With the wide sweep of Moslem conquest another element came into the
development. This was Roman law, which the Moslem jurist found at work
in the conquered Roman provinces and in the law courts of which they
went to school. It is to be remembered that the Arab armies were not
devastating hordes; they recognized the need of law and order wherever
they went, and it was the policy of their leaders to take over the
administrative systems of the countries which they seized. Even the
Arabic legal nomenclature shows evident signs of literal translation
from Latin, and many Moslem principles can be traced to the Roman codes.
One important development was plainly influenced by the liberty involved
in the _Responsa prudentium_ of Roman lawyers, and by the broad
conception of the law of nature in the Edict of the Praetor. In its
earliest stages Moslem law recognized in the judge a liberty of opinion
(_ra'y_) which went beyond even that of the _Responsa_ and became plain
equity, in the English sense, and one school (the Hanifite) established
as a basis the right of preference (_istihsan_) even when the analogy of
the code dictated otherwise; while another (the Malikite) used the term
_istislah_, "a seeking of (general) benefit" to the community, in a
similar situation. But these developments were bitterly contested, and
the liberty of opinion was in the end narrowed down to a principle of
analogy (_qiyas_), the nearest approach to which in Western law is legal
fiction.
It is necessary now to return to the first successors of Mahomet. "For
thirty years after my death," he is said to have declared, "my people
will tread in my path (_sunna_); thereafter will come kings and
princes." This tradition crystallizes the later feeling of Islam. The
first thirty years were a golden age; the centre of the state was the
Prophet's own city of Medina; the conditions of the state continued in
close conformity to those of his own time. The study of tradition, i.e.
of his usage, went hand in hand with the study of law. They were vital
functions of the state, and it encouraged both.
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.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account