But, even apart from the adoption of legal standards, Roman law exercised a notable influence upon the legal thought of the new intruders into a country whose jurists had been trained in the scientific jurisprudence of the school of Berytus. The influence exercised by the Roman legal methods on the system of legal deduction in Islam is a more important factor in the history of Moslem civilisation than even the direct adoption of particular points of law. By what systematic rules or what devices can deductions be drawn from positive laws, written or traditional, which shall apply to newly arising cases at law and to the decision of legal questions for which the positive written law provides no answer? In dealing with this juridical problem the Arab Fukha took their stand entirely upon the instruction they had gained from circles familiar with the work of Rome in the domain of law. The dualism of written law (Arabic, nazz) and unwritten law is a mere reflection of the dualism of leges scriptæ (chakhamim), and leges non scriptæ. Just so, about half a century before, the Jewish jurists (a word which in its legal application is likewise a translation of the Roman term jurisprudentes) had been moved by their intercourse with the Romans to make the hitherto unrecognised distinction between the tora she-bitche-thab, or written law, and the tora she-be’al-peh, or oral law.
The application of principles and rules borrowed from the methodology of Roman jurisprudence first made it possible to extend the limited legal material supplied by the Koran and the old decisions which were accepted as the basis of the law, to other departments of juridical activity, of which these authorities had had no prevision. The ratio legis (illa), the principle of presumption was applied to analogies (kyas) in words and things; nay, just as Roman legal practice gave great weight to the opinio prudentium in legal deduction, so the Islamite prudentes assumed the prerogative of an authoritative subjective opinio; for ra’j, as it is called in Arabic, is a literal translation of the Latin term. Of all these principles (which are not exhausted by the examples just cited) none more strikingly demonstrates the profound influence of Roman law on the development of legal opinion in Islam, than that which is known in Arabic as maclaha or istilah,—i.e., the public weal and regard for the same. The significance of this principle lies in the license it grants to the interpreter of the law to apply the legal standard in the manner best fitted to serve the public weal and interests. Here we recognise the Roman standard of the utilitas publica, which gives the interpreter of the law the right, by interpretation, an application to wrest a plain and unambiguous law into something quite different from its original meaning, in the interests of the public weal.
Such principles, derived from foreign instructors, served for the deduction of Mohammedan law, as soon as the teachers of the people felt the necessity of withdrawing the domain of law from the capricious action of the sovereign and his instruments in the administration and judicature, which had free play by reason of the meagreness of positive legal matter based upon generally recognised authority. The Islamite jurists declared that the conclusions at which they had arrived on the basis of these principles (which, as we have seen, were no part of Islam) were in harmony with the true spirit of Islam, the rightful outcome of its original character. This phenomenon, which early came to maturity and was widely accepted in Mohammedan theological circles as legal and of indubitable authority, is of profound importance to our historic estimate and judgment of Islam. Whatever the ignorant men who stood by its cradle may have thought to be the meaning of the new word which they were charged to proclaim to the oriental world, the first step which conquering Islam took on its victorious career taught it to accommodate itself to an alien spirit, and to mould its own intellectual heritage by influences which seem absolutely heterogeneous to a superficial observer.
In more than one point of its doctrinal fabric, Islam in its early days was a borrower. Its founders were anxious, it is true, to avoid the appearance of appropriating other men’s property. But loudly as they trumpet the principle, “Be different from them in all things” (Chalifuhum) the reference here being chiefly to Jews and Christians, their documents are crammed with borrowings from the Scriptures of the very confessions which, on their own assertion, it was their leading principle to oppose. The stubborn antagonism of Islam to the rest of the world, its inflexible protest against the influence of foreign elements, is an illusion which historical study of the movement must dissipate if it is to rise to a scientific comprehension of this great historic phenomenon.
Though contact with the Romæi was the influence which caused the first seeds of law in Islam to germinate, we must not overlook another side upon which Islam in its early days came into direct contact with a foreign national element, the influence of which was very important in the development of its legal system. We refer to its contact with the people and the religion of Persia. This can be traced back to pre-Islamite times, and even Mohammed himself was not absolutely free from the influence of the religious ideas of the Parsees (madjus, magians), whom he classes in the Koran with Jews and Christians, and contrasts with the heathen as confessors of more favoured religions.
But Persian nationality did not become a formative element in Islam until the latter subjugated the geographical sphere of the old Parsee religion, and by the right of conquest imposed the faith of the prophet of Mecca and Medina upon the followers of Zoroaster. The Mohammedan occupation of ’Irak is one of the most telling factors in the religious and juridical development of Islam.
Persian theologians carried their inherited views into the new religion they had adopted, the conquering power enriched the poverty of its own religious store with elements supplied by the experience of a profound religious life, such had been a native growth among the conquered Persians from of old. Hence it is hardly possible to overestimate the importance of the part played in the development of Islam by the spiritual movement which came to birth in ’Irak and is associated with the schools of Bacra and Kufa. In analysing the elements of which Islam is composed we are not surprised to find many of Persian origin, the outcome of this connection.[43]
These influences are brought into fullest play by the great revolution which befel the Moslem empire in about the hundred and twenty-eighth year of its existence—the fall of the Omayyads and the usurpation of the sceptre of the caliphs by the Abbasids. The worldly spirit which had guided the policy of the fallen dynasty—a spirit genuinely Arab, devoid of any real comprehension of the religious aims and the transcendental interests of Islam—now makes way for a theocratic bias, which drew its ideas in the main from the character of the Persian “divine monarchy.” It is the Sassanid spirit in an Islamite garb. The indifferentism of the ruling powers gives place to the encouragement of religious tendencies. The religious tolerance of earlier days is at an end. Sectarianism, pietism, harsh dogmatism, and, linked with them, the persecuting spirit—are the dominant notes of public life. Disputations concerning matters of religion impress their characteristic stamp upon the intellectual tendencies which find favour in high places. Opposing religious parties come into the field and frame their subtlest arguments.
Moreover, this was the opportune moment for working up into practical juridical systems the suggestions in the department of jurisprudence derived in earlier days from Roman law. In the second century of the Hegira, Islamite jurisprudence enters upon the classic period of its efflorescence and completion. The scene of its glory is the scholarly world of Mesopotamia, which sheds its rays upon every quarter of the Mohammedan empire. Even such advances in the sphere of law as come to light outside this birthplace of systematised jurisprudence are the fruit of the intellectual movement on the soil of the ancient empire of Persia. And even the demonstrations of antagonism to the aspirations which took shape there (for it aroused tremendous opposition) are affected by its influence.
Abu Hanifa (699-767) of Kufa, the grandson of a Persian, is recognised in Islam as the father of that jurisprudence which, by the employment of the free speculative method already described, found ways and means to make provision for the whole vast sphere of legal activity (which includes both law and religious ceremonial) out of the scanty stock of positive legal documents. This completion of the legal system of Islam was arrived at by laborious development along the lines of its main principles, by modification of the method evolved in some particular school, by open contravention of the fundamental ideas of some particular tendency, and, lastly, by deliberate compromise between antagonistic lines of thought. It was reached with a rapidity which is characteristic of all the intellectual creations of Islam. It is a singular feature of the whole literature of Islam that everything reaches its prime with amazing rapidity, only to decline as rapidly. In the fourth century of the Hegira every branch of Arabic literature had come to full maturity, to flourish for a brief while, and enter upon its period of decadence about the beginning of the sixth.