
People who knew or presumed to know
customs or traditions often concentrated in towns where Muslim population were
majority and these towns were mostly Mecca, Medina, Kufa, Basra and Damascus[16].
These towns soon became prominent towns of learning where early Muslim scholars
often exchanged views on one or another question of ritual, marriage, divorce
or inheritance based on either Qur’an or pre-Islamic customs. Prophetic
traditions were rarely invoked[17].
One of such prominent centers was Mecca,
where scholars would give their opinions on different matters of law based on
Qur’an, their own opinion, practice of Mecca, which was mainly pre-Islamic
and sometimes it was either opinion of Prophet or of one of his companions[18].
Similarly, along with this town, three other prominent towns arose with their
own distinctive circles of learning.
There had been slight development of law
on governmental level too. It was Umayyad caliphs, their governors and judges,
whose contribution in development of early Islamic law is invaluable[19].
Their experience and knowledge in law mixed with knowledge of private scholars
and soon crystallized into distinctive ‘so-called’ schools of law.
Islamic law has dramatically changed
after 1st century A.H. when methods of law in certain centers has been
systematized by learned and prominent scholars of law such as Ata ibn Rabah,
Ibn Jurayj, Amr Ibn Dinar, Hammad ibn Sulayman, Ibn Abi Layla, Abu Hanifa,
Sa’id ibn Musayyab, Malik ibn Anas, Awzai and others[20].
Roman law could have penetrated prior to
emergence of classic schools of law and after emergence; it is not
overstatement because in both stages one can discover influence of Roman law.
At the initial period, once conquest
started Arabs conquered Middle Eastern lands one by one and in all conquered
lands Arabs were compelled to adopt local customs and rules on administration[21].
The question of adoption of rules on ritual, marriage, divorce and inheritance
is excluded since they were based largely on pre-Islamic Arab customs and early
Qur’anic rules. It seems that Roman law influenced on such areas as the
law of contract, taxation, endowment and public administration.
On the other hand, study of Albrecht Noth
on Pact of Umar demonstrates that early Muslim conquerors were wary of
non-Muslim customs. Particularly, he observed: «All these regulations
(Pact of Umar) show that Muslims strove to draw a very clear distinction between
the spheres of both groups, with the aim of protecting Muslim minorities in a
new and alien environment, who had to be careful not to lose their (not yet
fully developed) identity»[22].
It is however incorrect to assume that these regulations prevented Arabs to
adopt non-Muslim law; they only prevented them to imitate each other mutually.
When Umar entered Syria did not change
anything but concluded abovementioned pacts with non-Muslim population in
conquered territories. It can be implied from this fact that Syriac law, both
public and private continued its existence at least until caliph Abd al-Malik.
As sources show, Syriac law has been under heavy influence of Roman legal
concepts[23].
There have been never a Syriac law in technical sense; all Syriac legislation
was rather a mishmash of different legal concepts that had been imported from
different legal systems. It was Sachau
who had extensive knowledge of both Syriac and Islamic law[24], attempted to relate Islamic law to
Syriac law as a source for majority of legal institutions in Islamic law.
In his fundamental study of legal status
of non-Muslim minorities, A. Fattal argued that Arabs imported some aspects of
Byzantine administration after conquest of Syria and similarly they did with
judicial system[25].
As evidence, he adduced numerous examples on how Byzantine imperial edicts
continued to be applied on the territory of caliphate. Besides he showed that
ecclesiastical authorities in caliphate continued to issue acts and rules which
were however valid for Christian communities.
One of the documents survived is
Nomocanon composed by David, Maronite priest in 673 A.D. 43 years after death
of Prophet Muhammad. It was also known under its Arabic name ‘Kitab
al-huda’[26].
It was devoted to ritual and other matters. It is not excluded that structure
of Kitab al-huda could have influenced on structure of early Islamic books on
law.
One of possible influence, known at this
early period is a prohibition of witnessing of non-Muslims against Muslims.
A.Fattal believes that this rule has been imported from Justinian Digests. This rule was also imported into Jewish
law[27].
The Roman influence cannot be only
restricted to Syriaс law; Arabs also conquered other countries such as
Egypt, Iraq, Central Asia and Spain. It is also possible that Roman law could
have penetrated through Egypt, Iraq or Spain.
3. – The issue of
structural parallels
The issue of structural parallels has
been discussed by Crone in her “Roman, provincial and Islamic law”.
She strictly criticised Goldziher for committing mistakes when comparing Roman
and Islamic law and for weak arguments on Roman influence. It is appropriate to
discuss some of them here.
Her criticism was directed at equation or
juxtaposition of legal terms that Goldziher did in order to show how apparent
influence was. It would be clearer if it is demonstrated in table:
|
Roman term |
Muslim term |
|
Rerum divinarum atque humanarum notitia |
Fiqh |
|
jurisprudentia |
Fiqh |
|
jurisprudens |
Faqih |
|
Responsa prudentium |
Fatwa |
|
opinio |
Ra’y |
|
Opinio prudentium |
Ijma |
|
Consensus doctorum ecclesiae |
Ijma |
|
Leges scriptae |
Written law |
|
Leges non scriptae |
Unwritten law |
|
Utilitas publica |
Maslaha mursalah |
|
Praesumptiones |
istishab |
|
Ratio legis |
Illa |
In order to proceed further, it is
necessary to clarify what these Muslim legal terms mean in the context of
Islamic jurisprudence. Fiqh, according to Schacht, is science of Sharia, which
is in turn «an all-embracing body of religious duties, the totality of
Allah’s commands that regulate the life of every Muslim in all its
aspects; it comprises on an equal footing ordinances regarding worship and
ritual, as well as political and (in narrow sense) legal rules»[28].
Whereas it would be correct to draw parallels between rerum divinarum atque
humanarum notitia and fiqh, it would be incorrect to do in respect of
jurisprudentia, which exposes law in technical meaning and is a result of human
work on principles of law and not deduced from sacred books.
Fatwa, again according to Schacht, is
legal opinion of «specialist in law (mufti) who can give an authoritative
opinion on points of doctrine»[29].
In Roman law, responsa prudentium is “sententiae et opiniones eorum quibus
permissum est iura condere”[30]. As one
can see meaning both terms is almost identical and borrowing here should be excluded,
because we also see similarities in structure of words: mufti is the one who
gives fatwa and jurisprudents are the ones who give responsa or opinion
prudentes. There have been no such institution in pre-Islamic Arabia, prior to
emergence of Islam, neither there was during lifetime of Prophet Muhammed. Once
Muslim empire expanded further to north, we can see emergence of such
institutions as mufti and fatwa. It is not accidental; Iraq has been once
territory of Byzantine, where Roman law was consistently applied[31].
As for parallels between ra’y and
opinion, similarity between two terms is evident. Gai understood opinio as
something which exclusively belonged to jurisprudent and in Islamic law,
ra’y is opinion of faqih which belongs to him, without resort to any
other source. Yet, in Islamic jurisprudence, faqihs could exercise their ray
based on sources and their extensive resort to ra’y led to formation of
legal thought and concepts in Islamic law[32].
In early Islam, especially during the reign of Umayyad dynasty, we have
numerous evidences on how provincial judges and governors resorted to their
ra’y and sometimes to the ra’y of private scholars. In one of
traditions, governor of Medina, Marwan ibn al-Hakam writes to caliph
Mu’awiya asking advice on insane person who committed crime, to which
latter responded that insane person should be tied down and no punishment
should be applied to him.[33]
This was the case of clear exercise of ra’y by caliph, who did not resort
to any sources beside his own opinion. Or in another tradition, Mu’awiya
asks advice of private scholar Zaid ibn Thabit on matters of divorce.[34]
Both cases show that ra’y had been extensively practiced in early Islam.
But does it mean that it has been borrowed from Roman law? Muslim jurists as
well as rulers could have resorted to personal opinion without aid of Roman
legal methodology. There was a gap in law and it had to be filled by opinion of
such authoritative person as caliph or judge. It is therefore not clear or
evident that ra’y could have been borrowed from Roman law.
Ijma, is defined by Kamali, as
«unanimous agreement of the mujtahidun (jurisprudents) of the Muslim
community of any period following the demise of the Prophet Muhammed on any
matter»[35].
There is a concept of consensus of jurists in Roman law but it is confined to
certain matters and consensus can be modified or changed after when some fact
arises or judge chooses to follow an opinion of different jurist or group of
jurists. The position of consensus in Islamic law is somehow ambiguous and
cannot be equated to Roman law, therefore any parallel between Islamic and
Roman legal consensus should be dismissed.
Written law and unwritten law in Islamic
law are Qur’an and Sunna. Qur’an is considered to be the Word of
God revealed to Prophet Muhammad, compiled into one book and used as a source
of law since then and Sunna is actions and words of Prophet Muhammad, which
were transmitted orally until the middle of eighth century and used as a source
of law in equal footing with Qur’an. Written and unwritten law never
played such significant role in Roman law as it played in Islamic law.
Therefore, possibility of borrowing should be discarded at once.
Maslahah mursalah is defined by Kamali as
«unrestricted public interest in the sense of its not having been
regulated by the Lawgiver (God) insofar as no textual authority can be found on
its validity or otherwise»[36].
In Roman law, however, term ‘utilitas publica’ implies different
meaning; it is the “justification of the praetor’s right to supplement
and correct the jus civile”.[37]
In Islamic jurisprudence, jurist has not right to do so in the interests of
public if the rule has been clearly establish in Qur’an and Sunna. There
is concept of istihsan, juristic preference, which however gave the right to
jurist to abandon one established opinion of another in interest of public. In
fact, istihsan can be somehow equated to utilitas publica as it is understood
in Roman law but maslahah mursalah cannot be.
Istishab, according to Kamali, is
«a rational proof that may be employed in the absence of other
indications; specifically, those facts or rules of law and reason, whose
existence or non-existense had been proven in the past, and which are presumed
to remain so for lack of evidence to establish any change»[38].
In Roman law, praesumptio is mainly used in trial and is related to
distribution of onus probandi[39].
Roman judge would consider some facts as non-existent unless contrary is proved
by interested party. If it is proven, then onus probandi is re-distributed
again between parties. This principle seems to have been borrowed from Roman
law, since logic of construction of Islamic praesumptio is almost similar to
Roman one.
Illa is one of the central concepts in
Islamic jurisprudence and is defined as «an attribute of the asl
(original case) which is constant and evident and bears a proper relationship
to the law of the text»[40].
Illa seems to have been borrowed from ratio legis and even Crone does not
reject such possibility but refers to missing Syrian or Greek links which can
clarify this matter.
Crone dismissed these similarities in
some cases; in other cases she suggested that it was influence of Jewish law or
Greek law. Nowhere has she admitted that it was influence of Roman law, even
though in some cases it is almost evident that Muslim jurists imported some
Roman terms along with concepts.
However, Crone did not reject these
similarities on bare ground; she has adduced ample of convincing arguments for
advancing her own theory. She presented three counter-arguments or objections
to Goldziher’s theory: (I) «Goldziher consistently exploits a
structural similarity between the concepts of early Roman and Islamic law to
postulate a genetic relationship between the two without regard for the fact
that it was late Roman law that the Arabs came into contact»; (II)
«here as elsewhere he fails to consider the Greek (not to mention Syriac)
forms in which Roman legal concepts will have been current in the Near East.
Even at Beirut, where Goldziher believed the teachers of the Muslims to have
been educated , the teaching was done in Greek from the late fourth or early
fifth century onwards, though the textbooks were in Latin»; (III)
«parallels between Jewish and Islamic law are unlikely to have arisen through
independent borrowing by Jews and Muslims from Roman law»[41].
Finally she concludes, «if a genetic relationship is postulated, the
presumption must thus be that, whatever the relationship between Roman and
Jewish law, the parallels in Islamic law arose through Muslim borrowing from
the Jews»[42].
What is striking in observations of Crone
is that she admits that Arabs came into contact with Roman law; even it is late
Roman law. It does not matter what form of Roman law they came into contact
with; what matters is that Arabs were compelled to import or borrow certain
legal concepts from Roman law in order to fill gaps in early Islamic
jurisprudence. Even research in early Islamic jurisprudence demonstrates how
Muslim traditionists opposed the rational methods in jurisprudence. Where did
such methods come from?
In his magnum opus
“Zahiriten”, Goldziher showed that casuistry in early Islamic
jurisprudence was condemned by traditionists and it hardly survived in Islamic
law afterwards[43].
The only school where such casuistry can be said to have survived is Hanafi
school of law, whose founder Abu Hanifa is considered to be foremost expert in
matters of pure jurisprudence. He is the one who introduced rational methods
into Islamic jurisprudence to be condemned later. There is no direct evidence
on link between Abu Hanifa jurisprudence and Roman law but it can be assumed
that he or his disciples practiced some borrowings from foreign system of law.
It can also be suggested that Abu Hanifa could have encountered late Roman law
when seeking for model on his version of jurisprudence.
Further, Crone admits that Syriac or
Greek law could have served as vehicles for transportation of Roman legal terms
into Islamic law[44].
Moreover, she admits that books were in Latin and that Muslims could have been
educated in Beirut. Should it be so, then Abu Hanifa or his disciples or
teachers could also be educated there and learned law from Latin books of law.
It is on this ground, it seems, Jokisch have relied his theories on, and when
suggesting that early Islamic jurists studied Roman law and copied their
contents into books on Islamic law.
On the other hand, Crone dismisses the
possibility of Muslim jurists engaging in copying Roman legal books by noting:
«Given that the foreign origin of Islamic philosophy is openly admitted,
the parallel with philosophy adduced by Gatteschi, Amos and later also by
Goldziher is somewhat unfortunate»[45].
Domenico Getteschi[46] and Sheldon Amos[47] vigorously submitted the idea that
Islamic law was not influenced by any legal system but by Roman law since the
major source of Islamic law – Qur’an does not have much legal
content, besides in Syria, which was the first seat of Arab conquerors, Roman
law was not only applied but also studied. Therefore, they concluded that Islamic
law is the “Roman law in Arab dress” which was certainly an
overstatement but both of them as well as their successors like Santillana[48] and Enger[49] were right in asserting that Islamic law
could not have emerged on bare ground.
Further, Crone denies the possibility of
independent borrowing by Jews and Muslims from Roman law. She does not adduce
sufficient explanation for such argument and forcefully assert the idea that
Jewish law has served as one of the chief vehicles for transportation of Roman
legal concepts into Islamic law. It will need further inquiry and additional
research in Jewish law in order to test Crone’s theories.
4. – Parallels in
contract law
One of the striking parallels can be
discovered in Islamic law of contracts, where majority of concepts were clearly
influenced by Roman legal institutions. Along with similarities, one can find
differences which make Islamic law unique or at least not influenced by Roman
law in these aspects.
One of the binding elements of Islamic
law of contract is ijab and qabul. In this respect, Schacht commented:
«Roman law, for instance, has no fixed technical terms for offer and
acceptance. It is true that offer and acceptance express the agreement or
consensus of the parties, but the so-called consensual contracts of Roman law
differ essentially from the Islamic legal concepts of contract»[50].
This difference and appraently similarity
can be demonstrated by comparison of the authoritative books on Islamic law and
Gai Institutions.
In Mukhtasar
of Ibn Ma’sud, Hanafi jurist of post-classical period[51],
sale (baya) is defined as an exchange of one type of goods for another
between two or more persons upon their agreement (67.1.1.)[52].
On the contrary, Roman law[53]
defines sale (emptio-venditio) as an agreement, upon which one party –
seller (venditor) agrees to present to other party – buyer (emptor) item,
the goods (merx), and other party – buyer agrees to pay the price
(pretium) to seller for sold item[54].
Unlike the definition of sale in modern
law of obligations, Hanafi jurisprudence differentiates two types of sale[55]:
sale of goods and sale of money (bayi sarf)[56]
or money exchange and does not mix each other[57].
The form of obligation is reminiscent of aut
enim re contrahtur obligatio but requires aut verbis as author stipulates further: If one party agrees for
exchange of goods, i.e. says the word which confirms his consent such as
“I sold it” or “did you sell” (67.1.2.)[58]. At some degree it conforms verbis obligatio fit ex interrogatione et responsione, veluti dari spondes?
Spondee… (Gai 3.92).
Separately, Ibn Ma’sud emphasises
the importance of verbal form: “Verbal contract of sale should be
supported by the words uttered in present or past form” (67.1.3)[59],
however he asserts that the contract of sale might not be concluded with the
words in future tense, such as “will you sell it?”, “will you
buy it?”; or “I will sell it”, “I will buy it”[60].
Interestingly, Ibn Ma’sud asserts
that parties may exchange the goods without saying any word; even he extends
such transaction to the goods of little value.[61]
In some sense, it does reflect verbis
obligatio which is made through stipulatio
or verborum conceptio; however the
difficulty is that Hanafi law also allows mute consent of the parties.
Then, the definition of the contract of
sale, in the context of Hanafi law, should be sui generic contract, which allows both verbal and non-verbal forms
of offer and accept. On the other hand, Roman jurists admitted that contract of
sale is consensual agreement and does not require either verbal or written form[62].
As it can be clearly seen, some concepts
seem to have been imported from Roman law without hesitation, not for sake of
importing but in order to fill gaps in these aspects of contract law. On the
other hand, it is not excluded that these concepts could have been rooted in
provincial law, taking into account that Hanafi law allows local customs or
customary law to be used in jurisprudence.
Further, comparison of such concept as
error in contract will reveal how inevitable Roman influence was on Islamic
law. This statement should not be taken however as imperative since Roman law
affected only certain aspects of Islamic law.
|
Sab., D. 18,1,9 pr-2 |
Sarakhsi, al-Mabsut, 2, 114-115 |
|
Inde
quaeritur, si in ipso corpore non erratur, sed in substantia error sit, ut
puta si acetum pro vino veneat, aes pro auro vel plumbum pro argento vel quid
aliud argento simile, an emptio et venditio sit. |
If someone buys a ruby and it turns out to be piece
of glass, the sale is invalid due to the difference in kind… And if
someone buys a slave on the assumption that he is a male and the slave is in
fact a female , the sale is invalid for us. |
Whereas the wording in both definitions
is not exactly same, the logic which derives from both of them is same. Only on
this basis, it can be inferred that Muslim jurists borrowed error in
contrahendo from Roman legal books. Crone would have objected, arguing that it
is only structural parallels and that it does not demonstrate that influence
was direct. I can agree on that but logic in both definitions is same and
moreover jurists seem to have used similar mode of reasoning when explicating
error in contrahendo.
Another comparison also reveals same mode
of reasoning exercised by Muslim jurists.
|
Ulp., 28 |
Al-Hattab, Mawahib al-Jalil Sharh Sidi al-Khalil, 2, 123-124 |
|
In venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentient sive in pretio sive in quo alio, emptio imperfecta est. si igitur ego me fundum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti, quia in corpore disensimus, emptio nulla est. idem est, si ego me Stichum, ty Pamphilum absentem vendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem |
Malik’s distinction between the person who
sells a ruby unknowingly and the one who, intending to hand the buyer a 1
dinar cloth, hands him a 4 dinar cloth, is that the first person behaved
negligently and irresponsibly by not inquiring about the stone, whereas the
second made just an accidental mistake, and an accidental error cannot be
preempted: he therefore, has the right to rescind the sale and regain his
cloth. |
It is yet another demonstration of
logical similarities in views of both Roman and Islamic jurists. Even the
wording and contexts are different, one cannot miss chief similarity –
logic in both explanations is the same.
Yet, to say that it is an evidence of
direct influence would be committing same mistake as Jokisch, who without
hesitation and speculating with sources, argued that Muslim jurists directly
borrowed every single concept from Roman law and that early Muslim law books
are mirror-image of Roman law books.
5. – Conclusion
Deriving from abovesaid, it should be
emphasised that issue of Roman influence has not been yet resolved. It needs,
as Crone pointed, looking at Syriac and Jewish sources of law. Yet, it is clear
that in some cases, impact of Roman law on Islamic law is apparent. Crone was
right when suggested that there was indirect influence, but some similarities,
especially in contract law reveal that there were direct borrowings from Roman
law through Roman legal books. Jokisch was partially right when advanced the
idea of direct borrowing through Roman legal books but it is not clear when
such borrowing took place and who implemented such large-scale enterprise.
It is also not clear whether influence of
Roman law was decisive on formation of Islamic law because evidences shown in
present study only demonstrate that influences were minor. Only cross-study of
Roman, Jewish and Islamic legal principles can show how Roman legal concepts
migrated through Jewish law into Islamic law. Crone already demonstrated on the
example of patronate institution such migration, but her findings lead to
conclusion that it was not Roman law that influence, but ultimately Greek law
that came to serve as a source of influence.
As Crone and then Kofanov pointed during
Roman law conference in Moscow, the question of influence should be tested
through study of Roman-Syriac lawbook that require further attention and
knowledge in ancient Syriac.
As far as direct influence concerned, the
Roman and Islamic law of contract should be scrutinised in detail in order to
discover whether such influence took place. The mere random study of certain
contract law elements demonstrate that direct influence was possible, but it is
not clear still. This study therefore yields for another comprehensive
investigation, which author hopes to accomplish in future.