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•

THE QUESTION OF FOREIGN INFLUENCESON EARL Y ISLAMIC LAW

By

lskandar Syutur

A Thesis Submitted to tl!P.FacuIty of Graduate Studies and Rese.l1'chin partial fulfilment of the requirements

for the dehree of Master of Arts in Islamic Studies

Institute of Islamic StudiesMcGill University

Canada. 1995

1+1 National Libraryof Canada

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L'auteur conserve la propriété dudroit d'auteur qui protège sathèse. Ni la thèse ni des extraitssubstantiels de celle-ci nedoivent être imprimés ouautrement reproduits sans sonautorisation.

ISBN 0-612-07961-9

Canada

•11

ABSTRACT

This study aims tCl discuss the question of foreign influences on early ls.amic

law. This issue has been dealt with from various perspectives. Sorne scholars claim that

Roman law was the predominant influence in formulating Islamic law. both in its legal

concepts and ilS application. Certain scholars. however. maintain that th~ provinciallaw

influenced Islamic law more. arguing that Roman law was not really practiced in forme.

Greek provinces where Islamic law was formulated. Still others argue that Jewish

influences are also believed to have shaped the development of early Islamic law.

considering that Babylonian schools were situated close to the 1:Ianafi school.

The problem of foreign influences on early Islamic law. however. is a matter of

degree only as far as the pre-Islamic Arab traditions are concemed. It is believed that

certain institutions derived from pre-Islamic Arabic society. the Qur'an and the

traditions of the Prophet provided the early Muslims with a considerable wealth of

values. norrns and broad principles as well as specific mies which were to guide the

Muslims in their legal speculation in order to develop positive law.

•iii

RESUME

L'objectif de celle étude est d'analyser la question de l"nOucnce étrangère au ~e;n

de la loi Islanùque des origines. Celle problématique fut abordée selon ries perspecti\'C~

diverses. Certains spécialistes affirment que la loi Romcine fut l'in~piralion

prédominar.te dans la formulation de la loi Islanùque; à la fois dans ses concepl~ légaux

et son application. Toutefois d'autres experts maintiennent que la loi provinciale a

beaucoup plus inOuencé la loi Islanùque. argumentant que la loi Romaine n'était pa~

réellement appliquée dans les anciennes provinces Grecques où la législation

Musulmane fut formulée. Enfin. d'autres chercheurs soutiennent que des inOuence~

Judaïques ont probablement modelé le développement de la loi Islamique initiale. Si

l'inOuence Romaine a effectivement eu lieu, ce fut uniquement à travers la loi

Rabbinique. sachant que l'éc"le Babylonien était situé proche de l'école J:lanafi.

Le problème des influences étrangères au sien de la loi Islanùque originale est

cependant relatif el ce, uniquement lorsque les traditions Arabes pré-Islanùques sont

concernées. Il est admis que certaines institutions Musulmanes dérivent de la société

Arabe antérieur à l'Islam puisque le Qur'an ainsi que les traditions du Prophète ont

fourni les premiers Musulmans d'une opulence de valeurs, normes et principes

généraux. sans oublier les règles spécifiques qui guideront les croyants dans leurs

spéculations légales afin de développer une loi positive.

•iv

TABLE OF CONTENTS

Abstract .ii

Resume .iii

Table of Contents iv

Table ofTransliteration v

Acknowledgments vi

Introduction 1

Chapter 1 : The Problem of the Influence of Romanand Provincial Law 3

A. Roman Law 5

B. Provincial Law 32

Chapter Il : The Probiem of the Influence of Jewish Law .42

Chapter ID: The Problem of the Influence of the Pre-Islamic ArabTradition 71

Conclusion 102

Bibliography 103

TABLE OF TRANSLITERATION

J = a. <-! =b.

V =1. V = th.

e = J. C=l:J·

C =kh. .:> =d.

.) =dh. J = r.

J =z. L.Y' = s.

t.Y' = sh. l>t" = ~.

<..>/ = c;I. ),. = \.

"1' =+. r..= '-'~

[ =gh. V =f.

.' ~ =k.l/ =q.

J =1. \ =m.

V =n. J> =h.

J =w. y = ,

r..> =y..

\'

- long:

- ta' marbü\a:

"1 -a,- .r -. ~ -u·- L> -".4../ - .

=a.

•vi

ACKNOWLEDGMENTS

ln writillg this thesis. 1 have received valuable help from a number of people. but

first of ail. my sincere thanks go to the State Institute of Islamic Studies. Raden Intan

Bandar Lampung. for granting me a leave of absencl" without which it would have been

impossible to pursue my studies at the Institute of Islamic Studies. McGiIl University.

Montreal.

1would like to thank McGiIl Indonesian IAIN Development Project for financial

help r received during my entire stay.

1 am very grateful to my supervisor. Prof. DR. Wael B. Hallaq. for giving me

due attention in writing this thesis. He has been a source of help. encouragement and

constructive criticism throughout different stages ofwriting this thesis.

1 would also like to thank the staff of the Institute of Islamic Studies. McGiII

University. Montreal. the staff of Islamic Library of the Institute of Islamic Studies.

McGill University. the Depanment of Religious Affairs in Indonesia for their valuable

help during my study. 1 would also Iike to thank Shaista Azizalam and Michael Wood

for editing of my first draft of this thesis.

Finally. 1would like to thank my parents. sisters. wife and my daughter for their

patience and love during any entire stay here. Without their encouragement. 1would not

have survived for!Wo years.

• INTRODUCTION

The origins of Islamic law have attracted the attention of scholars. The question

has been dealt with from various perspectives. 1 However. scholars of Islam are in

confliet over whether Roman law influenced Islamic law. Those in favor of the

proposition. inciuding 1. Goldziher and J. Sehacht. argue that Roman law directly

influenced legalthought, and even the practical application of law.2 But Patricia Crane

has argued recently for the influence of provineiallaw on Islamic law.3 In order to prove

her thesis, she concentrates on the institution of Islamic patronage (waHl' ).4 and ciaims

that walil' was derived from provincial law. Her thesis. however. wa~ criticized by

Wael B. Hallaq who argues that walil' was rather derived from pre-Islamic Amb

tradition.5 The arguments of various seholars for and against the influence of Roman

and provincial law on early Islamic law will be examined in the f1l'st chapter of this

study.

The second chapter will deal with the influence of Jewish law. Aecording to

Abraham 1. Katsh, "Ever since Abraham Geiger wrote bis book, was hat Mohammed

aus dem11'denthume aufgenommen ? a number of scholars have tried to corrobomte his

lWael B. Hallaq. "The Use and Abuse of Evidence: The Question of Provincialand Roman Influences on Early !slamic Law," Journal of American Oriental Society.110. 1 (1989): 1; "The contribulors 10 lhis issue have ranged over a wide spectrum. fromùose who affinned a debl 10 Mosaic law 10 those who saw in Roman law the malerialwhich the emerging Shari'a was 10 appropriate,"

21. Goldziher. "The Principles of Law in Islam," in the Hislorians' Hislory of theWorld. ed. K. S. Williams (!.Gndon: Kooper & Jarkson. Ltd.. 1908). 297. ; J, Schacht."Foreign Elemenls in Ancient !slamic Law," louraa: of ComJ1.arative and Inte!J1.'!\iol'.1Law. 32 (1950): Il.

3Patricia Crone. Roman. Provincial and Islamie Law (Cambridge: CambridgeUniversity Press. 1987). p. 1.

4Ibid.. II.

5Hallaq. "The Use and Abuse of Evidence." 86-87,

2

view that Islam owes a tremendous debt to Hebraic writings and traditions." 6

Furthermore. S. V. Fitzgerald argues that it is impossible for early Islarrùc law to have

been borrowed directly from Roman law; if Roman legal infiltration did take place. it

could only have been through Rabbinical law. Throughout the for.native period of

Islarrùc law, the I:Ianafi school at Küfa was close to the Persian border where the

Talmudic schools of Sura and Pumbeditha still flourished.7 The influence of Jewish law

can be seen in the thesis ofP. Crone and that of J. R. Wegner. The fon:ter maintains that

the qasama was derived from Jewish law 8 and the latter daims thal the four sources of

Islarrùc law have direct parallels with their Talmudic counterparts.9 This chapter

discusses the last two scholars' arguments.

The last chapter will examine the influences of pre-Islarrùc Arab tradition by

investigating certain institutions in Islarrùc law. This is intended to show that the pre­

Islamic Arab tradition is one of the major influences on the development of early Islamic

law.

6Abraham I. Katsh. Judaism in Islam (New York: Sepher-Hermon Press, 1980).XVI.

7S. V. Fitzgerald. "The Alleged Debt of Islamic la Roman Law." Law OuanerlvReview. 67 (!951): 93-98.

8Paaicia Crane, "JahiU and Jewish Law: the qas.ïma. Jerusalem Studies inArabie and Islam. 4 (1984): 153-201.

9Judith Romney Wegner, "!slamic and Talmudic Jurisprudence: The Four Rootsof !slamic Law and their Talmudic Counter Parts," The American Journal of LegalHistory. XXVI (1982): 30-31.

• CHAPTER 1

The Problem of the Influence of ROlranand Provincial Law

The issue of the origins of Islamic law is Olle of the most controvcrsial problems

among modem scholars. Islamic law. according to the traditional view. WOlS derived

from the Qur'an and the Prophet's sunna. this being prcscrved in the/:ladith literature.

However. from a historical point of view. Ignaz Goldziher criticized the authenticity of a

large part of this literature. The discussion was carried further by Joseph SC~'acht who

claimed that Islamic law was formulated in the second century of Islam. Basing himself

on this thesis. which is called the modem theory of Islamic law. Schacht. along with

other scholars. found that in the historical development of early Islamic law. there

existed a considerable number offoreign elements. He argued tha!:

The fIrst stages of the development of Mohammedan religious law arecharacterized by a far-reaching reception of the mOf.t varied elemenl~; itssubstratum is to a great extent not originally Islamic. let alone Koranic. Theessential contribution that Islam made toward the formation of its sacred law wasnot material but formai: a fundamental attitude that already exists in the Koranand continues through the whole history of Islamic religious law. that pcrvadesand unites all its parts and has made of it a unique phenomenon sui generis.During the flfSt two centuries of Islam there came to be formed a central core ofideas and institutions which went far beyond the mere contents and even theimplications of the Koran but which the Muslims regarde.! and have continuedto regard as spccifIcally Islamic. Foreign elements. which had at flTSt bee.,adrnitted by a process ofalmost indiscriminate reception. were rejected in the endbecause they were felt to be incompatible with this central Islamic core ofdoctrine.... Over those elements of varied provenance that were retained. thecentral core exerted a strong <!ttracting and assirnilating power. pcrmeating themwith what was feh to be the true Islamic spirit. until their foreign origin ...becamewell-nighunrecognizable. 1

IJoseph Schacht. "Law" in Unity and Variety in Muslim CiviHzalio.!!. cd.Gustave E. von Grunebaum (Chicago; University of Chicago Press, 1963), p. 65.

•4

Goldziher argues specifically that when Islam carne to Syria. one of the former

Roman Byzantine provinces, many ordinances of Roman law were taken over. During

the formative period ofIslamic law. especially with the establislunent of the four schools

of law. Roman law had long been applied, and had reached its peak of developmem.

Th.:refore. the advocates of the Roman law thesis have concluded that Roman law did

influence ~arly Islamic law.2 Other scholars. however, such as Norman Calder, believe

that Islamic law was produced by Muslim scholars observing the complexity of their

own society.3 But Patricia Crone insists that it was provinciallaw that infiltrated imo

Islamic law rather than Roman law.4 The task of detemûning foreign influences on early

Islamic Iaw is not easy. nor can an essay on that problem be made comprehensive

enough to embrace all the divisions between Islamic law and Roman and provinciallaw,

tht:refore, this chapter will lirnit itself to the arguments of various scholars for and

against the influence ofboth laws.

:!lgnaz Goldziher. "Principles of Law in Islam." in The Hislorians' Hislorv of the

World, cd. K. S. Williams (London : Kooper & Jarkson, Ltd.. 1908), p. 296. The tenn

Roman law here needs some clarification. Though during the formative period of Islarniclaw, the classical Roman law was clearly f",cd by the establiShment of the EasternRoman empire. But it is reasonable to use the tenn Roman law on the justifiableassumption that the law of the Eastern Roman empire during the time of Justinian andeven after his death still retaincd classical Roman characteristics. See. Charles PhineasSherman. Roman Law in the Modem World, Vol. 1 (Boslon: The Boston Book Company,

1917). p. 153.

3Norman Calder. SlUdies in Early Muslim Jurisprudence (Oxford: ClarendonPress. 1993). p. 198.

4Patricia Crane. Roman. Provincial and Islamic Law (Cambridge: CambridgeUniversity Press, 1987). p. 14.

• A. The Problem of the Influence of Roman Law

Before this chapterdiscusses the influence of Roman law on early lslamic law. it

will elaborate the modem theory of the origins of lslamic law. for both the problem of

origins and that of foreign influence are interconnected.

As has been mentioned in the introduction. according to the traditional

conception, Islamic law is divine law that regulates all aspects of Muslims' lives.

Muslims trust that God has given them principles, answers, detailed rules and

regulations that cover the entire scope oflife. Those principles. during Muhammad's life,

came directly from him under the direction of God. Consequently, the rules outside of

the Qur'ân were on the whole repudiated. According to C. S. Hurgronje, though the

legislative parts of the Qur'ân are actually not extensive. the fICSt Muslim communities

consciously considered their life and their activities to be regulated by the Qur'ân. But

later when it was realized that the Qur'ân did not contain full regulations for ail aspects

of life, the traditions of the practice and word of the Prophet, including his decisions,

became important. The best example of this is revealed by the principle institution in

Islam, namely, $aJiit. The way of perfomûng $aJiit is not prescribed in the Qur'ân. ho\\'

it is to be practiced is shown only through the word and example of the Prophet. AIl the

practices of the Prophet are called sunna, and it becomes a supplement to the Qur'ân.S

The term SUI7na, according to Goldziher, in relation to the later development of

Islamic tenninology "[is] the usage prevailing in the old Muslim community, lit] refers

to a religious or legal point, without regard to whether or not there exists an oral

tradition [,fJadith] for it," so the terms sunna and ,fJadith are different from one another.

"[l:I]adïth means ... an oral communication derived from Prophet." But the norms which

Sc. Snouck Hurgronje. Se1ectcd Wo,ks. cd. G.-H. Bousquet and J. Schacht(Leiden : E. J. Bril1. 1957). p. 48.

6

arc found in iJadith were naturally regarded as sunna. At this point. the two terms were

c1aimed to be relatively synonymous. However. it is possible that at tirnes the content of

iJadîth may contradict the sunna. without it being necessary for ail parts of the sunna

should have a corresponding iJadith. 6

The concept of sunna before and after the appearance of Islam was different.

The sunna before the appearance of Islam was ail that corresponded to the traditions of

the Arabs and the customs of their ancestors. With the appearance of Islam. however.

the word sunna was still used by Muslims and came to mean a way of Iife and the

ordering of society in accordance with Islam; its content became more limited. For pious

followers of the Prophet and his eiders' communities "sunna meant ail that could be

shown to have becn the practice of the Prophet and his earliest followers." 7

According to the modem theory, the Prophet, during his Iife, did not create a

new system of law. He took the existing sunna and modified it by direct revelation, that

is by the ordinance of the Qur'ân and by his teaching and badith (tradition). This theory

also criticizes the authenticity of badith because the well-known traditions in the

authoritative collections8 appear to have developed later, in the second or third

centuries of Islam. Therefore, it is not certain whether or not these collections represent

the Prophet's actual words and actions.9 Goldziher has shown that the rnaiority of iJadith

even in the c1assical collections are fabrications that do not belong to the tirne in which

61gnaz Goldziher. Muslim Studies. Vol. Il. 0'. C. R Barber and S. M. Stem(London: George Allen & Unwin Lld., 1971). p. 24.

7Ibid.. 26.

Sne six books of 1;ladith of the Sunnite are the work of Bukhari. Muslim. AbüOiiwüd. Tinnidhi. Ibn Maja and Nasii'i.

9Asaf A. A. Fy=. Outlines of Muhammadan Law (Oxford: Oxford UniversityPress. 1964). p. 24.

7

they daim to originate. Schacht has also proved that traditions from the companions and

successors are earlier in point of Ùffie than those from the Prophet. JO

For the further development of Islamic law, especially conceming the

establishment of the schools of law, the traditions of the Prophet were, according to

Schacht, somewhat neglected. The f1r5t two founders of the schools of law were Abu

l;Ianïfa and Malik. The former represents the school of Iraq, the latl~r the school of

I;Iijaz. Shafi'i, the foul1der of the third school, was the pupil of Malik, but he, among

other things, differed from him regarding the sunna. The Iraqi school has a more highly

developed theory regarding the traditions of the Prophet. The members of this school

generally believed that the only tradition to possess authority was that of the Prophet. At

the same Ùffie, however, they also believed that the traditions of the Prophet were

attached to the traditions of the companions; they based this view on the ground that the

companions were aware of the practice and the decisions of the Prophet. Therefore, the

majority of traditions of the companions were considered to he definitive. 11 The school

of the I;Iijaz, which was represented by Malik, also rather neglected the tr,lditions of the

Prophet. Malik, according to Schacht, harmonized the traditions of Abu B;lkr with the

historical traditions of the Prophet. Moreover, the Medinese interpreted the traditions of

the Prophet in the light of the judgment of 'Umar. Even before Malik, the doctrine

which had been established on the basis of the decisions from 'Umar had been applied

over the traditions ofProphet. 12

1000id.. 25-26.

11Ibid., 30.

12Joseph Schacht, The Orlgi"s of MuhammadanClarendon Press, 1950), p. 23.

Jurisprudence {Oxford: The

•8

ln short. during the early fonnative period of Islamic law, the traditions of the

Prophet were interpreted in the light of the traditions of the companions. with the

assumption thatthe cornpanions knew best the sunna of the Prophel. 13

Another phenomenon, according to the modem theory, is that the schools of

l:Ianafi and Mâlik accepted the prevalent usage as the senna. Schacht holds that those

schools generally practiced the old concept of sunna, that is, the practice of the

community where the school was established. As a result, during the expansion of the

Muslim temtory, there was definite contact between Islam and the cultures of newly

conquered temtories. It is possible that certain aspects of life were absorbed and that

there was widespread adaptation of the legal and administrative institutions and practices

of the conquered temtories.14 Since then the sunna has retained the prevalent usage of

the community. The relationship between the practice of the community and the

traditions is that the practice existed flIS!, and was then followed by the traditions of the

Prophet and his companions. This practice clearly led Muslims to differ over various

technical aspects of the law. It was at the hands of Shafi'i, according to Schacht, that the

sunna of the Prophc, -..vas to overrule the prevalent usage of the community. This thesis

became the ultimate doctrine of Islamic law: if the practice of the Prophet, sunna,

conflicted with the prevalent usage of the community, the sunna of the Prophet was to

be accepted. Shafi'i also adrnitted that the traditions of the companions and successors

are 001y a secondary source.!S

If the modem theory of Islamic law, which is elaborated further by Schacht, is

possibly true, it is also possible, in the absence of a contrary theory, to argue that

13lbid.. 21.

l4Joseph Schachl. An Inttoduction 10 Islamie Law (Oxford: Clarendon Press.1993). p. 19.

151ntiim al-Shafi'i. "Kitab Ikhtilat" Malik wal-Shiifi'i;' Kitab al-Umm. Vol. VU.(Cairo: Maktabal a1-Kuliyyal a1-Azhariyya. 1961). p. 191; Schach~ Origins. 17.

9

through its historical development. Islamic law was not the product of a single mind.

B=d on this thesis. Sheldon Amos is of the opinion that it is possible that Roman law

exercised an influence on the development of Islamic law. He argues that Islamic law

comprises the prevalent system of law which assimilated local customs and then

associated them with the name of the Prophe!. His idea is based on the assumption th'lt

all prevalent systems of law are eonnected with the name of either a real or a mythical

lawgiver. for example. as celebrated systems have been associated with the names of

Moses and Solon. The process through which Islamic law came into being is that

Muslim scholars digested. modified and amended the elÛsting customs of conquered

inhabitants. just as Justinian. or even Napoleon did. When the Musiims expanded their

territJries to the Roman Byzantine provinces. such as Syria and Egypt. Roman law had

reached its peak. 16

During the Muslim eonquest of the Roman Byzantine provinces. the elaborate

organization oflegal education that was prescribed by Justinian was allowed to continue

uninteITUpted in the chief towns. Berytus was an important center of legal education.

which flourished a century after the Muslim conques!. According to P. K. Hitti. the

school was presumably founded by Septimus Severes and promoted by his successors

of the Syro-Lebanese dYilasty. Papinian and Ulpi2ll are said to have contributed to its

fame before the} were called as imperial counselors to Rome. No Jess than 595 excerpts

from Papinian's legal writings were laler ineorporated into Justinian's Digest. His

successor. however. was Ulpian (d. 228) from whose writing~ one-third of the body of

the Digest was extracted.17 The professors and students of Berytus came from all over

16Sheldon Amos. The Historv and Principles of the Cvil Law of ROll!~(London: Kegan Paul. '.ench & Co.. 1883). p. 406.

17plù1ip K. Hitti. The Ncar F.ast in Historv (Princeton: D. Van NosaandCompany. Inc.. 1960). p. 145. The Digesc is a collection of excerpts from juristicwritings of the most varied sorts. the authority of which was originally of quite adifferent nature from that of the Statutes, though they too had been. in a sense. binding.The Statute is deriving frcm the fiac of an absolute ruJer. The code consisted of manyjudicial rescripts from the carlier empire. and was intended simply to settle the law in

10

the Near East. When Justinian in 533 A. D. ordered a collection of legal opinions 10 be

compiled 10 form the Digest, he summoned a law professor from Berytus 10 be a

compiler. 18 There was also, according 10 Hitti, another organization of legal education al

Aiexandria. Unfortunalcly, the leacbing of law was suppressed by Justinian al

Aiexandria. Then this school suffered from an earthquake, as did !halofBerytus.19

The method of legal education al BerylUs during Justinian's time, Sherman

daims, was bighly ordered. Legal training had gained 50 much importance in those days

thal it became a prerequisile for holding govemmenl office. After the entire Corpus Juris

(Institutes, Digest and code) had been made, the sludents were required to sludj' il.

The whole prograrn look five years. SlUdying the Institutes and the flISl five parts of the

Digest under professional instruction. according to Sherman, occupied the first three

years.20

Amos further argues that while Roman law had reached its peak. as we have

noted earlier, particularly from the acadernic point of view, the four caliphs and other

companions of Prophel had no requisite inlellectual capacity for building up a refined

legal system.21 'Umar 1 is said 10 have founded the rudiments of fiscal planning in 641

A.D., when he instituted the Diwlin 10 facilïlale the distribution of subsidies. Il was

also bis decision, regarding the ownersbip of the conquered lands. 10 forbid them 10 he

divided among bis soldiers. But the regulations laid down by the four caliphs were

concrele cases. As a collecùon. the code, no less !han the Institutes and Digest. derives ilSfocce from the consùtution of Jusùnian's own. H. F. Jolowicz. Roman Foundaùon ofModem Law (Oxfoccl: Clarendon Press. 1957). p. 1.

18Ibid.. 178.

19Amos. The Civil Law of Rome, pp. 407-408.

20Sherman. Roman Law. p. 142.

21Amos. The Civil Law of Rome. pp. 407-408.

•

·e

Il

generally concerned with internal problems within the Muslirn community. Tr.ese

problems. according to N. J. Coulson. were due to two reasons. at least. First. during

his mie in Medina. the Prophet had been faced with a variety of legal probierns, and his

regulation marked the beginning of the legal points drawn from the ethical principles

contained in the Qur'ân. However. he made no attempt to elaborate anything such as a

code of law. He was ooly to settle disputes when they rose. The second reason is that

after the death of the Prophet, as one of the results of extending lslamic territory into

vast new regions. the transition from a tribal society to an urban society occurred.

Therefore. the civillife of the Muslim community needed special attention.22 During

this transition period. the caliphs and other successors of the Prophet had a hard task in

further implementing the Qur'ânic provisions in the same spirit as the Prophet did.

Coulson gives one example of how the caliphs interpreted the Qur'ân in the transition

from a tribal unit to an urban society. The example is the scheme of irtheritance in which

the individual family was the unit and the rights of relatives other than the male agnate

relatives were acknowledged.

To 'Ali is ascribed the device of proportionately reducing the fractional sharesallotted by the Qur'ân when these add up to more than a unity.... Whiledelivering a sermon in the mosque 'Ali was interrupted by a questioner from thecongregation who asked what happened to the wife (normal share 118) when thedeceased husband had also left two daughters (213). a father (1/6) and a mother(1/6). 'Ali ... replied without hesitation: The wife's one-eighth becomes one­ninth. And the shares of the other relatives ... were abated in proportion.23

The other notable feature of the flI'St century of Islam. especially under the four

caliphs, was that there was no separation between administration and legislation.

Administrative legislation was intended to ooly modify the existing prevalent usages in

conquered lands.24 In keeping the prevalent usage, according to Von Kremer. after the

22N. J. Coulson. A Historv of Islamic Law (Edinburgh: Edinburgh UniversityPress, 1991), pp. 22-23.

23Ibid.. 24.

24Schacht, Introduction. p. 15; idem, "Law." p. 70.

12

conquest of Syria and Palestine, the Muslims became weil known for their tolerance. Ali

the old institutions and the legal system, which had been based on Roman law, remained

in force. They also gave the inhabitants the freedom to conduct their affairs, their

religion and the freedom to use their nati' ~ tribunals to administer justice.25 Thus,

administrative legislation, conceming purely local disputes and legal problems, was

settled on the basis of the custom and precedent of each locality.26 Therefore, it is

sufficient to say, as Majid Khadduri states, that Islam fostered the fair treatment of the

various populations who lived under Muslim authority. These various populations not

only consisted of the ah] a/-kitiib, but also idolaters and Zoroastrians. The ah] a/-kitab

who resided in Islamic territory and accepted Muslirn rule were called dhimmis. These

dhimmis were alIowed to practice their own religion, except when Muslirn interests

were involved.27 Consequently, the Arabs become acquainted with foreign ideas

through which they adopted certain legal maxirns or institutions. Von Kremer points to

the IWO jurislS, Awza'j and Shafi'i, who were both born in Syria and had become

acquainted with Roman-Byzantine rules of law. He notes sorne legal maxirns, which he

assumes have been taken from the Roman law and tangibly incorporated into Islamic

law. These include, for instance, the maxim a/-Ithbat 'a/a a/-mudda'j (that proof lies

upon the plaintiff); or the maxim iqriir (legal confession) which has a parallel with

confessus pro judicata , He gives further examples in commercial law such as the

question of whether the sale of a foreign item is valid or not; and the case in which a

25Von Kremer, The Orient Under the Caliph~. 0'. S. Khuda Bukhsh (Calcutta:University of Calcutta, 1920). p. 446.

26Majid Khadduri, Islamic Jurisprudence, Shafi'is Ris31a (Baltimore: The JohnsHopkins Press, 1961), p. 5.

27Idem, War and Peace in the Law of Islam (Baltimore: The Johns Hopkins Press,1955), p. 176.

juristic distinction is made betwcen sale and exchangr.. This fine distinction. according 10

Kremer. is clearly the result of the contact of the Arabs with Roman civilization.:s

Kharaj and jizya are other examples of foreign elements in Islamic law. The

term kharaj may be derived. through Persian. from the Aramaic halak. or cIse il may

have been borrowed from the Byzantine-Greek administrative language.:9 According to

D. C. Dennelt, khariij originally meant tribute in a general sense, as did jizya.. 30 to

which non Muslim in Muslim lands were subject. However. toward the second century

of Islam, kharaj began to denote a tax paid on landed property whereas jizya was used

exclusively for the poli tax,31 A. 1. Qureshi explains that while under Byzantine and

Persian mie the owners of land were expected to pay a tax with various kinds of

foodstuffs. The Muslim officials ntmed this payment into money. This phenomenon

continued until the beginning of the Abbasid period and ceased to be valid when the

people of the conquered area had generally converted to Islam.n

With regard to jizya, the traditionalists trace the difference between jizya and

kharaj back to the time of 'Umar 1. However. a::cording to Wellhausen, the term jizya

and kharaj were used synonymously in the sense of "tribute paid to the Muslims",33

Both terms. kharaj and jizya, do not designate Islamic institutions. The Muslim

conquerors maintained them as part of the fiscal system when they occupied the

Byzantine lands. According to Caetani and Sir Thomas W. Arnold. later jurists began to

28Von Kremer, The Orient. 447-448.

29EncvcIopaedia of Islam, s. v. "Khariidj," by th. W. Juynboll.

300.ni~1 C. Dennet!. Conversion and Poli Tax in Early Islam (Cambridge:Harvard University Press. 1950), 12.

3IEneyclop".<lia of Islam, 1965, s. v. "Djizya," by Claude Chacn. p. 559.

32Anwar Iqbal Qurcshi. Fiscal System of Islam (Lahore: Institutc of IsJamieCulture. 1978). p. 44-45.

33J. Wellhauscn. The Arab Kingdom and ilS Fall, lrans. M. G. Weir (London:1927). 277.

14

use the termjizya to refer to a head-talc This invention indicates their ignorance of the

situation in the early period of Islam.34

This distinction in terms of taxes was not the original practice. especially in

Egypt. Under the early caliphs the two terms were synonymous and Muslims paid

neither land-tax nor poll-tax.3S In the Kurrah papyri in Egypt. !he poll-tax (jizya in the

later sense) was used for the entire gold-tax. which included both land-tax and poll-tax.

The poll-tax was first used in the general sense of a tribute. The term khariij was not

used in Egypt at ail in the earliest times. Therefore. N. Abbot concluded that the poll-tax

was not an individual tax, but a collective tax levied in a lump sum on the cornrnunity,

being a poli tax only in the sense that it was based on the number of taxable men in each

community. The distinction between these two terms was, under the early Arab mie, a

geographical one. Both terms were used for the entire tribute of the subject people. Iizya

gained currency in the western provinces and kharaj in the eastem provinces. This

difference in the usage of the terms used for poll-tax would account for the absence of

the word khariij in the Kurrah papyri and other early papyri from Egypt.36

Thus the evidence presented by Abbot gives the impression that the Arabs.

when they took over the province of Egypt also took over the existing tax system, that

they demanded a lump sum of money from province as a tribute and that they left local

officiais in place to raise money in the proportions they thought fit for the existing

system. Part of the money came from the Roman Byzantine land tax, another part from

the Roman Byzantine poll-tax.37

34Sir Thomas W. Arnold. The Preaching of Islam. second edition (London:1913). 60-61.

3S J. Wellhausen, The Arab Kingdom, p. 277.

36Nabia Abbet. The Kurrah Papy" from Aphrodito in the Oriental institute(Chicago: The University of Chicago Press. 1938 ), p. 95.

37Ibid, But according to Claude Cahen. the different palicy applied by caliphsin different regions is reasonable. for one can not speak of a uniform system immediately

15

The other institution is the institution of waqf. The origin of the institution of

waqf is somewhat obscure. and sorne scholars daim that it was deri"ed l'rom the

Roman Byzantine system. Waqf is the Arabie word that means "to prevem. restrain."

and ils plural is awqaf. In Islamic legalterminology. it means primarily "to protect a

thing. to prevent it from becoming the property of a third person (tamlik )." \ts synonym

is iJabs. iJubüs. In general.waqf is the term which designates a pious endowment.

which is defined in different ways in Islamic law. according to differem schools.

According to Heffening. in the earlier period of Islam. conquered lands were the

property of the state. and were also considered the waqf of the Muslim community.>s

He also argues that the origin of waqf :~annot be traced in Islam. According to the

general opinion of the Muslims. there was no waqf in Arabia before Islam. The

Muslimjurists generally trace it back to the time of the Prophel. According to a tradition

of Malik. the Prophet purchased gardens from Banu aI-Najjâr in order to build a

mosque. However. Banu aI-Najjâr refused to take money from the Prophet. intending to

give him land for the sake of God. There is also a tradition narrated by Ibn 'Umar that

when 'Umar 1 acquired valuable lands at the partition of Khaibar. he asked the Prophet

whether he should give the lands as $adaqa. The Prophet ordered him to "[retain] the

thing itself and devote its fruits to pious purposes." 'Umar did what the Prophet

ordered. with the provision that the lands should not be sold or be bequeathed. So he

gave them as $adaqa for the propagation of the faith.39 There is also the tradition of

after the conquest. since neither the earlier institutions nor the conditions of occupationhad becn everywhere the same. Sec. Encyclopaedia of Islam. s. v. ..Djizy.... by CI.udeC.hen. Thcrefore. unlike in Egypt. in Iraq. almost ail Eastern provinces werc previouslyunder the Sassonid empire; during the corly conqueS!. the Arnbs controlled the institutionand collection of taxes which followcd the tradition of Sassonicl empire. in whichdistinction between land tax and poll-tax h.d CJ<Îsted. Sec. Hossein Mod:un:ssiTabiitabii'i, Khariij in Islamic Law (England: Anchor Press Ltd.. 1983), p. 28. For morcdiscussion on the birth of khariij payer. sec, Baber Johansen. The Islamic I.w on J ...ndTax and Rent (London: Croom Helm Ltd.. 1988), p. 7·19.

38Encyclopacdia of Islam. 1927. s. v. "Wakf," by Heffening.

39lbid.

16

Malik conceming the family endowment. Abü Tall~a gave the Prophet his favorite piece

of land. which was called the BairuJ:!a garden. Later. however. the Prophet gave it back

to TalJ:!a. with the purpose of making it an endowment for his relatives. Abü TalJ:!a.

therefore. gavc it to Ubay and Hassan as $adaqa. 40

These traditions became one of routes for Muslim jurists to trace the origin of

the institution of waqf back to the lime of the Prophet. According to Heffening.

however. the oldest Muslim jurists are not agreed on sorne essential points about the

waqf. From Shafi'j's polemics with unnamed opponents. it is known that one of the

views he attacks is that the waqf should remain the property of the founder and his

heirs. ShuraiJ:! holds that the waqf cannot be inalienable since the Prophet was said to

have sold things which had been made waqf. Though Abü Yüsuf is said 10 have f11'St

declared for the irrevocability of the waqf. il is probable that Shafi'j contributed to the

success of views on waqf. tha~ later became predominant in Islamic law. The mosl

important fealure of the instilution of waqf. in the unanimous opinion oÏ Muslim jurists.

is that it is irrevocable: the founder cannol retract the object of endowment. AIl this

suggests. Haffening claims. that the institution of waqf arose only after the death of the

Prophel in the course of the flrst century of Islam. This institution was found in the

conquered lands as the foundation for institutions of public beneflt such as churches.

monasteries. orphanages and poorhouses. These endowments of the Byzantines were

inalienable. managed by administrators and were under the supervision of bishops. This

institution wn, adopted by Muslims in the form of practice of the charity recommended

by Islam.41

In short. il may be concluded that the institutions ofjizya andwaqf were derived

from Roman institutions during the cour.ie of the flrst century ofIslam.

4ClJbid.

4IJbid.; Qureshi. Fiscal System. p. 158.

17

At that ùme. when the capital city moved to Damascus in Syria. the Umayyads

conùnued the basic policy of the four caliphs in preserving the existing administrative

structures of the conquer~d lands. According to H. A. R. Gibb. the official rclationship

between Arabs and Roman Byzantines began with the establishment of the Umayyad

empire. Gibb argues that in the books of nistory and the chronicles of the Middle Ages.

the wars between the two empires occupy a prominent place. Students of medieval

history might someùmes get the impression from these sources thzt both empires were

engaged in conùnual warfare. This assumpùon. however. according to Gibb. is nO[ the

whole truth. Gibb argues that since the Syrian troops occupied an imponant position in

the maintenance of the Umayyads. L'ley also stabilized the relaùonship with the Roman

Byzantines. There were five divisions of the Syrian Army. Two divisions were in the

~:Juth. These southern divisions consisted of predominantly southern and western

Arabian tril'c;. Sorne of these tribes were established before the Islarnic conquest and

had relaùons with the Byzanùne governors. and sorne of them were establishd along

with the Isl3mic armies. The other two divisions were in the center. These central

divisions had long been solidly established and had been enrolled as auxiliaries of the

Greeks in the wars with Persia. their chiefs had held Byzanùne titles. and they had long

been farniliar with Constanùnople and its government. Finally. one division was in the

nonh. This nonhern division was composed predominantly of nonhem Arabian tribes

who had come at the ùme of the conquest and had known no relaùons with Byzantium

except in warfare. It was with the (wo central divisior.s. at Damascus and Emessa. that

the Umayyad caliphs were most closely associated both by geography and by

matrimonial relaùons. These divisions were the most devoted supponers of the

Umayyad caliphs.42

42Hamilton A. R. Gibb. SlUdies on the Civilizaùon of Islam. ed. Stanford J.Shaw and William R. Polk (Boslon: Beacon Press. 1962). p. 49

•18

There can be litlle doubl. !herefore. Gibb argues. Ihal lhis connecùon played

sorne part in familiarizing caliphs wi!h Byzanùne insùlUlions. Though !he degree of

familiarily is 10 sorne exlent sùIl debatable, !he increasing tendency of !he Umayyads to

adopl Roman Byzanùne usage was a clear fact. As Gibb stales:

The remarkable care shown by !he caliphs for !he upkeep of roads. even to !heexlent of imitating !he Roman mileslones, was certainly not inspired by Arabiancustom or tradition.... The earliest gold coinage of !he caliph ('Abd. al-Malik)was Byzanùne in design, even to the extent of bearing an effigy of the caliph.until it was withdrawn and replaced by a more orthodox MusIirn design indeference to the religious feeling of his subjec15. ln ceremonial also, although ilcontinued on the whole to be governed by Arab and Islamic usage ... there was aslow process of small adjustment to Byzantine practice; and. as is weil known,the ex-Byzantine provinces retained their B)zantine systems of revenueadministration.43

ln the earlier period of Islam, especially at the beginning of Ihe caliphate in

Medina, Ihere was no central treasury. AIl the taxes levied from !he provinces flowed

into !he treasury of the governor or another official. It was under the Umayyads that

Mu'a:wiya sought to separate financial matters from the political administration. He

appointed a governor at Kufa for political administration who was responsible for

nùlitary and other affairs. He also appointed a special officer who was independent of

the governor. This officer was responsible for coIIecting taxes, es~cially the land tax.

Therefore. this office was called "$~b al-kharaj. .. 44 The syslem of tax collection in

Egypt. as revealed by the Kurrah papyri, according to Abbot, had four main divisions.

These four divisions of tax collection were adopted from !he late Roman Byzantine

syslem. The fmt division was the regular gold tax, which consisted of land tax, a poIl

tax and a trade lax. The second division was the regular corn tax, which varied,

depending on crops. The next division was extraordinary requisitions. Tous tax was

raised regularly as needed, both in money and in kind. 115 purpose was for provisions.

43lbid., 50.

44Qureshi. Fiscal Svs:gn, p. 54.

19

for naval construction. for building. or for anything else that the administration needed.

Lastly, there was a personal service tax. This tax varied from temporary demands to

important and responsible liturgies.45

The establishment of the Umayyad empire also encouraged the further

development of Islam. Though the cause of ilS establishment is stili a controversial

subject in early Islamic history. 0\6 one cannot, Îlowever. ignore the caliphs' ability. as

rulers of empire. to encourage religious integrîty and devotior. to the cause of Islam. For

example, the Umayyad regime did a great service to Islam, among other things, by

saving the t(.,(t of !he Qur'an from corruption. The officicltext of the Qur'an issued by

'Uthmau was wrillen in ancient <:haracters which had no dots and no d'"critica! marks.

This caused great difficulry in reading the Qur'an, and people could mclœ many

mistakes. Furthermore, Arabie was introduced as the state language for the first time by

'Abd. al-Malik. This had a great effect on official business, and it made an impact on

the spread of Arabic leaming.47

45Abbot. Kurrah Papvri. 94. For details conceming the assessment and collecùonof taxes procedure. parùcularly in Egypt during the lirst century, sec G. F. Murphy."Land Tenure and Social Transformaùon in Early Egypt." ln Land Tenure and SocialTransformaùon in the Middle East. ed. T. Kllalidi (Beirut: Arnerican University ofBeirut. 1984), pp. 131-139.

46See• among others. Sir Thomas W. Arnold. The Caliphate (London : Routledge& Kegan Pub. Ltd.. 1965). p. 23. He elabordtes on !his by saying that with theestablishment of the Umayyad dynasty. the disùncùon was made hetween poliùcians andpious people whose interest was in Islam as a body of docaine and a code of pracùce.This 1eads to Arnold's conclusion that the expansion of Islam was moùvated not byreligious intere,ts but rather by the Arab aibes. Therefore. he helieves that theestablishment of the Umayyad dynasty was not due to religious interests. See also fordiscussion on !his point: Francesco Gabriel, Muhammad and the Conguest of Islam(Milan: World University Library. 1977). pp. 103-116.

47Qarnaruddin Khan. "Isl:un and the State Policy of Umayyads." Igbal, XV(January. 1967) : 35. According to a repon. when 'Abd. al-Malik saw that most peoplemade rnistakes in reading the Qur'iin. he ordered a1-Hajjaj b. Yüsuf to look afler thisimponant affair. Another repon says that the work was done by Abü al-Aswas al-Du'ali_"Ider the direcùon of Ziyad. Yet another repon declares that it was performed by KllaIidb. ~l-Hayyaj under the order of Walid 1.

20

It is clcar from Crone's research that the establishment of the Umayyad empire

and the existence of ilS caliphs was an important step in the development of Islamic law.

According to Schacht. however. the popular and administrative practice of the

Umayyads were a starting point for the Muslim jurislS to formulate Islamic law in the

se~ond cenlUry of Islam.48 Crone insislS that this ·.hesis remains a ncbulous concept and

therefore she believes that the Umayyad caiiphs and their govemors were considered as

guides for the implementation of God's law. Al-Walid expressed the idea of succession

by saving that "God had raised up caiiphs for the implementation of His Qu1cm, sunna,

Qudiid, fara'ir) and Quqüq." In the sarne ~'ein. Yazid II! stated that "until the death of

Hisham. the caliphs of God fcllowed one another as guarchans of His religion. and

judging in it according to His decree". Marwan II describes "the caliphate as having

been instilUted for the implementation of God's stalUtes".49 Therefore. the caliphs'

verdiclS did count as sacred law. Their decisions become an authoritative source. wbich

was collected or invented.so

Crone further argues that the Umayyads are aIso said to have issued what in

Roman legal terminology would be known as ediclS or mandates to their govemors and

judges (qiiçlis ). The è~st example is shown by the famous letter of 'Umar II to bis

govemors regarding fiscal and other legal mallers. Furthermore, Mu'awiya sent

instructions regarding stolen property to bis govemor in Medina. Hisham. sent

instructions to an Egyptian qiil)l on a matter conceming dowries. Govemors and qiiçlis.

on the other hand. in their tum consulted caliphs about d1fficult legal matters. For

example. Mu!)ammad b. Yiisuf. govemor of the Yaman, wrote to 'Abd. al-Malik asking

48Schacht. Introduction. p. 27.

49patricia Crane. God's Caliph (Cambridge: Cambridge University Press. 1986 J.p. 43.

50Jbid.. 45.

21

for the correct procedure to be followed in a case of illicit intercourse. A Syrian qâç/i

wrote to Hishâm for advice on questions regarding inheritance and manumission.51

But the Umayyad caliphs generally did not interfere with the liberty of opinion

of qâç/is. This liberty must have made for rapid progress in the evolution of the legal

system.52 One of the characteristics of the early Umayyad period was that qâç/is could

exercise their discretion because the four schools of Muslim law by which qâç/is had to

abide were not established until the early Abbasid period.53 The decisions of the qâç/is

in settling disputes differed from one another. These varieties of decision. as Coulson

concludes. were due to two principle reasons. The flrst reason is that their decisions

were based on the locallaw which varied considerably throughout the Islamic territories.

For example. the community in Medina, which was faithful to the traditional concept of

Arabian triballaw. decided that in arranging n:arriage alliances. the male member of the

family had the prerogative. Therefore. the '..oman had no power to contract a marriage

on her own account. The conlract had to be made by her guardian. Unlike women in

Medina, women in Iraq had the right to contract their own marriages without the

intervention of a guardian. The second reason is. as mentioned earlier. that the qâçlis. in

deciding disputes. did not enforce their own opinions strictly. Their discretion often

appealed to prevailing legal practice. rather than invoking a Qur'anic provision.54

According to Goldziher. the use of opinion in deciding disputes was influenced

by Roman law whose jurists had been trained in scientifJc jurisprudence at the legal

school of Berytus. The decisions of the qâç/is of the Umayyad empire. according to

51Ibid.. 46.

52Muhammad Ishaq. "Historical Survey of Fiqh and Muslim Jurisprudence,"Journal of the Asialie Society of Pakistan. 8 (1963) : 31.

53Hasan Ibrahim Hasan. "Judiciary System from the risc of Islam ta 567 A. H.(A. D. 117)," The Islamic Ouancrly. VU (1963) : 26.

54Coulson. Istamic Law. p. 31.

22

Schacht. laid the foundations of Islanùc law.55 Golclziher holds that even if we had no

other positive data to prove this. the very name given to jurisprudence in Islam from the

beginning attests to Roman influence.56

It is called al r'-". reasonableness; and those who pursue the study of it aredesignated Fukaha (singular FaJ-jh ). These terms. which, as we can not fail tosee. are Arabic translation of l.he Roman ( Juris ) prudenlÎa, and prudentes.would be a clear indication of one of the chief sources of Islanùte jurispruden('~.

even if we had no positive date to prove !hat this influence extended bcLh toquestions of the principle of legal déduction and to particuiii: legal provisiJns.57

Golclziher argues that the influence ofRoman legal me!hod on legal reasoning in

Islanùc law is a more Îr:1portant factor in the history of Muslin. ci':Œzation than even

the direct adaptation of particular points of law. This enabled Muslim scholars to extend

legal materials given by the Qur'ïin and sunna 10 answer ju.-idical problems on which

these sources were silent.58 The Islanùc legal system, he maintains, WiiS the result of the

intellectual contribution of the Muslim scholars of Iraq in the second century of Islam.

In tr.is period, there still were not 1)adiths to build legal norms handed down from the

fust century. At the same time, it was undesirable to invent new traditions to fill up gaps

in the Qur'an. Consequently, a method of legal reasoning was adopted to elaborate

speculatively the small number of traditions.59 The method of legal deduction, however,

was greatly influenced by Umayyad law in Syria, where it had been taken from the

Roman law and, to some extent. from the special laws of particular provinces.6O

Furthermore, by the method of legal deduction, Muslim scholars could draw legal

55Sch3cht. Introduction. p. 26. ; Idcm. "Law," 69.

56Goldziher. "Principlcs of Law in Islam," 296.

571bid.

58lbid.. 297.

59Jdcm. MusHm Studics. Vol. n.. p. 78-79.

6OEncyclopaedi3 of Islam, 1927. s.y. "Fik)l." by Ignaz Goldziher.

decisions from the "dualism ofwritlen law (Arabic nazz) and unwritlen la...... [which] is

mere a reflection of the dualism of leges scriprae ... and /eges non scriprae. " 61

Through the influence of the methodological principles and rules of Roman

jurisprudence on Islamic law. the Muslim jurists could extend legal material with no

provision in the Qur'an and tradition to other judicial activities. "The rario /egis ('ilia).

the principle of presumption. was applied to analogies or systematic reasoning (qiyas )

in words and things," and ra'Y was used to arrive atlegal decisions. This ra'y was the

"opinio prudenrium" of Roman legal deduction.62 Goldziher also claims that Mil$/aJ;za

and istiQsan. taking account of public weal and interest in legal decisions. represent the

Roman standard of"urilicas publica. which gives the interpreter of the law the right ... an

application to wrest a plain and unambiguous law UllO something quite different from its

original meaning. in the interest of the public weal." 63 Furthermore. "[t]he conception

of idjmii' (consensus) i.e., the general usage of the community which has been

establi:\)·~d by agreement in the iarg~r circles of believers independ...lt of the wriuen.

!rad;:ional or inferred law", was based on the Roman principles of "consuetudinem aur

rerum perpetuo similiccrjudicararum auccoritacem vim /egis obrineri deberi. " 64

Schacht, in line with Goldziher, asserts that the influence of Roman law on early

Islarnic law was not only on legal concept and principle, but aiso on legal maxim. This

influence infl1trated, in the second century, into Iraq where Muslims interacted with the

people of conquered cultures and non-Arabs who had a liberal education in Hellenistic

rhetoric and had been converted to Islam.65 At the same time Islamic jurisprudence

61 Goldziher. "Principles." 297.

62Ibid.. 296-297.

63Ibid.. :!97; idem, "FJlc)l," 103.

64Idem. "Fik,h." 101-1 02.

65Joseph Sehachl, "Foreign Elements in Ancient Islamic Law," Journal ofComparative and International Law, 32 (1950), p. Il; idem. "Pre-Islamic Background

24

began to be elaborated. At the beginning of the second century. Muslim lawyers focused

on "the popular and administrative practice of their time as their raw material and

endorsed, modified, orrejected it, thereby creating Muhammadan law", whereas Muslim

lawyers at the end of the fmt century had concentrated on "q"estions of ritual and

perhaps on kindred problems of directly religious interest, such as questions of

conscience relating to alms tax, marriage and divorce." 66

Therefore it is, according to Schacht, reasonable to daim that it was in Iraq that a

high complexity of foreign influences, particularly of Roman law, constituted Islamic

law. Schacht holds the example of "rahn," a tenn which occurs in pre-Islamic Arabian

usage as weil as in the Qur'an. It "meant a kind of earnest money which was given as a

guarantee and a material proof of contract". The guarantee could be also hostages

produced by each party to a lawsuit. The later Muslim lawyers did not know the

institution of carnest money or that of hostages. What they k.1ew '.Vas that "rahn" was

only a kind of "security for the payment of a debt". Its mea.lùn; :>chacht daims, was

most Iikely influenced by the Roman institution of pignus. This institution was found in

the Byzantine provinces.67

Furthennore, Schacht maintains that the maxim in Islamic law "the child belongs

to the marriage bed" (aI-waIad li aI-Msh ) was regarded as originating in pre-Islamic

Arabian practice. where it was used to decide about paternity disputes. Goldziher

daimed, however. that this maxim was not followed in the middle of the Umayyad

period. In the middle of the second century. it came to be considered a tradition of

Prophet, but it was at the same time incompatible with the Qur'anic position about

and Early Development of Jurisprudence," in Law in the Middle East. cd. MajidKhadduri and Herbert J. Liebesny (Washington D. C.: The Middle Insùtute. 1955), p.36. For a compar3Ùve study of lslamic and Roman law, particularly conceming persons.family. inheritance, but without historica1 analysis of these laws. see: Antonio D'Emilia. "Roman Law and Muslim Law," East and West (1953) : 73-80.

661bid.

671bid.. 16; idem. "Law," 67-71.

patemity. "and in Islarnic law as it exists the maxim. thOU~.1 often quoted. is never taken

at its face value." 50. in deciding patemity disputes. "Muharrunadan law falls back not

on the maxim but on the old Arab procedure of calling in professional physiognomists".

But this maxim agrees neither with old Arab eustom nor with the Qur'ân. but likcly to

have had "its parallel in the Roman maxim. Pater ast quem nuptiae demonstrant. "

which was commonly known in Greeo-Roman rhetoric.f~

Having discussed the arguments for the influence of Roman law on early Islamic

law thus far. we can conclude that though it is claimed that certain institutions. such as

jizya and waqf, may have been derived from Roman practice. the important factor of

Roman law's influence on early Islamic law was legal reasoning. Muslim scholars were

able to extend the legal materials provided by the Qur'ân and the sunna in order to

answer juridical problems on which these sources were silent. It can be seen that during

the course of the flISt century of Islam, Muslims still concentrated more on the internal

problems of the Muslim eommunity. while Roman law. as a systematic body of laws

and practiees. had reached its peak. By its very power and comprehensives it provided a

major resource for Muslim seholars.

However. sorne scholars hold that. in general. there was no real indication that

Islamic law borrowed from, or was influenced by. other laws. In order to support this

argument. we mention Harald Motzki and Uri Rubin who exarnined the legal maxim aJ­

waJad li aJ-tirash. whieh Schacht believes was derived from Roman law. As part of his

examination of the MU$annaf of 'Abd al-Razzaq al-$an'ânï. Motzki refers to 'Alli' b.

Abi Raba!).'s attitude towards the prophetie traditions. Aecording to Motzki. though

'Alli' barely referred to the Prophet. he surely knew more prophetie traditions than he

actually utilized in bis legal arguments. 'Alli'. says Motzki. made use of the maxim of aJ­

waJad li aJ-firash on IWO occasions without referring it to the Prophel. Nonetheless.

681bid.. 14.

26

from the following passage it is safe to conclude that he was aware that this legal maxim

was related to the Prophet:69

Ibn Jurayj said: 1 said to 'Alli': "what is YoU! opinion (in the case) when he (theman) rejects (the patemity of) it after She (the woman) has borne it?" ('A!â')said: "(in that case) he has to anathematize her (yulii'inahii) and the child belongto her." 1 said: "did not the Prophet say: 'al-walad li-I-fIIiish wa-li-l 'iihir al­1)ajar ' " ? (CA~') said: "Yes! But this was because the people in (the beginningsof) Islam c1aimed children barn in beds of (other) men as theirs saying: 'they areours'! (That is why) the Prophet said: 'A}-walad li-I-fIIiish wa-li-l-'iihiral-1)ajar.' " 70

Working on the same version, Uri Rubin examines this legal maxim in order to

prove that this tradition originated in the Iifetime of the Prophet. In doing so, he opposes

Schacht, who holds that the fIIiish utterance, incr ;np..tible with the Qur'an, was

intended to decide disputes about patemity which were likely to happen in conditions of

'frequency of divorce with immediate re-marriage'. Schacht agrees with Goldziher

conceming the possible Roman origin of this precept.71 Rubin examines the textual

evident itself and fmds that this legal maxim has circulated since early Islam.72 For

example, he cites the story of Zainab al-Asadiyya, Mul)ammad's wife and JaJ:tsh's

daughter, who came to the Prophet, asking him about a person bom to a slave-girl of her

father. The slave-girl is suspected of having conceived her son with another man.

Having examined the physiognomy of the son, the Prophet replied: " 'inna l-mïriitha lahu

69Harald Motzki. "The MlJ$lllIIlaf of 'Abd al-Razzaq al-$an'linî as a Source ofAuthentie A!:l3dith of the FlfSt Century A. H.: Journal of Near Eastern Studios, 50. 1(1991): 16.

70tAbd a1-Razzaq a1-$an'iini. A1-Musannaf, Vol. vn. cd. Shaikh I;Iabibuml1;unanaI-A'zamj (Beirut: Dar al-Qalam: 1973). p. 99. No. 12369.

71Schaehl, Origins, 181. Sec also Goldziher. Muslim Studios. Vol. L. p. 174.

72Uri Rubin. .. 'Al-Walsd Jj·/-Fll'âsh 'on the Islamie campaign against '%in. '... inStudio Islamica, LXXVIII. (1994). 5-23.

27

wa-amma ami fa-1}.tajibi minbu '--'he is entitled to the inheritance. but as for you (i.e..

Zaynab). ve:I yourself in his presence' ".73

Rubin maintains that the ÏIriish maxim is linked to the well-known affait of the

da'wa of Ziyad b. Abihi. the skilful administrator from Tha'lif. who had been claimed

by Mu'awiya as his father' s son. But this claim was criticized by many people.

especially officiais whose carcel' in the Ummayyad administration had been

overshadowed by that of Ziyad. This da'wa • says Rubin. goes against two prophetic

traditions. 'the man idda'a statement which condemns the adoption of a false pedigree' .

and the al-waladlil al-firiish.. He !ben states:

The material surveyed thus far leads to the conclusion that the basic function ofthe ÏIriish maxim should be comprehended against the background of the di'wa.This proce1ure was the product of a society beset by frequent dispute aboutpatemity. an:! by repeated changes of people's nasab as a result of their wish toimprove their social statuS.74

He goes further to say that "the history of the ÏIriish as a legal dictum observed

by Muhammad. and even as a supposed Quranic verse. must be distingushed from its

history as a part of Muslim Law." He bases his argument on Baliidhûri's reports75

conceming Mu'awiya's da'wa of Ziyad. that Yunus b. Sa'id objected to this da'wa.

and this objection according to Rubin. "is purely legal • not religious. This meant that as

carly as 44 A. H.• the legal precedent of the Frophet was a1ready existent. but it was not

yet as binding as the caliphallaw." 76

73A1-Tabarànï. A1-Mu'jam al-Kabir, XXIV. no. 734, cd. al-Salafi (Baghdad:1980-5). ciIed by Rubin. ibid. 9.

74Rubin. "al-Walad". 17.

75 Ahmad b. YaI)ya b. Jiibir al-Baliidhüri. Ansiib al-Ashriif. Vol. N a. cd. M.Sehloessinger (Jerussalem: Thc Magnes Press, the Hcbrcw University, 1971), p. 168-169.

76Rubin. "al-Walad," 21.

•28

Therefore, based on Motzki and Rubin' s arguments conceming the legal maxim

aJ-waJad Jj aJ-tirash, it is safe to conclude that tlùs legal maxim is a part of Islamic legal

diclUm and is related :0 the Prophet himself.

Norman Calder has also exarnined severa! texts of Islamic law. and concludes

that Islamic jurisprudence is the original product ofArabic-speaking Muslim society. He

argues that one views the complexity of the society that the jurists faced. Calder says.

one can see how they observed tlùs complexity with its intellectual tensions until il

became the norm for their society. This complexity and intellectual tension do not belong

to the sphere of borrowing or alien influence. Examining sorne of the literature of the

formative period of Islamic law is the t'nly effective way to explain the development of

lslamic law. The creative tJ~inkingof the juriSts that was articulated thro;lgh the complex.

indeterrninate forms of society led them to create juristic norms that were identical with

social norms, which were then variously endorsed. modified, or rejected. It is very

evident that practice is indeed one of the major factors affecting the discussion of early

lslamic law. In severa! texts can be found frequent direct references to practice. In the

Mudawwana and Muwaf1;3' one can read that "tlùs is the sunna that 1 have found

people following-hiya aJ-sunnah 'aJay-haadraktu aJ-nas." 77

Thus, sorne of the paralIels considered by those writers as proof of borrowing

are no more than a coincidental treatment ofidentical or similar legal problems. There are

examples which are sufficient. it is alleged. to show. the contrasting treatment of major

areas by Roman and lslamic law. In the hw of persons the legally patriarchal society of

Rome stands in sharp contrast to the legally individualistic society of Islam. "There is

nothing in lslamic law even remotely akin to the paterfamilias of Roman law. the

sweeping powers he enjoyed over the members of his household or the considerable

disabilities the latter suffered under bis patria potestas." Furthermore. in the law of

77Calder. Early Mu>1im Jurisprudence. p. 198.

•

•

29

inheritance, especially conceming the assets and liabililies of the deceased. one can

identify the different basic approach of both legal systems. "Under the Roman law the

assets and the 1iabiliti~s of the deceased devolved on his heir. hence the damnos;l

heredicas where the heir found himself saddled with liabilities greater in value than the

assets he inherited." Islamic law, however, has evolved the principle that ther.= shaH be

no succession before the liabilities of the deceased are settled. Dnder this principle the

estate is considered a separate entity and payment to the creditors is made out of the

available assets. Only what remains is considered the transferable estate which devolves

on the heirs free of any encumbrance.78 Another important differer.ce in the field of

inheritance law concems the treatment of the agnates (relatives through the male Hnc of

ascent) and the cognates (relatives through the female Hne of ascent). Roman law, since

the time of Justinian, has treated these two groups of potential heirs equally. while in

Islamic law agnates have absolute priority over cognates.'9

When we come to analyze Roman law in the former Roman Byzantine provinces

where the schools of Islamic law came to he established, it is hard to claim that Roman

law influenced early Is!amic law, when it never had currency among the native people of

the lands. One remarkable fact ofRoman law occurred with the codification ofJustinian.

When the codification was applied officially in the Roman Byzantine provinces,

Fitzgerald argues, the law was practiced only by Byzantine courts and officiaIs. It is

clear from a Syro-Roman law book in Syria and from papyrus evidence in Egypt that

local people still practiced their native law, while al the same time Justinian kept Roman

law frorn being rnodified by local law. Justinian had suppressed all the law schools

except those at Constantinople and Berytus. This suppression intended to preserve the

purity and uniformity of Roman legal doctrine. It is argued by certain scholars, however,

78G. M. Badr, '"Islamic Law: 115 Relation to Other Legal System," ArnericanJournal Comparative Law, 26 (1978): 191.

30

that the law school at Berytus survived for over a century after the Muslim conquest of

Syria and Egypt. This assumption. Fitzgerald claims. is questionable. The law school of

Berytus was destroyed by an earthquake in 551 A.D. Its professors and students were

evacuated to Sidon and remained there about ten years. In 560 A.D. they retumed to

Berytus. but a further disaster came upon the school. and its new building was

destroyed by fIre. From that date onwards. nothing further is heard of it, and the scilOol

was still in ruins when it fell to the Muslims in 635 A.D.sO

Consequently. the only way to know Roman law was by studying it. It was

impossible. however. for Muslim jurists to study Roman law while it was written in

Latin. Nor was Latin understood by the local people. From the reign of Justinian

onwards. Roman law was a foreign written law. and there was no attempt to state the

bulk of the law in a language cornmonly understood by the people until the following

centuries. Although by fourth century A.D. the Latin language had become strong in the

Greek provinces of the Empire. in the following centuries the Greek language began

gradually to replace it. even among the governing class. As a result. in the sixth century

il was unusual to find educated men of the East who knew Latin. Even Justinian

himself. whose mother tongue was Latin. felt obliged for the fact of bis people to

publish bis later Statues and Novels in Greek. From this lime onwards Greek became

the official language of the Eastern Roman Empire. and scarcely ftfty years after

Justinian's death Latin ceased to be employed at ail in the Roman courts ofjustice.S1

80S. Vesey Fitz8era1d."The Allegcd Dcbt of Islamic to Roman Law." ~Quartcrly Review. 67 (t957) : 89. The school of law in Constinople was c10scd in 717A.D.. and rcmaincd c10scd for ISO ycars. until 866 AD. The hîstory of development ofRoman law. howevcr. stancd again. aftc.- Justinian's time. with the rcîgn of Lco theIsaurian (717-740141). down to the rcî!:ll of Basil the Maccdonian (867-8R6) and bisson. who was cal1cd Lco VI (886-912). This pcriod was markcd as Ûle pcriod of post­Justinian legislation. and was that of the Gracco-Roman Empcrors. They not only madeadministrative rcforms. but also publishcd stalUtory manuals containing abridgmenlS ofJustinian's law books. AIl this Byzantine rcform in legislation was in the Grccklanguage. Sec: Sherman. Roman Law. p. 158.

8lSherman. Roman Law. p. 152. Novel is scparate legislative aets. cach was stillin ilS original form and bcaring ilS own date. H. F, Jolowicz. Roman Foundations, p. 1.

31

During the flI"St century ofIslam. Roman courts particularly in Syria and Egypl.

with Cleir highly trained professional staff. hardly exisled. Il is true that thc Arabs were

well-known for their tolerance. but their toleration eXlended only to their Christian and

Jewish subjects. including tolerance of their tribunals. which were under the presidency

of their religious leaders. As stated both in the Treaty of Egypt and in the Trealy of

Jerusalem. Roman Byzantine officiais were regarded as foreigners. Therefore it was

impossible for the Arabs ln !olerate the continued existence of Koman courts lhat

derived their authority from a foreign power which had not submitted to Islam.82

The only text available during the formative period of Islamic law was thc

publication of Corpus Juris. Large amounts of translation and interpretation of each of

Justinian's four law books was done by Greekjurists. Though Justinian himself forbade

the making of any commentaries or notes on his law books. thus keeping their purity.

Greek translations and necessary notes were excepted. The increasing predominance of

the Greek language in the Eastem Empire rendered such Greek books quite necessary.

Translations of or commentaries on thecode were made by Greek jurists such as

Anatolius. Isidore and Theodore. Furthermore. Greek translations of or commentarics

on the Digest were written by Anastasius. Anonymus and Stephen. while a Greck

translation of the Institutes was made by the famous Theophilus. Finally. Grcck

translations of or commentaries on the NoveJs were made by jurists such as

Athanasius. Anonymus and Theodorus.83

In short. it is impossible to claim that Islamic law borrowed from. or was

influenced by Rocan Law. when the inhabitants of the conquered lands did not. to any

great extent. practice Roman law. for Islamic law was based on the observation of the

82Fitzgerald. ''The AIlegcd Debl," 92. Sec also A. S. Trillon. The Caliphs andTheir Non-Muslim Subjects (Oxford: Oxford University Press. 1930).

83Shennan. Roman Law, p. 155.

32

complexity of society by the creative intellects of Muslim jurists. Latin. moreover. was

not understood by Muslim jurists. nor even by the native people of the former Roman

Byzantine provinces, particularly Syria and Egypt. Crone agrees with this conclusion;

thus she introduces her new thesis. claiming that provincial law contributed to Islamic

law more than did Roman law.

B. The Problem of the Influence of Provincial Law

Provinciallaw, in Crone's words. "refers to the non-Roman law practiced in the

provinces of the Roman empire. especially the prcvinees formerly ruled by Greeks." 84

In principle non-Roman legal institutions should have disappeared from the Roman

world on the extension of Roman citizenship to all free inhabitants of the empire in 212

A.D. In practice. however. the provincial .i-nstitutions lived on and even came to

influence the officiallaw of the land.85

The provincials had long been familiar with non-Roman ways of practicing

things. The familiarity of their own practices died hard. though they were under the

Roman rule. On the ether hand, the provincials were involved in no conscious strugg!e

against Romanization. and they would scarcely have been able to defy imperial

legislation, so the "Roman law was the law of the land. and the Roman state was not

prepared to let its subjects flout it." 86 But, customary law had inevitably to be tolerated,

since the cities. such as Caesarea and Asc~on. had been Hellenized. Consequently, the

Romans granted tacit or even explicit recognition to various non-Roman instit'Jtions

common in the Near East. Such institutions were to persist as a supplement to Roman

84Crone. ProvineiaJ. p. 1.

851bid.

861bid.. \5.

33

law. The fact is that the "Roman law in the Near East was seen tt.rough alien eyes and

supplemented by numerous alien institutions. and i: is this a1ier. element which is

lahelled provincial law. It may weil he the case that Roman law was rarcly practiced

without provincial modifications in the Near East." S7

The c:xtent to which Roman law was practicec! in the Near Eastern provinces is

hard to imagine. At the very least, Roman law as il was found in those provinces bore a

provincial character.ss From papyri evidence in Egypt and the Syro-Roman law book in

Syria it can he seen "that the law of the Near Eastern provinces was never wholly

romanized and that numerous peregrine institutions survived under a more or less

Roman veneer".89 The conclusion can he drawn that durin~ :he formative period of

Islarnic law in the early centuries of Islam, provincial practice contributed far more to

Islarnic law than did Roman law.90

The evidence of papyri shows that those documents wrinen in Greek and Latin

indicate the development of native and Roman law in Egypt. These papyri cover a period

of approxirnately one thousand years from the establishment of the Ptolemaic dynasty in

Egypt through the period of Roman rule up to the heginning of Arab invasion. The

papyri also c1arify, fmt, the native Egyptian law, then the Greek law which wa<

irnported to Egypt by ail the people coming from the Greek world. Finally. the papyri

c1arify the ROIIIâII law which was introduced by the Romans.

Dnder the Ptolemaic dynasty. the native law for the Egyptians was codified. and

was binding. The codified body of laws seems to have contained provisions on forged

87Ibid.

88R Taubenschlag. The Law of Greco-Roman ERvo! in the Light of The PapyriWarsawa: Panstwowe WydawniClwo Naukowe. 1955). p. 40.

89Crone. Provincial. p. 14.

9OIbid.

34

documents. matrimony and contracts. There ca:'! be no doubt that the native Egyptian law

was still operative during the Roman era. This is clear from the edict of Flavius

Sulpicius Similis, which recognized in practice the Egyptian matrimoniallaw.91 The

Greek population in Egypt. however. was subject to its native law, which was

composed of various elements. The significance of Greek law on native law in Egypt

was its unification. It is best srressed by the fact that royal ordinances covered almost ail

areas of Greek law beginning with the law of slavery and ending with mies of

procedure and the proceedings in execution.92 During Roman times. there can be no

doubt that sorne of the royal ordinances were effectively maintained. It is also known

that a number of Greek institutions were further evolved wough edictai legislation.

With due reÏercnce to a sunilar ordinance of Augustus. Roman law recognized the

Greek mie that a woman had the right to her dowry. But from the second century A.D.•

by a new code. Roman authority did not differentiate the inhabitants of Egypt as

Egyptians or Greeks.93

There was mutual influence between Egyptian and Greek law in Egypt. and this

resulted in the formation of a new law. a locallaw. which was more Hellenized. With

the Roman conquest. Roman law made its fmt enrry into Egypt as a law for Roman

::itizens. The foundation of Roman law for its further development seerns ta have been

provided by basic laws enacted by Augustus which were later supplemented by the

constitutions of succeeding emperors, by Senate consults and by edicts. From the third

century on. legal Iiterature must be considered as an additional factor furthering its

development. At the same time locallaw became gradually Romanized. and the Roman

law. on the other hand. was gradually Hellenized. Due to the influence of locallaw, the

91Taubenschlag. The Law of Greco-Roman Egypl, pp. 4-6.

921bid.. 1t-14.

931bid.. 15-17.

35

Roman principle, for instance, which forbade Roman slaves to own property was

frequently disregarded.94 Th,;~ two systems 'lf law developed in Egypt: on the one hand

locallaw became Romanized. which was applied by peregrines and to a certain extent

also by Romans; on the other, Roman law became Hellenized, and was applied by

Romans only. It is weil known that a number of local institutions werc raised by

Justinian to the rank of imperiallaws, ~uch as the locacio-conduccio of free men. But

Justinian also rejected many other loeal institutiO:ls. that continued to exist and dominate

the practice of I=eregrines.95

Syria, like Egypt, was also not wholly Romanized. By the fourth century A.D.

legal studies had been changed in Roman Byzantine. It became the rule that an intending

advocate should repair to a law school. in particular, to Berytus in Syria. Since then legal

studies replaced rhetoric as the way to get to high office in the empire. This meant that a

rhetorician who had not studied law was no longer acceptable to the magistrates as an

advocate. By this policy, Roman law was showing its power of attraction.96 Legal

knowledge came to be widely diffused in the Eastern provinces. But the extent to which

Roman law was practiced in Syrïa is un('~rtain. The fifth century Syro-Roman law book,

as noted earlier, has been taken to show that the native law still existed. Before the

conquest of the Muslims, Syrïa had a local elite, .he Melkite Christians, who wrote in

Greek, ran the provincial bureaucracy and identified closely with the fortunes of the

Roman Byzantine empire. In their hands, the law book was translated to Syriac from a

Greek version, and probably also from Latin.97 F. Schulz daims, however. that this law

94lbid.. 27-46.

9Slbid.. 51.

96F. Schulz, History of Roman Legal science (Oxford : Clarendon Press, 1946). p.269.

97Patricia Crane. "Islam. Judeo-Chrisûanity and Byzanûne Iconoclasm:JerusaJem Studies in Arabie and Islam (1980) : 61.

36

book \Vas not intended for pracùticners. nur f~r ecclesiastical use. but solely for the

school; it exhibits the classicing tenden..:y of the school of Berytus in the fifth century.98

Whatever t"~ controversial aim of !bis book. it was also striking proof of the fact

that the native Syriac language was widely used in the east. The oldest Syriac

manuscript of !bis law book was wrinen in the early p3.lt of the sixth cen!llry, before

Jusùnian's time. In addition to the Syriac text there were aIso Arabic and Armenian

versions of the law book. Later, when Jusùnian's legislaùon became officially obligatory

upon the whole empire, his code proved to be bulky and difficult to comprehenè for the

eastern provinces, 50 that in actual pracùce they continued to use the Syriac law book as

a substitute for the code. 99 It has also been argued that there was no other kind of

Roman law in Iraq. It is commonly assumed that the Nestorians ofSasanid Iraq adopted

a combination of canon and Roman civillaw for the regulaùon of their internai affairs,

but it is said that the Roman law did not spread to Nestorian Iraq except in the form of

the Syro-Roman law book in the early Abbasid time. loo

It was in Syria that Muslims opened their gates to accept foreign elements in re­

shaping their culture. Thus, Umayyad law came to contain particular provinciallaws. In

order to prove that provinciallaw contributed more to Islamic law than did Roman law,

Crone takes the example of WaJà'. an institution which provinciallaw gave to Islamic

law. She further claims that as long as Roman law contributed to Islamic law it did 50

through the intermediary of provincial law. 101 Her thesis will be elaborated in the

following pages.

98Schulz. Roman Legal Science. p. 324.

99Vasiliev. Hi.toN of the Byzantine Empire. Vol. 1 (Wisconsin: The Universityof Wisconsin Press. 1958). p. 89.

lOOcrone. Provincial. p. 12.

101Ibid.. 36.

•37

On the important subject of patronage as a test case for comparison Crone insists

that Wala' was a Near Eastern version of the paramonê. 10" The term walà' "could

mean genuine agnate or felIow-tribesmen (ibn 'amm J. a fictitious one such as an

adopted son or adopted member of tribe (da'ï J. a metaphorical one such as a temporaI)'

protégé (jar J. alIy (r,aIïf J. helper (nii$ir J. or friend ($adïq J of any kind." 103 It was an

important institution in incorporating all non-Arab converts who were affiliated with

individual Muslims. It was Mu'awiya who borrowed and constituted the institution of

the Islamic wala' (patronageJ. I04 Later it was formulated by Muslim scholars who

inherited the institution specifically from him and from the Umayyads Îl' general. IOS

Islamic patronage has two forros : wala' al-'irq and wala' al-Muwiiliir . The

former is a legal and unequal relationship arising frolT'. manumission.

The manuminer acquires a title to the freedman's estate. [while] [t]he freedmandoes not acquire any title to his manuminer's estate The manumitter is obligedto pay blood-money on behalf of the freedman [on the other hand] [t]hefreedman does not qualify for membership of the manumitter's blood-moneygroup.l06

AIl classical legal schools endorsed its validity. The latter type. however. is a legal

relationship arising from a contractual c1ientage. "In pre-classicallaw it was a tie which

arose on 'conversiC'-. at the hands of another' or sorne other agreement or association

between a Muslim and a non-Arab". But "most Qasimis hold that '" [c]ontraetual

clientage... arises only from conversion. and only in non-Muslim (I)arbï J territory in

which the convert cannot be attached to a Muslim state." while "according to l:Ia·'afis.

Imarnis and (implicitly) Isma'ïlis, it is conversion which cannot give rise to walii'. ...

I02lbid.. 86-88.

I03lbid.• 49.

l04lbid.. 64.

IOSlbid.. 91.

l06lbid.. 36-37.

38

The client may weil he a convert, and the I:Ianafis usually envisage him as such, but his

status arises from an agreement disùnct from the act of conversion." 107 But the basic

requirement in this kind of walâ' is that the client has no blood relaùonship with the

patron. 108

According to Crone, walâ' was "almost certainly" to he found in pre-Islamic

Arabian pracùce, but provinciallaw contributed to its formulaùon, and it was reshaped

to suit the new ideas of Islam. I09 The origin of walâ' cannot he idenùfied with the pre­

Islamic 1)ilf hecau~e the laner bas only a superficial parallel with walâ' al-muwâlât.

Furthermore, "pn.-Islamic ./;la1ïfs were commonly known as mawâlï, and the conrractual

clients of carly Islamic society are never known as ./;lalifs." 1tO

Finally, Crone asserts that walâ' al-Citq or kiraba (manumission conrract) has its

origins in paramonê. "It is a service conrract by which a slave is manumined, provided

that he render certain services to his patron for a specific period of ùme during which he

remains with his master." III

In short, Crane emphasizes that it was provincial law more than Roman law

which influenced early Islamic law. She gives us the example of walâ' claiming that this

insùtuùon did not originate in Islam, and rejecting the idea that such an insùtuùon was

derived from pre-Islamic Arab custom. So it can he concluded that she gives us one

example from which she generalizes, taking for granted that carly Islamic law was really

influenced by provinciallaw. It is interesting to note Hallaq's conclusion which argues

that Crone has failed either to prove that Islamic law might not he based on pre-Islamic

1071bid.. 38.

I081bid.. 39.

109lbid.. 41.

ll~id .• 53-54.

1Il Ibid.• 87.

39

Arab custom. or that it must be based on provincial law. Now this study will tum to

Hallaq's critique of Crone's thesis.

The (wo kinds of waliï' Crone argues for are doubtful. Hallaq argues that walii'

aJ-Cirq "is a legal institution exclusively related to the manumission of slaves and has

nothing to do with the incorporation of outsiders into Muslim society." Walii' al­

muwaJat, however. as a legal institution "may. but does not necessarily. involve

converts." 112 and has no relationship with the waJii' al-cirq. because the former rests on

contraetual obligation. while the latter arises from slavery.1I3 Furthermore. walii' al­

muwaJat was abandoned by the Shafi'ïs. MaIikis and ijanbalïs and conversion was not

necessarily involved. Even "if [this wala' 1cakes effect simultaneously witll conversion.

it would be valid but certainly not as a consequence of conversion." 114

The i}ilf andwala' have parallels in lslamic law. whether in the forro of

individual or collective agreements. For example. "Marthad b. Abï Marthad al-Ghanawï

was the ballf of ijamza b. 'Abd al-MunaIib. just as Bamd was the ballE of ijarb b.

Umayya" Moreover. "the Constitution of Medina ... stated that a believer must not take

as his ballE the mawla of another believer to the exclusion of the latter." 115 Though

the ballf was not known as a client of wala'al-muwaJat. the important point is the legal

feature that chey suppon each other. and if the clients have natal groups. no detachment

from their groups is involved. Wala' al-muwaJat is a continuation of 1)ilf al-walii'.

which "consisted ... of the admission of an individual to a clan. by an agreement with

one of the member; of this clan or by collective assent. This individual. kno.....n as

112Wael B. Hallaq. "The Use and Abuse of Evidence: The Quesùon of Provincialand Roman Influences on Early Islamic Law," Journal of American Oriental Society.110. 1 (1989): 83.

113Ibid.. 84.

1141bid.. 84.

1151bid.. 86-87.

40

mawIa. is generally a.:corded the same social and juridical position. from the standpoint

bath of rights and of obligations. as the original members of the tribe." 116 "The J:Ianafis

and sectarian schools that accepted wala' al-muwaJar allowed a continuity of the pre­

Islamic J;ûIf, whereas the remaining three Sunni schools endorsed collective wala and

J;ûIf in the form of the Islamic dictum al-wala' liJ-Muslimin." 117

It is impossible to identify walii' al-cirq "as borrowing" from the Roman Near

East. while kiraoa and paramonê are different. (i) "[A]s a rulc. paramonê involved

service; kiraoa involved payment ; (ii) kiraoa allows the freedman to leave the residence

of his master during the fulfilirnent of the COutract ; paramonê does not ; (iii) kiraoa for

the life time of the manumitter is strictly forbidden ; paramonê allows it." Furthermore.

the basis of kiraba is manumission. while that of paramonê is service. llS In general.

Islamic law endorses only the "suspensive manumission in which the slave pays for his

freedom and only after doing so acquires the Status of a freedman." 119

Having discussed the arguments for and against the influence of Roman and

provinciallaw on carly Islamic law. it can be concluded that the arguments presented by

the supponers of the i'lfluence of Roman law is based on the assumption that Islamic

law was formulated in the second century of Islam. In its formulation. therefore. as

might be concluded from the discussions in the preceding pages. it seems that Roman

law did influence the early Islamic law as the school of Berytus was much more

developed at that lime. It is also argued. in suppon of this conclusion. that the flISt four

caliphs and other companions had no requisite intellectual capacity for building up a

116Ibid.• 86.

117lbid.• 87.

l1Slbid.. 88.

1191bid.

•41

refined legal system. Therefore certain institutions in thc Byzantinc provinccs wcre

adopted and the legal reasoning of Roman law was followed.

This argument. however. is rather not convincing. It can be argued that evcn

though Islamic law was formulated in the second century. it was the product of Arabic­

speaking Muslim world based on their observation of the complexity of their society.

This thesis. however. leads to considerable justification on the ground that as long as

Islamic law was formulated outside of the birth placc of Islam. provinciallaw was more

practiced in those societies than Roman law. Therefore it is argued that provinciallaw

influenced early Islamic law more than Roman law. The example of waliP i.. Islamic

Iaw is really to support such daim. Representing waliP. and believing that it was derived

from provinciallaw. leads to daim that it is not suitable data. for the waliP in lslamic

Iaw was derived from pre-Islamic Arab tradition.

CHAPTER II

The Problem of the Influence of Jewish Law

In the western study of early lslamic history and religion, sorne scholars have

approached Islam as a religion 'in history'. This approach had been applied towards

studying Judaism and Christianity as weil. According to Andrew Rippin, "The view is

that [in the1history ... of these religions ... the intervention of God in the historical

sequence of events is the most significant truth attested by these religions." Therefore,

this view has led to an emphasis on the desire to discover 'what really happened'. For

Islam, in implementing this idea, its available sources which purport to record and

provide with an account of 'what really happened', are studied.l In studying these

sources, among other things, the scholars analyze them by source-critical methods

including the relevant contemporary non-Arabic literature also as an evidence.2

One example of source-eritical method is clearly illustrated by the fmding of P.

Crone.3 In her Meccan Trade and the Rise of Islam, she examines the notion that Mecca

was the center of an important international trading network, from which its inhabitants

gained considerable wealth and a pre-eminent position in Peninsula politics. Crone in

this book has studied this trade in both Muslim and non-Muslim sources, and

demonstrates that the whole picture as such is unfounded. She argues that Mecca was

not on the overland trade route from Southern Arabia to Syria, which in any case was

never very important, compared to the maritime route through the Red Sea By the end

1Andrew Rippin.10 Islam in ReligiousArizona Press. 1985). p.

"I.iteraJy Analysis of Qur'an. Tafsir. and Sira," in ApproachesStudies. cd. Richard C. Martin (Arizona: The University of15i.

2J. Koren and Y. D. Nevo. "Methodological Approachos 10 Islanûc Studios." DerIslam. 68 (1991): 87.

3ne other examples of source-critical methods are the findings of I. Goldziherand J. Schacht. Sec page. 5-8.

of the second century A.D.• this route was "n '~nger in use.4 In using the Muslim

literary sources to examine this maller. Crone concluded that Muslim sources on the risc

of Islam are questionable historical value. The Qur'an. for example. does not offer much

historical information; what it does offer is formulated in a style which is illusive and

largely intelligible only on its own terms. Therefore. according to Crane. without the

help of the exegical literature. one would not be able to identify the historical events

referred to in certain verses. The explanations or commentaries of the exegetes. on the

other hand. may not necessarily be in accordance with what Prophet had in mind when

he recited these verses.5

In the same manner as Crone. F. E. Peters discusses both the Islamic and non

Islamic sources, on the trade ofMecca, and argues that the sources of pre-Islamic Mecca

are to sorne degree tendentious. Peters believes that Mecca was not a place of

international trade in the sixth century. Arnong other things, he argues that Mecca did

not have any substantial form of commercial facilities. such as markets and secure

warehouses. Also there were none of the normal forms of capital reinvestment. as the

lack of gold and silver coins points to little. if any. money being in c:'-::ulation.6 R.

Simon similarly argues that money was used in foreign trade but was absent from local

markets.7 Peters then says :

4J. Koren, "Methodological Appraachcs," 98. For criùcal-source of the Qur'iin,= J. Wansbrough who concludcs !hal the Qur'iin was compilcd or canonizcd al the endof the second cenlury of Islam, Quranic Studics (Oxford : Oxford University Press, 1977).

5Patricia Crane. Mcccan Trade and the Risc of Islam (Princelon: PrincelonUniversity Press. 1987), p. 203. For ilS review wcle, sec. R. B. Seljcant, "Mcccan Tradeand the Risc of Islam: Misconcepùons and Aawcd Polemics," Journal of the Ameri"."!'Oriental Society, 110. 3 (July-Seplembcr. 1990): 473-486.

6F. E. PelCrS, "The commerce of Mccca bcfore Islam," in A Way Prcparcd: Essayson Islamic Culture in Honor of Richard Bayly Winder. cd. Farhad Kazcmi and R. D.McChcsney (New York: New York University Press, 1988), p. 6.

7R. Somin, Meccan Trade and Islam (Budapest Akaémiai Kiad6, 1989). p.92.

44

Mecca was not involved in international !rade. which required the purchase ofexpensive commodities in order to sell them at an even higher value and reap theimmense monetary profits associated with that !rade; and second. whateverbusiness the Quraysh were cond;.lcting. it had perforce to be. and appearsactually to have been ... the exchange of one commodity for another [which is] indirect contradiction to the way the luxury !rade was conducted. by either specieorcredit.s

Peters argues that the Byzantine historian of the mid-sixth century, Procopius,

maintained that there were no mention of any caravan !rade in south Arabia or the

western side of Arabia Furthermore, he argues that from "the point of view of

Byzantine military and commercial intelligence, in the 560s Mecca did not exist:' 9

Finally Peters cornes to the conclusion that the Quraysh were at flI'St dependent

on the shrine of Mecca and taxed the nomad pilgrims who came to Mecca, either to

petition the gods or to trade among themselv,,~. M:ccca was, therefore, a place where the

bedouins could !rade goods among themselves in religious security. In the long run,

however, Mecca changed from local to regional !rade with the instituûon of ilaf. In this

commercial association, the profits of an enterprise were shared. This change was,

according to Peters, brought about by Hashim who obtained trading licences in the great

empires, especially from officials across the frontier, and who initiated the annual

caravans in the winter to Yarnan and in summerto Syria,lO

The example mentioned above is a consequence of such an attitude in

approaching Islam. Since Islam has been approached as a religion in history.

consequently, it is believed that Islam is the culmination and working out of trends in the

religious life of the Near East that preceded the birth of the Prophet by centuries. As a

result. the background to the rise of Islam is the history of the ancient Eastern religions

SPelCl'S. "The commerce of Mecca, 6.

9Jbid.. 9.

IOxbid.. 13.

• as a whole. 11 After Islam became a dominant religion in the Near East. howevcr. il

succeeded perhaps most strongly in building for itself a distinct society. Islam also

developed its own system of comprehensive law and crcated its own cla.~sical

literature. 12 But during the period of greatness of the Arab and Islamic empires in thc

Near aIld lI-liddle East. Bernard Lewis holos that the flourishing civiiization which grcw

up and is usually known as Arabic was not "brought ready-made by the Arab invaders

from the desert. but was created after the conquest by the collaboration of m:U'j

peoples." 13 It was not even purely Muslim. for many Christians. Jews ::nd ùJfoastrians

were among its creators. But its chief medium of expression was Arabic. ,vhich was

dominated by Islam. It was these IWO things. according to Lewis. their language and

their faith which were the great contribution of "the Arab invaders" to the new and

original civilization which developed. 14

On investigation. however. il is clear that Islam cannot be treated as a distinct

historical world. an exclusive intelligible field. Marsh::.!l G. S. Hodgson calls for

attention in studying reül;ious life in the ancient Near East. sorne scholars did not

normally look upon it as a developing continuity but they had studied and conceived it

as a series of discrete and somehow exclusive religious communities. one supervening

upon the other. This approach. ~odgson claims. led many Jewish and Christian scholars

to view their own religious communities as the unique holders of truth. They have.

therefore. Hogdson maintains. insisted that their own traditions are sui generis. no! to

IICharies J. Adams. "Islamie Religious Tradition:' in The Study of the Midd1eEast, cd. L.cnard Binder (New York: John Wiley & Sons. 1976). p, 55,

t2Marshaii C. S. Hodgson. '"The Interrelation of Societies in History:'Comparative Studies in Society and Historv. V (1962-1963): 237.

I3Bemard Lewis. The Arabs in History (New York: Harper & Row. 1967). p,131.

141bid.

•46

be viewed in developmental historicalterms as concrete expressions of an ongoing Near

Eastern tradition. 15 Moreover. Hodgson argues that the orthodox faith ofIslam itself, as

it was created in the course of the fIrst two or three centuries of Islam cannot be

understood simply as a fuifillment of the vision of Mul)anunad. Islam must be explained

in terms of the aspiraùons of Syrian Chrisùan monks and Mesopotamian Jewish zealots.

aspiraùons which give to carly Muslim converts their noùon of what a religion ought to

be. 16

Islam then must he studied in the light of other religions so that the influence of

previous religious insights on Islam could possibly he soughl. Many findings of this

influence have been published. parùcularly the influence on the Qur'lïn. One of them is

the work of 1. Katsh, who argues that the Qur'lïn contains an abundance of Jewish

thought and ideas. This "an he seen, according to Katsh, its early authoritaùve

commentaries. s!lch as Zamakhsharï, Baiçlliwï and Taban, which testify to the profound

knowledge of Judaism possessed by Arabian Jews. 17 In same line, Schacht argues that

the prohibiùon of taking interest in the Qur'lïn is no doubt inspired by Mul)arnmad's

acquaintance withJewish doctrine and pracùce in Medina.18

Crane has also altempted to argue for the influence of Jewish law on early

Islamic law. In one of her a:tempts, she holds that the qasiima in Islamic law was

ISAdams. "Islamic Religious Tradition." 55.

16Hodgson. "The lnt.:rrelation of Societies in History." 237-238.

17A. 1. Katsh. Judaism in Islam (New York: New York University Press. 1954),p. XXV. For mOre discussion on the influence of Christianiry on early Islam see. H. P.Smith. The 13ible and Islam (New York: Arno Press. 1973); Richard Bell. The Crigin ofIslam in ilS Christian Environment (1Andon: Frank Cass & Co. Ltd.. 1968); For foreigninfluences on the Qur'an. See. Roben Roberts. The Social Laws of the Our'an (London:Curzon Press. 1990).

18Joseph Schacht. An Introduction 10 Islamic Law (Oxford: Clar:ndon Press.1966). p. 11-13.

-17

derived from the Jewish law. According to her. "The qasiïma is an Islamic institution of

unmistakable jahilï appearance. Schacht identified it as 'a kind ofcompurgation'. and it is

certainly some kind of collective oath. i. c. some farm or other of an institution attestcd

for other tribal societies." The IslaIIÙc tradition. however. almost unanimously agrees

that qasama existed in the jahiliyya. 19 According to Crone. aIl schools of law agree that

the qasiima is a procedure whieh is used in relating to homicide and which consist of

fifty oaths. They also agree that the number of oaths is more important than to that of

supporters. so that the collective nature of the institution has become somewhat changed:

less than fifty supporters. sometimes even a single one. can perform a valid qasama by

swearing more than one oath.20 According to l;lanafis. "the qasama is used if a person

is found murdered in a quater. village or other locality. and if the kinsmen of the victim

suspect the residents of the locality in question of having murdered him. Fifty members

of the suspected group must swear that they did not kill the man and do not know who

killed him." 21 If they swear as such. then they escape retaliation. but they arc still

obliged to pay blood money. If they refuse. however. they must be imprisoned until they

either swear or confess. In its procedure. the l;lanafi insisted that the accused is not

backed by oath supporters. The supporters do not swear in support of another person's

oath. but they do so on their own behalf. beeause they are under suspicion. Apart from

swearing for themselves. they also swear on the behalf of the wider community which

they represent.22 MaIikï qasama, however. differs from other schools. particuh:Jy the

l;lanafi school. In its procedure. the oath is awarded to the accusers and it may be shifted

19Patricia Cron~. "Jiihili and Jewish law: the qasama." Jerusalem Studios inArabie and ! ':":;. 4 (1984): 155.

20Jbid.. 160

2lIbid.

22ibid.. 161.

48

ta the accused. According ta Crane. from the point of view of uibal law. the Mâliki

procedure is unlikcly ta be ofJahilï origin.23

In the pre-Islanûc period. Arabs were farniliar with the procedure in which the

oath is taken by bath the defendant himself and a number of supporters who are usually

chosen from arnong the defendant's kinsmen. The supporters are in no way witnesses to

the event. but only display their readiness to believe and support the accused. The

procedure. therefore. is "being in fact a test of kinship solidarity." If all the supporters

swear. and do so correctly. the defendant is acquined. but if one or more refuse.

compensation or restitution is autom<:ticalJy awarded ta the plaintiff.24 This procedure.

according ta Crane. is identical with compurgation. Lut not with qasama of lslarnic law.

There was indeed pre-lslanûc compurgation; presumably its use was not resuicted ta

cases of homicide. whether it inciuded the cases of theft Oi ~~.H~ .:ases ·there is no

recollection.2S

Further. Crane analyzes the qasama in Umayyad practice. She demonstrates

that it seems that the Mâliki institution represents such practice. The Umayyads shifted

the oath. at least from the ti:ne of Marwan 1 onwards. Though there are a number of

traditions which do not necessariIy represent historical fact, the Umayyads awarded the

oath ta the accusers. granting them retaliation if they did swear.26 As has been noted

earlier. from the point of view of uibal law. the Miilikï's award of the oath ta the

aceusers and its shift ta the accused is unlikely to be of Jahilï origin. but owes its

particular features ta Rabbinical law. So the institution which was modified by the

Umayyads against crime. therefore. was not a jahilï institution. but rather a

23Ibid•• 187.

24Ibid.• 157.

2SIbid.• 158.

26Ibid.• 187.

49

Deuterononuc institution which was modified by Rabbinic ideas regarding oaths. It can

he seen that the shifted oath was weil known to the Rabbis who knew it in two forms.

both of which. Crone argues. reappear on the Muslim side.

The fITSt was the so-called Post-Mishnaic oath. which was used in connectionwith debts. If a plaintiff had no evidence to show for his claim. not even a singlewitness. the defendant could either rebut the claim by an oath or pass the oath tothe plaintiff.... In Sunni law the oath has COlne to he shifted automatically on thedefendant's refusai to swear.... The second form of the shifted oath was theMishnaic oath of the suspected liar. If a person has committed perjury in thepast, he is not allowed to swear. and the oath shifts to the plaintiff instead. If theplaintiff is also of doubtful veracity. the resuit is that neither party can swear.Some Rabbis accordingly held that the case should he dismissed. but otherswere of the opinion that j ..dgment should be given against the defendant. andstill others thought that the parties should go halves.27

It is clear that the qasiima, as Crone maintains. became a shifted oath because

Muslims bOITOwed the idea from the Rabbis. The principle is that "the oath is to he

awarded to whoever bas the presumption in his favour: the oath shifts as the

presumption changes." This principle itself is rabbinical. In practice. however. the rabbis

could not make the rules entirely consistent with it. because the Pentateuch awards the

oath to the defendant. and what the scripture ordains evidently cannot he changed. But

the Rabbis agree that the oath is to be awarded to whoever has the presumption in bis

favor. and since they no longer feit bound by the Pentateuch. they were free to let the

principle shape the rules.28 Crone fmally concludes that what the Miliki qasiima

represents is thus a Pentateuchal institution taken to pieces. Crone quotes Kalbi's version

of the qatï1 Khaybar. 29

When a Muslim was found murdered at Khaybar. the Prophet. according toKalbi. wrote to the Jews saying that a qatil had been found in their midst. TheJews wrote back saying a similar incident had occured in ancient Israel and thatGod had reveaied to Moses what to do: if Mu!:lammad was a Prophet. he could

27Ibid.. 190.

28lbid.. 192.

29Shams al-Dio a1-Sara\chsi. Kitab al-Mabsül, Vol. XXVI (Caire: Matba'at al­Sa'iida, 19061 1324.). p. 107.

50

similarly ask God. MUQammad wrote back saying that God had shown him thathe should choose flfty jurors from among them, that the fifty men should swear'by God we did not kill him, neither do we know who did', and that next theyshould pay compensation. The Jews replied: 'you have judged our caseaccording to the law' (namüs ).30

From the story of KaIbi, Crone further argues that a Jahili institution was being

modified by social and political change. As has been noted that the qasama testifies. not

to a continued practice of Jahili law, but to a following of the Pentateuch, because,

accordir.g to Crone, "[w]hat Moses began, MuQanuT'.ad continued; and in KaIbi's story

the very proof of Mn"ammad's Prophethood lies in the fact that he dispenses Mosaic

law: MUQammad has herecome, not to abolish Jaw. but to confmnil" 31

ln respect to historical perspective, severa! publications have discussed the

existence and influence of Jews in Arabia.32 It is true that before Islam, Medina was the

chief of the Jewish colonies in Arabia and was wr.ere S. D. Goitein believes that their

customs and cultures were introduced and cultivated. ln this city the Prophet spent the

last ten years ofhis life and assumed the customary law of the city, which he carried out,

and what was added to it, was the common law of Medina. This common law was the

starting point of lslamic jurisprudence and that was the law of the Jewish colony.

Furthermore, there were also other colonies in Northem Arabia.33 The existence of

Jewish colonies is proved by the existence of Jewish tombstones on anc;ent sites

halfway between Medina and Palestine. These colonies date, according to Goitein, to an

even earlier period; the years before and after the destruction of the second temple. The

settlements, Goirein argues, must have been of considerable importance, for the

3llJbid.. 175.

31Ibid.. 176.

32See. among other things. Julian Obermann, "Islamic Origins: in The ArabHeritage. cd. Nabih Amin Faris (New Jersey: Princeton University Press. 1946); De LacyO'leary. Arabia Before Muhammad (London: Kegan Paul. Trench. Trubner & Co.. Ltd..1927)

33S. D. Goitein. Jews and Arabs <N:w York: Schocken. 1964), p. 48.

51

development ofJewish law. which had to make special regulations for them. Jewish law

assumed the essentially agricullural characler of the Jewish people and lhis assumed :hal

every one possessed land. The rights of a wife. in case of lhe dealh of her husband or of

her divorce. were. therefore, safeguarded by assigning to her a portion of the land

belonging 10 the husband. In Arabia. however, according to a Palestinian authorily of

the third century, camels and incence served the sarne purpose. Thus, according 10

Goitein, in Mui)ammad's time "most ... Arabian Jews were merchants [who were]

organized into compact agriculture units engaged mainJy in the cultivation ofdales." 34

G. D. Newby also argues that Jews in Arabia were presenl at ail levels of

society. According to him, "[t]here were Jewish merchants, Jewish bedouin. Jewish

farmers. Jewish poets, and Jewish warrîors." They were also in tOllch with the religious

cenlers in Babylonia and Palestine, but, Newby daims. they also developed their own

beliefs and practices.35 This can be seen, according to Newby, for exampk. :n the term

rabbiüliyyün and 'a1)biir in the Qur'lin, which describe Jews who are known to

Mui)ammad.36 These IWO terms. Newby believes, are intended to "designate a specifie

and identifiable community of beliefs and practices." The rabbiüliyyün meant the term

'rabbinite'. while 'a1)biir. according to Tabari, were the people who posses knowledge

about something. and their position was beneath the rabbiüliyyün. 37 According to

Newby, the definition of 'a1)biir given by Tabari has parallels with the Talmudic usage.

which says "the term ~aber ranges in meaning from companions to a scholar to a

34Ibid.

35Gordon D. Newby. A History of the Jews of Arabia (South Carolina:University of South Carolina Press. 1988). p. 49.

36Jàbbaniyyün is staled in the Qur'an. ID: 79; V: 44; V: 63. while aQbir isstatcd in V: 44. V: 63; IX: 31 and IX: 34.

37Ibid.. 57; Taban. Tafsir a)-Taban: Jami' a)-Bayàn 'an Ta'wil ayy al-Quran.Vol. X (Mi$r. Dar a)·tha'arif. 1957). p. 341.

52

person slighlly inferior 10 a Qakam." On the basis of these similarities, Newby ar6<1es,

there was rabbanic community in Arabia Wilh whom Mui.lanunad had contacl.38

There is an inleresting example, given by Newby, which shows how the Rabbis

developed their law based on their own belief and practice, and al the sarne time how

certain Islarnic traditions were influenced by Rabbinical ideas. The example concems the

Jewish Hennaphrodile. He examines the accounl of 'Amir b. zarib b. 'Amr b. lyadh b.

Yashkur b. 'Adwan in the sïra of Ibn Isi.laq. The sïra stales that:

The Arabs used 10 refer every serious and difficull case 10 him [zarib] fordecision and would accepl his verdict. Once il happened thal a case in dispule inreference 10 a hermaphroilile was broughllo him. They said, 'AIe we to treat :. .!S

a man or a woman ?' They had never bro;;g..lJt him such a difficull matter before,so he said, Wait awhile until 1 have looked inlo the matter, for by Allah youhave never brought me a question like this before.' So they agreed to wail, andhe passed a sleepless night tuming the matter over and looking at il from allsides withoUl any !'CSult. Now he had a slave-girl Sukhayla who used to pasturehis flock. Il was his habit to tcase her when she went out in the morning bysaying sarcasticaily. 'You're carly this morning, Sukhayla' ; and when sheretumed al night he would say, 'You're laIe to-night, Sukhayla,' because she hadgone out laIe in the moming and come back laIe in the evening after the others.Now when this girl saw that he could nol sleep and tossed about on his bed sheasked what his trouble was. "Gel out and leave me alone, for it is none of yourbusiness,' he retorted. However, she was so persistenl that he said 10 him.~df thalil rnight be !hat she would provide him with sorne solution of his problem, so hesaid: 'weil then, 1was asked to adjudicate OD the inheritance of a hermaphrodile.Am 110 make him a man or a woman ? By God 1 do DOl know whal 10 do and 1can see DO way out.' She said, , Gooci God, merely follow the course of theurinalory process.' 'Be as laIe as you plcase h~nceforth, Sukhayla; you havesolved my problem,' said he. Then in the moming l:;~. went out to the people andgave his decisioD in the way she had indicaled.39

Afler exarnining lractate Biklcurim and Hellenistic sources conceming this issue,

Newby believes thal this narrative was more likely derived from Bekoroch 42b. "in the

midsl of a discussion of rilual slaughler of animais." He says:

38Newby, Jews of Arabia, 58.

39A. Guillaume, The Life of Muhammad (Oxford: Oxford University Press,1990), p. SI: Gordon D. Newby,"The Sïrah as a Source for Arabian Jewish History,"JerusaJem Sludies in Arabie and Islam, 7 (1986): 124-125.

53

we learn oi the rumrum that 'The doubt is ooly whether it is to be regarded as amale or a female. Now if it urinates in the male part. then ail agree that it is amale. The doubt arises. however. if it urinates in the female part.' This isaccording to R. Simeon b. Judah. but Simeon b. L2kish said, 'The ruling that therumrum is doubtful case (as regards sex) relates only to a human bc;..g. sincehis male and female parts are in the same place. But in the case of an animal, if iturinates in the female Part. it is a female'.40

From this rumrum, Newby argues that though urination is not a test for human beings,

nor does it provide the answer to questions or inheritance. as has been stated in the sir.!

of Ibn IsJ:taq. the linking of the method of determining the sex of hermaphrodite and the

subject of inheritance can be found in a portion which is codified in the Talmudic

literature.41

Furthermore. he argues that on the Muslim side there are, at least. two Islamic

traditions concerning simiIar cases to that of 'Amir b. ~b which are preserved in

Suna;l al-Dar"mi. 42 The flfSt one is transrnined from 'Ubayd Allah b. Musa from

Isrii'il from 'Abd al-'NIa who heard MuJ:tammad b. 'Airs report which came from 'Ali

who says "a man who 'had that which was appropriate to a man and that to a woman. ln

which of the two manners would he inherit l' So he said, 'From which does he

urinate?' " The second tradition is transmitted from Ab'Bakr b. Abu Shaybah. from

Hushaym. from Mughirah from Shubak from al-Sha'bi from 'Ali. "who said. 'He

inherits from where he urinates'." These two traditions which are go back to 'Ali b. Abi

Tâlib, according to Newby. were most likely as old and strong as the account of'Amir

b.~b in the sira of Ibn Isi:laq. as lhis li:count is transmitted from YaI;lya b. 'Abbad b.

'Abdullah b. al-Zubayr from his father. 'Abbad. According to Newby,

YaI;lya is generally regarded as a sound transmitter. and this isniid is without thedefects that often mac other of Ibn Isi:laq's isniids in the sight of later and more

./4ONewby."The Siroh• .. 126.

41Ibid.

42cAbd Allah b. al-RaJ:unan al-Diirimi al-Samarqandi. SUDan al-Darimi. Vol. fi(Beirut: Dar al-Kitab al-'Arab, 1987), p. 461.

54

scrupulous traditionists. From the perspective of the rest of Ibn Isl)aq'smethodology, the formation of this account took place at least two generationsremoved from him or he would have commented on the reliabiliry of one of themembers of the chain or prefaced the tradition with a disclaimer.43

Newby also believes that the account of'Amir b.~b given by Ibn lsl)aq is not

taken from the two traditions which go back to 'Ali. According to Newby, this account

is from Beki5ri5th 42b. He argues that "it would seem that there are at least (WO stages in

the development of the story. The ftrst most likely occurs in the context ('ç Arabian

Jewry ... [where) the method of gender determination applied to animais is applied to

humans as weil," this is as a process of judicial development among the Rabbis in

Arabia based on their belief and practice, though it has been argued by Resh Lakish, as

has been mentioned above, that "the application of the principle of urillation for gender

detennination should not be applied to humans." 44

Further, Newby argues that the next stage in the development of the story was

possibly undertaken by qU$$ii$ or storytellers. They were intermediaries between

Jewish and Islamic materials, particularly in the transmission of the genre known as

Isra'iliyiit. The ftrst storytellers, accoîding to Newby, appeared around the tir1e of

'Umar 1 and gained considerable support. They started as preachers and moved onto

positions in the legal establishment,45 as we shall see later, it was because of them that

the influence ofJewish law on early Islamic law took place in Babylonia.

Alfred Guillaume argues that it was in Iraq that the most probable inflltration of

the influenct: of Jewish law on early Islamic law occurred.46 Apart from the fact that

many Jews accepted Islam, there were academies ofJewish learning in Babylonia which

/

.)l3Newby, "The Sirah." 128.

44ibid.. 129.

46Alfred Guillaume, ''The Influence of Judaism on Islam," in The Legacv ofIsrael, cd. Edwyn R. Bevan & Charles Singer (Oxford: Clarendon Press, 1928), p. 151.

•55

continually flourished before and even after the conquest of Iraq by Muslims.

Furthermore, in Babylonia, too, the Talmud, which is final Jewish religious expression,

received i15 cc, .Jfication by 500 AD.47

The great development of Jewish academies in Iraq has hcen marked since Rab

(Abba Areka, 160-247) came to Babylonian in 219 AD. Rab founded an academy at

Sura, but before him there was an academy at Nahardea, which wa~ founded by

SamueJ.48 Unfortunately, because of the war which broke out between Persia and Rome

around the year 260 AD., the acad-:my at Nahardea was destroyed, and since then it ha~

never been rebuilt. 115 activity, however, was transferred to a neighboring town,

Pumbeditha Thereafter the academy of Pumbeditha supplemented the work of that at

Sura. The organization of both was the same; both taught the same subject matter.

Sometimes they were as one, and sometimes one of them acted as the head and center of

Jewish life. These academies were also followed by other academies, for example, at

Mahoza and elsewhere. But only the academies of Sura and Pumbeditha survived and

flourished along after the Muslim conquest of Iraq.49

The main subject matter which was taught in these academies in Iraq was the

Mishnah. The original Mishnah, however, came from Palestine. During the early age,

according to C. G. Montefiore and H. Loewe, there was a mysterious body called the

'Men of the Great Synagogue' who had a good deal to do with the formulation of the

liturgy. The medium of study was oral and constant repeûtion was necessary. "Hence 'to

repeat' meant 'to study'. [So][t]he Hebrew verb 'to repeat' is Shanah and the noun is

47FilZgerald, 'The A1leged Debt of Islamie 10 Roman Law," Law OuarterlyReview, 67 (1951): 9; Idem "Nature and Sources of the Shari'a." in Law in the MiddleEast, cds. Majid Khadduri and Herben J. Liebesny (Washinglon, D. C.: The Middle EastInstitule, 1955), p. 85.

4SC. G. Montefiore & H. Loewe, Rabbinie Anthology (New York: SehockenBooks. 1974), p. 696.

49Solomon Grayzel, A Historv of the Jews (philadelpia: The Jewish PublicationSociety of America. 1969), p. 239.

•56

Mishnah. This word was applied to the Corpus of traditions accompanying the

Scriptures and termed the 'Oral Law' which was preserved orally." The teachers of the

Mishnah, however. was called Tannaim since "[t]he Aramaic equivalent of the verb

Shanah isTena and the noun-agent. meaning teacher. is Tanna (plural.Tanna'im )."

According 10 their classification of period. there were six generations of Tannaim from

JO to 220 A.D. The Tannaitic period ends. however. with the final redaction of the

Mishnah by Judah the Prince.50 The Mishnah afterwards was brought to Babylonia

by Rab. the founder of the academy at Sura. Rab was a fellow-student and subsequent

di~ciple of the Judah the Prince. In short. according to H. Danby. the Mishnah may be

defined as a deposit of four centuries of Jewish religious and cultural activity in

Palestine. Its object was to preserve. cultivate. and apply the life of the law (Torah). in

the form in which many generations ofJewish religious leaders had learnt to understand

this law.51

After the period of Tannaim. the teachers of Mishnah was called Amoraim

(sing. Amora ). According to Montefiore and Loewe. "[t]his Aramaic word originally

meant a speaker and was used of one who repeated the teacher's words to the people: it

then [started being used for] the teacher himself, and not merely ofhis mouthpieee." The

work of the Amoraim was to complete the Mishnah and this completion is called

Gemara. The Gemara and Mishnah • according to Montefiore and Loewe. are called

Talmud.52 The Gemara. Montefiore and Loewe argues. exists in two recensions. "That

5OMontefiore and Loewe. A Rabbinic. p. 694.

51Herben Danby. D. D.• The Mishnah (Oxford: Oxford University Press. 1933).p. xm.

52Monlefiore and Loewe. A Rabbinic. p. 696. The Talmud as a whole is nOl.striclly speaking. a law book. Il places the opposite opinions with their reasons t-esideeach other and oftcn leaves the debated question undecided. 'This means \hal the Talmudallows a sphere of .ction. will and the freedom of thoughl. Il does nol demand blindobedience 10 the I.w. bUl would recognizc as valid only whal is rationally deducedfrom the word of ScriplW'C. Thore are very few laws. for which a rational explanationcould nol he found. The Jewish law. as il found ilS final expression in the Talmud. basoflen becn represenled as an unbearable yoke. Sec. Encyclopaedia of Religion and

57

of the [school of] Tiberians ;; :3lled the ';"lu~aiem' 'cr Palesùnian Talmud: neither the

date of compleùon nor the name of its redactor is certain. It was fll'St codified by

Johanan b. Nappa!)a (d. 278), but it was finished probably by 425, when the schools of

Palestine fell into decay." The other recension is the Babylonian the Talmud.53

Babylonian Talmud, according to S. W. Baron. became authoritative for world Jewry

rather than the Palestinian Talmud. He argues that:

In subsequent centuries the Babylonian and not the Palestinian Talmud becameauthoritative for world Jewry. No dou;'t the foundations were Palestinian:originality of approach, the creative reinterpretation of old sources to suit n~wcondiùons, belong to the Pharisaism of independent Judaea. But this movementitselfwas nourished from sources in the Babylonian Exile, and it developed withreference to world Jewry rather than to the people of Palestine exclusively. Forthis reason the transplantation 0; Palestinian law into Babylonia met with littleinitial difficulty. But even the segregated and autonorr.ous Jewish settlement ofBabylonia soon evolved social features of its own. To adapt the law to these. ithad to reinterpret the law of Palestine while retaining its method. As life becameincreasingly artificial. it tended to make reinterpretation more artificial too.54

The act of interpretation was carried out by Rabbi!. who were. according to 1.

Neusner, convinced that they studied the Torah, juS! as Moses did. Among other

things, they were believed to be men who had a divine image which embodied the oral

and written law, and whose acùons consùtuted not only correct examples but also norms

to be followed. Furthermore, Neusner argues &.at Rabbis wanted ail Jews to be Rabbis;

1 ley wanted to transform their community into an academy where Torah was studied

and interpreted.55 According to D. M. GoocIBlan. the Taimudic acadernies played an

Ethics. s. v. "Jewish Law; by Felix Perles. The effect of the Talmud. as new situationsarose in laler days. the Jews lUmed to the Talmud for guidance. Not finding exactduplication of the conditions which confronted them. they nevertheless found parallels.This is whot led 10 the writing of so many commentaries 10 the Talmud and so manycodes of law based upon il. Furthermore. the Talmud thus served as a unifving e1emcnlamong the Jews which prescribed the fundamentals of their life. It also helped 10 bind!hem IOgether in action and in thoughl. Sec, Grayzel. A Historv of the Jews, p. 24 \.

53 Montefiore & Loewe, A Rabbinic. p. 697.

54S. W,. Baron. A Social and Religious Hislory of the Jews, VU (New York:Columbia University Press, 1952), p. 320.

58

important role in Jcwish history in Babylonia. It is believed, he argues, that the

acadernies were among the best instruments to spread their ideas. as he says that

"Sherira already explained Rav's foundation of an academy Sura as an attempt to bring

Torah to an area lacking in it." 56 But. according to Neusner. at f!!st the acadernies were

not an important tool in shaping the political or social history of Jews every where.

Later, however, these acadernies were able to preserve records and to exercise their

influence in shaping Jews community in their political and social history. Neusner

argues that the Babylonian Talmud was eventuclly compiled and given its fmal forrn in

th:: great acadernies ofPumbeditha and Sura57

At the time of the f!!st phase of Muslirn mie in Iraq, the acadernies were headed

by Gaonim. Their function. among other things, was to issue responsa for world

Jewry.ln the time of the earliest Goanim falls the Hijra of Mul)arnmad, 622 A. D., and

during the whole Goanic period till about 1050 A.D., the greater pan of the Jews was

under Muslirn rule. The Goanim was institulized by the caliphs beside the institution of

Exilarch.58 When Baghdad became the center of gravity of the Muslirn wOrld, this new

55J. Neusner. The Wonder-Working Lawvers of Talmudic Babylonia (Lanham:University Press of America. 1987). p. 261.

560. M. GoodBlan. Rabbinic Inslnlction in Sassanian Babvlonia (Leiden: E. J.Drill. 197~), p. 282.

57J. Neusner. School. Court. Public Administration: Judaism and its Instirutionsin Talmudic Babylonia (Atlanta: Scholars Press. 1987). p. 2.

S8According to N. Rejwan. the exilarch was a leader of communal life of theJews in Babylonia. The exilarchate instirution was a hereditary office traditionallyoriginating with "King Jehoiachim and hence looked upon as in some way maintainingthe continuity of Davidic rule; those who held it continued to trace their ancesay to theHouse of David in the male line." This instirution was the highest official of llabylonianJewry. to whom the Jews looked up awe and to whose authority they :;ubminedwillingly. The function of the exilarch, however. Was 10 appoint judges and wasIûmself the final Court of Appeal. He a1so saw to collection of taxes from the Jews of theentire counay. and tumed over a certain of money to the govemmenl. Final function ofthe :xilarch and his offices were to supervise their markets and guard the wall wlûchsurrounded them. In short, the exilarch was the temporal leader of the BabylonianJewry. The spiritual leaders. however. were Goanim (emin~nce or rabbis) who were thehead of the Babylonian academies. One of relationslûp between two instirutions was thatthe exi1arch was duly advised whenever decisions of great moment were taken by theGeonim. Nis.;irn Rejwan. The Jews of Iraq (Colorado: WeslView Press. 1985). pp. 48-51.

59

development in political history naturally affected the Jews. The fifSt great change was

that the Exilarch which fifSt resided in the seats of the academies removed their couns to

the metropolis. Being namely political representatives of the Jewish people in BalJylonia.

their proper place fell more under the shadow of the temporal rulers. This change.

however, according to D. S. Sassoon, did not sever the connection between them and

religious leaders of Babylonian Jewry (Gaonim ).59 He says:

We hear that the Gaonim of the two great academies (Sura and Pumbeditha)undenook the longer or shoner journey to the capital soon after the festival ofTabemacks in order to celebrate the third sabbath of the Annual Cycle in thecompany of the leading dignitaries and distinguished scholars.... [The celebrationwas1 most memorable yearly festivities furnishes a very vivid and reliablepicture for the Geonie period.... [T~.e celebration took place) in Synagogueattended by Exilarch, who was accompanied and assisted by the two Geonims ofSura and Pumbaditha, all taking actual pan in the service and the reading of thela.... The names of the Exilarch and the two Geonims were especially mentionedin an appropriate prayer for the occasion. Such prayer [had the purpose). a panfrom the spiritual side, Wl!S to renew the relations between the Exilarch and thcacademies, to settle the fmancial affairs between the {WO acadernies, to solvepolitieal questions which arose between Babylonian Jewry and the govemment,to define the administration and organization of cummunal life. and, finally. toadven to the relations between the Jews of Babylonia and the Jews abroad.60

But the influence of the Gaonim was greater than that of the Exilarch among the

Jewish community in or outside Iraq. Pan of his influence was because of his practice

of answering queries from Jewish communities both at home an ~oroad. Thesc answers

were given in a form later to be known as teshuboth (responsa ) and many of thcse

ha-'e survived. The known evidence which includes a huge number of documents and

papers found in Geniza (a repository for old documents) of the synagogue of Fustat,

Caïro which was built in the year 882 A.D. These documents. according to Rejwan,

provide ample evidence to show that from about the year 800 A.D. the Jews of the

~.1.uslim world lOoked to the Talmudic ac~demies of Babylonia for information and

590avid Solomon Sassoon. A His\ory of the Jews in Baghdad (Great Britain:Letehworth, 1949). p. 8.

6Urbid.. 9.

60

guidance on subjects as disparate and varied as theological interpretation, current affairs,

historical problems and every day behavior.6!

An example of the Babylonian responsa produced by the Geonim is given by

J. Mann. Through this responsa, Mann shows us, among other things, that good

rclati.Jns existed between Jews and Gentiles. This o:elationship can be seen, according to

Mann, from one of the responsa of R. Na!.Ishon. H'" "is of the opinion that no charity

should be accepted from a non-Jews." In light of this statement, Mann maintains that

there must have been sometirnes that non-Jews wanted to contribute their charity to the

Jews community. In addition, Mann notes another responsa found in the Judicial

Decisions of Catholici. This responsa concems the relationship of Jews and Clristians

in Babylonia and shows that "[t]he people ofl:fir~ (I;l:ertha) used to practice circumcision

according to Jewish rites." 62

Goitein, by exarnining the documents of the Cairo Geneza, has also shown,

among other things, that Jewish law in the Arab world from 969 A. D. on was personal

rather than territorial in character. Therefore, a Jew wherever he was found was judged

according to the sarne law. The application of this law, according to Goitein, was

acknowledged by the Muslirn authorities. He gives us a clear example of

excommunication being used "as a way of chastisement intended to force a party to

comply with the decision of a court or the ruling of an authority." He says:

A Nagid had arranged a settlement between an insolvent debtor and hiscreditors, according to which he would pay them a part of what was due them.Despite the solemn promise given to this effect by the deè'tor, he did not pay,whereupon the procedure of excommunication was instituted against him,which, however, at the tirne of the relevant document, had not yet becomeeffective. When it became known in Aden, South Arabia, that a merchant fromBaghdad living in India intended to absco.ld to Ceylon in order to evade thefulfùlment ofhis financial commitments, a corditionalletterofexcommunication

61 Rejwan. The Jews of Iraq. p. 97.

62Jacob Mann. The Respensa of the Baby10nian Geonim as a Source of JewishHislOry (New York: Arno Press. 1973). p. 135.

61

wa:; sent by the rabbinical court of Aden to one of its representatives in lndia tohe used in case the Baghdadi carried out his plan. The addressee wasadmonished to use uunos, circumspcction and secrecy so that the contents of thelener would he made known only in c ;e things had tumed for the worse.63

The answers of the questions. according to Rejwan. were usually kept in the

form of copies. These copies were mostly kept by the senders. and when these copies

were lost or destroyed. scholars have found sorne of the originals. which were no doubt

cherished and preserved by the recipient communities or individuals. Moreover. the

responsa were often read in public. in synagogues and schools. and the recipients

pcrmitted transcripts to he made and carried from one seat of learning to another.

Subsequently they were assembled by various tLlIlds and copied and distributed in

volumes according to subject. author or place of origin. and it was upon their authority

that the early and later codes were constructed.64 The rapid growth of these replies wa~

known laler under the general ùtle of 'responsa literature'. By the responsa, Rejwan

maintains. a unifying influence was exercised by the Babylonian St;;:'S of leaming.

thereby helping the farthesl communities of the west to he brought under the tradition of

the Talmud which was the authoritative expression.6S

Supplementing 'he responsa, according to 1. Epstein. the Geonim sought 10

spread the knowledge and practice of Talmudic law by the compilation of legal codes.

The fIrst of these codes was composed by the blind Gaon Yehudi of Sura (756-77) in

his Halachoth Pesukoth which formed the basis of several subsequent codes.

According 10 Epstein. the Geonim also sent messengers 10 distant communities with

copies of the Talmud and Talmudic explanations. The fIrsl of such copies to reach Spain

were provided by Paltol Gaon in the eighth century. Furthermore. the Geonim attracted

63S. D. Goitein. A Mediterranean Society, V. il (Berkeley: University ofCalifomia Press. 1971). p. 331.

64Rejwan, The Jews of Iraq. p. 95.

6Slbid., 96.

62

students to their academies from far and near. from the Christian no less than from the

Muslim world. From Spain. Italy, and the Byzantine empire students flocted to the

Babylonian academies of Sura and Pumbeditha, and took home with them the

Babylonian Talmud. the contents of which they in turn eagerly communicated to

others.66

As a result of the Muslim conquest, the Jewish communities had closer contact

with one another than they had ever had in the past. Since the seat of the central Arab

govemment was Baghdad. communicaêon became comparatively easy within the orbit

of the capital.67 It was during the eighth century that Baghdad became the center of

gravity not only of the Muslirn empire but also of Babylonian Jewish life and

leaming.68

Having discussed the brief histGrical development of Jewish law in Babylonia in

respect to its academies of learning. it can be concluded that the development of Jewish

law had reached its peak long before the conquest of Iraq by Muslirns. This can be seen

from the fact that the Talmud was finally coilified by 500 A.D. and that in the carly

period of Muslim seruement in Iraq, the acadernies of Jewish learning which were

headed by the Gaonim and where the Jews of Muslim world looked for guidance for

their daily life continued to flourish both in and outside of Babylonia. In addition, the

Gaons, among other duties, were responsible to issue responsa which led to a unifying

influence and brought the Jewish people together underthe tradition of the Talmud.

It is interesting to relate the above conclusion to Schacht's thesis, which says that

Islarnic law was formulated in the second century of Islam, and that it started from a

single center. This center was Iraq where theorizing and systematizing activities were

66Isidore Epstein. Judaism (Maryland: Penguin Books), p. 182.

67Rejwan. The Jews of Iraq. p. 97.

68lbid.• 99.

63

fust brought into Islamic law.69 Therefore. it is possible that Jewish law may have been

incorporated into Islamic law. Baron maintains that the Jews under the Sassanid empire

retained their own customs and observances both in religious and cultic matters. cven in

purely secular and economic questions. It is noted that the Talmud reveals amazing

independencl. Çrom Sassanian law. and that the general unfarniliarity of Babylonian

Jewish judges with the Persian language and Persian institutions was also arnazing.70

He further argues that this independence of Jewish law. especially civil law. from the

dominant legal system in the Sassanian empire was enchanced by the complete

aUlonomy of Jewish legislation in such domains as marriage and religious observances

in the synagogue and at home. which also frequently affected ordinary civil relations.71

Therefore. the influence of Jewish law on early Islamic law may have occurred

particularly when the concept of sunna, as Schacht claims. was the living tradition.72

The following essay will co:\cem itselfwith the above argument.

The companions and the followers of Mu!)ammad in early period ln Iraq.

according to C. M. Stanton. were quITii' (those who melIlorize and recite the Qur'fu1 )

and qU$$ii$ (preachers or storytellers). It was in their hands that the study circles to

guide the faithful in religious rnatters emerged. and that mosques were established as

community centers. 73 The position of qU$$ii$. however. seems even more influenual. N.

J. Coulson. has analyzed the existence of the qU$$ii$. and demonstrates that qiiçlï$ in

69J. Schacht, Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press.1950). p. 222.

7OBaron. A Social and Religious History of the Jews. Vol. lli.. p. 299. In thisbook Baron encounters the Frankel's fimling wlùch shows lÏlat he thought. according 10Baron. that he had discovered !nlCes of Persian influence. but he could adduce only a rewinstances. ail related to legal procedure.

71Ibid.. 305.

72J. Schacht. Origins. p. 73.

73Charles Michael Stanton. Higher Leaming in Islam (Maryland: Rowman &Littlefield Publishers. Inc.. 1990). p. 22.

•64

Umayyad times often were recruited from the ranks of qU$$â$. 74 G. H. A. Juynboll

further argues that 'uJamiï' and fuqahiï' by popular acclaim were from the ranks of

qU$$iï$. His argument is based on the assumption that the responsible scholars for the

transmission of earuest hadiths, who provided them with isniïds, were calleci qU$$â$. 75

In general, however, according to M. G. Morony. bath qUItii' and qU$$â$ were the

religious leaders and scholars. Their authority was based on their ability to remember

and interpret the Qur'an and the pracùces of MuQammad.76 At the most pracùcallevel.

according to Morony, their acùviùes provided authoritaùve examples to other Muslims

of the proper way !o accomplish religious pracùces such as ritual obligaùons. An

example ofthis was the way in which 'Abd al-Rahman Ibn AbI Laila (d. 701) at Kufa is

reported to have declined the opportunity to dry his hands after performing the rilUaI

abluùo!l (wuçfü' ). The ability of scholars to set religious usages in an authoritaùve way

made possible the disguise of innovaùons that incorporated local customs. These

usages. according to Morony, as we shall see later developed among early Muslims in

Iraq. was enshrined in the Hanafi system of law.77

One of the examples is qiyas which is claimed by M. Bemand from Jewish

law and which means 'to beat together'.78 It was. Bemand maintains, at a vcry early

74N. J. Coulson, "Doctrine and Practice in Islamic Law," Bulletin of the Schoclof Oriental and African Studies. xvm (1956): 212.

75G. H. A. Juynboll. Muslim Tradition (Cambridge: Cambridge University Press.1983), p. 74.

76Michael G. Morony. Iraq Aher the Muslim Conquest. (Princeton: PrincetonUniversity Press. 1984). p. 0133.

7:1dem.."Transition and Continuity in Seventh·Century 'Iraq" (Ph.D.dissertation. University of Califonù.. 1972). p. 534. The Iraqi schocl was tt'ansfonnedto the schocl of J:IanoC and the schocl of Medina was tt'ansfonned to the schao1 ofMiilik. The reason of \his transition from the geographica1 to the personal designationhas becn discussed by George Makdisi. See his. Religion, Law and Leaming in ClassicalIslam (Great Britain: Galliard Ltd.. 1991). pp. 236-238.

78Encyclop!edia of Islam. New Ed. s. v. "Kiyas," by M. Bernand.

65

stage of the second century of Islam that J:lanunad b. Sulaiman. master of Abu J:Ianifa

and Ibn Abi Laila who was judge at Basra. inauguratcd its use. But the ftrSt to employ it

systematically was Abu J:lanïfa (d. 767). forwhich reason the practitioners ofhis schocl

are known as those who use reason (A$Qab al-ra')' ) to distinguish them from pure

traditionalists (A$Qab al-Qadïth ). The laner do not accept qiyfis cxcept as a last reson:

according to them. 'analogy is like carrion. to be caten only when no other food is

available'. However. according to Bemand. the qiyfis is one of the imponant loci for

deriving cùnsistent and the coherentlegal doctrine.79

There is another example given by Schaeht: "The essential maxim of procedure

in Islamic law which says 'evidence (by witnesses) has to be produced by the plaintiff.

and the oath (in denial) has to be taken by the defendant'. became a tradition from the

Prophet only at a relatively late period." SO The maxim presupposes. Schacht c1aims. that

the plaintiff does not have to take an oath. But Abu J:lanifa's Iraqi contemporary. the

judge Ibn Abi Laila, demanded an oath from the plaintiff together with the evidence of

witnesses. and this doctrine was attributed to Sburail) and expressed in a tradition from

'Ali. The Medinese, however, recognized a sirnilar treatrnent of Iraqis. that is the

evidence of one witness together with the oath of the plaintiff. This doctrine. aecording

to Schacht, grew out of the judicial practice of the beginning of the second century of

Islam.sl

As far as the oath is concemed, from an historical perspective. it is. H. J.

Liebesny c1aims, one of the oldest institutions in legal procedure. It can be utilized 10

aff1IlIl the truth of a statement, with the court evaluating it freely and giving it proper

weight in the context of the rest of the evidence. However. the oath has been and is

79Ibid.

SOJbid.. 187.

SIIbid.

66

being employed aIso as a mean to decide a dispute. This is, according to Liebesny, caIled

as decisive oath, examples of which are found in Mesopotamian law as far back as the

second millennium B.e. Liebesny argues that, in TaImudic law, both the Mishnah and

later commentaries went into considerable detail conceming the taking of the oath and at

times imposed it on the plaintiff.82 Therefore, Ibn Abi Laila's demand that a plaintiff

takes an oath seems to be similar to the treatment in Talmudic law. Therefore, the sunna,

according to Schacht, as understood by Iraqis, is not identical with traQl; .·"3 of the

Prophet. Furthermore, Schacht argues that materiaI influences aImost invariably start

with the Iraqis and not with the Medinese. Therefore, the influence of Jewish law could

have spread thcre. He says "[w]e found that Iraqian legaI maxims were taken over by

the Medinese, but not vice versa, and we saw, for example, thal <:arly Iraqian qiyiis

spread into Hijaz and then produced traditions from the Prophet." 83

As has been discussed in the ftrst chapter,84 the concept of the sunna, drawn

from the living tradition of the Prophet, culminated in Shafici who combined bis theory

with the traditionaIist and rationalist trend. He defined the sunna as the only model of

the Prophet's behavior, and he maintained that 'nothing can override the authorilY of a

formai tradition from the Prophet'. Furthermore, He defmitely established the sunna of

the Prophet as the primacy source of Islamic law in line with the Qur'an.85 With the

shift of the sunna from living tradition to the sunna of Prophet, Crone argues, that the

attitude of the carly Iraqi school towards the sources of law becomes correspondingly

82H. J. Liebesny, "Comparative Legal History: Ils Role in the AnalyslS of lslamicand Modern Near Eastern Legal Institutions," the American Journal of Comparative Lawa Ouarterly, 20 (1972): 47. Sec aIso Danby, The Mishnah, pp. 408-421. For morediscussion on the Jewish oath, sec, Isaac Herzoq, The Main Institution< of Jewish Law,Vol l (London: The Soncino Press Limited, 1965), p. Il.

83Schacht, Origins. p. 220.

84Sec page, 5-8.

85Schacht. Origins. p. 77.

67

closer to that of the Rabbis. "ln particular. there is .he same rather unthinking acceptance

of an oral tradition perfunctorily placed under the g~.Ieral aegis of the Prophel." 86

ln principle, Gerhardsson argues. the unwritten law in Judaism is the oral law

(oral Torah) and it has prirnacy alongside the written texl. But from the historical

context. not whole of the oral Torah originated as Scriptural interpretation. The Oral

Torah does not only contain direct interpretation of written Torah, but also contains

decree and decisions made by the leaders of Judaism and by the leading corporation in

"post-Exilic times." Like Islamic traditions. It also contains regulations which originated,

for example. in custom and customary law. The Rabbis were to some extent conscious

of the varying sources and origins of material. but. according to Gerhardsson. that did

not stop them from seeing, in principle. the oral Torah as a whole as the interpretation of

the written Torah. an interpretation given by God on Sinai.87

Therefore. this theory maintains. according to Gerhardsson. the authority of

those rules. customs and interpretation which had accumulated around the l~wish

system of life and religion were equal to the authority of the written law itself. even

though they found no place in the written law.88 But it is not entircly satisfactory from a

historical point of view. Gerhardsson argues. to say that oral Torah merely had an

interpretative function. According to him. "It is nearer to the truth to say that the oral

Torah. when compared with the written. had an interpretative, particularizing,

complementary and sometimes modifying function." 89

86p. Crane and M. Cook, Hagarism (Cambridge: Cambridge University Press.19771, p. 30.

87B. Gcrhardsson, Memory and Manuscripl (Copcnhagen: Villadscn ogChristenscn, 1964), p. 82.

880anby, The Mishnah, p. xvn.

89B. Gcrhardsson, Memory and Manuscripl, p. 82.

68

Judith Romney Wegner. however. even went further than Crone. She uwntains

that:

ïhe four ~ü1 aI-fiqh. 'roots of (Islamic) jurisprudence' [present~d by Shafi'i] ....qur'iin, sunna. ijma', and qiyas, ... correspond[s]. both lini;.:i,tically andconceptually. with four basic sources of talmudic law. Qur'iin. l."e Islamicscriptural revelation and flI'St root of the law. corresponds with miqra. thetalmudic term for the Jewish sCriptural revelation (Le.• the Torah). Sunna. theIslamic oral tradition and the second root of the law. corresponds with misniih(the Mishnah). the basic source-text of the Jewish orallaw. The third root, ijma'.the consensus of the Muslim jurists. corresponds with the ha-ka1 juristicconsensus found in the second component of the Jewish orallaw (the Gemara).The fourth root is qiyas, the Muslim juristic logic. This. based originally onanalogy (though it came to have a wider scope). corresponds with the talmudicheqqéS, reasoning by analogy.90

The parallels. according to Wegner. between the sources of Islamic and Talmudic law

raises a number of hypotheses. in particular. the probability of direct or indirect

Talmudic influence on the Islamic system.91 Wegner maintains that the exarnination of

these concepts leads, among other tlùngs. to claim that there is a possibility of direct

borrowing by Islamic law.92 Her argument will be summarized below.

According to Wegner. no one before Shafi'i had suggested that the sunna, like

the Qur'lin. was of direct divine provenance. It was Shafi'i who flI'St declared that God

had 'sent down' the sunna through the Prophet along with the Qur'lin. Shafi'î's

argument is sirnilar to that found dl the flI'St chapter of the Talmud which d' -'ares that

Moses received the Mishnah a10ng with the Torah at Sinai. "', ·:chermore. it was Shafi'i

who flI'St called Qur'lin and the Sunna 'al-1l$1iin' (twin roots), and this represents the

linkage of miqra u-misniih which is also found in the flI'St chapter of the Talmud.93

90Judith Romney Wegner, "!slamic and Talmudic Jurisprudence: The Four Rootsof Islamic Law and their Talmudic Counter Pans," The American Journal of LegalHistory, XXVI (1982): 31.

91Ibid.. 64.

921bid.. 65.

931bid.. 67.

69

Shafi'i redefined the concepts of ijma' and qiyi'is and their place in Islamic law bascd

on the doctrine of the divinity of the sunna. A unified sunna could not he achieved as

long as ijma' meant only the local consensus of separate schools. Therefore. Wcgner

argues, in order to achieve the unified sunna, Shafi'ï' unified ijma'. This atlcmpt

brought the concept of ijma' closer to that of the Talmudic consensus, whose object

was to establish a unified haliikha. ln addition. Shafi'fs pragmaùc acceptance of a

majority based on scholarly consensus. where unanimity could not he had. represents

the Talmudic pracùce ofconsidering divergent opinions while the setùng majority ruling

represents the norm of halakha. The principle of the consensus of the majority of

scholars is found in the f!!st chapter of the Talmud and popular consensus appears in the

sixth chapter of the tractate Berakot. 94

Shafi'fs tre<:tment of qiyi'is shows a numher of parallels with the Talmud.

Wegner argues that "[j]ust as the [T]almudic use of vescrihed rules of exeges (heqqéS

and other forros of logic) was more conducive to consensus than the arbitrary use of

individual re'aya. so Shafi'i's promoùon of qiyi'is over ray aimed to achieve a sirnilar

effect." It was also Shafi'i. according to Wegner. who expanded the scope of lslamic

qiyi'is by introducing severa! Talmudic style arguments. notably those of 'greater and

less', 'general and specific' and 'deducùon from context'. The applications of these rules

were found in the f!!st tractate as weil as throughout the Talmud.9S

ln conclusion. it should he noted that the influence of Jewish law on early

Islamic law is based on the assumpùon that Islam contains religious tradiùons of the

Near East. The example given by Crone supports this claim. She argues that qasiima in

94''-racœce Berikëic contains the doctrine of the divinity of the oral law, thecoupling of wrilten revelation and oral tradition as divine sources of law. the validationof legal rulings based on a majority view, and the validation of popular consensus as asource of law in the absence of written or oral tradition.

9SIbid.. 68.

•70

Islamic law was derived from Judaic law, therefore. she believes that this influence

happened because the existence of the Prophet Mu!)ammad did not abolish what Moses

had done but only confumed il. The second point to be made is that the influence of

Jewish law was more pronounced in Iraq, where Islamic law originated, and where the

',w,;,h academies of Sura and Pumbeditha flourished before and after the Muslim

conquesl. ln these academies, scholars studied and commented on the Talmud

throughout the formative period of Islamic law. It can be concluded that Jewish law

influenced the formulation ofIslamic law.

• CHAPTER ID

The Problem of the Influence of the Pre-IslamicArab Tradition

Before we discuss certain institutions in the pre-lslamic Arab tradition. a fc\'.

remarks must be made about the existence of the Arabs in the Orient which will help the

understanding the extent to which they kept their cultures among other Semitic people.

Greeks and Romans. Irfan Shalüd has shown us that at the year of Pompey's settlcment.

around 63 B.e.. there were Arab groups who had settled and ruled in the Orient

(eastern parts of Byzantine provinces). ln Edessa, according to Shahid. there were

Oroeni which had occupied and ruled since the second cenrury B.e.• and continued to

rule till the middle of third century A.D. There was another Arab group to the south of

the Taurus range and in the region of Antioch. which was under the rule of one CAzjz by

name, who played an important role in the affairs of the last two Seleucids, Antiochus

xm and the daimant. Philip. To the east of this Arab group. in ehalcide. there were

various Arab princes such as Alchaedarnnus of the Rhambaei, Gambarus, and Themella.

Furthennore. farther to the east. there were the Arabs of Palmyra who becamc a

dominant factor in the history of Arab-Roman relation in the third century A.D.I The

Palmyrenes. according to G. L. Della Vida, under the protectorate of Rome. attained an

extraordinary degree of prospe.rity and their merchants and soldiers spread all over the

Roman world. It is weil known. Della Vida daims, that they nourished the drearn of

disrupting the power of Rome ir. the east and that their king Odenathus and his wife

Zenobia almost succeeded i.n theiranempt.2

lIrfan Shahid. Rome and the Arabs (Washington. D. C.: Dumbarton Oaks. 1984),p. 4.

:!Giorgio Levi Della Vida. "Pre·lslamie Arabia," in The Arab Herit:lge (NewJersey: Princeton University Press. 1946), 40.

72

In E messa :-nd Arethuse, panicularly in the Valley of the Orontes. according te

Shalüd. there ruled another group of Arabs under Sempsigeramus. who headed a

dynasty which collaborated with his neighbor CAziz in interfering in the affairs of the

last two Seleucids. Furthermore. the Ituraeans inhibited and ruled both Lebanon and

Anti-Lebanon. They expanded. further. into and conquered Batanaea, Trachonitis, and

Auranitis. This group, according to Shalüd. were an old Arab people known to classical

sources, since the days of Alexander the Great. Finally, according to Shalüd. there wcre

the Nabaraens of Petra. They possessed extensive tenitory that included Trans-Jordan

and the Sinai Peninsula, and in the fITSt century B.e. they occupied Darnascus. They

were the most important Arab group in the area and possibly the 0ldest.3

When the Romans appeared on the scene in the fIrSt century B.e.• NabaLiea

according to J. S. Trirningharn, was most the important Arab state with which they had a

direct relationship. The unique position of its naturai fortress capital as a meeting-point

of three trade routes, Trimingharn clairns. was the focal-point of the weaith that enabled

its people to maintain their high civilization.4 which is. arnong other tbings. reflected in

their legal rnaterials. As P. e. Hammond bas shown. they had weil developed legal and

contractual clauses. including penalty clauses: e. g.• fines levied. in the narne of the gods.

against both desecration and the infringement ofproperty as weil as testamentary clauses

in regard tl) inheritance lines and beneflts. There were also inscriptions referring to

contractual conveyances, which, Hommand maintains, included clients.legal and natural

testaments. AlI indicate. according to Hommand. that Nabataean legal knowledge kept

pace with the commereial interests and the legal procedures of the rest of me ancient

world.s The Nabaraeans appear as a nation much more advanced than the carnel drivers

3ShaJüd. Rome and the Ara~ p. S.

4J. Spencer Trimingham, ChristianilV Amon2 the Arabs in Pre-Islamie TlII1es(London: Longman Group Limited. 1979), p. 18.

SPhilip C. Hammond, The Nabataeans-Their Historv. Culture and Archaeology(Sweden: Paul Astrlim Fôrlaq, 1973). p. 109.

73

they were held to have been who carried the goods of South Arabia to the ports of ihe

Mediterranean. In additio:1. they developed an agriculturai life and built severa!

important cities. and they arose to a level of civilization which compares with other of

states in the Near East in ancient times.6

According to J. B. Segal. there were also Arabs who lived in Mesopotamia.

After the witi1drawal of the Seleucids to the west of the Euphrates in 130-29 B.e., the

vacuum of power in Mesopotarnia, according to Segal. was apparently filied by a

number of Arab principalities. Singe~ in central Mesopotarnia was the chief town of 'the

A.rabs who are caIIed Praetavi' ; Stephen of Byzantium describes it :lS 'a city of Arabia'.

It feII, however, to the Romans during a campaign of Trajan. and became a colony

sometime between the reign of Alexander Severus and Philip the Arab. When the

Persians recovered it, they razed the city and deported its inhabitants to Persia.

Subsquently, it was important Christian center. and at the beginning of the sixth

century the Qadisaye Iived there.7 About 120 kilometers south-east of Singer, according

to Segal, there was the city of I;iatra. It stood in a desert region which was inhabited by

nornads and semi-nomads, and it controlled busy caravan routes from Mesene at the

head of the Persian Gulf to Nisibis and Adiabene in the north and to the great towns of

Syria and the Mediterranean seaboard in the west There can be no doubt, Segal daims,

that this center had a Arab character. and that Arabs almost were dominant of its

popul..:!on.S

But there were also Arabs who Iived in the south of the Arabian Peninsula and

who were quite distinct from the northem Arabs. According to Shahïd, they were the

6Della Vida, "Pre-lslamie Arabia," p. 36.

7J. B. Segal. "Arabs in Syriac Literature," Jerusalem Studios in Arabie and Islam.4 (1984): 90.

SIbid.. 91.

74

people often referred to in the Sabaic inscription as A'rab: but there were also better

known d.S more sedentary large tribal groups, which played an important raIe in the

history of both the south and the north of the Arabian Peninsula. The northern anG

southern Arabs, however, among other things, shared the same Ara"lc of pre-Islarnic

times, but t.'le two groups, according to Shahïd, were aware of differences between them

in spite of their being one Arab people. This feeling, Shahïd daims, went back to pre­

Islarnic times and persisted weil into the Islamic period.9

Apart from having a relationship with the Romans, Shahïd argues that the Arabs

in the Orient had had alrnost three centuries of dealing with the Seleucids and Ptolernics

and an even longer relationship with the Sernitic people of the region, especially the

Aramaeans and the Jews. But they did not entirely lose their identity as Arabs, in either

the Hellenistic or the Roman period. Nabataeans, for example, according to Shahid,

remained Arab in ethics, mores and in their language, Arabic. During the period of

Romanization (civitas), however, which was irnplemented in 212 A.D., different Arab

groups in the Orient were to different extents influenced and affected. The Arabs of

Orantes, those in Emessa and in Arethusa, were probably more affected than the

Palmyrenes, but the opportunity to keep their Arab identity was good. This is, according

to Shahïd, reflected in the survival of Arabic personal names among them, such as

Soaemias and Elagabalus, and in their continuing devotion to their old religious rites,

which can be seen from the fact that the princes of Emessa were also priests. lO

Therefore, according to Shahid, despite their long association with the Greeks

and the Romans, especially after the extension of Civitas status to them, and to other

91rfa.~ Shalüd, Byzantium and the Arabs in the Fifth cenlUry (Washington, D. C.:Dumbanon Oales, 1989), p. 239: Sec a1so bis. "Pre-lslamic Arabia." in The CambridgeHistory of Islam. 1 (Cambridge: Cambridge University Press, 1970), pp. 3-29.

IOSh: :,id, Rome and the Arah~, p. 10.

•75

provincials in 212 AD.• most of me Arabs of the Orient became only acculturated.

Sorne of them were pr"bably assimilated. A1though subjected to more foreign influences

profound than the Nabataeans. the Palmyrenes. Shahid argues. remained Arab in ethos.

mores and religious practice. When the Romans destroyed Palmyra in 272 AD. and

ruled the area directly. it was then an Arabized region. its Arab character was abolished

by the new names given to the territory which formed part of Phoenicia Libanensis and

Syria Salutaris. Unlike Palmyra, Nabataea was renamed Arabia Provincia. Therefore.

Palmyra's new name was not indicative of its Arab character.11 In Mesopotarnia. in spite

of its separation from the Arabia Peninsula, the Arab element in pre-Islarnic times was

very strong bath in the villages and in the urban centers ruled by Arab dynasties. Thus

when the Romans fmally terminated the autonomous rule of the Arab Abgarids in

Edessa, 224 AD.• they acquired and directly ruled a territory that had been under the

rule of Arab dynasties for centuries. and where the Arab element was dominant on both

si":e of the Khabür. But the names of L".c:' future administrative units given to the newly

acquired territory. inc::.tding those ofOSfl...~ne. and Euphratesia, did not reflect the strong

Arab presence in that region. just as Ù":'~ ,~rritory of Palmyra had been renamed

Phocnicta Lebanensis and Syria Salutaris. 12

Furthermore. it is said that Graeco-Roma:: ·ylture rcmained a superficial venc:er

in the Iife of many Arabs such as the Idumaeans iù~'" 'le lturae2lls. No doubt the eHte

among them, individuals who attained prominence in Roman provincial history. such as

the Herodians may be said to have been more influenced by Graeco-Roman culture. but

it is doubtful. however. whether the bulk of the Idumaeans who lived in the countryside

were influenced to the same degrees as thc:'ir rulers. A1though they adopted Graeco­

Roman names because of Hellenizing and Romaoiziog policies. most of Greco-Roman

culture probably remained strange and foreign. Similarly. although the Arabs had long

llIbid.. 15.

12Ibid.. 16.

•76

becn associated with another Semitic people. the Jcws. and h~d to sorne extent adopted

their religion, they still tended to adher to the old Arab religion of the sun-god of

Emessa. 13

Thus, in short, Shalüd argues, the Arabs of the Orient may be said to have

acculturated. but they did not integrate fully. This lack of integration is clear in the case

of the Nabataeans wh" kept their traditionallaws, ancestral customs, Semitic rites and

the Arabie language. Shalüd argues further that unlike the Aramaeans and the Hebrews

of the Orient who had lost contact with the Semitic homeland, the Arabs did not. The

Arab element in the Orient and the Fertile Crescent was constantly replenished by

immigrants, both seasonal and permanent. from the Arabia Peninsula. It was this

constant flow from the Peninsula that was the most important element in reinforcing the

Arab presence in th:: Orient demographically and keeping their culture alive. 14

When ~Iam came, therefore, sorne norms of Arab life were totally rejected by

the Qur'an and sorne of them were accepted, modified, and developed, in accordance

with the demands of the new religion. The old values, according to T. Izutsu for

example, were reborn as new ethico-religious values and came to form an integral part

of the Islarnic system. It is commonly imagined, however, !hat the birth of Islam had

almost nothing to do with pre-Islarnic paganism, that Islam meant a complete and

definite break with the preceding period of idolatry. On the contrary, their lif~ was in

reality regulated by the religious moral code of mUI'Üwa, consisting of a number of

important concepts such as 'courage', 'patience; 'ge:lerosity; and 'imperturbable mind'.

These moral concepts have eternal and universal values that would be recognized in any

age and by any people. But, according to Izutsu, b'-..cause it was ef"irely based on

13Ibid.. 10.

14lbid.. Il.

77

narrow tribalism, the moral code of muruW:l had a pcculiar coloring which kept ;t from

being universally valid. 15

In addition to this, Z. 1 Ansar argues that pre-Islarnic legal concepts are still

preserved in Isla..1Ïc law. For example, life in Arabia before Islam was noted, on the

whole, for its lack of a common authority and absence of a state in the propcr sense of

the term. It was the tribe which was rm.inly the nucleus of the life of the Arabs. It played

such an important part in their life that without affiliation to a tribe, either by birth or by

naturalization, an individual was not enti!led even to protect his propcrty or even his life.

This was due to the fact that there W<lS no public institution entrusted with the

administration ofjustice; disputes were generally referred to the arbitrator (!lakam ) who

was chosen by the mutual consent of the disputing parties. 16 The institution of !lakam

is another example of Arab tradition. Schacht believes that with sorne kind of

modification to the original concept, a !lakam, a man whose main qualifications are his

knowledge, his wisdom, his integrity, his reputation, and his supematural abilities,

would be, as in pagan tradition, one who was asked to resolve disputes among his

people. 17 The term !lakam is aIso frequentiy expressed in the QUI· Jan. 18

This institution, according to E. Tyan, was further elaborated under Islarnic law,

but its prindples were still retained. The effeet of the ruling of the !lakam, for example,

is that tI:.e agreement to submit to arbitration is not binding, therefore, Tyan claims, either

party may revoke it even v.:hen il is the case of a single arbitrator appointrnent with :he

agreement of the IWO parties. Islarnic law generally in this case, according to Tyan, has

15Toshilùko Izutsu, Ilhko-Religious Concepts in the Our'an (Montreal: McGilIUniversity Press. 1966). p. 252.

16zafar Ishaq Ansan. "The Contribuùon of the Qur'an and the Prophel 10 theDeve10pmenl of 1s1anûc Fiqh," Journal of Islanûc Studies. 3, 2 (July, 1992): 141.

17Joseph Schachl, An Introducùon 10 Islamic Law (Oxford' Clarendon Press.1993). p, 10-11.

181bid.

78

one modification is that when the appointment of the arbitrator has been submitted to the

judge for bis approval. revocation is no longer possible. Nevertheless. in the l;Ianbalï

madhhab one opinion maintains that revocation is no longer possible after the arbitrator

has commended proceedings. The Miiliki madhhab. however. according to Tyan. rejects

these distinctions and recognizes their agreement to submit to arbitration as obligatory in

all circumstanees.19

As for the arbitrator's decision, in general, it is binding in all the madhbabs. It

has, therefore. fulliegal force. and does not need to be conflI'IIled by the ratification of a

judge. but it carries less authority than a judge's. On the other hand. it is generally agreed

that an appeaÏ against it may be made before the judge. who may annul it if it seems to

bim to be contrary to the teaching of the madhhabs wbich he follows. Ali the same. the

party profiting by the arbitrator's decision is free to submit it to a judge. who will

conflI'IIl it, eertifying that it is in conformity with madhhad. Therefore. in such a case.

the decision will have the validity of a judgment proper. However. Tyan argues. the

effects of the decision are strictiy limited to the persons who are dîrectiy involved

whereas judgment may affect persons not involved in the proceedings as represented

legally by the plaintiffor defendant in tiie case.20

Another example is the institution of marriage. The essential features of the

Islarnic law of marriage go back to the customary law of the Arabs. Although there were

differences accordîng to the location and the particulars of individual cases, the

regulations gover:.ing marriage were based upon the patriarchal system, wbich gave the

man much freedom although it still bore traces of an old matriarchal ;ystem.2l It is true

19Encyclopaedia of Islam, New Edition, s. v. "l;Iakam," by E. Tyan.

2otbid.

21Encyclopaedia of Islam, s, v. "Nikai)," by Joseph Schacht; See a1so, David S.PowetS, "The !slamic lnheritance System; A Socio-Histor'::aI Approach," in IslamicFamilv Law, ed. Chibli Mallat and Jane Cannors (London: Graham & Trounan. 1990).p. 11.

•79

that before the coming of Islam more advanced ideas about marriage had become

common but the position of woman was still very unfavorable The marriage contract

was made between the suitor and the guardian; i. e., the father or the nearest relatives of

the bride; the latter's consent was not regarded as necessary. But even before Islam, it

had already become common for the dowry (mahr) to be given to the woman hersclf

and not to the guardian. In marriage, the woman was under the unrestrictcd authority of

her husband. Dissolution of the marriage rested entirely on the man's opinion; and even

after bis death bis relatives could enforce a daim upon bis widow. Islamic law,

according to Schacht. reformed these old marriage 1:lws wbile retaining their essential

features.n

Ol~e of the primary objectives in the introduction ofa new famiJy law as revealed

by the Qur'an was an improvement in the status of women. The concept of marriage

then. according to Z. S. Ali. was tumed into a relationsbip binding human beings in

permanent of love. The emphasis was now on compassion. companionsbip and

understanding. Some radical reformation of the old laws. Ali argues. are that the Qur'an,

IV: 4. demands and emphasizes that the wife should receive dowry as a free gift which

affects the lransfer of property to the wife. and which thereby changes her role from that

of a sale-object to a property-owner. endowing her with a legal competence which she

did not formerly possess.23

Another innovation made by the Qur'an in marriage was the reform of divorce.

For example by restraÎning a man from divorcing his wife at will. His right of unilateral

repudiation. stemming from bis position as purchaser of the bride. formerly opcrated

with immediate effect severing the marital tie. This right is superseded by the Qur'an

which insists on suspending the repudiation by imposing 'idda or the expiry of three

22lbid.

23Zccnal Shaukat Ali, Marnage and Divorce in Islam: An Appraisal (Bombay:Jaico Publishing House. 1987), p. 21.

so

months or three menstrual cycles of the woman, or if she is pregnant, until the delivery

of the chiId. This interim pcriod is pro':ided to effect a reconciliatio'l between the panies.

The Qur'an 4: 35, states that 'If ye fear a breach between the twain, appoint two arbiters,

one from his family, and the other from hers; if they wish for peace, God will cause

their reconciliation'. Thus, in short, according to Ali, Qur'anic legislation supplemented

the customary law of marriage not ooly in basic concepts but with a system which

remedied the distinctions in property right as weil. A woman could, like a man, now

carn and hold her own property and inherit property.24 Various attitudes in the

traditions of marriage find expression, at the same time positive enactments regulating

marriage are supplemented in essential points. .phar is an instance of continuity in

family law. In ;phar, Fyzee notes, "the husband swears that to him the wife is like 'the

back of his mother'." 25 After the oath has been pronounced, "the wife has the right to

go to the Court and obtain divorce or restitutions or conjugal rights on expiation." 26

This kind of practice is a pagan form of oath and comes from pre-Islamic Arabia27

Polygamy was also a common practice in pre-Islamic Arabia which was modified by the

Qur'an and the prophetic sunna, by limiting the number of permitted wives to four.28

Institution of qi$iï$ (homicide or wounding) is also worthy to mentioned here.

Crimes in Islamic jurisprudence consist of two types of transgressions: one is crime

which cause or infringe on the right of Allah, the others cause damage to the right of

individuals. 1;ladd punishments correspond to the right of Allah and the other

punishments, qi$iï$ (homicide and wounding), diyya (blood-money), and ta'zïr

241bid.. 22.

25Asaf A. A. Fyzee, OUllines of Muhammadan Law (Oxford: Oxford UniversityPress. 1964), p. 137.

261bid.

27lbid, 138.

2SEneyclopacdia of Islam, s. v. "Nika!)," by Joseph Sehachl.

81

punishment (imprisonr.lent). to private claims. 1;ladd punishments are bclieved to be

unifomùy fixed in the revelation by Gad. and therefore. according to Homma. no

pardon, arnicable settlement. or change is possible.29 The 1)add punishments are

composed of six punishments. zina (illicit sex relations). qadhaf (false accusation of

unchastity), sariqa (theft). harba (highway robbery), shurb (drinking wine). and ridda

(apostasy from Islam). Qi$ii$ and diyya are the punishment for murder and injury.

Ta'zir punishment covers all the transgressions. but its aetual application to the case is

usually witbheld when the 1)add punishments, qi$ii$ and diyya are inflicted. In this

sense. therefore. according to Homma, Islarnic penallaw has a dual characler.30

The reason for this distinction is historical. As far as the Arabs were concemed.

the 1)add punishments with their respective penalties were all innovations of Islam.

while the obligation of vengeance for homicide or wounding, according to M. J. L.

Hardy, was part of the pre-Islarnic Arab tradition. The tribal structure was based on a

blood relationship derived from a real or supposed common ancestor. This relationship

gave rise to the basic kin group which consisted of a large numbcr of those bearing the

group or clan name. As a principle each member of the group was responsible for the

group and in return received assistance from the group. Although there are numerous

examples of help being given or demanded without any true blood link. particularly

when two groups stoad in a master-vassal relationship. in theory such a link. Hardy

claims. was always required to ens'lI'C that law and order were preserved. at least within

the tribe, and also that if any member of the tribe was killed. it was communal blood

which had been spilt.31 As W. R. Smith says:

29Hideaki Homma. Structural Characteristics of Islamie Penal Law (Japan: TheInstitUle of Middle Eastern Srudics International University of Japan, 198f), p. 4.

3O:tbid.. 5.

31M. J. L. Hardy, Blood Feuds and the Pavment of Blood Monev in the Middl~

East (Leiden: E. J. Brill, 1963), p. 15.

82

.... [T]he tribal bond ... was conceived as a bond of kinsbip. AlI the members ofa group regarded themselves as of one blood. Tbis appears most clearly in thelaw of blood-feud, wbich in Arabia as among other early peoples affords themeans of measuring the limilS of effective kinsbip. A kindred group is a groupwithin wbich there is no blood-feud. If a man kills one of bis own kin he fmdsno one to take bis part. Either he is put to death by bis own people or hebecomes an outlaw and must take refuge in an alien group. On the other hand, ifthe slayer and slain are of different kindred groups a blood-feud at once arises,and the slain man may be avenged by any member of bis own group on anymember of the group of the slayer.32

An example of this strong feeling of group kinsbip is given by W. M. Watt who

quotes from Ibn Hisham's kicâb Sirac Rasül Allah. Two Muslims killed sorne men at

Badr, they were, in turn, captured at al-Rajï' in 625. The captors took them to Mecca,

and sold them to the farnilies of the victims. They remained with those familles during

their captivity until the end of th\~ sacred month, and then they were killed.33 Thus,

according to Hardly, the kinsbip group can be ultimately defmed by reference either to

ilS function as an essential unit wt.ich acted together in cases of blood-feud, or by

reference to ilS belief that the group itllelf was descended from a common ancestor who

had provided the blood wbich members now shared.34

32W. Robertson Smith, Kinship & Marriage in Earlv Arabia (Netherlands:Anthropologicai 'Publications, 1966), p. 25. As Nôldeke daims thal blood-feuds nolonly were due ta the tribal structure of society, bUl also as a resull of helieving in thereligion of the period. Numerous gads and spirits were believcd la exisl with powers lainfluence a man's fale, usually adversely. so !hat il was advisable la pacify them bymeans of sacred oaths and blood sacrifices. Before Islam the notion of soul. however,was already known as something which left the body on death. The soul was believed lareside in the blood or especia11y in the breath al death, the soul escaped waugh themouth. In the case of murder. blood and the ncod for expiation Seem la have resumcdtheir imponance, for the soul of the murdered man was irnagined la flutler round the10mb in the form of an owl, crying with thirsl and unable la find resl until vengeancewas taken. If !hal vengeance were nol pursued, sorne form of blood guill was thoughl lafall upon the remaining lcin. Thus the idea of revenge, or !ha'r, came la take the form ofa religious obligation. conneclcd bath with respecl for the dead ancestor and with themaintenance of the establishcd arder of society. Encvclopaedia Of Religion and Ethics, s.v. "Arab (Ancient)," by TIl. Nôldeke; See also, Homma, IsI..,,;c Penal Law, pp. 57-58.

33W. Montgomery Watt, Muhammad at Medina (Oxford: Clarendon Press, 1966),p. 262; Ibn Hish:im, Kitiib Siral Rasül All1ih, Vol. n, ed. F. Wüslenfeld (Gôttingen.1859), p. 640.

34Hardly, Blood Feuds and the Pavment of Blood Monev. p. 15.

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Watt argues, furthermore, that such kindred groups were stiJl prevalent even

after the advance ofIslam. This prevailing custom is perhaps inevitable for there was no

supreme authoril), rather each tribe represented a sovereign political body. In the

Prophet's lime, according to Watt, it is believed that it was dishonorablc and a sign of

weakness to accept camels in lieu ofblood. Watt has given us again an examplc that one

of the An~âr, Hishâm b. $ubabah. was accidentaJly killcd by anothcr. His brothcr

Miqyas came to the Prophet and asked for blood-money which was duly paid. Evidcntly

this did not satisfy his sense of honor, however, for when there was an opportunity, he

kiIled the man responsible for his brother's death.3S On the oL'ler hand, Watt daims that

there "were wiser and more progressive men .. [who1sccm to have recognized the

advantages of substituting a blood-wit for the actual takli:g nf :. life." There is an

unreliabIe story about 'Abd al-Munalib, the Prophet's grandfather, which is preservcd in

Ibn Sa'd. "'Abd aI-Munalib ... daims that an action of his in redeeming his son for a

hundred camels Ied to the general recognition of a hundred camels instead of tcn as a

proper blood-wit for a man. This may be taken as evidence ... of a tendency ta raise thc

blood-wit in order to make the acceptance of it the more attractive course." 36

Although the teachings of the Prophet brought about a radical change in outlook

as a result of which the very basis of authority underwent a fundamental change,37 the

practice of Blood-feud, Watt maintains, as a whole had dcep root in Arabie society, and

there could be no question of replacing il. Therefore, in this casc, Watt argues, in a

certain sense the Prophet's greatest innovation was not an innovation at ail. This was thc

establishment of a new type of group, the Islarnic community or umma which was

3SWatt, Muhammad at Medina. p. 263.; Ibn Hishiim, Kitiib Sirat, p. 728-819.

36Watt, Muhammad al Medina, p. 263; Muhammad Ibn Sa'd, AI-Tab~_al:Kabir, Vol. l, pan l, ed. E. Sachau (Leiden: E. J. BrilI, 1322 Hl, p. 54.

37Ansari, 'The ConaibuL"n of the Qur'an and the Prophet," 142.

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based on a common religious allegiance and not on blood-relation~:lip as stated in article

1and 25 in the Constitution of Medina.38 The umma here. however. according to Watt

was conceived as a kind oftribe. There is an exarnple that the Prophet fell obliged to pay

blood-money when two men of B. cAmir were killed by a Muslim fugitive from Bi'r

Macunah,39 This shows that he accepted responsibility for the acts of members of

theumma. at least towards a tribe with whom he was in alliance. Thus in exacting

vengeance the umma, according to Watt, certainly functioned as a tribe.40

The term umma here needs sorne clarification. According to R. B. SeIjeant, the

umma here is "entirely political, not religious. for it simply provides structural unity."

His conclusion is based on his analysis concerning th,~ contents of the Constitution. He

argu::s that:

Its contents, in brief, are. flfStly, the defming of specific treaty relations ofmutual aid between these groups, the action to be taken against those who breakthe said treaties and against persons within the aIlied groups who commit crimes,along with the procedure to be observed in dealing with offenders. Secondly,special sections or documents deal with the position of the Jews in relation to theother groups. In this document or, more correctly, series of documents there isnothing that can be described as religious-it is a strictly practical set of agreedprocedures.41

Uri Rubin also maintains that there is a clue to the meaning of umma in the

Qur'an. He says "it is not merely the term umma which must be trailed, but rather the

loculation: 'umma wii1,Jida '." This phrase, according to him, occurs in the Qur'an no less

38Article 1 stales "They are one community (umma ) 10 the exclusion of all men:'Article 25 reads "The Jews of B. cAuf are one community with the believers (the Jewshave their religion and the Muslims have theirs. their frecdmen and their persan exccptthose who who behave unjustly and sinfully. for they hurt but themsclves and theirfamilies:' A. Guillaume. The Life of Muhammad (Oxford: Oxford University Press.1990). p. 232-233

39 Ibn Hisham. Kitab Sirat. p. 648-652.

4Owatt. Muhammad at Medina. p. 264.

41k. B. Seljeant. "The Constitution of Medina." in Studies in Arabian Historvand -',j1;'ati2!!. cd. R B. SeJjeant (London: Variorum Reprints, 1981). p, V. 1. 12.

•

•

than nine times.42 This term indicates people united by commora religious orientatioh.

Therefore. Article 1. according to him. declares the Muslims. of Quraysh and Yathrib.

and the Jt:ws of Yathrib to he one group. "sharing the sarnc religious orientation. thus

being distinct from aIl the rest of the people who adhere to other kinds of faith. It is

thereby [according to Rubin] clear that new unitYis designed to he based ... on comman

faith." 43

Furthermore. he aIso argues that the umma stated in Article 25 aIso indic...tcs

"an UJ1'IJ11a of believers." According to him. there are two parallel versions regarding

this article. The flfSt version cotTes from Ibn Isl)aq wnich reads "wa-inna Yahüda Bani

'"Awf ummatun maCa I-mu'minin ...." 44 The second version of Abü tUbayd. which is

recorded on the authority of al-Zuhri. states "wa-inna Yahüda Bani cAwf wa-

,~,: ah lu ah t' 1 " - "45 Altho h R b'mawaUY um wa-an 5 um umma un mzna -mu mlDm .... ug. U ln

argues, the version of Abü tUbayd is believed to he defective, "the construction umma

mina I-mu'minin accords with Quranic style, whereas umma maCa I-mu'minin does

not." He further argues that:

The expression umma mina I-mu'minïn seems to denote: 'an umma ofbelievers'. The preposition min is used here li-l-bayiin, or li-J-tabyin. i.e .• tomake clear, to explain. This min precedes the dermite tenn al-mu'minin whichis designed to explain the preceding indefinite tenn umma. This means that inarticle 25 [in which Jews are stated] are labeled as an 'umma of believers'.46

42n: 213; V: 48; X: 19; XI: 118; XVI: 93; XXI: 92; XXIll: 52: XLII: 8; XLIII:33.

43Uri Rubin, "The 'Constitution of Medina': Sorne notes," Studia [s1arnica, LXII~(1986): 13.

44Ibn Hisham. AJ-Sira al-Nabawiyya. Vol II, ed. ,41_ Saqqa. al.Abyâri. ShaJabj(Beirnt. 1971) p. 149, cited by Rubin. ibid.

45Ibn al-Athir, al-Nihliya fi Gharib al-Hadith wa- al-Athar. Vol. I. ed. al·Zàwi•aJ-TanaJ:ü (Cairo: Dar D:tyli) aI-Kutub aI-cAra.,iyya. 1963). p. 68.

46Rubin, ''The constitution." 14.

86

The Prophet. however, was realistic enough not to attempt to abolish tribal

interests entirely. According to J. Wellhausen. the clans were still considered to be

independent clans within the umma. The prophet still incorporated the old clan

organization in the new version. Even the heads of the clans. Wellhausen argues. still

remained in their old positions and were not replaced. As independent clans within the

umma. they were responsible for. such as. paying blood-money. However. revenge

was largely removed from the responsibility of clans. though not entircly. The clans had

to renounce the right to take vengeance. particularly within the community because the

main purpose of the umma was to keep Medina peacefull. If there was a dispute among

them. it must be referred to God and the Prophet. as stated in Article 23 and 42.47 But if

Ile internal peace was broken by violence or sacrilege. it was a matter for the community

to decide.48 These circumstances included the redemption of prisoners, as noted by M.

Gil. He notes:

Each of the clans :!lus considered by Mul:iammad to be confederated publiclytook a solemn pledge to be responsible for blood ransoms. while the redemptionof its prisoners was to be dealt with by the community of the believers. The (woelements are not appended to one another. as has been generally understood.They rather express an antinomy. Whereas blood-money was to be paidseparately and intimately by each clan. ransoming the captives was to become ajoint affairofthe whole party.49

Furthermore. Welhaussen argues that while the clans still remained. vengeance became a

matter for the whole community to decide. therefore, it Il'".ay be concluded that this

47Anicle 23 reads "Whenever you differ about a matter it must be ref.rred to Gadand to Muharmnad." Anic1e 42 :tates "If any dispute or controversy likely to causetrouble shou!d arise it must be referred to Gad and to Mu!, l:::mad the apostle of Gad."Guillaume. The Life of Muhammad,pp. 232-233.

48J. We:::13usen, "Muhammad's Constitution of Medina," Ir. and ed. W. Beho. inA. J. Wensinck, Muharmnad and the Jews of Medina (Freiburg im brcisgau. 1975). p.131-132.

49Moshe Gi!, "The Constitution of Medina: A Rcconsideration:' Israel Oriental

Studics. IV (1974): SI.

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87

change was an important step in transferring the system of tribal vengeance from the

family to the state, and was intended to prevent internal feuds,50

Islarr:c law. J. N. Anderson argues. generally minimized this system by

introducing three salutary restrictions. Firsl. only the guilty party. and not his fellow­

tribesman. was liable 10 be killed or wounded. Second. this penalty is applied only if the

homicide or wounding was regarded as both deliberate and wrongful. The third

restriction is thal the facts had been established before the ruler or judge. Nevertheless.

according 10 Anderson. no allempt was made 10 change the system itself. so it was still

for the injured party to bring the maller before the judge; and j t was still in their absolutc

discretion 10 pardon the culprit altogether, to seule the case out of court, to accept the

paymenl of blood-money (diyya ) inslead of retaliation. or to daim thcir right' of

appropriale retaliation in person.51

As have been mentioned earlier. according 10 Goldziher. the terro sunna was

already known among Arab eircles before Mul:iarnmad. Sunna was familiar to the

ancient Arabs, to them sunna meanl practiees which were in accordance with the

traditions of the world of Arabia and the manners and eustoms of their ancestors. This

terro. influenced by Islam to sorne exlent. eontinucd 10 be used in the Islamie period by

the Arabs.52 The amounl of diyya is one example of pre-Islamie Arab practice

me:ltion~d by M. M. BravrnaI"..Il. Besides agreeing that the concept of sunna had been

altribuled 10 the Prophel. he aIso gives an example, similar to that is given by Watt

earlier. of how pre-Islamic praetices beeome Islamie legal practice through prophetie

5Owelhaussen, "Muhammad's Constitution," p. 132.

51J. 1'1. D. Anrlerson. "Homicide in Islamic law," Bulletin of the Sehooi ofOriental and Afnean Studios. xm. 4 (1951): 812. (811-828); Seo aise, Encyclopaedia ofIslam. s. v. "Ki~,*," by Joseph Schacht.

52Ignaz Goldziher, Muslim Studios. Vol. II. Ir. C. R. Barber and S. M. Stern(London: George Allen & Unwin Ltd.. 1971), p.13; Herbert J. Liebesny. The Law ofthe Near & Middle East: Readings. Cases. & Materia1s. (Albany: SUte University of NewYork Press. 1975), p. 13.

sunna. He quotes the passage of Ibn Sa'd. "... 1':.1 'Abdul-I-Muqalibi awu'alu m~

sanna diyaca n-naÎ.<i mi'acan min-a l-ibjJi U'J[i]arar fi Qurays[hlin U'al-'Arabi mi'ar:m

min-a l-ibiJj ';"a'aqarrahaRasulu-Ji{jj>j 'alii mii kiinar 'alayhi " 5~ "... and 'Abdul Munalib

was the flrst to flx ... the diyah at hundred camels: and hundred camels became the

obligatory amount of the diyah among the Quraysites and the Arabs. and the Prophet

conftrrnl.'d this amount of the diyah." 54 Islamic law therefore did not interfere with the

basic system ofblood-money; various Qur'fuüc texts even expres,;~y confirmed il. They

indicated. howevei, certain modifications, among wrjch the most important was l:-~ rule

which made compensation obligatory in the case of accidentai homicide. When the ncw

Islamic society developed rapidly into a community unified ~.s state. Muslim jurists

constructed a theory of the diyya in which divergent trends were readily apparent. This

theory in general. according to E. Tyan, apart from cenain secondary diff<:rences. is the

same in both Sunni and Shi'j doctrine.55

Bravmann further argues thatthe system of Islamic legal pr:.;.ctice known under

the name •sunna of the Prophet' was rooted in the originally anonymous custom or

practice of the community, and w::s instituted by the Propnet himself in such a way that

it became qualifled with novel features. To prove that argument. he refers to a tradition

53Ibn Sa'o. Tabagat. Vol. 1. pan l, p 54. 55 ff.

S4M. M. Bravmann, SpriNal Background of Earl'.' Islam (Lciden: E. J. Brill,1972), p. 154.

55Enevclopeadia of Islam. New Ediùon, s. v. "Diya," by E. Tyan. According toTyan. in a restricted sense. H[diyya] means the compensaùon which is payable in cases ofhomicide. the compensaùon payable in the case of other offence, against the body beingtermed more parucuJarly arsh." The amount was in principle f",ed. at lcast in the area inwruch Islam was bom. at one hundred head of camels, although there are certaintradiùons wruch speak of ten camels only. A suong solidarity. as much aCÙve as passive,ulÙted the members of the tribe in the applicaùon of the system: the tribe as a wholc wa.,obliged to share in the payment of the diyya. just as vengeance nself could be exerci sedupon members of the tribe other than the culprit lùmself. In the apposite case, and wherethe nearest blood-relaùve of the vicùm was rumself unable 10 exact vengeance. any otherqualified fellow-tribesman could cake rus place. Sec also. Moharned S. Elwa.Punishment in Islamic Law: A Comparaùve Study (Indianapolis: American TrustPublicaùons. 1982). p. 71.

•89

which emerg.:s in a historical event Îrom Tabari's Annales: "waqad kiina 'Umaru

tla[khadha] fi kulli mi?rin cala qadrihi [kh]uyülan min fuçiüli amwiili l-Muslimïna

'uddalan likawnin in kiina fakiina bil-Küfati min [dh]alika arba'acu 'alafi farasin ......

.....'Umar b. Khattab placed in each of the provincial ;:ajJitals cavalry dctachrnents which

varied in size ~ccording te the local circ: Imstances, (paying for the expenses) Wlth the

surpluses of the possessions (or: the revenues) of the Muslims; he did this in

preparation for any emergency that might arise. And in Kufa there hereof four thousand

horses...... 56 Bravmann claims 'Umar's act was based on a practice of the Prophet as

cited by Shâfi'j in his K. al-Umm." ... a[kh]barana sufyiinu bnu 'Uyaynala 'an

Ma'marin 'an-i z-Zuhriyi 'an MiiJikj bni awsi bni l-ljid[th]ani 'an 'Umara bni l­

[Kh]agabi ... qala : kiinal amwalu ban.;" n-Naç1iri mimmii aflPa lliihu cala rasülihï lam

yüUJif 'layhi l-Muslimüna bi[kh]aylin wala rikiibin fakiinal li-Rasüli-lliihi ...

[kh]iili?alan fakiina yunfiqu minhii nafaqara sanatihï wama baqiya (or; façiala )

[j]a'alahü fi l-kura'i was-siliiJ.U 'uddaran fi sabili lliihi 'azza waUJalla.... 57 ..... [tradition]

from 'Umar b. al-[Kh]anâb. He said: the possessions of the Banü n-Naçlïr were given

by God as booty to His Prophet.... and were the Prophet's exclusive property. He used

to take from the revenue of these possessions his annual living expenses, and what

remained (at the end of the year) he used to spend on horses and arrns in preparation for

'the war for the sake of God'...... 58

Wama baqiya (or: façiala) ja'alahü fi l-kurii'i was-siliiJ.U 'uddaran fi sabili lliihi.

Bravrnann takes this phrase, in his argument concerning 'the surplus of property'. as

another instance where pre-Islamic practice was Islamicized through the sunna of the

56Bravrn3l1n, The Sprilual background, p. 175; Taban, Annales. Vol. l , cd. M. J.De Goeje (Lugd. Bal.: E. J. Bri1l, 1964), p. 2499.

57Imlim Shafi'i, Kitab al-Umm, Vol. IV (Mi~r: Taba'a M~üra Can Tabaca BiiHiq,1980), p. 64.

58Bravrnann, The Spritual background, 176.

•90

Prophet. He e~amines the term 'al,,, in the Qur'an. VII: 198. and Il: ::'.16-1::'.7 along

with A;,,">ic texts such as the Kit?:D al-Kharaj of yal:tya b. Adam. Siji:;tani's Kitiib al­

Mu'anunann. and t:le Aghiïnï. He proves that this type of social behavior. which is

found in the Q::~':i.'l and Islamic tradition. is a repetition of a.'l old Arab custom.59

In short. as far as the various institutions. discussed above. are concerned. it is

reasonable to claim that the pre-Islamic Arab tradition constituted a very important ba.sis

for the developm(;;nt of early IslaIT'jc law. This conclusion can he further supportcd by

examining the origin of the institution of commenda (qirâc;l or muc;laraba ). According

to J. A. Wakin.

[Muc;laraba (in Maiiki and Shafi'i souree. qirâc;l and muqarac;lii) meansl acommercial association whereby an investor (rabb al-mfil ) entrusts capital to anagent (muc;liirib. 'iimil ) who trades with it and shares with the investor a pre­determined proportion of the profits. Losses incurred in the venture are theresponsibility of the investor; the agent loses his time and effort. and any profithe would have gained were it successful. Most schools of law require that thecapital he entirely provided by the investor and the labour entirely by the agent.otherwise the arrangement is transformed into another kind of contract (e. g.•loan. investtnent of merchandise. or partnership with unequal shares ('iniin ))with different incidents. Thus strictly speaking. the muc;laraba contract is afiduccary relationship (amiina) combined with agency and becomes apartnership only with the division of the profits.60

According to Udovitch. although there is no Arabic word denoting commenda

in pre-Islamic times. this institution very Iikely belongs to the Arabian Peninsula. and

developed in the context of the pre-Islamic Arabian caravan trade.61 As has been

discussed in the second chapter. 62 F. E. Peters concludes that Mecca was not involved

in international trade until the Quraysh "took advantage of the drastically changing

59For detail of his ar::"ment Soo. "The Surplus of Propeny: An Early Arab SocialConcepl," Der Islam. 38 (1962): 28-50.

6OEncyclopaedia of Islam. New Edition. s. v. "Mu<;laraba." by Jeannette A.Wakin.

6lIbid.. 172.

62Soo page ~5.

•91

circurnst'lllces in international trade in the late sixth and early seventh centuries to create

a regional trdding emporium which enchanced the reputation of the town arnong the

local tribes." 63 The regional trade, Peters daims, was marked by the existence of îlaJ

and the caravan trade.64

Several accounts concerning îlaJ arc noted by M. J, Kister. He gives us, arnong

other things. the report of al-Tha'alibi, 6S who says that the Quraysh used to trade with

merchants in the markets of Dhü Majaz and 'Dkaz during the sacred mcnrh and they

also "used to serve the visitors of Mecca to their advantage." Tha'aIibi also notes,

according to Kister. thatthe person who fl!st went to Syria, visited kings and gained the

îlaJ from the chief tribes was l;Iâshim. Furthermore. Tha'alibi mentions Hashim's two

joumeys, in winter to the 'Abahila in Yaman and to al-Yaksüm in Abyssinia. In

summer. Hashim went to Syria and Byzantium. The reason f:Jr taking îlaf from the

tribal chiefs was, fl!5t of ail, because the people of Mecca and others were not safe from

the " 'wolves of the Arabs' and the Bedouin brigands and men of rai~ and people

involved in long-lasting actions of revenge." The second rcason was that there were

tribes. sl!ch as Tay)'. Khath'arn and QuçHï'a, who did not respect the Ka'ba and lIouse,

whilc oth..:r tribes did. In addition. al-Tha'alibi notes that the iliif is a sum as protit that

was given by Hashim to the tribal chiefs. to whom he "undertook the oransport of their

wares together with his own and drove for th,m camels along with his camels. in order

to relieve them of the hardships of the journey and to relieve Quraysh from the fear of

the enirnies." 66 The tribal chiefs in question would receive what they had invested (ra 's

63F. E. Pelers, "The Commerce of Meeca Before Islam," in A Way Preparcd: Essavson Islam;. Culture in Honor of Richard Bayly Winder, ed. Farhad Kazemi and R D. --McChesney (New York: New York University Press, t988), p. 4.

64lbid.. 14.

6SAl-Tha'alibi, Thimiir al-Quliib fi cl-Mudaf wa a1-Mansiib, ed. MuJ:uniid Abiial-F"I!I Ibrahim (Cairo: Dar Nahc;lat Mi~r li a1-Tab', 1965), p. 115.

66M. J. Kister, "Mecca and Tamim," in Studies in Jahilivya and Earlv Islam, cd.M. J. Kister (London: Variorum Reprint, 1980), p. 119.

• al-mfil ) a.'ld what they gained (ribiJ ). The reward of the Quraysh. howcycr. was only

safe pas·sage.67

This iliif started. according to scholars such as Kister.èS duc to thc effort of

Hâshim b. 'Abd al-Manat" and lùs brothers. Kister argues. based on thc account of

MuJ:tammad b. Sallam. 69 that the Quraysh were merchants whe tradcd within thc

bounda.-ies of Mee.a. They bought their merchandise from foreign merchants and sold il

to the ir.habitants of Mecca and to the neighboring tribes. This type of tradc continued

unùl Hâshim went to Syria. and was perIIÙtted by the Emperor to pass through his

territory. It is also said that Hâshim used to visit the Emperor. and he asked him to give

the Meccan traders a letter of safe conciuct and the Emperor granted him the rcquestcd

letter. On his way to Mecca. he passed the tribes and met their chiefs. asking them to

make a pact of security (iliif) in their tribal areas. without necessarily concluding an

alliance. Based on the provisions of the treaties concluded with tÎle tribal chiefs. Hâshim.

who died on this joumey while at Ghana, went to Syria a10ng with the Meccan

merchants and settled them in Syrian towns. Sinùlarly. his brot;lers. AI-Munalib b.

'Abd al-Manat". who died in Radmful. went to Yaman and gained a charter from the

ruler of Yaman and gained iliif from the tribal chiefs. 'Abd Sharns b. 'Abd a1-Manaf

went to Abyssinia and gained the ïliif from the chief tribes on his way. Hashim's

youngest brother. Naufal, gained the charter from the Persian Empcror. anc.. 0;) his way

home. he got the ïliif from the tribal chiefs. He went back to Iraq and died :n Salman.

By the effort of the Banü Manat". Kister argues. the Quraysh developcd their trade and

their wealth increased.70

67Abi 'Ali lsma'il b. Qiisim aI·Qiili aI-Baghdiidi. Dhayl al·Amali wa al-~a.w_a9ir

(nd.). p. 201. S.G aise, Al·JiiI;ü~ Rasa'i1 aI-Jahiz. cd. I;lasan al·Sandühj (Mi~r: AI·Malba'a al·RaI;uLaniyya. t933). p. 70.

68See fJr example. M. Hamidullah. MusHm Conducl of State (Lahore:Muhammad N.hraf. 196t), p. 102.

~JAl-Qiili. Dhavl al-Amali. p. 201

•93

Kister also believes that the caravan trade of Mecca seemed to have existed

bcfore the iI5.f. These caravans. according to Kister. were sent by individuals. though

the conditions were very risky. His argument w<.s based on one tradiùon which was

quo:ed by aI-Suyütï from the Muwaffaqiyyat of al-Zubayr b. Bakkiir.71 This tradition

is told, according to Kister. on the authoriry of 'Umar b. 'Abd aI-'Aziz and describes

how. before the rise of Hashim. the nobles of the Quraysh used to leave for the desert

when they lost their property. In the deserts "they pitched tents and patiently awaited

death 'one after another' (ti'nawabii) ùll they died. before people might know about their

plight." According to Kister. this tradition may have a good deal of truth since. among

other things. al-Zubayr b. Bakkar was known to have had an outstanding knowledge of

the social and economic conditions ofMecca in the ùmes of Jfihiliyya.n

Patricia Crone. however. believes that on the eve of Islam Meccans did not

trade outside Mecca She bases her arguments. among other things. on the accounts of

Ibn al-Kalbi's ilaf tradiÙon and of al-Kalbi. Ibn al-Kalbi's own father. and of Muqâùl.

The account ofIbn al-Kalbi is summarized by Crone:

Meccan trade used to be purely local. Non-Arab traders would bring their goodsto Mecca. and the Meccans would buy them for resale partly among theroselvesand paIt1y among their neighbours. This was how things remained until Hashim... went to Syria. where he attracted the attenùon of the Byzanùne emperor bycooking tharid. a dish unknown to the non-Arabs. Having become friendly withthe emperor. he persuaded the latter to grant the Quraysh permission to sellijijâzi leather and clothing in Syria on the ground that this would be cheaper forthe Syrians. Next he retumed to Mecca, concluding agreements with tribes onthe way. These agreements were known as ilafs, and granted Quraysh safepassage through the territories of the tribes in quesùon. In retum. Qurayshundertook to act as commercial agents on behalf of these tribes. collecùng theirgoods on the way to Syria and handling over what they had fetched on the wayback. Hashim accompanied the fIrst meccan caravan to Syria. seeing to thefulfùlment of the agreements and settling Quraysh in the towns and/or villages(qutii ) of Syria.... His three brothers concluded similar treaùes with the rolers

7OM. J. Kister. "Mecca and Tamim." p. 1: 117.

71Al-Suyü\i. AI-Du". a1-Manthür fi a1-Tafsïr bi al-Ma'thür, Vol. VI (Beirut: Daral-Ma'rifa li- al-Tib.'a wa al-Nashr. ndl, p. 397.

72Kister, "Mecca and Tamim," p. 122-123.

of Persia. Yemen. and Ethiopia. enabling Quraysh to trade in safety. and :;i~ilar

agreements with the tribes on the way. enabling them to !ravel to the countries inquestion without fear.7'

According to Crone. however. the account of Kalbi.74 Ibn Kalbi's own father. and of

Muqatil 75 show the opposite effect. Crone summarizes this as fo11ows:

Meccan !rade used to be international. The Meccans would go 10 Syria evcrysummer and winler, or to Syria in one season and to the Yemen in another....They had to do so because other traders did not come to them. Bul the effort wastoo much for them. or illeft them no time 10 pay atl.:"ntion to God. 50 God loldthem 10 stay at home and worship Him. and they (Jbeyed. In order 10 makc itpossible for them 10 slay at home. God made Arabs from other pü.rls of thepeninsula bring foodstuffs to Mecca, or alternatively il wa~ Elhiopians whom Hemade do this. At all events, the Meccans no longer left their sancluary. or lheyonly did so occasionally. Meccan !rade thus bccame purely local.76

Basing her argument on this tradition. Crone argues thal from a source-crilical

view the information reported by Ibn Kalbï is weak if it is compared with Kalbi and

Muqatil. For historical research, she maintains, carly information should bc preferred

over laler information. In fact Ibn Kalbi's information is unacceplable for severa!

reasons. First, Ibn Kalbi's account is too schematic, four brothers began trading relations

with four different regions, negotiating with four different rulers and making agreements

with four different sets of tribes on the way. Second, il is a wrong to assume that the

Byzantine emperor dwe11ed in Syria. Also. the Quraysh are unlikely to have negotiated

with emperors, as opposed to the Ghassanid and Lakhmid kings. Moreover, the~e

cannot have been separate agreements with the tribes on the way to Ethiopia via Yaman;

73patricia Crane, Meccan Trade and the Ri.. of Islam (Princelon:PrincelonUniversity Press, 1987), p. 109.

74The account of KaIbi is found in Mul)ammad b. l;Iabib al·Baghdadi. AI·KI\~

aI-Munammag. ed. Kh. A. Fariq (Hyderabab: Dij'iral M.'arif a1·'Uthmiiniyya. 1964), pp.262-263.

7SMuqiitii B. Sulaimiin, Tafsir. MS Saray. Ahmet m. 74m, cited by Crane in her.Meccan Trade, p. 110.

76Crone, Meccan Trade, p. 110.

•95

agreements either existed already. or else the Quraysh sailed there directly. in which case

they would not have encountered any tribcs on the way.77

Crone adds further that the story of Kalbï and Muqatil concerrung the Quraysh

bcing passive recipient of goods brought by others is quite common in the exegeùcal

tradiùon. A similar statement. to when Kalbi and Muqaùl say that "[i]n order to make it

possible for them to stay at Home. God made Arabs from other parts of the peninsula

bring foodstuffs to Mecca." according to Crone. appears in the Siira aJ-Tawba 78 in

which "unbelievers used to bring goods to Mecca; whe:! God prohibited unbelievers

from approaching the Holy Mosque. the task of provisioning Mecca was taken over by

believing Arabs. or by unbelievers in the form of jizya. " 79 Furthermore. Kister argues

that after the Siira was revealed the Quraysh were afraid that the prohibiùon of

approaching Ka'ba by unbelievers might endanger their trade. as the unbelievers used to

bring their merchandise to Mecca during their hajj. 80 Kister also believes. based on the

report of Muqatil.81 that when the people of Juddah. l;Iunayn and $an'a' embraced

Islam. they brought food to Mecca and they had no need to trade with unbelievers.82

Therefore. Crone concludes that the commentators have taken the verse for granted

which states that Mecca had always been provisioned by outsiders. and conùnued to be

77lbid.. 112.

78The Qur'iin. IX: 28."[Andl fight against those who-despite having beenvouhsafed revelation [aforetirne]- do not [truly] believe either in Go<! or the Last Day.and do not eonsider forbidden that wlùeh Gad and His Apostle have forbidden. and donot follow the religion of truth [whieh Gad bas enjoined upon them]. till they [agree10] pay the exemption tax with a '.i1ling band. after having been humbled [in war]."

79Crone. Mecean Trade. p. 113.

aI-Qurin. Vol. XlVavv~abari. Tafs;r al-Tabari: Jiimi' aI-Baviin 'an Ta'wil(Misr: Dar aI-ma'arif. 1958). p. 193.

81 AI-Fakhr a\-Ràzi. AI-Tafsir al-Kabir. Vol. XVI (Cairo: AI-Malba'a aI­Balùyya. 1938). p. 26.

82M. J. Kisler. "Sorne Reports eoneerning Meeea," in Studies in Jalùlivya andEarly Islam. ed. M. J. Kister (London: Variorum Reprint, \980). p. 79.

thus provisioned with the rise of Islam. She funher insists that from a sourcc-critical

view of Kalbi and Muqatil. the story should he acccpted, considering that Ibn Kalbï's

account is late. Finally. Crone concludes that Meccans did not trade outsidc Mecca on

the eve oflslaM.83

R. Simon, who in a cenain sense agrees with Crnne. argues that the Meccan

caravan trade with Syria starteà in the 560'5. The beginning of this trade. acccrdillg to

Simon. was related to the decline of Ghassanid power. ln the fIrst half of the sixth

century, Ghassanids were the most powerful Arab buffer-state for Byzantium. They

controlled the Pronvincia Arabia. around Hawran an": Balqa' and ruled over the

Phylarchoi of the Provincia Phoenicia ad Libanum, which had cities such as Damascus.

Emessa, Palmyra as centers. The Peace Treaty of 561 between Persia and Byzantium

shows their militar)' and commercial power. This can be seen from the flfth pa.-agraph of

the Peace Treaty which shov..s the active trade of the Ghassanids. But under Tiberus

(578-582 A. D), according to Simon. the relationship between Byzantines and

Ghassanids fractured. The Ghassanid kings. al-Mundhir and then al-Nu'man. were

captured and exiled. After 581-582 A. D.. according to Simon, the Syrian sources no

longer mention the Ghassanid kingdom; it had ceased to exist. AIl this. according to

Simon, points to the fact that before 560 the Quraysh were probably not yet able to trade

within the Syrian portion of the incence-route. Simon concludes that the Syrian iIiif

probably occurred in 560'5.84 Furthermore, Simon argues that though the Ghassânid

had already ceased to exist, the influence of Byzantium in west Arabia was still strong.

This is indicated by a sentence of al-Mu~'abal-Zubayrï that reads "Quraysh was afraid

of the emperor and was about to subject itself to him." 85 This sentence. according to

83Crone. Mcccan Trade. p. 113-114.

84R. Simon, Mcccan Trade and Islam (Budapest: Akadémiai Kiad6, 198'), p. 69.

85A1-Mu~'ab al-Zubayri, Kitab Nasab Quraysh, editcd by. Lévi-Provençal(Cairo: Dar al-Ma'irif. 1953). p. 210.

•97

Simon. refers to the last decade of the sixth century. Therefore. Simon concludes that

"[t]he fiasco of the experiment showed '" that Mecca was both commercially and

ideologically sufficiently strong and its trade with Syria was fully developed. But this

trade had no traditions as yet. it still had to fight for its stabilization and monopoly." 86

According to A. L. Udovitch. the Prophet took part in mif a~ an agent

(commenda). According to one tradition,87 Udovitch maintains. that early in his career.

the Prophet acted as an agent in contracting an investrnent provided by Khadïja.88

Udovitch shows us another tradition in Sarakhsï's Mabsü[ • which is attributed to the

Prophet. unequivocal endorsing and approving of those engaged in trade by means of an

agent. this states:

The Messenger of God. may God bless him and keep him. was sent at a timewhen people were using the commenda in their dealings and he conf1IlIled themin this practice. He also urged them towards it in his statement. may God keeyhim and bless him. 'He who has a family with three daughters and is a captive.then help ye hirn 0 ser/ants of God. engage in a commenda in his behalf and gointo debt on his behalf.89

Besides the Prophet. his leading companions also practiced commenda. It is said

that 'Umar and 'Uthman were parties to commenda contracts. The former invested the

money of orphans. of whom he was the guardian. with merchants who traded between

Medina and Iraq. Ibn Mas'üd. a prominent companion of the Prophet, and 'Abbas b.

'Abd aI-Munalib. the uncle of the Prophet, engaged in a commenda trading partnership

• the latter having obtained Mui.larnmad's approval for the conditions. which he irnposed

upon agents to whom he entrosted his money. Furthermore. it is said that the two sons

86Simon. Meccan Trade. p. 68.

87M. Shîrbini a1-Khau-:". Muroni al-Muht1ij. Vol. il (Mi~r. Sharikat Maktaba waMa\ba'at a1-Babi a1-Halabi wa awIada, 1933). p. 309.

88Abraham L. Udovilch, Pannership and Profit in Medieval Islam <New Jersey:Princeton University Press. 1970). p. 172.

89 Ibid. ; Shams a1-Din a1-Sarakhsi. Kit1ib a1-Mabsü\, Vol. xxn (Mi~ Ma\ba'ata1-Sa'fuIa. 13241 1906). p. 18.

• of 'Umar used provincial tax moncy which they were transponing to the capital of the

early caliphate at Medina as a commenda. buying Iraqi mcrchandisc which they then

sold at a profit in Medina. keeping half the profit for themselves. and retuming the

original sum with the remainder of the profit to the treasury.90

This practice by an agent was later to he known in Islamic law as muçfiiraba.

qiraçf and muqaraçfa. Those tc:ms. according to Udovitch. are interchangeable; there is

no essential difference in their meaning. The difference in terminology was possibly due

to geographical factors. The terms qiraçf and muqiiraçfa originated in the Arabian

peninsula, while the term muçfiiraba came from Iraq. Udovitch funher argues that

"[s]ubsequentiy, the difference was perpetuated by the legal schools. the Malikis and

Shâfi'ïs adopting the term qiraçf and to a lesser degree. muqaraçfa, and the l:Ianafi's the

term muçiaraba. " 91 He says:

The term muçiaraba is derived from the expression 'making a joumey' (açf-çiarbfil-arçi ) and it is calIed this because the agent (al-muçiiirib ) is entitied to theprofit by virtue of rus effon and work and he is the investor's partner in theprofit and in the capital used on the joumey and its disposition. The people ofMedina calI this contraet muqaraçia .... Trus is derived from al-qarçi whichsignifies cutting; for in this contract the investor cuts off the disposition of tlùssum of money from lùmself and transfers its disposition to the agent. It istherefore designated by that name (muqaraçia ).92

Udovitch claims that because it originated in a single center, this kind of contract

is generalIy uniform among the three major schoois. The differences between the

schools are panicularly notable in regards 10 certain legal points, but the basic structural

features of this contraet, including the character of the relationship hetween its principal

panies is sunHar in all schools. Therefore, he concludes that "[t]rus greater uniformity '"

may be explained by its probable development from a single indigenous institution of

9Grbid., 18; Udovcilch. Partnership and Profit. p. 173.

91 Udovcitch, Partnership and Profi~ p. 174.

92lbid.

99

the Arabian caravan trade. Its elaboratic.n in Islamic law was thus influenced and guided

by its unitary origin." 93

Udovitch gives us an exarnple of liability upon the agent which shows that

between the qirdçf of Malik and the muçfaraba of I:lanafi there is no basic disagreement.

Udovitch takes exarnples from Sharl} al-Zurqanï cala al-Muwatca' 94 and from

Shaybani. A$I. Kitiib al-MUI;faraba. 95 Based on Malik's qiraç!. Udovitch argues that if

a man entrusts to his agent his capital with any liability upon him. the arrangement is

automatically invalidated. Even if the capital decreases or is totally lost. the agent is not

liable to repay the working and traveling expenses. to which he was entitled. except in

the case of dishonest manipulation. Udovitch also argues that MaIik's qiraçf gives three

basic conditions for the agent's expense. First. the agent can use these expenses if he

travels. The second condition is that the expense must be related to the handling of the

investment. Finally. according to Malik. there is no living expense permitted if the agent

stayed with his farnily or his tribe. Thus. according to Udovitch. the agent has a lot of

freedom to operate and trade.96 According to I:lanafi's muçfiiraba. the investor's

relationship with a third party is restricted. in the sense that all ar:tions should take place

through an agent. because. according to Udovitch. in principle the full responsible for all

contracts is in the hand of an agent. Furtherrnore. Udovitch c\aims "the agent. '" not

being personally liable for any 1055 involving obligations toward third parties. has

93Ibid.. 176.

94lmam Sayyidi M~d al-Zurqani. Sharh 'ala Muwatta' al-Imam al-Miilik.Vol. ID (Beirel: Dar al-Fila. 1980). pp. 467-471.

95Shaybani. Kitab al-Asl. Kitab al-Mudaraba, ManuscriPI (Dar al-KUlUb al­Mi~riyya, Fiqh J:lanafi 34). p. 71a-71b. 74a, 82a, 82b. Cilee! by UdovilCh in hisPannership and Profil. p. 242: al-Sarakhsi. Kitab al-Mabsüt. Vol. XXII. p. 55.

96A. L UdovilCh. Al the Origins of the Western Commenda : Islam. Israel,Byzantium?, .. Speculum. xx:xvn (1962): 205.

•\00

recourse in such instances to the investor for the sum involved. and treats with the third

parties as required. [e)xcept in rare and exceptional circumstances." 97

Liability in qiraçf or muçfarnba • Udovitch argues. is different from Talmudic

Cisqa. In the Talmud. the principle of Cisqa is that of a 'semi-Ioan and a semi-trust'. The

investor can entrust the agent wiL"! capital or merchandise setting the ratio of liability

which each undertakes. ln this case, according to Udovitch. the Talmud provides two

possible combinations of liability and profil. First, "an equal division of profits bctween

both parties. with the investor bcaring the liability for two thirds. and the agent for one

third of the principle." Second, "an equal division of liat>ility. with IWO thirds of the

profit for the agent. and one third for the investor." 98 Suailar treatments. according to

Udoviteh, can aIso be found in ail post-TaImudic laws eonceming Cisqa. which are

based on the TaImudic panern.99 Similar in manner, according to Udovitch. is the

Byzantine Chrekoinonia (commenda in Byzantine law). whil:h is found in Nomos

Nautikos and in the Ecloga of Leo the Isaurian. After anaIyzing these two sources of

Chrekoinonia, Udovitch cornes to the conclusion that Cb~koinonia still places the

liability upon the agent in the event of losses. loo Therefore, from anaIyzing the concept

of liability in qirarj. or murj.arnba, it can bc concluded !hat this kind of contract is most

likely not 10 have been influenced by Cisqa and Chrekoinonia. rather it seems. as

Udovitch expresses it, that it originated with the pre-Islamic Arabian caravan trade. 101

Thus, from the example of the commenda (qira;J or murj.arnba ) institution

discussed above. it can be concluded that certain institutions, though derived from pre­

Islamic Arabie society, were sanctioned by the Qur'an and the traditions of the Prophel.

97Udovcitch. Pannership and Profit. p. 242.

98Udovitch, "At the Origins of the Western Commend:J." 19');

99Ibid.

lOOJbid., 202.

IOIUdovcilCh. PartI'ership and Profit. p. t72.

•101

Both provided early Muslims with a considerable wealth of values, norrns and broad

principles as weB as the specific mIes which were to guide the Muslims in their legal

speculation. AIl this served as the raw material which was used by Muslim scholars to

develop positive law (fiqh ).102

In conclusion. one must note that when the Romans appeared in the East, the

Arabs a1ready had contacts with other Semitic people, such as the Jews, and had kept

their culture even after the civitas was implemented in 212 A.D. This can be clearly

seen in the manner in which certain institutions, such as those regarding homicide,

wounding and muçliiraba, were elaborated further under Islamic law, while still retaining

the characteristics ofpre-Islamic Arab tradition. Consequently, foreign influences clearly

influenced early Islamic law but no one influence was dominant.

102An~, "The Contribuùon of the Qur'an and the Prophet," 171.

CONCLUSION

As has been discussed in previous chapters. the question of foreign influences

on early Islamic law is a result of considerable research which claims that Islamic la\\'.

through its historical development. existed only in the second century of Islam.

AIthough the question is most controversial. the scholars have no clear definition of

what constitutes borrowing and extemal influences. Therefore. the similarities bctween

certain institutions in Islamic law and other legal systems do not convincingly indicate

that there is influence or borrowing. However. in studying early Islamic law from a

historical perspective. it would seem natural to consider the possibility that foreign

elements may have influenced. or entered into this law.

But Islamic law is a product of the intellectual activity of many generations of

Muslim scholars in order for them to meet the changing social needs of their

community. The important point that should be emphasized here is that since this study

claims that there were certain influences on or borrowings by early Islamic law. one

should not ignore the historical process by which Muslim scholars modified. developed

and changed Islarnic law according to the needs of society. Therefore. it can be

concluded that although the similarities between Islarnic law and other legal systems

cannot be denied. the historical process of the development of Islamic law is totally

different from that ofother laws. and that it has its own special charactcristics.

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