Considerazioni sui rapporti tra il diritto romano e l diritto musulmano

N. 8 – 2009 – Contributi
ON QUESTION OF INFLUENCE OF ROMAN LAW ON ISLAMIC LAW*

AIBEK S. AHMEDOV, 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 Fiqh
notitia
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
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.
Sarakhsi, al-Mabsut, 2, 114-115
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-
Hatt
ab,
Ma
wahi
b al-
Jalil
Sha
rh
Sidi
al-
Khal
il, 2,
123-
124
In venditionibus et emptionibusconsensum debere intercedere palam Mali
est: ceterum sive in ipsa emptione dissentientsive in pretio sive in quo k’s
 alio, emptioimperfecta est. si igitur ego me fundumemere putarem Co disti
rnelianum, tu mihi tevendere Sempronianum putasti, quia incorpore di ncti
sensimus, emptio nulla est. idemest, si ego me Stichum, ty Pamphilu on
mabsentem vendere putasti: nam cum incorpore dissentiatur, apparet bet
nullam esseemptionem wee
n
the
pers
on
who
sells
a
ruby
unk
nowi
ngly
and
the
one
who
,
inte
ndin
g to
han
d
the
buy
er a
1
dina
r
clot
h,
han
ds
him
a4
dina
r
clot
h, is
that
the
first
pers
on
beh
ave
d
negl
igen
tly
and
irres
pon
sibly
by
not
inqu
iring
abo
ut
the
ston
e,
whe
reas
the
sec
ond
mad
e
just
an
acci
dent
al
mist
ake,
 and
an
acci
dent
al
erro
r
can
not
be
pree
mpt
ed:
he
ther
efor
e,
has
the
right
to
resc
ind
the
sale
and
rega
in
his
clot
h.

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.
 * This is an extended version of paper that has been presented at conference
on Roman law reception in Moscow, 30 June, 2009. Author would like to thank
Patricia Crone for her critical comments that shaped more critical attitude
towards question of Roman influence on Islamic law and Prof. L.L. Kofanov,
who encouraged to write this paper for this journal.
[1] RELAND, H. Dissertationes Miscellaneae, Trajecti ad Rhenum 1706-8; GATTESCHI
D. Manuale di diritto publico e privato, Alessandria, 1865; AMOS, S. History and Principles
of the Civil law of Rome, London, 1883; SANTILLANA D. review of M. Fathy in Rivista degli
Studi Orientali, 1916-18; ENGER M. (ed.) Maverdii constitutiones politicae, Bonn,
1853; BECKER, C.H. Beitrage zur Geschichte Agyptens under dem Islam, Strassburg,
1902-3; SCHMIDT, F.F. Die Occupatio im islamischen Recht, Der Islam,
1910; HEFFENING, W. Das islamische Fremdenrecht, Hannover, 1925.

[2] CRONE P. Roman, provincial and Islamic law: The origins of the Islamic patronate,
Cambridge, 2002; KREMER, A. VON, Culturgeschichte des Orients under den Chalifen,
Vienna, 1875-7; SACHAU, E. (ed. and tr.) Syrische Rechtbucherm, Berlin, 1907-
14; SCHACHT, J. Origins of Muhammadan Jurisprudence, Clarendon Press, 1950.

[3] GOLDZIHER, I. Muslim Studies, Vol. II, George Allen & Unwin Ltd. trans. by C.R. Barber
and S.M. Stern, 1971
[4] SEZGIN, F. Geschichte des Arabischen Schrifttums, Band 1 (1967), pp. 53-84
[5] WAEL B. HALLAQ, The Authenticity of Prophetic Hadith: A Pseudo-Problem, Studia
Islamica, No. 89, (1999), 75-90
[6] B. Jokisch, Islamic Imperial Law (Studien Zur Geschichte Und Kultur Des Islamischen
Orients), Walter de Gruyter, 2007
[7] Kremer, A. von, Culturgeschichte des Orients under den Chalifen, Vienna, 1875-7
[8] . J. Schacht, Origins of Muhammadan Jurisprudence, 5th ed., Oxford, 1979
[9] Ibid.
[10] Wael Hallaq, Was Shafii the Master Architecht of Islamic Jurisprudence? International
Journal of Middle East Studies 25, (Cambridge, 1993) pp. 587-605
[11] H. Motzki, The Origins of Islamic Jurisprudence, trans. By M.H. Katz, Brill, Leiden,
2002
[12] Christopher Melchert, Review of Harald Motzki, The Origins of Islamic Jurisprudence:
Meccan Fiqh Before the Classical Schools, Islamic Law and Society, 11, 3, 2004, стр. 407-
408
[13] S.D. Goitein, The Birth-Hour of Muslim Law? An essay in exegesis, Muslim World 50
(Harthford, CT, 1960) pp. 23-29
[14] Ibid.
[15] P. Crone & M. Hinds, God’s Caliph: Religious authority in the first centuries of Islam,
Cambridge University Press, Cambridge, 2003, pp. 43-58
[16] Op. cit. Schacht, Origins
[17] Ibid.
[18] Op. cit. Motzki
[19] Op. cit. Crone & Hinds
[20] Op. cit Schacht, Origins; Motzki, Origins
[21] Schacht, Droit byzantin et droit musulmane, Accademia Nazionale dei Lincei,
Fondazione Alessandro Volta, Atti dei Convegni, no. 12, Rome 1957
[22] A. Noth, Problems of differentiation between Muslims and non-Muslims: Re-reading
the “Ordinances of ‘Umar” (al-Shurut al-‘Umariyya) in ed. R. Hoyland, Muslims and Others
in Early Islamic Society, Vol 18, Ashgate Variorum, 2004, p. 104
[23] Op. cit Crone, Roman law
[24] Sachau, E. (ed. and tr.) Syrische Rechtbucherm Berlin, 1907-14
[25] Antoine Fattal, Le statut legal des non-Musulmans en pays d’Islam, Paris, 1947 (typed
doctoral thesis), p. 321
[26] Ibid.
[27] Ibid. p. 322
[28] Schacht, Introduction p. 1
[29] Ibid. p. 73
[30] Gai, 1,7
[31] Op. cit. Schacht, Droit Byzantine
[32] Op. cit. Schacht, Origins
[33] Malik’s Muwatta, 43:3
[34] Ibid. 29:56
[35] M.H. KAMALI, Principle of Islamic Jurisprudence, The Islamic Texts Society, 2003,
228.
[36] Op. cit. Kamali, p, 351
[37] Digest I, 1, 7
[38] Op. cit. Kamali, p. 384
[39] Д.В. Дождев, Римское частное право, Инфра-М, Москва, 1996, c. 226
[40] Kamali, p. 274
[41] Crone, Roman law, p. 103
[42] Ibid.
[43] I. Goldziherm The Zahiris: Their Doctrine and their history, Leiden, E.J. Brill, 1971
[44] Op. cit. Crone, Roman law
[45] Crone, p. 112 f18
[46] Gatteschi D. Manuale di diritto publico e private, Alexandria, 1865
[47] Amos, S. History and Principles of the Civil law of Rome, London, 1883
[48] Santillana D. review of M. Fathy in Rivista degli Studi Orientali, 1916-18
[49] Enger M. (ed.) Maverdii constitutiones politicae, Bonn, 1853
[50] Schacht, Introduction, p, 22
[51] Убайдаллах ибн Маъсуд, Мухтасар, Краткий комментарий к законам шариата, Та
шкент, Издание Чолпон,, 1994
[52] Op. cit Muhtasar p. 154
[53] Gai Institutions (3.41)
[54] Prior to such definition there had been an extensive discussion among Roman jurists
as to whether sale suggests exchange of an item for an item or for money. Such dispute
was said to be held between jurists of Sabean and Proculian schools of Roman
jurisprudence: Paul (III century jurist) referred to such dispute: “an sine nummis venditio dici
hodique posit… veluti si ego togam dedi, ut tunicam acciperem” – yet, he does not refute
such concept of exchange goods for goods but calls it disputable or doubtful (dubitatur).
[55] It does not mean however that it does generalize other types of contract; it is done to
emphasize that Hanafi jurisprudence does not count money exchange as such but as sale.
[56] One of the other reasons for which Hanafi jurists distinguish bayi sarf is to exclude the
possibility of usury in the transaction
[57] It is notable that Ibn Ma’sud unlike Marghinani does not generalise contract of sale but
distinguishes each type of sale
[58] Op. cit. Muhtasar p. 155
[59] Ibid.
[60] Ibid.
[61] Ibid.
[62] Ideo autem istis modis consensus dicimus obligations contrahi, quia neque verborum
neque scripturae ulla proprietas desideratur (Gai, 3. 136)