The following is a draft translation from Arabic.
Some orientalists, who hate Islam and detest the Muslims, claim that Islamic jurisprudence had been greatly influenced by Roman jurisprudence and law, when in the early ages the Muslims had rushed forth with the conquests. They said that this Roman law was one of the sources of Islamic law and that some of its Ahkam have been borrowed form this source. This means that in the time of the Tabi'un and after them, that Muslims had adopted Roman laws from Roman jurisprudence. They educe evidence for this view of theirs by claiming that at the time of the Islamic conquest there were schools of Roman law in the Sham region in Qaysariyya on the coasts of Palestine and Beirut. Also in the Sham region there were courts which in their systems and laws proceeded according to Roman law. And these courts inside the country continued for a time after the Islamic conquest which indicates that Muslims approved and adopted them and proceeded according to their laws and system. They supported this viewpoint with assumptions. They said, it is natural for a people who did not adopt much of a sedentary life like the Muslims, when they conquered an urbanised country such as the Sham region which was under Roman rule, that they should consider what they should do? What shall they rule them with? Thereafter, they borrowed their laws. Then they said that a comparison between certain sections of Islamic law and certain sections of Roman jurisprudence and law, demonstrate the similarity between the two. They also show that certain laws have been copied exactly they are from the Roman law, like : The burden of proof rests on the one makes the claim and on the one who rejects is the oath', and like the words fiqh and faqih. Rather those orientalists maintained that the Islamic law took from rules from the Talmud from Roman jurisprudence. According to their claim Islamic jurisprudence took Roman jurisprudence directly from schools and courts in Sham. And it took it via the Talmud.
This is what the Orientalists claim without furnishing any proof except assumptions. These statements from those orientalists are wrong for a number of reasons:
First: No one reported about the Muslims, whether orientalist or others, that one Muslim, whether he was a faqih or not, that he alluded to Roman jurisprudence or law, either by way of criticism, support or with intention to borrow. No one has mentioned anything whatsoever, which indicates that Roman law was not a subject of discussion let alone a subject of study. Some Muslims did translate works of Greek philosophy but they did not translate a single word or sentence from the Roman jurisprudence let alone translate a book. Which strengthens the judgement that they were abolished and wiped out from the country by merely being conquered.
Second: At the time when the orientalists allege that there were schools of Roman jurisprudence and courts which ruled according to Roman law in the Sham region, the Sham was full of mujtahidin from the 'Ulama, judges and rulers. It is natural that if any influence took place then it would have happened among those fuqaha (jurists). However, the reality is that we do not find in the fiqh of those people which has been preserved for us of any influence by Roman jurisprudence or any mention of it. Rather their jurisprudence and Ahkam were based on the Kitab, Sunnah and the ijma' of the Sahaba. One of the most famous from those mujtahidin is al-Awza'i. He used to live in Beirut, where the Orientalists allege was the site of the largest Roman schools in the Sham. He spent his entire life there and died there. His opinions have been recorded in many of the recognised books of fiqh. Thus, in volume vii of al-Shafi'i's al-Umm there are numerous Ahkams of al-Awza'i. It becomes clear to anybody who reads them the extent of al-Awza'i's remoteness from Roman jurisprudence, like the remoteness of the earth from the sky. Even, the mazhab of al-Awza'i, as it becomes clear from his fiqh itself and what has been reported about him, was that of the Ahl al-hadith. He relied upon hadith more than he relied upon ra'i. The example of al-Awza'i is that same as that of other fuqaha (jurists). If there were any influences they would have emerged amid those fuqaha.
Third: The Muslims believed that Allah (swt) addressed the whole of mankind in the Islamic Shari’a. And He sent our master Muhammad (saw) to all the people:
“We have not sent you (O Muhammad [saw]) except as a giver of glad tidings and a warner.” [TMQ 34:28]
They considered anyone who did not believe in the Islamic Shari’a as a disbeliever. And they believed that any Hukm which is other than the Hukm is Islam is a Hukm of kufr (disbelief) whose adoption is forbidden. Whoever believes in such a belief and acts upon it, he could take other than the Hukm of Islam especially in the early period, in the time of the conquests where the Muslims used to be the carriers of the Islamic Message, opening other countries to carry the da'wa of Islam to them. They conquered other countries to rescue the people from the rule of kufr (disbelief). So how can they conquer a country only to take the rule of kufr for they went to destroy it and put the rule of Islam in its place?
Fourth: It is not correct that the Muslims, when they conquered countries, they used to be of a lesser civilisation than the conquered country. If that was correct they would have abandoned their civilisation and adopted the civilisation of the conquered countries. The observable and perceptible reality is that the countries, which the Romans used to rule, carried thoughts about life which contradicted Islam. When the Muslims conquered them they did not force the inhabitants to profess Islam. Rather they were content just to take the jizya from the people. But it did not take long before the strength of the Islamic thought and the sublimity of the Islamic civilisation prevailed over the Roman thoughts and Roman civilisation and made it extinct. The inhabitants of the country became Muslims professing Islam and living according to it path with contentment and tranquility which indicates that the thoughts of Islam had wiped out the Roman jurisprudence and Roman thoughts. This reality which speaks for itself refutes the assertion of the orientalists that the Roman civilisation was stronger than the Islamic civilisation. And it refutes their assertion that the Islamic jurisprudence was influenced by the Roman jurisprudence.
Fifth: the word 'fiqh' and 'faqih' have been mentioned in the Noble Qur’an and in the sacred hadith. He (swt) said:
“Of every troop of them, a party should only go forth, that they (who are left behind) may get instructions in religion” [TMQ 9:122]
And he (saw) said: “Whosoever from whom Allah wishes good, He makes him to comprehend the deen.” And the question of the Messenger (saw) to Mu'az when he sent him to Yemen: With what will you judge? Mu'az replied: with the Book of Allah, then with the Sunnah of the Messenger of Allah (saw), then I will exercise my own opinion; which is the fiqh. Similarly, sending the rest of the Walis to other regions, and the legal judgements of the Sahabah accounts for more than a quarter of a century, that constituted fiqh. So how can they assume that the word 'fiqh' and 'faqih' was taken from the Remans? As for the maxim: ‘The burden of proof rests on the one makes the claim and on the one who rejects is the oath', it is hadith of the Messenger (saw) which he stated before any legislative contact with the Romans. The maxim has been mentioned in the letter of 'Umar to Abu Musa in Basra. It is well known that no legislative contact took place between 'Umar and the Romans. So how can they maintain that the Muslims took the term fiqh, faqih and this principle from the Romans?
From this it becomes clear that the myth of the influence of Roman law on Islamic jurisprudence has absolutely no basis whatsoever. It is an fabrication of the orientalists who are hostile to Islam, who fill their hearts with hatred for the Muslims.
As for the issue of Islamic jurisprudence taking from the Talmud, its fallacy is evident from the Qur’an's attack on the Jews, for fabricating the Tawrah and Injeel which were revealed to sayyidna Musa and sayidina 'Isa, and that what they have before them has been written by their own hands, it is from them and not from Allah. It is a lie, a distortion of the Tawrah and Injeel. This attack includes the attack on the Talmud that is from their writings and not from Allah. This contradicts the notion of Muslims taking from them let alone the fact that the Jews used to be separate tribes from the Muslims. They did not live with the Muslim, they did not even mix with them, not to speak of the constant animosity between them and the Muslims, and the unremitting wars waged on them by the Muslims until they expelled them from their midst. This contradicts the idea of Muslims taking from them.
The truth, and the perceptible reality is that Islamic jurisprudence constitutes rules deduced from the Kitab and Sunnah or to what the Kitab and Sunnah alluded to in terms of evidence, and that if the rule is not based, in its origins, on a Shari’a evidence, it is not considered as part of the rules of Islam and nor is it considered part of Islamic jurisprudence.
Extract from The Islamic Personality, Volume 1 by Sheikh Taqi ud-deen an-Nabhani
Some orientalists, who hate Islam and detest the Muslims, claim that Islamic jurisprudence had been greatly influenced by Roman jurisprudence and law, when in the early ages the Muslims had rushed forth with the conquests. They said that this Roman law was one of the sources of Islamic law and that some of its Ahkam have been borrowed form this source. This means that in the time of the Tabi'un and after them, that Muslims had adopted Roman laws from Roman jurisprudence. They educe evidence for this view of theirs by claiming that at the time of the Islamic conquest there were schools of Roman law in the Sham region in Qaysariyya on the coasts of Palestine and Beirut. Also in the Sham region there were courts which in their systems and laws proceeded according to Roman law. And these courts inside the country continued for a time after the Islamic conquest which indicates that Muslims approved and adopted them and proceeded according to their laws and system. They supported this viewpoint with assumptions. They said, it is natural for a people who did not adopt much of a sedentary life like the Muslims, when they conquered an urbanised country such as the Sham region which was under Roman rule, that they should consider what they should do? What shall they rule them with? Thereafter, they borrowed their laws. Then they said that a comparison between certain sections of Islamic law and certain sections of Roman jurisprudence and law, demonstrate the similarity between the two. They also show that certain laws have been copied exactly they are from the Roman law, like : The burden of proof rests on the one makes the claim and on the one who rejects is the oath', and like the words fiqh and faqih. Rather those orientalists maintained that the Islamic law took from rules from the Talmud from Roman jurisprudence. According to their claim Islamic jurisprudence took Roman jurisprudence directly from schools and courts in Sham. And it took it via the Talmud.
This is what the Orientalists claim without furnishing any proof except assumptions. These statements from those orientalists are wrong for a number of reasons:
First: No one reported about the Muslims, whether orientalist or others, that one Muslim, whether he was a faqih or not, that he alluded to Roman jurisprudence or law, either by way of criticism, support or with intention to borrow. No one has mentioned anything whatsoever, which indicates that Roman law was not a subject of discussion let alone a subject of study. Some Muslims did translate works of Greek philosophy but they did not translate a single word or sentence from the Roman jurisprudence let alone translate a book. Which strengthens the judgement that they were abolished and wiped out from the country by merely being conquered.
Second: At the time when the orientalists allege that there were schools of Roman jurisprudence and courts which ruled according to Roman law in the Sham region, the Sham was full of mujtahidin from the 'Ulama, judges and rulers. It is natural that if any influence took place then it would have happened among those fuqaha (jurists). However, the reality is that we do not find in the fiqh of those people which has been preserved for us of any influence by Roman jurisprudence or any mention of it. Rather their jurisprudence and Ahkam were based on the Kitab, Sunnah and the ijma' of the Sahaba. One of the most famous from those mujtahidin is al-Awza'i. He used to live in Beirut, where the Orientalists allege was the site of the largest Roman schools in the Sham. He spent his entire life there and died there. His opinions have been recorded in many of the recognised books of fiqh. Thus, in volume vii of al-Shafi'i's al-Umm there are numerous Ahkams of al-Awza'i. It becomes clear to anybody who reads them the extent of al-Awza'i's remoteness from Roman jurisprudence, like the remoteness of the earth from the sky. Even, the mazhab of al-Awza'i, as it becomes clear from his fiqh itself and what has been reported about him, was that of the Ahl al-hadith. He relied upon hadith more than he relied upon ra'i. The example of al-Awza'i is that same as that of other fuqaha (jurists). If there were any influences they would have emerged amid those fuqaha.
Third: The Muslims believed that Allah (swt) addressed the whole of mankind in the Islamic Shari’a. And He sent our master Muhammad (saw) to all the people:
“We have not sent you (O Muhammad [saw]) except as a giver of glad tidings and a warner.” [TMQ 34:28]
They considered anyone who did not believe in the Islamic Shari’a as a disbeliever. And they believed that any Hukm which is other than the Hukm is Islam is a Hukm of kufr (disbelief) whose adoption is forbidden. Whoever believes in such a belief and acts upon it, he could take other than the Hukm of Islam especially in the early period, in the time of the conquests where the Muslims used to be the carriers of the Islamic Message, opening other countries to carry the da'wa of Islam to them. They conquered other countries to rescue the people from the rule of kufr (disbelief). So how can they conquer a country only to take the rule of kufr for they went to destroy it and put the rule of Islam in its place?
Fourth: It is not correct that the Muslims, when they conquered countries, they used to be of a lesser civilisation than the conquered country. If that was correct they would have abandoned their civilisation and adopted the civilisation of the conquered countries. The observable and perceptible reality is that the countries, which the Romans used to rule, carried thoughts about life which contradicted Islam. When the Muslims conquered them they did not force the inhabitants to profess Islam. Rather they were content just to take the jizya from the people. But it did not take long before the strength of the Islamic thought and the sublimity of the Islamic civilisation prevailed over the Roman thoughts and Roman civilisation and made it extinct. The inhabitants of the country became Muslims professing Islam and living according to it path with contentment and tranquility which indicates that the thoughts of Islam had wiped out the Roman jurisprudence and Roman thoughts. This reality which speaks for itself refutes the assertion of the orientalists that the Roman civilisation was stronger than the Islamic civilisation. And it refutes their assertion that the Islamic jurisprudence was influenced by the Roman jurisprudence.
Fifth: the word 'fiqh' and 'faqih' have been mentioned in the Noble Qur’an and in the sacred hadith. He (swt) said:
“Of every troop of them, a party should only go forth, that they (who are left behind) may get instructions in religion” [TMQ 9:122]
And he (saw) said: “Whosoever from whom Allah wishes good, He makes him to comprehend the deen.” And the question of the Messenger (saw) to Mu'az when he sent him to Yemen: With what will you judge? Mu'az replied: with the Book of Allah, then with the Sunnah of the Messenger of Allah (saw), then I will exercise my own opinion; which is the fiqh. Similarly, sending the rest of the Walis to other regions, and the legal judgements of the Sahabah accounts for more than a quarter of a century, that constituted fiqh. So how can they assume that the word 'fiqh' and 'faqih' was taken from the Remans? As for the maxim: ‘The burden of proof rests on the one makes the claim and on the one who rejects is the oath', it is hadith of the Messenger (saw) which he stated before any legislative contact with the Romans. The maxim has been mentioned in the letter of 'Umar to Abu Musa in Basra. It is well known that no legislative contact took place between 'Umar and the Romans. So how can they maintain that the Muslims took the term fiqh, faqih and this principle from the Romans?
From this it becomes clear that the myth of the influence of Roman law on Islamic jurisprudence has absolutely no basis whatsoever. It is an fabrication of the orientalists who are hostile to Islam, who fill their hearts with hatred for the Muslims.
As for the issue of Islamic jurisprudence taking from the Talmud, its fallacy is evident from the Qur’an's attack on the Jews, for fabricating the Tawrah and Injeel which were revealed to sayyidna Musa and sayidina 'Isa, and that what they have before them has been written by their own hands, it is from them and not from Allah. It is a lie, a distortion of the Tawrah and Injeel. This attack includes the attack on the Talmud that is from their writings and not from Allah. This contradicts the notion of Muslims taking from them let alone the fact that the Jews used to be separate tribes from the Muslims. They did not live with the Muslim, they did not even mix with them, not to speak of the constant animosity between them and the Muslims, and the unremitting wars waged on them by the Muslims until they expelled them from their midst. This contradicts the idea of Muslims taking from them.
The truth, and the perceptible reality is that Islamic jurisprudence constitutes rules deduced from the Kitab and Sunnah or to what the Kitab and Sunnah alluded to in terms of evidence, and that if the rule is not based, in its origins, on a Shari’a evidence, it is not considered as part of the rules of Islam and nor is it considered part of Islamic jurisprudence.
Extract from The Islamic Personality, Volume 1 by Sheikh Taqi ud-deen an-Nabhani
Comments
Just wish to point out that teh extract on 'The Fallacy of Roman Law ...' is on fact from volume 1, not 2.
Jzk. May Allah (swt) bless your efforts.