International Weekly Miscellany of Literature, Art and Science - Volume 1, No. 9, August 26, 1850

by Various

Among the most valuable, if not indeed the most valuable of the compilations from which we may obtain a knowledge of Mahometan jurisprudence, is the "Futawa Alumgeeree," mentioned in Mr. Baillie's title-page. Its value is not confined to the purposes of those who would make themselves acquainted with Mahometan jurisprudence in the peculiar form it assumed in India. It is highly esteemed throughout Islam, and is quoted even by the doctors of Mecca as the Futawa-i-hind, or the Indian responsa prudentum. It was compiled by the orders of the Emperor Aurungzebe. It is a digest of the "Futawa" of the most celebrated jurists of the Hanifeh (or, as Mr. Baillie spells it, Hunefeeah) sect or school. Mr. Baillie informs us in his preface, that "futawa is the plural form of futwa, a term in common use in Mahometan countries to signify an exposition of law by a public officer called the mooftee, or a case submitted to him by the kazee or judge." The "futwa," therefore, seems to correspond not so much with our English "decisions" or "precedents" as with the "responsa prudentum," that fertile source of doctrines in the Roman law. The "Futawa Alumgeeree" consequently resembles the Pandects of Justinian in being a systematical arrangement of selections from juridical authorities—compiled by Imperial authority; but differs from it in this, that the selections are made exclusively from the "responsa prudentum," and a few legal treatises, whereas Justinian's digest combined with those excerpts from judicial decisions, prætorian edicts, &c. With this distinction, we may regard the "Futawa Alumgeeree" as the Pandects or Digest of Mahometan Law. As in the Roman work of that name, to each extract is appended the name of the original work from which it is taken; and the whole of them are so arranged as to form a complete digest of Mahometan law.

A work of this kind is invaluable to the student who would make himself master of Mahometan jurisprudence as a system. But great care must be taken not to misapprehend the exact nature of the knowledge to be obtained from it. The "Futawa Alumgeeree" is a systematic exposition of the principles of Mahometan law; it assuredly does not enable us to ascertain what doctrines of that law are now of legal force in India, or even what doctrines have at any time had force in India. It does not appear to have been Aurungzebe's intention to promulgate it as a code, but to present it to lawyers as a complete text-book. Even if he did by ordinance attribute to it the power of law, such ordinance was only effectual at any time in the provinces of the Mogul Empire; and since the disruption of that empire, it has been superseded and modified by laws and the practice of law-courts in the various independent states erected on its ruins.

Again the general scholar must be on his guard against the delusion that he will find in this digest materials illustrative of the social condition of India under the Mogul dynasty. The juridical works excerpted in it are almost all foreign to Hindostan; the special cases illustrative of abstract doctrines are taken from other countries, and many of them from ages antecedent to the invasion of India by the Moguls.

Though Persian was the court language of the Mogul dynasty, there is scarcely any Persian element in Aurungzebe's legal compilation. The Shiite views of jurisprudence, as of theology, prevailed in Persia; the "Futawa Alumgeeree" is strictly Sunnite. It is not difficult to account for this.—The Mahometan conquerors of India were mainly of Turkish or Tartar race; they came from Turan, a region which from time immemorial has stood in antagonistic relations to Iran or Persia. This may account for the fact that the races of Turan which have embraced Mahometanism have uniformly adhered to the Sunnite sect—the sect most hostile to the Persian Shias—not only when they settled in the countries where the Sunnite sect originated, but when they remained in their native regions. The views of the Sunnites were first promulgated and have prevailed most extensively in those regions of Islam which were once part of the Roman empire, which nominally at least was Christian; those of the Shiites, in the countries where, under the Sassanides and Arsacidæ, the doctrines of Zoroaster predominated. The Euphrates forms pretty nearly the line of demarkation between them.

The Caliphs dominated over both countries and over both sects. Under their orthodox protection the Sunnite doctrines were able to strike root in Balkh and Samarkand—the ancient Turan, and therefore hostile to Iran and Persia. When Islam was reorganized after the anarchy which ensued upon the overthrow of the Caliphs, Persia became the appanage of the Sophis or Shiite dynasty; the regions to the West of the Euphrates—the ci-devant Roman Empire—acknowledged the rule of the Turkish dynasties, which were Sunnite. On the Oxus and further East—the old Turan—the Sunnite sect was sufficiently strong to defy the efforts of the Shiite sovereigns of Persia to eradicate it. The doctors of Samarkand and Bokhara continued (and continue) as orthodox Sunnites as those of Kufah, Mecca, and Stamboul.

Accordingly, we find the authorities excerpted in the "Futawa Alumgeeree" consist almost exclusively of two classes; they are either the immediate disciples of Hanifa at Kufah and Bagdad, or the jurists of Samarkand and Bokhara. The law-cases they expounded are such as had originated, or might have originated, in those countries—in Babylonia or Turan. And they are for the most part taken from a state of society, and illustrative of social relations, which prevailed in these countries at a period long antecedent to that of Aurunzebe. To attempt to illustrate the civil and social condition of India, under that Emperor by their aid, would be as preposterous as to attempt to illustrate the civil and social condition of those parts of Germany where the Roman law still possesses authority from cases recorded in the Pandects of Justinian.

The real use and value of the "Futawa Alumgeeree" may be briefly explained. In every country in Europe where the Roman law is still recognized as more or less authoritative—and indeed in every country where the common law has borrowed more or less from the Roman—an acquaintance with the system of Roman jurisprudence as it is embodied in the law-books of Justinian has its value for the scientific lawyer. In like manner a knowledge of Mahometan jurisprudence as embodied in the "Futawa Alumgeeree" cannot fail to be instructive for the lawyers of all the countries of Islam, and the lawyers of India, where so much of the existing practical law has been derived from that source. To the general scholar who wishes to master the civil history of Arabia and Babylonia, in which the Sunnite sect, and more particularly the Hanifite subdivision of it, originated, or to familiarize himself with the moral theories which regulate the judgments and actions of the modern Turks, Turcomans, Arabians, and Egyptians, the digest of Aurungzeebee is also a valuable repertory of facts and illustrations.

For this reason we incline to be of opinion that Mr. Baillie is mistaken in thinking that a selection from the two books of the "Futawa Alumgeeree," which embrace the subject of "sale" can have much utility for Indian practitioners. It does not follow, because a legal doctrine is declared sound in this work, that it is or ever has been practically applicable in India. As an authoritative declaration of legal doctrines, the book is as likely to mislead as to guide aright. On the other hand, as an exposition of the general principles of Mahometan law, even with regard to sale, it is necessarily imperfect. The work from which it is taken is a collection of legal opinions, which had in their day the force of judicial decisions—of something equivalent to the "responsa prudentum" of Roman jurisprudence. Each is expounded on its own merits; and all the special doctrines involved in it are laid down. Hence it comes, that much that is calculated to throw light on the principles of the law of sale must be sought under other heads; and that much included in the chapters ostensibly treating of sale refers to other topics. As part of an entire digest of the law compiled on the same principle as that of Justinian, the two books relating to sale are sufficient; but for an isolated treatise on "sale," they contain at once too much and too little.

Nevertheless, we welcome Mr. Baillie's publication as a valuable addition to juridical and even to general literature. The translation, though not by any means free from defects, is the best specimen of a really good Mahometan law-book that has yet been published. The defects to which we allude are twofold. In the first place, though Mr. Baillie mentions that in the original the name of the treatise from which it is taken is appended to every excerpt, he has not in his translation given those references. His work is not therefore what the original is, a Chrestomathia of the best Arabian jurists—a succedaneum for their complete works—an illustration of Arabic legal literature. Again, he is often loose and vacillating in the use of the English words he has selected as corresponding to the technical phraseology of the Arabian jurists, and sometimes infelicitous in the selection of his English terms. It has occurred to us that he would have succeeded better in rendering the exact meaning of his originals, had he availed himself more of technical phrases of the Roman law which are familiar to all European jurists. Is does not occur to us that he would by doing so have been in danger of Romanizing the Mahometan to an extent that might mislead. Mill, in his History of British India, has noticed how closely the classification of the Mahometan approaches to that of the Roman jurists. An attentive perusal of Mr. Baillie's volume has convinced us that the analogy in the substance is quite as strong as in the arrangements. This fact seems susceptible of being accounted for on historical grounds. Mahometanism is in fact a sect or heresy of Christianity. The views and sentiments, the aggregate of which make up the body of Christian opinion, are not all of Jewish or Christian origin. They are the moral creed of societies whose opinions and civilization have been derived in part from other sources. The philosophy of Greece and the law of Rome have contributed in nearly equal proportions to the theosophy of the Hebrews. The jurisprudence of all Christian nations is mainly referable to Rome for its origin, and the same is the case with at least the Sunnite Mahometans. The nations of Islam took only their religious creed from their Prophet; the jurists of Kufah retained and expounded the civil law which prevailed among them before his time. That law was the law of the Greek Empire, developed in the same way as that of the Western Empire under the judicial and legislative auspices of Roman Prætors and Pro-Consuls, aided by Roman jurists. Theophilus, one of the jurists employed by Justinian for his compilations, lectured in Greek on the Institutions; and the substance of his lectures still survives under the name of the Paraphrase of Theophilus. The Greek edicts and novels of Justinian's successors are mainly Roman law. Throughout the Byzantine Empire (within which Kufah and the region where Bagdad now stands were included) Roman law was paramount, and Roman jurists were numerous. The arrangement, the subdivisions, and the substance of Mahometan jurisprudence, show that it has been principally derived from this source. Some of its doctrines are doubtless aboriginal engrafted on the law of the Empire; and it has been modified in some respects to reconcile it to the religious dictates of Islam, just as the law of Pagan Rome was modified after Christianity became the religion of the Empire. But still Mahometan jurisprudence retains undeniably the lineaments of its parentage.

This consideration places in a strong light the importance of the study of Mahometan law. The increasing intimacy of our relations with independent Mahometan states makes it of the utmost consequence that we should entertain correct views of their opinions and institutions; and no better key to the knowledge of both can be found than in the historical study of their law. Again, we are called upon to legislate and supply judges for British India, a large proportion of the inhabitants of which are Mahometans. Even the Hindoos of the former Mogul Empire have adopted many legal forms and doctrines from their conquerors. A minute and accurate acquaintance with Mahometan jurisprudence is an indispensable preliminary to judicious legislation for British India. For these reasons, it could be wished that Mr. Baillie, or some other equally accomplished laborer in that field, would set himself to do for the "Futawa Alumgeeree" what Heineccius and other modern civilians have done for the law-books of Justinian—present the European public with an elegant and exact abstract of its contents.