by S. Muzaffar Hussain
From Vol XXII, No. 1 Hamdard Islamicus © 1997
The Islamic Shari'ah differs fundamentally from Western Law in at least in three respects. First it is based on Revelation, whereas Roman Law is the Lawyers' Law. Second, being of Divine origin, it is virtually immutable, and finally it is wider in scope than the Roman Law, for it includes even international relationships of which the Arabs were the pioneers.Despite the invasion of Western Law in the East since the 18th century, the Muslim world has not only realized the ultimate validity of Islamic Shari'ah, but has drawn to restore it in the 20th century.
It is a matter of record that Napoleon during his retreat from Egypt in 1799 took with him the Arab legal manuals and laws concerning contract, sale, gifts, mortgages etc., and made the Islamic legal slot the basis of his celebrated "Code Napoleon." Arab jurists maintained that Napoleon's code has since its first publication in 1804, deeply influenced illegal complexion of not only for its, but of many European countries as well.
It is interesting to recall that during the 19th century, when Europe prevailed upon the Ottoman Empire to Western eyes its Law, several of its penal and commercial codes were brought in line with the Western legal manuals. Thus the Turkish Code of Commercial Procedures (1861) and the Code of Maritime Commerce (1963) had to be borrowed from the French Laws in course of Tanzimat Reforms.
Law of Obligations
The basis Law of obligation was codified by the Turks between 1869 in 1876 in the compilation known as "Majalla". About this Professor N.J. Coulson, the noted Jurist, writes in Short History of Islamic Laws (P. 151): "The substance of this code (Turkish) owed nothing to European sources but was derived entirely from the Hanafi Law, but the secular courts could not be expected to ascertain that law from its traditional form of expression in the authoritative manuals."
Egypt from 1875 onward had gone even further than the Ottomans in adopting the French laws in promulgating their penal, commercial, and maritime codes, and in setting up a secular legal system. The civil code adopted by Egypt in 1949 is said to be a compromise between the traditional Islamic and modern Western systems. Its chief designer Abder Razzaq as Sanhuri claims that its chief provisions are and an outcome of the prevailing Egyptian Law, elements drawn from contemporary legal codes, and the principles of Shari'ah.
What Egypt is said to have imported from the West, was actually borrowed from Egypt by Napoleon who proudly claimed for his code, "My real glory is not the 40 battles I won, for Waterloo's defeat will destroy them. What will live forever is my civil code." In any case, Article I of the Egyptian code clearly provides that "in matters not specifically regulated by the code, the court should follow customary Law, the principles of Islamic Law or the principles of Natural justice."
Application of Shari'ah
This obviously opens the door for wider application of Shari'ah. Hence it may not be fanciful to say that here there is an embryonic beginning of the process of Islamisation of Law. As the Egypt, the Sudanese Penal Code was revised in 1959, and the original British Code of 1899 has traditional Islamic bias. The Mohammadan Law courts are confident to entertain in the case of the Muslim litigants any question of marriage, divorce, guardianship of minors, to waqf, family relationships, gift, succession, wheels, etc. The new Penal Code of Sudan retains the Islamic spirit of Law.
In Nigeria, where Islam was introduced as early as the 13th century, the respect for the Shari'ah is immense, and Islam has profoundly influenced the social and religious outlook of people. Even during British rule, when sultans (emirs) were installed with two ceremonial, the British promised that in matters of Law, and legal relationships their religion will not be interfered with. Hence in northern Nigeria, traditional Maliki Law continued to be applied by the courts of Emirs in all civil and commercial matters except land tenure were customary law prevails. The Shari'ah Law was consolidated, with the proviso that courts were not to impose sentences contrary to natural justice, and humanity.
In Saudi Arabia and in fact throughout the Arabian Peninsula, the Puritan version of the Shari'ah law prevails. The Hanbali jurisprudence is of course much more rigid and Puritan than the Hanafi, Maliki or Shafi'i schools, because law is integrated with morality. Nevertheless, Ibn-Taymiyyah, a Hanbali scholar had advocated the right of Ijtihad which opens up possibilities for the future.
In Iran, where Ith'ana-Ashri beliefs govern the overwhelming number of people, the doctrine of Imamate dominates their jurisprudence. Here the authority of the Imam supersedes the agreed practices. The infallibility of the Imam being the guiding principle, the concept of the rule of law (Zann) and the equally authoritative variant (Ikhlaf) are not important. Despite certain differences with the Sunni Law the two sects largely agree on fundamental points.
In similar terms, the Hanafi Law has been predominant in the Ottoman Empire, the Indo-Pakistan subcontinent, 1 Central Asia, and even in certain parts of the Middle East, just as the Maliki Law has been prevalent in North, West and Central Africa, the Shafi'i Law in Egypt and other parts of the Middle East, and the Hanbali fiqh having been adopted by the Wahhabi movement. However the state before schools of Islamic fiqh might appear to be, as regards legal doctrine and legal practices, or rituals, they remain fused and blended together by Islamic legal philosophy as inseparable manifestations on the same single essence.
The sectarian differences among Muslims pale into insignificance when we compare them to different sects of other religions. In Christianity, for example, the Roman Catholic Bible has six additional chapters than the Protestant Bible. The Protestants are of infinite variety: Lutherans, Calvanists, Methodists, Baptists, and the Unitarians to mention only a few, with Quakers (Friends) never going to any church. These differences have even led to massacres, persecutions and religious wars in 17th century Europe.
However, what is of some interest is that rash and wholly baseless statements have been made by certain Western scholars of Law that "Mohammadan Law is but the Roman Law of Justinian in Arab dress" or that the "Arabs added nothing to Roman Law but a few mistakes." To Arabists, viz. Von Krammer and Goldziher are among those who have made such claims. The mighty river of Roman Law had doubtless inundated the valleys of Europe - but it certainly did not irrigate the desert of Arabia. Prof. Fitzgerald sends on the contrary "there is no evidence of such borrowing, and indeed the whole idea is absurd."
In brief, the Islamic Shari'ah
fundamentally from Western Law at least in three respects. It is based
on Revelation whereas Roman Law is the Lawyers' Law. Secondly, being of
a divine origin, it is virtually immutable, and finally it is wider in
scope than the Roman Law, for it includes, besides public and private laws,
even international relationships of which the Arabs were the pioneers.
The Roman Law was codified in digest forms like the 12 Tables, but the
Islamic Shari'ah, being ideal and valid for all ages, cannot properly
be codified with such dynamic elements as Ijtihad (fresh thinking),
(consensus) etc. Whereas the Romans had secularised their Law, the Islamic
is constantly tempered by the elements of Ihsan (liberality, magnanimity)