Kilis 7 Aralık Üniversitesi İlahiyat Fakültesi Dergisi

Öz

The theory claiming that Islamic law was affected by Roman law, was first put forward in the mid-19th century by the Orientalists, but some of the orientalists and western lawyers opposed the thesis. One of them was the Italian orientalist Prof. C.A. Nallino who made a presantation titled “Is Roman Law Affected by Islamic Law?”, at the International Conference on Romanian Law in 1933. According to him, even if The formation of Islamic law from nothing in a short time raises some doubts,actually this success comes from the scholars’ great effort and this region’s having a supportive and encouraging approach on science. On the other hand, when Muslims captured Roman territory, Roman law did not have any educational institutions, and the Roman people were unaware of it so, the Muslims couldn’t know the law. This is one of most important the evidences, refuting the claim of Islamic law is affected by Roman’s. In Nalino's view, there were three aspects that are ignored by people trying to prove that Islamic law is derived from Roman law: a) Some of the similarities between Islamic law and Roman law are limited only to some schools of Islamic jurisprudence. b) Despite some similarities, there are many basic differences between them, but the authors of the thesis ignored them. However, it is essential that both are taken into consideration and their pedigree revealed in order to make a sound decision. c) There is a significant differences of opinion between the classical European world and the Islamic world, on law and its sources. The differences on perspectives explains the disaproval of ideas and institutions, deeply rooted in the Hellenistic world, into Islamic law. In Nalino's point of view, those who claim the dependence of Islamic law on Roman law or a profound Roman influence on it, must prove that one way or another. However, all of their justifications are hypotheses that have been proven otherwise. For example, they assume that Roman law books were translated into Arabic. Whereas, events completely refute this. Again, they assume tha the Beirut and Alexandria law schools traditions are continuing. But institutions of legal education there were closed in the centuries before the Arab conquests. The other orientalist who opposed the thesis that Islamic law was influenced by Roman law is the French orientalist C.H.Bousquet. ). in his article, “Le Mystere de la formation et des origines du Fiqh” (The issue of the formation and sources of Fiqh is an unsolved mystery), published in 1947, he tried to solve the mystery of the birth of Islamic law in a short time and its rapid development. He stated that Islamic law had developed roughly in the first centuries, and he expressed admiration for the "detailed resolutions of issues" in early fiqh books. Bousquet proved that Islamic law was not influenced from outside, and the legal disputes, between Sunnis, Shiites, and Kharijites, who seem to be very different from each other and even fight with each other, are limited. Bousquet also rejected the hypothesis that Islamic law was influenced by Roman law. Because, in his opinion, the two laws differ greatly from each other in substance and spirit. So,there is no similarity on the matters bases of jurisprudence, such as marriage, divorce, slavery, jihad and inheritance. The fact that Roman law is secular and Islamic law is purely religious indicates that they are completely different in spirit. In Bousquet's view, the examples given of similarities between the two laws are very limited, and even if these similarities are ten times greater, it is not sufficient to prove that Islamic law was influenced by or borrowed from the other. Because the source of the similarity may be any thing,, eg coincidence. Because the number of solutions chosen by the human mind is limited and the two laws may have commen points on some issues by chance. Bousquet thought that, the Talmud law was the most likely to be influential on shaping Islamic law, and worked hard to prove it. However, in the end, he admitted that he was disappointed and failed, despite his desire to establish a close relationship between them. Finally, Bousquet mentioned the following: Islamic law, in its essence and nature, is the work of Muslims, and it is almost an independent invention of Islam. Islamic law and its genius owe nothing to Roman law.