A summary of Dr Ḥamīdullah’s response
By M Ahmadzay
Some Orientalists believe that the Muslims were so uncivilised, that they could not have possibly developed their own legal system. They claim that the early jurists must have most definitely borrowed from Roman law when forming the Islamic justice system, using it as a basis for Islamic Jurisprudence (Fiqh).
It is no secret to those who have studied history that Imam Abū Ḥanīfah (d. 150AH) may Allah be pleased with him – who is known to have compiled a large portion of the Islamic legal system – was of Persian origin, however, he spent his whole life in Iraq and the Ḥijāz which was under Islamic rule. The Muslims were not in need of an imported legal system as the scholars would use the Qur’ān and Sunnah in judging matters affecting Muslims. As a result, there is no evidence of Roman influence in the law of these lands, nor anything translated into Arabic.
Roman law comprised three tenets: private law, public law and laws relating to objects. The foundation of roman law was the distinction between religious and social law. Meanwhile, the law compiled by Imam Abū Ḥanīfah was divided into religious, social and criminal law. Based on this, it is obvious that the Roman and Islamic judicial systems oppose each other due to their different priorities.
The only source that Orientalists have for this unsubstantiated claim of theirs is that the Muslims conquered Rome before the formation of the Islamic judiciary system, hence making it possible for the Muslims to have benefitted from aspects of Roman law. Dr Ḥamīdullah has mentioned a few points which refute this baseless claim:
- The foundation of Islamic law is dependent on the Qur’ān and Sunnah, there is no third source of wisdom and authority. The Prophet ﷺ never travelled to those lands that were ruled by roman law after receiving prophethood. Additionally, he never had any connection to the language in which Roman law was drawn up.
- The Ḥijāz was where revelation descended from and where Islam began to spread. Therefore, it is only reasonable for Islamic laws to be based on the customs of the people of Ḥijāz – which was far away from Roman influence.
- All the Fiqhi schools of thought originated in lands that were not part of the Roman Empire – The Ḥijāz, Iraq and Persia. So how can these schools of thought be influenced by a legal system restricted to Roman lands?
- It is likely that some Orientalists will claim that Islam was influenced by Roman law because Damascus was part of the Roman empire before the advent of Islam. It was ruled under Roman law before it became the capital of the Umayyad Caliphate as a result of military expeditions. In light of this argument, the following points must be considered:
- The scholars who resided in Damascus at the time of the formation of the Islamic justice system were living under Umayyad rule.
- These scholars focused their research and study on Qur’ānic exegesis (Tafsīr), the prophetic tradition (Ḥadīth), and Islamic history. However, they were engaged in other academic fields such as medicine and philosophy more so than Islamic law (Fiqh).
- When analysing the Islamic legal system, there are no words that have been borrowed from other languages. This contrasts with medical, philosophical, geographical and mathematical terminologies which have been borrowed from numerous languages. The only source for Islamic legal terminologies is the Qur’ān and Ḥadīth.
- There is no evidence of any foreign legal texts being translated into Arabic, whilst the scholars were compiling Fiqh rulings, the opposite is the case for other sciences. In addition to this, there was no scholar known who was familiar with Latin, Greek or Syriac – this highlights the fact that there was no way for Muslim scholars to have studied Roman law as it was not accessible.
- All the famous jurists are known to have been born in lands and time periods that were not occupied by the Roman empire. Most of these influential scholars hailed from Ḥijāz, Persia, Anatolia and Syria.
- It is known that the Khalifah Umar RA is known to have taken the principles pertaining to fines from foreign lands – at the time, fines were used across Persia as a means of punishment for criminal offences.
- During the reign of ‘The Rightly Guided Khalifahs’, the Muslims successfully conquered Rome and Persia alongside many other lands, within a specific time period. Taking this into consideration, the Orientalist argument is irrational as the Muslims would have established Islamic law within these lands, not use the laws of those lands to form their own judicial system.
- Islamic civilisation differs starkly from Roman civilisation in its creed, punishments and laws.
- Roman law was not widely practised in Byzantium before it was conquered by Muslims, only territories that were under the control of the Church observed Roman law. The rest of the population did not follow Roman law as they believed that the rule of law was not Christian.
Dr Ḥamīdullah has presented clear arguments supported with evidence to put an end to this matter, concluding that Islamic Jurisprudence (Fiqh) has always been based solely on the Qur’ān and the Ḥadīth. Based on the points outlined above, it is obvious that Dr Ḥamīdullah has done extensive research on this argument from both a historical and legal perspective.
(This article is a summary of a chapter taken from the book “Muḥammad Ḥamīdullah: Safīr al-Islām wa Amīn al-turāth al-Islāmī fī al-gharb” (Muḥammad Ḥamīdullah: Ambassador of Islam to the West and Preserver of the Islamic legacy in the West) written by Sayyid ‘Abdul Majid Ghouri).
