Arabic Thought and Its Place in HistoryO'Leary, De Lacy
ReligionIslamic
Arabic Thought and Its Place in History
O'Leary, De Lacy
Philosophy, Arab
Thus it
finally came to pass that a considerable portion of the Roman civil law
was embodied in the traditions of Islam (cf. Santillana: _Code civil et
commerciel tunisien._ Tunis, 1899, etc.) It is not to be supposed that
Arab governors and judges studied the Roman code, they simply accepted
its provisions as they found them in force in Syria and Egypt, and
thus learned its general principles from the usage of the civil courts
already existing. In many places material is found in the traditions
which can be traced to Zoroastrian, Jewish, and even Buddhist sources,
though these deal rather with ritual and the description of the unseen
world and serve to show how readily Islam absorbed elements with which
it was in contact. So far as the actual needs of the civil law are
concerned, the chief source was the Roman law, and these needs fill a
very large part of the traditions.
It was not until the close of the `Umayyad period that the Muslims
began to develop a scientific jurisprudence and to make a critical
examination and codification of the traditions. In the case of
jurisprudence there were at first two schools, a Syrian and a Persian.
The Syrian school formulated its system under the leadership of
_al-Awza`i_ (d. 157), and for some time it prevailed over all parts
of the Muslim world which had been parts of the Byzantine Empire.
The Persian school owed its origin to _Abu Hanifa_ (d. 150) and, as
the seat of government was removed to `Iraq by the `Abbasids and Abu
Hanifa’s system was enforced by his pupil Abu Yusuf (d. 182) who was
chief Qadi under the Khalif Harunu r-Rashid, it had a tremendous
advantage over the Syrian school. It became the official system of the
`Abbasid courts and still holds its own through Central Asia, North
India, and wherever the Turkish element prevails, whilst the Syrian
system has become extinct. Abu Hanifa’s system represents a serious
and moderate revision of the methods which had already come into use
as extending the discipline of Islam to the needs of a complex and
advanced civilization. Under the `Umayyads the jurists had supplemented
any deficiencies in the law by their own opinion (_ra´y_) which meant
the application of the judgment of a man trained under the Roman law
as to what was just and fair. In that early period no derogatory
sense was attached to “opinion” which rested on the theory that the
intellect could intuitively perceive what is right and just, thus
assuming that there is an objective standard of right and wrong capable
of apprehension by philosophical enquiry, a theory which shows the
influence of Greek ideas embodied in the Civil Code. But the `Abbasid
period experienced an orthodox reaction which tended to limit freedom
in using speculative opinion, and Abu Hanifa shows this limitation.
In his system weight was attached to every positive statement of the
Qur´an which could be taken as bearing upon the civil law, only to a
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account