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THE QUESTION OF FOREIGN INFLUENCES

ON EARL Y ISLAMIC LAW

By

lskandar Syutur

A Thesis Submitted to tl!P.

FacuIty of Graduate Studies and Rese.l1'ch
in partial fulfilment of the requirements
for the dehree of Master of Arts in Islamic Studies

Institute of Islamic Studies

McGill University
Canada. 1995

1+1

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autrement reproduits sans son
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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 tude est d'analyser la question de l"nOucnce trangre au

~e;n

de la loi Islanque des origines. Celle problmatique fut aborde selon ries perspecti\'C~
diverses. Certains spcialistes affirment que la loi Romcine fut

l'in~piralion

prdominar.te dans la formulation de la loi Islanque; la fois dans ses concepl~ lgaux
et son application. Toutefois d'autres experts maintiennent que la loi provinciale a
beaucoup plus inOuenc la loi Islanque. argumentant que la loi Romaine n'tait

pa~

rellement applique dans les anciennes provinces Grecques o la lgislation

Musulmane fut formule. Enfin. d'autres chercheurs soutiennent que des

inOuence~

Judaques ont probablement model le dveloppement de la loi Islamique initiale. Si

l'inOuence Romaine a effectivement eu lieu, ce fut uniquement travers la loi
Rabbinique. sachant que l'c"le Babylonien tait situ proche de l'cole J:lanafi.
Le problme des influences trangres au sien de la loi Islanque originale est

cependant relatif el ce, uniquement lorsque les traditions Arabes pr-Islanques sont
concernes. Il est admis que certaines institutions Musulmanes drivent de la socit
Arabe antrieur l'Islam puisque le Qur'an ainsi que les traditions du Prophte ont
fourni les premiers Musulmans d'une opulence de valeurs, normes et principes
gnraux. sans oublier les rgles spcifiques qui guideront les croyants dans leurs
spculations lgales afin de dvelopper une loi positive.

iv

TABLE OF CONTENTS

Abstract

.ii

Resume

.iii

Table of Contents

iv

Table ofTransliteration

Acknowledgments

vi

Introduction

Chapter 1 : The Problem of the Influence of Roman

and Provincial Law

A. Roman Law
B. Provincial Law

5
32

Chapter Il : The Probiem of the Influence of Jewish Law

.42

Chapter ID: The Problem of the Influence of the Pre-Islamic Arab

Tradition

71

Conclusion

102

Bibliography

103

\'

TABLE OF TRANSLITERATION

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=b.

=1.

= th.

= J.

C=l:J

=kh.

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=dh.

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= sh.

"1'

=+.

=gh.

= c;I.

.'

l / =q.

=1.

V =n.

=w.

r..>.

=y.

- long:
- ta' marb\a:

.:> =d.
= r.

L.Y' = s.

l>t" =

~.

),. = \.

r..

= '-'

=f.

=k.

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=,

J> =h.

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. r -.
~ -u
1 -a,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 of writing 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. 1 would like to thank my parents. sisters. wife and my daughter for their
patience and love during any entire stay here. Without their encouragement. 1 would 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 dem 11'denthume aufgenommen ? a number of scholars have tried to corrobomte his

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

21. Goldziher. "The Principles of Law in Islam," in the Hislorians' Hislory of the
World. 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'.1
Law. 32 (1950): Il.
3Patricia Crone. Roman. Provincial and Islamie Law
University Press. 1987). p. 1.
4Ibid..

II.

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

(Cambridge:

Cambridge

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

Furthermore. S. V. Fitzgerald argues that it is impossible for early Islarrc 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
Islarrc law, the I:Ianafi school at Kfa 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
Islarrc 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-Islarrc Arab tradition by
investigating certain institutions in Islarrc law. This is intended to show that the preIslamic 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

Review. 67 (!951): 93-98.

la

Roman Law." Law

Ouanerlv

8Paaicia Crane, "JahiU and Jewish Law: the qas.ma. Jerusalem Studies in
Arabie and Islam. 4 (1984): 153-201.
9Judith Romney Wegner, "!slamic and Talmudic Jurisprudence: The Four Roots
of !slamic Law and their Talmudic Counter Parts," The American Journal of Legal
History. XXVI (1982): 30-31.

CHAPTER 1

The Problem of the Influence of ROlran

and 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 of foreign elements. He argued tha!:
The fIrst stages of the development of Mohammedan religious law are
characterized by a far-reaching reception of the mOf.t varied elemenl~; its
substratum is to a great extent not originally Islamic. let alone Koranic. The
essential contribution that Islam made toward the formation of its sacred law was
not material but formai: a fundamental attitude that already exists in the Koran
and continues through the whole history of Islamic religious law. that pcrvades
and 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 of
ideas and institutions which went far beyond the mere contents and even the
implications of the Koran but which the Muslims regarde.! and have continued
to regard as spccifIcally Islamic. Foreign elements. which had at flTSt bee.,
adrnitted by a process of almost indiscriminate reception. were rejected in the end
because they were felt to be incompatible with this central Islamic core of
doctrine.... Over those elements of varied provenance that were retained. the
central core exerted a strong <!ttracting and assirnilating power. pcrmeating them
with what was feh to be the true Islamic spirit. until their foreign origin ...
became well-nigh unrecognizable. 1

IJoseph Schacht. "Law" in Unity and Variety in Muslim CiviHzalio.!!. cd.

Gustave E. von Grunebaum (Chicago; University of Chicago Press, 1963), p. 65.

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 detemning 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 Islarnic
law, the classical Roman law was clearly f",cd by the establiShment of the Eastern
Roman empire. But it is reasonable to use the tenn Roman law on the justifiable
assumption that the law of the Eastern Roman empire during the time of Justinian and
even after his death still retaincd classical Roman characteristics. See. Charles Phineas
Sherman. Roman Law in the Modem World, Vol. 1 (Boslon: The Boston Book Company,
1917). p. 153.
3Norman Calder.
Press. 1993). p. 198.

SlUdies

4Patricia Crane. Roman.

University Press, 1987). p. 14.

in

Early

Provincial

Muslim

and

Jurisprudence

Islamic

Law

(Oxford:

(Cambridge:

Clarendon

Cambridge

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'n were on the whole repudiated. According to C. S. Hurgronje, though the
legislative parts of the Qur'n are actually not extensive. the fICSt Muslim communities
consciously considered their life and their activities to be regulated by the Qur'n. But
later when it was realized that the Qur'n 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 perfomng $aJiit is not prescribed in the Qur'n. 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'n. 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]adth means ... an oral communication derived from Prophet." But the norms which

Sc. Snouck Hurgronje. Se1ectcd

(Leiden : E. J. Bril1. 1957). p. 48.

Wo,ks. cd. G.-H. Bousquet and J. Schacht

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

iJadth 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."

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'n and by his teaching and badith (tradition). This theory
also criticizes the authenticity of badith because the well-known traditions in the
authoritative

collections 8 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.
(London: George Allen & Unwin Lld., 1971). p. 24.
7Ibid..

0'.

C. R Barber and S. M. Stem

26.

Sne six books of 1;ladith of the Sunnite are the work of Bukhari. Muslim. Ab
Oiiwd. Tinnidhi. Ibn Maja and Nasii'i.
9Asaf A. A. Fy=. Outlines of Muhammadan
Press. 1964). p. 24.

Law (Oxford: Oxford University

they daim to originate. Schacht has also proved that traditions from the companions and
successors are earlier in point of ffie 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;Ianfa 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 ffie, 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 Muhammadan
Clarendon Press, 1950), p. 23.

Jurisprudence {Oxford: The

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 Mlik 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
1993). p. 19.

Inttoduction

10

Islamie Law

(Oxford:

Clarendon

Press.

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.

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 elsting 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
(London: Kegan Paul. '.ench & Co.. 1883). p. 406.

Law

of

ROll!~

17pl1ip K. Hitti. The Ncar F.ast in Historv (Princeton: D. Van Nosaand

Company. Inc.. 1960). p. 145. The Digesc is a collection of excerpts from juristic
writings of the most varied sorts. the authority of which was originally of quite a
different 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 many
judicial 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 facillale 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 collecon. the code, no less !han the Institutes and Digest. derives ilS
focce from the constution of Jusnian's own. H. F. Jolowicz. Roman Foundaon of
Modem 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.

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'n. 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'nic provisions in the same spirit as the Prophet did.
Coulson gives one example of how the caliphs interpreted the Qur'n 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 shares
allotted by the Qur'n when these add up to more than a unity.... While
delivering a sermon in the mosque 'Ali was interrupted by a questioner from the
congregation who asked what happened to the wife (normal share 118) when the
deceased 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:

Press, 1991), pp. 22-23.

23Ibid.. 24.
24Schacht, Introduction. p. 15; idem, "Law." p. 70.

Edinburgh

University

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~.

University of Calcutta, 1920). p. 446.

0'.

S. Khuda Bukhsh (Calcutta:

26Majid Khadduri, Islamic Jurisprudence, Shafi'is Ris31a (Baltimore: The Johns

Hopkins 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

Harvard University Press. 1950), 12.

3IEneyclop".<lia of

in

Early

Islam

(Cambridge:

Islam, 1965, s. v. "Djizya," by Claude Chacn. p. 559.

32Anwar Iqbal Qurcshi.

Culture. 1978). p. 44-45.

1927).

Tax

Fiscal

System

of Islam

(Lahore:

Institutc

of IsJamie

33J. Wellhauscn. The Arab Kingdom and ilS Fall, lrans. M. G. Weir (London:
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.3 4
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

1913).

34Sir Thomas W. Arnold. The

60-61.
3S J. Wellhausen, The

Preaching

of Islam.

second

edition

(London:

Arab Kingdom, p. 277.

36Nabia Abbet. The Kurrah Papy" from Aphrodito

(Chicago: The University of Chicago Press. 1938 ), p. 95.

in

the Oriental

institute

37Ibid, But according to Claude Cahen. the different palicy applied by caliphs
in 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. iJubs. 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-Najjr in order to build a
mosque. However. Banu aI-Najjr 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.3 9 There is also the tradition of
after the conquest. since neither the earlier institutions nor the conditions of occupation
had becn everywhere the same. Sec. Encyclopaedia of Islam. s. v. ..Djizy.... by CI.ude

C.hen. Thcrefore. unlike in Egypt. in Iraq. almost ail Eastern provinces werc
under the Sassonid empire; during the corly conqueS!. the Arnbs controlled the
and collection of taxes which followcd the tradition of Sassonicl empire.
distinction between land tax and poll-tax h.d CJ<sted. Sec. Hossein
Tabiitabii'i, Khariij in Islamic Law (England: Anchor Press Ltd.. 1983), p. 28.
discussion on the birth of khariij payer. sec, Baber Johansen. The Islamic I.w
Tax and Rent (London: Croom Helm Ltd.. 1988), p. 719.
38Encyclopacdia of Islam. 1927. s. v. "Wakf," by Heffening.
39lbid.

previously
institution
in which
Mod:un:ssi
For morc
on J ... nd

16

Malik conceming the family endowment. Ab 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. Ab 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 Ab Ysuf 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 o 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 of jizya and waqf were derived

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

4ClJbid.
4IJbid.; Qureshi. Fiscal

System. p. 158.

17

At that me. when the capital city moved to Damascus in Syria. the Umayyads
connued 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 somemes get the impression from these sources thzt both empires were
engaged in connual warfare. This assumpon. 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 relaonship 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 relaons with the Byzanne 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 Byzanne titles. and they had long
been farniliar with Constannople 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 me of the conquest and had known no relaons 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 relaons. These divisions were the most devoted supponers of the
Umayyad caliphs.42

42Hamilton A. R. Gibb. SlUdies on the Civilizaon 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 connecon played
sorne part in familiarizing caliphs wi!h Byzanne inslUlions. Though !he degree of
familiarily is 10 sorne exlent sIl debatable, !he increasing tendency of !he Umayyads to
adopl Roman Byzanne usage was a clear fact. As Gibb stales:
The remarkable care shown by !he caliphs for !he upkeep of roads. even to !he
exlent of imitating !he Roman mileslones, was certainly not inspired by Arabian
custom or tradition.... The earliest gold coinage of !he caliph ('Abd. al-Malik)
was Byzanne 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 in
deference to the religious feeling of his subjec15. ln ceremonial also, although il
continued on the whole to be governed by Arab and Islamic usage ... there was a
slow process of small adjustment to Byzantine practice; and. as is weil known,
the ex-Byzantine provinces retained their B)zantine systems of revenue
administration.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
nlitary and other affairs. He also appointed a special officer who was independent of
the governor. This officer was responsible for coIIecting taxes,
Therefore. this office was called

"$~b

es~cially

the land tax.

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, lowever. ignore the caliphs' ability. as

rulers of empire. to encourage religious integrty 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 mcl 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 collecon
of taxes procedure. parcularly in Egypt during the lirst century, sec G. F. Murphy.
"Land Tenure and Social Transformaon in Early Egypt." ln Land Tenure and Social
Transformaon in the Middle East. ed. T. Kllalidi (Beirut: Arnerican University of
Beirut. 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 the
establishment of the Umayyad dynasty. the disncon was made hetween policians and
pious people whose interest was in Islam as a body of docaine and a code of pracce.
This 1eads to Arnold's conclusion that the expansion of Islam was movated not by
religious intere,ts but rather by the Arab aibes. Therefore. he helieves that the
establishment of the Umayyad dynasty was not due to religious interests. See also for
discussion 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 people
made rnistakes in reading the Qur'iin. he ordered a1-Hajjaj b. Ysuf to look afler this
imponant affair. Another repon says that the work was done by Ab al-Aswas al-Du'ali
_"Ider the direcon of Ziyad. Yet another repon declares that it was performed by KllaIid
b. ~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 Quqq." 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 (qiilis ). The

~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 qiilis.
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

p. 43.
50Jbid.. 45.

Caliph (Cambridge: Cambridge University Press. 1986

J.

21

for the correct procedure to be followed in a case of illicit intercourse. A Syrian q/i
wrote to Hishm for advice on questions regarding inheritance and manumission. 51
But the Umayyad caliphs generally did not interfere with the liberty of opinion
of q/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 q/is could
exercise their discretion because the four schools of Muslim law by which q/is had to
abide were not established until the early Abbasid period. 53 The decisions of the q/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 qlis. 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 q/is of the Umayyad empire. according to

51Ibid.. 46.
52Muhammad Ishaq. "Historical Survey of Fiqh
Journal of the Asialie Society of Pakistan. 8 (1963) : 31.

and

Muslim

Jurisprudence,"

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 Islanc 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 are
designated Fukaha (singular FaJ-jh ). These terms. which, as we can not fail to
see. are Arabic translation of l.he Roman ( Juris ) prudenla, and prudentes.
would be a clear indication of one of the chief sources of Islante jurispruden('~.
even if we had no positive date to prove !hat this influence extended bcLh to
questions of the principle of legal dduction and to particuiii: legal provisiJns. 57
Golclziher argues that the influence of Roman legal me!hod on legal reasoning in
Islanc law is a more r:1portant factor in the history of Muslin. ci':zation than even
the direct adaptation of particular points of law. This enabled Muslim scholars to extend
legal materials given by the Qur'in and sunna

10

answer ju.-idical problems on which

these sources were silent. 58 The Islanc 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.
62Ibid..

"Principles."

297.

296-297.

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

64Idem. "Fik,h."

101-1 02.

65Joseph Sehachl, "Foreign Elements in Ancient Islamic Law," Journal of

Comparative 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.ln; :>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. Majid
Khadduri and Herbert J. Liebesny (Washington D. C.: The Middle Instute. 1955), p.
36. For a compar3ve 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'n. 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'n 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'n. 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

681bid..

14.

IWO

occasions without referring it to the Prophel. Nonetheless.

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 (the
man) rejects (the patemity of) it after She (the woman) has borne it?" ('A!')
said: "(in that case) he has to anathematize her (yulii'inahii) and the child belong
to 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 beginnings
of) Islam c1aimed children barn in beds of (other) men as theirs saying: 'they are
ours'! (That is why) the Prophet said: 'A}-walad li-I-fIIiish wa-li-l-'iihir
al-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-mriitha lahu

69Harald Motzki. "The MlJ$lllIIlaf of 'Abd al-Razzaq al-$an'lin as a Source of

Authentie 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;unan
aI-A'zamj (Beirut: Dar al-Qalam: 1973). p. 99. No. 12369.
71Schaehl, Origins, 181. Sec also Goldziher. Muslim

Studio

72Uri Rubin. .. 'Al-Walsd Jj/-Fll'sh

Islamica, LXXVIII. (1994). 5-23.

Studios. Vol. L. p. 174.

'on the Islamie campaign against '%in. '... in

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 Iriish 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-walad lil al-firiish.. He !ben states:
The material surveyed thus far leads to the conclusion that the basic function of
the Iriish maxim should be comprehended against the background of the di'wa.
This proce1ure was the product of a society beset by frequent dispute about
patemity. an:! by repeated changes of people's nasab as a result of their wish to
improve their social statuS. 74
He goes further to say that "the history of the Iriish 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 Baliidhri'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-Tabarn. A1-Mu'jam
1980-5). ciIed by Rubin. ibid. 9.
74Rubin.

"al-Walad".

al-Kabir, XXIV. no. 734, cd. al-Salafi (Baghdad:

17.

75 Ahmad b. YaI)ya b. Jiibir al-Baliidhri. 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 tls 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 of Arabic-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 tls 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~inking of 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 "tls 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 de volves
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 of Roman law occurred with the codification of Justinian.
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,

Journal

78G. M. Badr, '"Islamic Law: 115 Relation to Other Legal System," Arnerican
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 717
A.D.. and rcmaincd c10scd for ISO ycars. until 866 AD. The hstory of development of
Roman law. howevcr. stancd again. aftc.- Justinian's time. with the rcgn of Lco the
Isaurian (717-740141). down to the rc!:ll of Basil the Maccdonian (867-8R6) and bis
son. who was cal1cd Lco VI (886-912). This pcriod was markcd as le pcriod of postJustinian legislation. and was that of the Gracco-Roman Empcrors. They not only made
administrative rcforms. but also publishcd stalUtory manuals containing abridgmenlS of
Justinian's law books. AIl this Byzantine rcform in legislation was in the Grcck
language. Sec: Sherman. Roman Law. p. 158.
8lSherman. Roman Law. p. 152. Novel is scparate legislative aets. cach was still
in 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

Their

82Fitzgerald. ''The AIlegcd Debl," 92. Sec also A. S. Trillon. The Caliphs and
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 ROIIIII 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 Papyri
Warsawa: 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 reercnce 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.
921bid..

1t-14.

931bid..

15-17.

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

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 Syra 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, Syra 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-Chrisanity
JerusaJem Studies in Arabie and Islam (1980) : 61.

and

Byzanne

Iconoclasm:

36

book \Vas not intended for practicners. 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
Jusnian's time. In addition to the Syriac text there were aIso Arabic and Armenian
versions of the law book. Later, when Jusnian's legislaon became officially obligatory
upon the whole empire, his code proved to be bulky and difficult to comprehen for the
eastern provinces, 50 that in actual pracce 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 of Sasanid Iraq adopted
a combination of canon and Roman civillaw for the regulaon 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 reshaping 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 WaJ'. 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
of Wisconsin Press. 1958). p. 89.
lOOcrone. Provincial. p. 12.

101 Ibid..

36.

Empire. Vol. 1 (Wisconsin: The University

37

On the important subject of patronage as a test case for comparison Crone insists
that Wala' was a Near Eastern version of the paramon. 10" The term wal' "could
mean genuine agnate or felIow-tribesmen (ibn 'amm J. a fictitious one such as an
adopted son or adopted member of tribe (da' J. a metaphorical one such as a temporaI)'
protg (jar J. alIy (r,aIf J. helper (nii$ir J. or friend ($adq 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 l' 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 freedman
does not acquire any title to his manuminer's estate The manumitter is obliged
to pay blood-money on behalf of the freedman [on the other hand] [t]he
freedman does not qualify for membership of the manumitter's blood-money
group.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)arb J territory in
which the convert cannot be attached to a Muslim state." while "according to l:Ia'afis.
Imarnis and (implicitly) Isma'lis, it is conversion which cannot give rise to walii'. ...

I02lbid..
I03lbid.

86-88.

49.

l04lbid.. 64.
IOSlbid..
l06lbid..

91.
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 disnct from the act of conversion." 107 But the basic
requirement in this kind of wal' is that the client has no blood relaonship with the
patron. 108
According to Crone, wal' was "almost certainly" to he found in pre-Islamic
Arabian pracce, but provinciallaw contributed to its formulaon, and it was reshaped
to suit the new ideas of Islam. I09 The origin of wal' cannot he idenfied with the preIslamic 1)ilf

hecau~e

the laner bas only a superficial parallel with wal' al-muwlt.

Furthermore, "pn.-Islamic ./;la1fs were commonly known as mawl, and the conrractual
clients of carly Islamic society are never known as ./;lalifs." 1tO
Finally, Crone asserts that wal' al-Citq or kiraba (manumission conrract) has its
origins in paramon. "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 me 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 wal' claiming that this
instuon did not originate in Islam, and rejecting the idea that such an instuon 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 wali' 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's. MaIikis and ijanbals 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."

The i}ilf and wala'

114

have parallels in lslamic law. whether in the forro of

individual or collective agreements. For example. "Marthad b. Ab Marthad al-Ghanaw

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 Queson of Provincial
and 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 preIslamic J;If, whereas the remaining three Sunni schools endorsed collective wala and
J;If 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 paramon are different. (i) "[A]s a rulc. paramon involved
service; kiraoa involved payment ; (ii) kiraoa allows the freedman to leave the residence
of his master during the fulfilirnent of the COu tract ; paramon does not ; (iii) kiraoa for
the life time of the manumitter is strictly forbidden ; paramon allows it." Furthermore.
the basis of kiraba is manumission. while that of paramon 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 Arabicspeaking 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 the1 history ... 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. "I.iteraJy Analysis of Qur'an. Tafsir. and Sira," in Approaches

Islam in
Religious Studies. cd. Richard C. Martin (Arizona: The University of
Arizona Press. 1985). p. 15i.

10

2J. Koren and Y. D. Nevo. "Methodological Approachos

Islam. 68 (1991): 87.

10

Islanc Studios." Der

3ne other examples of source-critical methods are the findings of I. Goldziher

and 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 of Mecca, 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 crical-source of the Qur'iin,

J. Wansbrough who concludcs !hal the Qur'iin was compilcd or canonizcd al the end
of the second cenlury of Islam, Quranic Studics (Oxford : Oxford University Press, 1977).

5Patricia Crane. Mcccan Trade and the Risc of Islam (Princelon: Princelon
University Press. 1987), p. 203. For ilS review wcle, sec. R. B. Seljcant, "Mcccan Trade
and the Risc of Islam: Misconcepons 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: Essays
on 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 Akamiai Kiad6, 1989). p.92.

44

Mecca was not involved in international !rade. which required the purchase of
expensive commodities in order to sell them at an even higher value and reap the
immense monetary profits associated with that !rade; and second. whatever
business the Quraysh were cond;.lcting. it had perforce to be. and appears
actually to have been ... the exchange of one commodity for another [which is] in
direct contradiction to the way the luxury !rade was conducted. by either specie
orcredit. 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 instituon 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 Jfoastrians
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 rel;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 Midd1e

1976). p, 55,

East, cd. L.cnard Binder (New York: John Wiley & Sons.

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 aspiraons of Syrian Chrisan monks and Mesopotamian Jewish zealots.
aspiraons which give to carly Muslim converts their noon 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. parcularly the influence on the Qur'ln. One of them is
the work of 1. Katsh, who argues that the Qur'ln contains an abundance of Jewish
thought and ideas. This "an he seen, according to Katsh, its early authoritave
commentaries. s!lch as Zamakhshar, Bailliw and Taban, which testify to the profound
knowledge of Judaism possessed by Arabian Jews. 17 In same line, Schacht argues that
the prohibion of taking interest in the Qur'ln is no doubt inspired by Mul)arnmad's
acquaintance withJewish doctrine and pracce 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 of
Islam in ilS Christian Environment (1Andon: Frank Cass & Co. Ltd.. 1968); For foreign
influences on the Qur'an. See. Roben Roberts. The Social Laws of the Our'an (London:
Curzon Press. 1990).

18Joseph Schacht. An Introduction

1966). p. 11-13.

10

Islamic Law (Oxford: Clar:ndon Press.

-17

derived from the Jewish law. According to her. "The qasima is an Islamic institution of
unmistakable jahil appearance. Schacht identified it as 'a kind of compurgation'. and it is
certainly some kind of collective oath. i. c. some farm or other of an institution attestcd
for other tribal societies." The IslaIIc 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 MaIik 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 in
Arabie 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 Mliki
procedure is unlikcly ta be of Jahil origin. 23
In the pre-Islanc 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-lslanc 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 Mliki 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 Miilik's award of the oath ta the
aceusers and its shift ta the accused is unlikely to be of Jahil origin. but owes its
particular features ta Rabbinical law. So the institution which was modified by the
Umayyads against crime. therefore. was not a jahil 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 connection
with debts. If a plaintiff had no evidence to show for his claim. not even a single
witness. the defendant could either rebut the claim by an oath or pass the oath to
the plaintiff.... In Sunni law the oath has COlne to he shifted automatically on the
defendant's refusai to swear.... The second form of the shifted oath was the
Mishnaic oath of the suspected liar. If a person has committed perjury in the
past, he is not allowed to swear. and the oath shifts to the plaintiff instead. If the
plaintiff is also of doubtful veracity. the resuit is that neither party can swear.
Some Rabbis accordingly held that the case should he dismissed. but others
were of the opinion that j ..dgment should be given against the defendant. and
still 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 qat1 Khaybar. 29
When a Muslim was found murdered at Khaybar. the Prophet. according to
Kalbi. wrote to the Jews saying that a qatil had been found in their midst. The
Jews wrote back saying a similar incident had occured in ancient Israel and that
God 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

Sa'iida, 19061 1324.). p. 107.

al-Mabsl, Vol. XXVI (Caire: Matba'at al-

50

similarly ask God. MUQammad wrote back saying that God had shown him that
he 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 they
should pay compensation. The Jews replied: 'you have judged our case
according to the law' (nams ).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.3 3 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 Arab
Heritage. cd. Nabih Amin Faris (New Jersey: Princeton University Press. 1946); De Lacy
O'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 of Jewish 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 of dales." 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 warrors." 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

rabbiliyyn and 'a1)biir in the Qur'lin, which describe Jews who are known to
Mui)ammad.3 6 These IWO

terms. Newby believes, are intended to "designate a specifie

and identifiable community of beliefs and practices." The rabbiliyyn meant the term
'rabbinite'. while 'a1)biir. according to Tabari, were the people who posses knowledge
about something. and their position was beneath the rabbiliyyn. 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.
36Jbbaniyyn is staled in the Qur'an. ID: 79; V: 44; V: 63. while aQbir is
statcd in V: 44. V: 63; IX: 31 and IX: 34.
37Ibid.. 57; Taban. Tafsir a)-Taban: Jami'
Vol. X (Mi$r. Dar a)tha'arif. 1957). p. 341.

a)-Bayn 'an

Ta'wil

ayy

al-Quran.

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 sra of Ibn Isi.laq. The sra stales that:
The Arabs used 10 refer every serious and difficull case 10 him [zarib] for
decision and would accepl his verdict. Once il happened thal a case in dispule in
reference 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 you
have never brought me a question like this before.' So they agreed to wail, and
he passed a sleepless night tuming the matter over and looking at il from all
sides withoUl any !'CSult. Now he had a slave-girl Sukhayla who used to pasture
his flock. Il was his habit to tcase her when she went out in the morning by
saying sarcasticaily. 'You're carly this morning, Sukhayla' ; and when she
retumed al night he would say, 'You're laIe to-night, Sukhayla,' because she had
gone 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 she
asked what his trouble was. "Gel out and leave me alone, for it is none of your
business,' he retorted. However, she was so persistenl that he said 10 him.~df thal
il rnight be !hat she would provide him with sorne solution of his problem, so he
said: 'weil then, 1 was asked to adjudicate OD the inheritance of a hermaphrodile.
Am 1 10 make him a man or a woman ? By God 1 do DOl know whal 10 do and 1
can see DO way out.' She said, , Gooci God, merely follow the course of the
urinalory process.' 'Be as laIe as you plcase h~nceforth, Sukhayla; you have
solved my problem,' said he. Then in the moming l:;~. went out to the people and
gave 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 Srah 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 a

male or a female. Now if it urinates in the male part. then ail agree that it is a
male. The doubt arises. however. if it urinates in the female part.' This is
according to R. Simeon b. Judah. but Simeon b. L2kish said, 'The ruling that the
rumrum is doubtful case (as regards sex) relates only to a human bc;..g. since
his male and female parts are in the same place. But in the case of an animal, if it
urinates 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
Tlib, 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 the
defects 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

(Beirut: Dar al-Kitab al-'Arab, 1987), p. 461.

al-Darimi. Vol. fi

54
scrupulous traditionists. From the perspective of the rest of Ibn Isl)aq's
methodology, the formation of this account took place at least two generations
removed from him or he would have commented on the reliabiliry of one of the
members 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

('

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, accoding 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 of Jewish 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 of Jewish learning in Babylonia which

.)l3Newby,
44ibid..

"The Sirah." 128.

129.

46Alfred Guillaume, ''The Influence of Judaism on Islam," in The Legacv of

Israel, 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 repetion 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

Ouarterly
Review, 67 (1951): 9; Idem "Nature and Sources of the Shari'a." in Law in the Middle
East, cds. Majid Khadduri and Herben J. Liebesny (Washinglon, D. C.: The Middle East
Institule, 1955), p. 85.
4SC. G. Montefiore & H. Loewe, Rabbinie
Books. 1974), p. 696.

Anthology (New York: Sehocken

49Solomon Grayzel, A Historv of the Jews (philadelpia: The Jewish Publication

Society 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 of Jewish 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

p.

xm.

5OMontefiore and Loewe. A

Rabbinic. p. 694.

51Herben Danby. D. D. The

Mishnah (Oxford: Oxford University Press. 1933).

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-eside
each other and oftcn leaves the debated question undecided. 'This means \hal the Talmud
allows a sphere of .ction. will and the freedom of thoughl. Il does nol demand blind
obedience 10 the I.w. bUl would recognizc as valid only whal is rationally deduced
from the word of ScriplW'C. Thore are very few laws. for which a rational explanation
could nol he found. The Jewish law. as il found ilS final expression in the Talmud. bas
oflen becn represenled as an unbearable yoke. Sec. Encyclopaedia of Religion and

57

of the [school of] Tiberians ;; :3lled the

';"lu~aiem'

'cr Palesnian Talmud: neither the

date of compleon 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 became
authoritative for world Jewry. No dou;'t the foundations were Palestinian:
originality of approach, the creative reinterpretation of old sources to suit n~w
condions, belong to the Pharisaism of independent Judaea. But this movement
itselfwas nourished from sources in the Babylonian Exile, and it developed with
reference to world Jewry rather than to the people of Palestine exclusively. For
this reason the transplantation 0; Palestinian law into Babylonia met with little
initial difficulty. But even the segregated and autonorr.ous Jewish settlement of
Babylonia soon evolved social features of its own. To adapt the law to these. it
had to reinterpret the law of Palestine while retaining its method. As life became
increasingly 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 acons constuted 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 situations
arose in laler days. the Jews lUmed to the Talmud for guidance. Not finding exact
duplication 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 many
codes of law based upon il. Furthermore. the Talmud thus served as a unifving e1emcnl
among 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 of Pumbeditha 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
Drill. 197~), p. 282.

in

Inslnlction

in

Sassanian

Babvlonia (Leiden: E. J.

57J. Neusner. School. Court. Public Administration: Judaism and its Instirutions
Talmudic Babylonia (Atlanta: Scholars Press. 1987). p. 2.

S8According to N. Rejwan. the exilarch was a leader of communal life of the

Jews in Babylonia. The exilarchate instirution was a hereditary office traditionally
originating with "King Jehoiachim and hence looked upon as in some way maintaining
the continuity of Davidic rule; those who held it continued to trace their ancesay to the
House of David in the male line." This instirution was the highest official of llabylonian
Jewry. to whom the Jews looked up awe and to whose authority they :;ubmined
willingly. The function of the exilarch, however. Was 10 appoint judges and was
Imself the final Court of Appeal. He a1so saw to collection of taxes from the Jews of the
entire counay. and tumed over a certain of money to the govemmenl. Final function of
the :xilarch and his offices were to supervise their markets and guard the wall wlch
surrounded them. In short, the exilarch was the temporal leader of the Babylonian
Jewry. The spiritual leaders. however. were Goanim (emin~nce or rabbis) who were the
head of the Babylonian academies. One of relationslp between two instirutions was that
the exi1arch was duly advised whenever decisions of great moment were taken by the
Geonim. 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 of
Tabemacks in order to celebrate the third sabbath of the Annual Cycle in the
company of the leading dignitaries and distinguished scholars.... [The celebration
was1 most memorable yearly festivities furnishes a very vivid and reliable
picture for the Geonie period.... [T~.e celebration took place) in Synagogue
attended by Exilarch, who was accompanied and assisted by the two Geonims of
Sura and Pumbaditha, all taking actual pan in the service and the reading of the
la.... The names of the Exilarch and the two Geonims were especially mentioned
in an appropriate prayer for the occasion. Such prayer [had the purpose). a pan
from the spiritual side, Wl!S to renew the relations between the Exilarch and thc
academies, to settle the fmancial affairs between the {WO acadernies, to solve
politieal questions which arose between Babylonian Jewry and the govemment,
to define the administration and organization of cummunal life. and, finally. to
adven 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,
Caro 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 his
creditors, according to which he would pay them a part of what was due them.
Despite the solemn promise given to this effect by the de'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 become
effective. When it became known in Aden, South Arabia, that a merchant from
Baghdad living in India intended to absco.ld to Ceylon in order to evade the
fulflment ofhis financial commitments, a corditionalletter ofexcommunication

61 Rejwan. The Jews of Iraq. p. 97.

62Jacob Mann. The Respensa of the Baby10nian Geonim as a Source of Jewish
HislOry (New York: Arno Press. 1973). p. 135.

61

wa:; sent by the rabbinical court of Aden to one of its representatives in lndia to
he used in case the Baghdadi carried out his plan. The addressee was
admonished to use uunos, circumspcction and secrecy so that the contents of the
lener 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 tle 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

Califomia Press. 1971). p. 331.
64Rejwan, The Jews of Iraq. p. 95.
6Slbid.,

96.

Society, V. il (Berkeley: University of

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. communicaon 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. rom 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 itself with 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$. and demonstrates that qiil$ 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 this
book Baron encounters the Frankel's fimling wlch shows llat he thought. according 10
Baron. that he had discovered !nlCes of Persian influence. but he could adduce only a rew
instances. 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$$$. 74 G. H. A. Juynboll
further argues that 'uJami' and fuqahi' by popular acclaim were from the ranks of

qU$$i$. His argument is based on the assumption that the responsible scholars for the
transmission of earuest hadiths, who provided them with isnids, were calleci qU$$$. 75
In general, however, according to M. G. Morony. bath qUItii' and qU$$$ were the
religious leaders and scholars. Their authority was based on their ability to remember
and interpret the Qur'an and the pracces of MuQammad. 76 At the most praccallevel.
according to Morony, their acvies provided authoritave examples to other Muslims
of the proper way !o accomplish religious pracces such as ritual obligaons. 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
abluo!l (wuf' ). The ability of scholars to set religious usages in an authoritave way
made possible the disguise of innovaons 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

74 N. J. Coulson, "Doctrine and Practice in Islamic Law," Bulletin of the Schocl

of Oriental and African Studies. xvm (1956): 212.
75G. H. A. Juynboll. Muslim
1983), p. 74.

Tradition (Cambridge: Cambridge University Press.

76Michael G. Morony. Iraq Aher the Muslim Conquest.

University Press. 1984). p. 0133.

(Princeton:

Princeton

7:1dem.."Transition
and
Continuity
in
SeventhCentury
'Iraq"
(Ph.D.
dissertation. University of Califon.. 1972). p. 534. The Iraqi schocl was tt'ansfonned
to the schocl of J:IanoC and the schocl of Medina was tt'ansfonned to the schao1 of
Miilik. The reason of \his transition from the geographica1 to the personal designation
has becn discussed by George Makdisi. See his. Religion, Law and Leaming in Classical
Islam (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:lanfa (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-Qadth ). 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 cnsistent 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..
SIIbid.

187.

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 lslamic
and Modern Near Eastern Legal Institutions," the American Journal of Comparative Law
a Ouarterly, 20 (1972): 47. Sec aIso Danby, The
Mishnah, pp. 408-421. For more
discussion 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
Christenscn, 1964), p. 82.
880anby, The

Mishnah, p.

89B. Gcrhardsson, Memory

and

Manuscripl (Copcnhagen: Villadscn og

xvn.
and Manuscripl, p. 82.

68

Judith Romney Wegner. however. even went further than Crone. She uwntains
that:
he four ~1 aI-fiqh. 'roots of (Islamic) jurisprudence' [present~d by Shafi'i]....
qur'iin, sunna. ijma', and qiyas, ... correspond[s]. both lini;.:i,tically and
conceptually. with four basic sources of talmudic law. Qur'iin. l."e Islamic
scriptural revelation and flI'St root of the law. corresponds with miqra. the
talmudic term for the Jewish sCriptural revelation (Le. the Torah). Sunna. the
Islamic 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 juristic
consensus found in the second component of the Jewish orallaw (the Gemara).
The fourth root is qiyas, the Muslim juristic logic. This. based originally on
analogy (though it came to have a wider scope). corresponds with the talmudic
heqqS, 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 tlngs. 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''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 Roots
of Islamic Law and their Talmudic Counter Pans," The American Journal of Legal
History, 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'' 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 pragmac acceptance of a
majority based on scholarly consensus. where unanimity could not he had. represents
the Talmudic pracce of considering divergent opinions while the setng 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 (heqqS
and other forros of logic) was more conducive to consensus than the arbitrary use of
individual re'aya. so Shafi'i's promoon 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 'deducon 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 assumpon that Islam contains religious tradions of the
Near East. The example given by Crone supports this claim. She argues that qasiima in

94''-racce Berikic contains the doctrine

coupling of wrilten revelation and oral tradition
of legal rulings based on a majority view, and
source of law in the absence of written or oral

9SIbid.. 68.

of the divinity of the oral law, the

as divine sources of law. the validation
the validation of popular consensus as a
tradition.

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-Islamic
Arab 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 Shald 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 their anempt. 2

lIrfan Shahid. Rome and the Arabs (Washington. D. C.: Dumbarton Oaks. 1984),

p. 4.
:!Giorgio Levi Della Vida. "Prelslamie Arabia,"
Jersey: Princeton University Press. 1946), 40.

in The

Arab

Herit:lge (New

72

In E messa :-nd Arethuse, panicularly in the Valley of the Orontes. according te

Shald. 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 Shald. were an old Arab people known to classical
sources, since the days of Alexander the Great. Finally, according to Shald. 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 of property 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
3ShaJd. 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 Frlaq, 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 Shahd, 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

known

d.S

A'rab: but there were also better

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 Shahd, were aware of differences between them
in spite of their being one Arab people. This feeling, Shahd daims, went back to preIslarnic times and persisted weil into the Islamic period. 9
Apart from having a relationship with the Romans, Shahd 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 Shahd, 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.~ Shald, Byzantium and the Arabs in the Fifth cenlUry (Washington, D. C.:
Dumbanon Oales, 1989), p. 239: Sec a1so bis. "Pre-lslamic Arabia." in The Cambridge
History 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 Khabr. But the names of L".c:' future administrative units given to the newly
acquired territory. inc::.tding those of OSfl...~ne. and Euphratesia, did not reflect the strong
Arab presence in that region. just as

":'~ ,~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

i~'"

'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 GraecoRoman 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, Shald 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. Shald 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'wa, 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..1c 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 J an. 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

15Toshilko Izutsu, Ilhko-Religious Concepts in the Our'an (Montreal: McGilI

University Press. 1966). p. 252.
16zafar Ishaq Ansan. "The Contribuon of the Qur'an and the Prophel 10 the
Deve10pmenl of 1s1anc Fiqh," Journal of Islanc Studies. 3, 2 (July, 1992): 141.
17Joseph Schachl, An Introducon 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;Ianbal
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 appea 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 drectiy 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 accordng 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 Islamic
Familv 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 of a 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 restraning 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 Arabia 27
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$i$ (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$i$ (homicide and wounding), diyya

(blood-money), and ta'zr

241bid.. 22.
25Asaf A. A. Fyzee, OUllines of Muhammadan Law (Oxford: Oxford University

Press. 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

unifomy 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: The

InstitUle 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 of
a group regarded themselves as of one blood. Tbis appears most clearly in the
law of blood-feud, wbich in Arabia as among other early peoples affords the
means of measuring the limilS of effective kinsbip. A kindred group is a group
within wbich there is no blood-feud. If a man kills one of bis own kin he fmds
no one to take bis part. Either he is put to death by bis own people or he
becomes an outlaw and must take refuge in an alien group. On the other hand, if
the 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 any
member 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 kicb Sirac Rasl Allah. Two Muslims killed sorne men at
Badr, they were, in turn, captured at al-Raj' 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 Nldeke daims thal blood-feuds nol
only were due ta the tribal structure of society, bUl also as a resull of helieving in the
religion of the period. Numerous gads and spirits were believcd la exisl with powers la
influence a man's fale, usually adversely. so !hat il was advisable la pacify them by
means 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 la
reside in the blood or especia11y in the breath al death, the soul escaped waugh the
mouth. In the case of murder. blood and the ncod for expiation Seem la have resumcd
their imponance, for the soul of the murdered man was irnagined la flutler round the
10mb in the form of an owl, crying with thirsl and unable la find resl until vengeance
was taken. If !hal vengeance were nol pursued, sorne form of blood guill was thoughl la
fall upon the remaining lcin. Thus the idea of revenge, or !ha'r, came la take the form of
a religious obligation. conneclcd bath with respecl for the dead ancestor and with the
maintenance of the establishcd arder of society. Encvclopaedia Of Religion and Ethics, s.
v. "Arab (Ancient)," by TIl. Nldeke; See also, Homma, IsI.., ,;c Penal Law, pp. 57-58.
1

33W. Montgomery Watt, Muhammad at Medina (Oxford: Clarendon Press, 1966),

p. 262; Ibn Hish:im, Kitiib Siral Rasl All1ih, Vol. n, ed. F. Wslenfeld (Gttingen.
1859), p. 640.
34Hardly, Blood Feuds and the Pavment of Blood Monev. p. 15.

83

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~r,

Hishm 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 .. [who1 sccm 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.

84

based on a common religious allegiance and not on blood-relation~:lip as stated in article

1 and 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

Ma cunah,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 of
mutual aid between these groups, the action to be taken against those who break
the 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 the
other groups. In this document or, more correctly, series of documents there is
nothing that can be described as religious-it is a strictly practical set of agreed
procedures. 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 Jews
have their religion and the Muslims have theirs. their frecdmen and their persan exccpt
those who who behave unjustly and sinfully. for they hurt but themsclves and their
families:' A. Guillaume. The Life of Muhammad (Oxford: Oxford University Press.
1990). p. 232-233
39 Ibn Hisham. Kitab
4Owatt. Muhammad at

and

Sirat. p. 648-652.
Medina. p. 264.

41 k. B. Seljeant. "The Constitution of Medina." in Studies in Arabian Historv

-',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 Yahda Bani
'"Awf ummatun maCa I-mu'minin ...." 44 The second version of Ab tUbayd. which is

recorded on the authority of al-Zuhri. states "wa-inna Yahda Bani cAwf wa,~,: ah um wa-an lu5ah um ummat
- .... "45 Altho ug.
h R U b'ln
mawaUY
un '
mzna 1-mu "mlDm

argues, the version of Ab 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'minn seems to denote: 'an umma of
believers'. The preposition min is used here li-l-bayiin, or li-J-tabyin. i.e. to
make clear, to explain. This min precedes the dermite tenn al-mu'minin which
is designed to explain the preceding indefinite tenn umma. This means that in
article 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.

(1986):

43Uri Rubin, "The 'Constitution of Medina': Sorne notes," Studia

13.

[s1arnica, LXII

44Ibn Hisham. AJ-Sira

al-Nabawiyya. Vol II, ed. ,41_ Saqqa. al.Abyri. ShaJabj
(Beirnt. 1971) p. 149, cited by Rubin. ibid.

45Ibn al-Athir, al-Nihliya fi Gharib al-Hadith wa- al-Athar. Vol. I. ed. alZwi
(Cairo: Dar D:tyli) aI-Kutub aI-cAra.,iyya. 1963). p. 68.

aJ-TanaJ:

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 publicly
took a solemn pledge to be responsible for blood ransoms. while the redemption
of its prisoners was to be dealt with by the community of the believers. The (wo
elements are not appended to one another. as has been generally understood.
They rather express an antinomy. Whereas blood-money was to be paid
separately and intimately by each clan. ransoming the captives was to become a
joint 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 Gad
and to Muharmnad." Anic1e 42 :tates "If any dispute or controversy likely to cause
trouble 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. in
A. J. Wensinck, Muharmnad and the Jews of Medina (Freiburg im brcisgau. 1975). p.
131-132.
49Moshe Gi!, "The Constitution of Medina: A Rcconsideration:' Israel
Studics. IV (1974): SI.

Oriental

1
1

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 fellowtribesman. 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. 5 1
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 of

Oriental and Afnean Studios. xm. 4 (1951): 812. (811-828); Seo aise, Encyclopaedia of
Islam. 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 of
the Near & Middle East: Readings. Cases. & Materia1s. (Albany: SUte University of New
York Press. 1975), p. 13.

sunna. He quotes the passage of Ibn Sa'd. "... 1':.1 'Abdul-I-Muqalibi awu'alu

m~

sanna diyaca n-na.<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'aqarraha Rasulu-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'fuc 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 Edion, s. v. "Diya," by E. Tyan. According to
Tyan. in a restricted sense. H[diyya] means the compensaon which is payable in cases of
homicide. the compensaon payable in the case of other offence, against the body being
termed more parucuJarly arsh." The amount was in principle f",ed. at lcast in the area in
wruch Islam was bom. at one hundred head of camels, although there are certain
tradions wruch speak of ten camels only. A suong solidarity. as much aCve as passive,
ulted the members of the tribe in the applicaon 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 sed
upon members of the tribe other than the culprit lmself. In the apposite case, and where
the nearest blood-relave of the vicm was rumself unable 10 exact vengeance. any other
qualified fellow-tribesman could cake rus place. Sec also. Moharned S. Elwa.
Punishment in Islamic Law: A
Comparave
Study
(Indianapolis: American Trust
Publicaons. 1982). p. 71.

89

which emerg.:s in a historical event rom Tabari's Annales: "waqad kiina 'Umaru
tla[khadha] fi kulli mi?rin cala qadrihi [kh]uylan min fuili amwiili l-Muslimna
'uddalan likawnin in kiina fakiina bil-Kfati 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 Shfi'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-Na1iri mimmii aflPa lliihu cala raslih lam
yUJif 'layhi l-Muslimna bi[kh]aylin wala rikiibin fakiinal
[kh]iili?alan fakiina yunfiqu minhii nafaqara sanatih

li-Rasli-lliihi ...

wama baqiya

(or; faiala )

[j]a'alah fi l-kura'i was-siliiJ.U 'uddaran fi sabili lliihi 'azza waUJalla.... 57 ..... [tradition]

from 'Umar b. al-[Kh]anb. He said: the possessions of the Ban n-Nalr 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: faiala) ja'alah 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
1980), p. 64.
58Bravrnann,

The

al-Umm, Vol. IV (Mi~r: Taba'a M~ra Can Tabaca BiiHiq,

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 alMu'anunann. and t:le Aghin. 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 (qirc;l or muc;laraba ). According
to J. A. Wakin.
[Muc;laraba (in Maiiki and Shafi'i souree. qirc;l and muqarac;lii) means l a
commercial association whereby an investor (rabb al-mfil ) entrusts capital to an
agent (muc;liirib. 'iimil ) who trades with it and shares with the investor a predetermined proportion of the profits. Losses incurred in the venture are the
responsibility of the investor; the agent loses his time and effort. and any profit
he would have gained were it successful. Most schools of law require that the
capital 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 a
fiduccary relationship (amiina) combined with agency and becomes a
partnership 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 Social
Concepl," 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 laJ
and the caravan trade. 64
Several accounts concerning laJ 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 Dh 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
laJ from the chief tribes was l;Ishim. Furthermore. Tha'alibi mentions Hashim's two
joumeys, in winter to the 'Abahila in Yaman and to al-Yaksm in Abyssinia. In
summer. Hashim went to Syria and Byzantium. The reason f:Jr taking laf 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 QuH'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: Essavs
on 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 Abii

al-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 passage. 67
This iliif started. according to scholars such as Kister.S duc to thc effort of
Hshim b. 'Abd al-Manat" and ls 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
unl Hshim went to Syria. and was perIItted by the Emperor to pass through his
territory. It is also said that Hshim 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 tle tribal chiefs. Hshim.
who died on this joumey while at Ghana, went to Syria a10ng with the Meccan
merchants and settled them in Syrian towns. Sinlarly. 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 liif 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 liif from the tribal chiefs. He went back to Iraq and died :n Salman.
By the effort of the Ban Manat". Kister argues. the Quraysh developcd their trade and
their wealth increased.70
67 Abi 'Ali lsma'il b. Qiisim aIQiili aI-Baghdiidi. Dhayl alAmali wa al-~a.w_a9ir
(nd.). p. 201. S.G aise, AlJiiI;~ Rasa'i1 aI-Jahiz. cd. I;lasan alSandhj (Mi~r: AI
Malba'a alRaI;uLaniyya. t933). p. 70.

68See fJr example. M. Hamidullah. MusHm Conducl of State (Lahore:

Muhammad N.hraf. 196t), p. 102.
~J Al-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 tradion which was
quo:ed by aI-Suyt 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) ll 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 of Mecca in the mes 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 tradion and of al-Kalbi. Ibn al-Kalbi's own father. and of Muql.
The account of Ibn al-Kalbi is summarized by Crone:
Meccan trade used to be purely local. Non-Arab traders would bring their goods
to Mecca. and the Meccans would buy them for resale partly among theroselves
and paIt1y among their neighbours. This was how things remained until Hashim
... went to Syria. where he attracted the attenon of the Byzanne emperor by
cooking tharid. a dish unknown to the non-Arabs. Having become friendly with
the emperor. he persuaded the latter to grant the Quraysh permission to sell
ijijzi leather and clothing in Syria on the ground that this would be cheaper for
the Syrians. Next he retumed to Mecca, concluding agreements with tribes on
the way. These agreements were known as ilafs, and granted Quraysh safe
passage through the territories of the tribes in queson. In retum. Quraysh
undertook to act as commercial agents on behalf of these tribes. collecng their
goods on the way to Syria and handling over what they had fetched on the way
back. Hashim accompanied the fIrst meccan caravan to Syria. seeing to the
fulflment of the agreements and settling Quraysh in the towns and/or villages
(qutii ) of Syria.... His three brothers concluded similar treaes with the rolers
7OM. J. Kister. "Mecca and Tamim." p. 1: 117.
71Al-Suy\i. AI-Du". a1-Manthr fi a1-Tafsr bi al-Ma'thr, Vol. VI (Beirut: Dar
al-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 in
question 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 evcry
summer 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 was
too much for them. or illeft them no time 10 pay atl.:"ntion to God. 50 God lold
them 10 stay at home and worship Him. and they (Jbeyed. In order 10 makc it
possible for them 10 slay at home. God made Arabs from other p.rls of the
peninsula bring foodstuffs to Mecca, or alternatively il wa~ Elhiopians whom He
made do this. At all events, the Meccans no longer left their sancluary. or lhey
only 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 Kalb 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

University Press, 1987), p. 109.

(Princelon:Princelon

74The account of KaIbi is found in Mul)ammad b. l;Iabib alBaghdadi. AIKI\~

aI-Munammag. ed. Kh. A. Fariq (Hyderabab: Dij'iral M.'arif a1'Uthmiiniyya. 1964), pp.
262-263.

Meccan

7SMuqiitii B. Sulaimiin, Tafsir. MS Saray. Ahmet

Trade, p. 110.
76Crone, Meccan

Trade, p. 110.

m.

74m, cited by Crane in her.

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 Kalb and Muqatil concerrung the Quraysh
bcing passive recipient of goods brought by others is quite common in the exegecal
tradion. A similar statement. to when Kalbi and Muqal 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 prohibion 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 connued to be

77lbid..

112.

78The Qur'iin. IX: 28."[Andl fight against those who-despite having been
vouhsafed revelation [aforetirne]- do not [truly] believe either in Go<! or the Last Day.
and do not eonsider forbidden that wleh Gad and His Apostle have forbidden. and do
not follow the religion of truth [whieh Gad bas enjoined upon them]. till they [agree
10] pay the exemption tax with a '.i1ling band. after having been humbled [in war]."
79Crone. Mecean Trade. p. 113.
~abari. Tafs;r al-Tabari: Jiimi'
(Misr: Dar aI-ma'arif. 1958). p. 193.

81 AI-Fakhr a\-Rzi. AI-Tafsir

Balyya. 1938). p. 26.

Early

aI-Baviin 'an

Ta'wil

avv

aI-Qurin. Vol. XlV

al-Kabir. Vol. XVI (Cairo: AI-Malba'a aI-

82M. J. Kisler. "Sorne Reports eoneerning Meeea," in Studies in Jallivya and

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 Kalb'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 starte 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 Ghassnid
had already ceased to exist, the influence of Byzantium in west Arabia was still strong.
This is indicated by a sentence of al-Mu~'ab al-Zubayr 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: Akadmiai Kiad6, 198'), p. 69.
85A1-Mu~'ab al-Zubayri, Kitab Nasab Quraysh, editcd by. Lvi-Provenal
(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 Khadja. 88
Udovitch shows us another tradition in Sarakhs's Mabs[ 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 time
when people were using the commenda in their dealings and he conf1IlIled them
in this practice. He also urged them towards it in his statement. may God kee y
him 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 go
into 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'd. 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. Shrbini a1-Khau-:". Muroni
al-Muht1ij. Vol. il (Mi~r. Sharikat Maktaba wa
Ma\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-Sa'fuIa. 13241 1906). p. 18.

a1-Mabs\, Vol.

xxn

(Mi~ Ma\ba'at

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 mufiiraba.
qiraf and muqarafa. 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 qiraf and muqiirafa originated in the Arabian
peninsula, while the term mufiiraba came from Iraq. Udovitch funher argues that
"[s]ubsequentiy, the difference was perpetuated by the legal schools. the Malikis and
Shfi's adopting the term qiraf and to a lesser degree. muqarafa, and the l:Ianafi's the
term muiaraba. " 91 He says:
The term muiaraba is derived from the expression 'making a joumey' (af-iarb
fil-ari ) and it is calIed this because the agent (al-muiiirib ) is entitied to the
profit by virtue of rus effon and work and he is the investor's partner in the
profit and in the capital used on the joumey and its disposition. The people of
Medina calI this contraet muqaraia .... Trus is derived from al-qari which
signifies cutting; for in this contract the investor cuts off the disposition of tls
sum of money from lmself and transfers its disposition to the agent. It is
therefore designated by that name (muqaraia ).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

91 Udovcitch,
92lbid.

Partnership and

Profit. p. 173.

Profi~ p. 174.

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 qirdf of Malik and the mufaraba of I:lanafi there is no basic disagreement.
Udovitch takes exarnples from Sharl} al-Zurqan cala al-Muwatca' 94 and from
Shaybani. A$I. Kitiib al-MUI;faraba. 95 Based on Malik's qira!. 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 qiraf 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 mufiiraba. 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

93Ibid..

1055

involving obligations toward third parties. has

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 alFiqh J:lanafi 34). p. 71a-71b. 74a, 82a, 82b. Cilee! by UdovilCh in his
Pannership and Profil. p. 242: al-Sarakhsi. Kitab al-Mabst. Vol. XXII. p. 55.
Mi~riyya,

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 qiraf or mufarnba 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 preIslamic 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 muliiraba, 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 Contribuon 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 of other laws. and that it has its own special charactcristics.

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