Relation between Islamic and Western Law

 Relation between Islamic and Western Law

Dr. Sobhi Mahmassani

The major contemporary judicial systems can be divided in three categories: the Latin system based on Roman law; the Anglo-American system and the Muslim system. Despite the independence of each of these systems, there exist between them certain relations and traces of reciprocal influences.

The problem we are concerned with now is the relation between the Muslim system, on the one hand, and the other two Western systems on the other hand. This problem involves three questions: (1) the influence of Muslim law on Western law, (2) the influence of Roman law on Muslim law; and (3) the influence of Western law on recent legislation in Muslim countries.

We will touch briefly on each of these questions.

1. Influence of Muslim Law on Western Law

This question has been neglected on the whole by Western jurists and historians who, on the contrary, are more preoccupied by the second question, the influence of Roman law on Muslim law, which we will take up later.

The influence of the Orient in general and of Muslim law in particular on Western law is particularly apparent in the following fields:

(a) Even before Islam, the Arabs inhabited a large part of the Mediterranean countries. These countries were governed by a sort of universal law, based on the commercial customs generally applied among the merchants of the Mediterranean. When the Romans extended their domination over most of these countries, they found these customs and this universal law and came under their influence. The Roman jurists called this law jus gentium or law of the nations or natural law in opposition to their national law, purely Roman, known as jus civile or civil law.

The influence of the law of nations was very great and this law became a part of the Roman judicial system. Beirut, today the capital of the Lebanese Republic, was a centre of a Roman faculty of law. Several eminent Roman jurists, such as Papinian, Ulpian and Dorothee, had considerable influence on the development and compilation of Roman law.

The influence of the law of nations on Roman law is apparent in the discharge of contracts. The praetors, Roman magistrates, found in the law of nations the source of several reforms of equity.

Thus, one sees, even before Islam, the influence of the East, Arab and non-Arab, on Western law.

(b) After Islam and the Arab conquests, the West found itself once again in contact with the East. Muslim merchants were in contact with the West, particularly through Andalusia when it was an Arab province, and through Italy. The Crusades, too, accentuated the influence of the Muslims on Western law.

Along with the merchandise and industries which the West borrowed from the Arabs, and of which the influence can be seen in the words of Arab origin one finds in Western languages, there was parallel influence of the Muslim judicial system on Western law, particularly in the commercial field.

I shall mention only a few examples of this influence:

(1) The word aval which means in French commercial law the guarantee given by a third party in endorsing a bill of exchange, this word comes from the Arab word hawale which means the transfer of debt. This transfer was always allowed in Muslim law, in contrast to Roman law. It was introduced into the commercial customs of Europe through the medium of Arab merchants who also left their linguistic imprint in commerce.

(2) Another example is the word avaries, which means, in Western maritime law, the damages suffered by a ship or its cargo. This word comes from the Arab word iwar, which is used in the same sense in Arabic. This, too, shows the influence of Muslim commerce on Western commerce and laws.

(3) The system of Waqfs or endowments known in Muslim law and which is not found in Roman law was brought to the West during the Crusades. One can find traces of the influence in the system of trusts recognized in Anglo—American law.

(4) Several judicial adages which are not of Roman origin and which one finds in the West since the Middle Ages are similar to Arab juridical adages. The influence of Muslim law is undeniable.

2. The Influence of Roman Law on Muslim Law

It is an historical fact that Roman law is older than Muslim law. The question of the influence of Roman law on Muslim law is one of the questions that has been most hotly debated. On the one hand, the majority of Orientalists affirm this influence in a general way while the Muslim jurists answer in the negative or do not admit this influence except in a very limited form.

Time does not permit us to discuss this question in detail. We will simply examine the value of some of the arguments on which the writers who maintain the affirmative thesis rely.

The most important of these arguments is the affinity which exists between Roman law and Muslim law, notably in the following points:

(a) The rule that the burden of proof devolves on the plaintiff. This rule is based, according to Muslim jurists, on a tradition of the Prophet (ﷺ) who sanctified an old Arab custom. Nothing, therefore, proves beyond question the alleged influence.

(b) The age of majority. This argument is to be rejected also since this age which is fixed at 15 years in most Muslim schools is in Roman law 12 years for a girl and 14 for a boy.

(c) The rules concerning the relation between a contract of sale and exchange. This argument does not hold either. In Roman law, the sale (emptiovenditio) is a contract by consent of both parties alone. But exchange (permutatio) is for one of the contracts which require to be valid for the furnishing of the article by one of the parties. In Muslim law, on the contrary, exchange is a special form of sale and both are contracts by the consent of both parties.

These are some examples which have been used to show the influence of Roman law on Muslim law. One can easily see that these arguments are concerned with points of detail, and, in any case, are not pertinent. The differences between Roman law and Muslim law are much more important. These differences bear on the form of contracts, inheritance, dowry, adoption, endowments, etc.

In addition, similarity by itself dose not necessarily prove influence. All legal systems have many points in common, especially in the fundamental principles which are at the base of universal justice. The fundamental principles of law are everywhere the same. Furthermore, the same judicial problems generally bring about the same rules.

When the Arabs came into contact with the inhabitants of the conquered countries after Islam, they found local customs which were not incompatible with Muslim principles. They tolerated the customs which did not go counter to the Muslim judicial system. These customs were not purely Roman but were rather those of the law of nations which the Romans themselves had incorporated in their civil law. Other customs were found in countries which had never come under Roman domination. For example, the bai‘ bil wafa, mortgage in the form of sale with power of repurchase, was taken by some jurists from among the customs of the countries of Bukhara and Balkh.

3. Influence of Western Law on Recent Legislation in Muslim Countries.

It is undeniable that recent legislation in Muslim countries has been influenced by the West. I shall mention only legislation in the Arab countries of the Middle East as an example.

These countries were for four centuries under the domination of the Ottoman Empire. At first Muslim law prevailed but during the last century the Ottoman Empire started to promulgate new codes following the example of Europe. Some of these codes were pure Muslim law, such as the code called Majalla or family code. But most of these Ottoman code: were copies of European codes, notably the French code, such as, for example, the commercial code, the penal code, the maritime code.

After the first World War and the downfall of the Ottoman Empire, Turkey replaced the Ottoman codes by new codes drawn from the West of which the most important are the civil code, the German commercial code, the Italian penal code, etc.

As for the Arab countries freed from the Ottoman Empire, they adopted new codes which were, for most part, based on Western law. It is only in the field of personal status that Muslim law is still applied.

Time does not permit us to cite all the new codes in the Arab countries. I shall mention only those promulgated in the Lebanese Republic. The most important of these codes are : (1) the real estate code promulgated in 1930 ; (2) the code of obligations and contracts, promulgated in 1932 and put in to practice in 1934 ; (3) code of civil procedure, promulgated in 1933 and put into practice in 1934; (4) the commercial code of 1943; (5) the penal code, promulgated in 1943 and put into effect in 1944; (6) the military code of 1946; (7) the labour code of1946; (8) the maritime commerce code of 1947; (9) the penal code of 1948; (10) the aviation code of 1949.

Prior to 1944, the Lebanese codes were prepared by the French Mandatory authorities. But, after the independence, the new codes were generally worked out by Lebanese jurists. But all Lebanese code have been influenced by Western law, especially by the French codes.

In conclusion, we see that the influence between the West and the East in judicial matters has been reciprocal. This is a further proof that relations between peoples, as between individuals, result in bringing them closer together and help achieve the cooperation which has become a necessity today.