N. 8 – 2009 – Contributi


On question of influence of Roman law on Islamic law*


Aibek S. Ahmedov

Brunel University



Table of content: 1. Introduction. – 2. Gaps in origins of Islamic jurisprudence. – 3. The issue of structural parallels. 4. Parallels in contract law. 5. Conclusion.



1. – Introduction


The question whether Roman law had any influence on Islamic law has been discussed by a number of scholars for a period of three centuries. It has been speculative question from the beginning and scholars were well aware of that fact.

The proponents of Roman influence can be divided into two groups: (I) direct influence; and (II) indirect influence.

The proponents of direct influence have been advocating the view that Roman law had been directly imported and installed into main body of Islamic law[1]. They went as far as to state that Muslim jurists directly copied Roman legal books. Moreover, they argued that Islamic law could not have any other source than Roman law as a benchmark for development of nucleus for Islamic law.

The proponents of indirect influence have advocated that Roman law had influence on Islamic law only through provincial systems of law[2]. It was assumed that it could be Jewish law, Syriac law or generally provincial law that served as a vehicle for transportation of Roman legal doctrines into Islamic law. Moreover, it has been suggested that Muslim conquerors adopted these doctrines during conquest and some of them has penetrated through non-Arab converts, which resided in areas conquered by Muslims.

These camps never thought that Roman legal concepts could penetrate into Islamic law both directly and indirectly through various ways. Neither it was opponents of Roman influence, who denied possibility of any influence of Roman law on Islamic; they would never imagine that Islamic law could be modified version of any legal system, including Roman law.

In this article, I argue that Roman law had influence both directly and indirectly, because both channels of transmission cannot be mutually excluded. Particularly, I will focus on juxtaposition of theories on direct and indirect influence and will demonstrate that both possibilities should not be neglected because penetration of Roman law was not either organized or uniform. Roman legal concepts penetrated sporadically and on different levels therefore close examination reveals that some concepts were Roman and other were non-Roman, mostly local or provincial and based on customs.



2. – Gaps in origins of Islamic jurisprudence


One of the most debated issues in contemporary Islamic studies is a question of dating the origins of Islamic law and jurisprudence. It has become the issue due to scarcity and unreliability of sources on early period of Islamic state. The early sources, reliability of which are not debated that much, are Qur’an, Constitution of Medina and poetry. Apart from these sources, other sources such as Traditions of Prophet and Companions were mostly rendered spurious.

Goldziher was first to render traditions unreliable; not all his findings on hadith can be viewed tenable[3]. Close analysis of early hadith collections and even classic ones reveal that certain hadiths could not be forged simply because it was impossible to make up storylines about Prophet, where he dealt with his Companions under certain circumstances and there is corresponding verse of Qur’an that rejects possibility of forgery.

Criticisms of Goldziher’s methods by Sezgin are inappropriate because they are focused not at subject-matter of hadiths, but mainly methodology, by which, hadiths passed tests of reliability[4]. Same mistake has been committed by Hallaq, not towards Goldziher but Western critics of hadiths in general[5].

The theory of Roman influence has not been exaggerated by Goldziher as Crone assumed; Roman law penetrated through various channels into Islamic law and these channels were mainly provincial law, as Crone assumed, and books, the fact which has been neglected by majority of Islamicists. Jokisch also exaggerated when asserted that Muslim jurists directly used Roman legal principles as benchmark for Islamic legal principles.[6] The important observation was made by Von Kremer who contended that although Muslim scholars did not study Roman lawbooks, there was a continuity of legal practice and that some legal institutions could have penetrated into Islamic law through Jews[7].

Schacht was correct in suggesting that majority of legal traditions were forged, yet he committed the same mistakes as Goldziher, when he generalized his assumption on forgery[8]. Moreover, Schacht was ultimately right when asserted that Islamic jurisprudence emerged only after 1st century[9]. In fact Islamic jurisprudence, as classic jurists formulated it, emerged only after Shafii’s monumental ‘Risala’. Shafii is a true founder of Islamic jurisprudence contrary to assumption of Hallaq[10].

What preceded classic Islamic jurisprudence was law-making process of early jurists, as Motzki assumed, but he overemphasized their contribution into development of jurisprudence[11]. One of other mistakes, committed by Motzki is a test of reliability applied to hadiths collected by Abd al-Razzaq in his Musannaf, as pointed out by Melchert. If Motzki’s test is correct then all hadiths in Bukhari and other classic collections of hadiths should be viewed forged without exception[12]. Motzki applied method contrary to methods of classic jurists, according to which, there should be chain of reliable transmitters in each hadith, in order to be authentic.

It is safe to assume 5th year A.H. as an earliest date for beginning of Islamic law, deriving from Qur’anic verse 5:49[13]. Before that date, Arab Muslims used to resort their disputes to Jahili law and even after it, Jahili law was not completely ousted[14]. Jahili customs used to be applied with new Muslim customs in mixture. Muslim customs used to be applied constantly according to precedents laid down by Prophet and his Companions, but majority of them has been discarded and forgotten.

As Muslim empire expanded, Muslim judges used to seek for opinions which were based on Islamic customs. Sometimes sources for such opinions were caliphs, sometimes governors and sometimes people who presumed to know customs or traditions in this regard. Sometimes caliphs or governors in order to support their views referred to Prophet’s opinion and sometimes they supported their opinion, by actually pre-Islamic custom, believing that it has not been abrogated by Islam[15].

People who knew or presumed to know customs or traditions often concentrated in towns where Muslim population were majority and these towns were mostly Mecca, Medina, Kufa, Basra and Damascus[16]. These towns soon became prominent towns of learning where early Muslim scholars often exchanged views on one or another question of ritual, marriage, divorce or inheritance based on either Qur’an or pre-Islamic customs. Prophetic traditions were rarely invoked[17].

One of such prominent centers was Mecca, where scholars would give their opinions on different matters of law based on Qur’an, their own opinion, practice of Mecca, which was mainly pre-Islamic and sometimes it was either opinion of Prophet or of one of his companions[18]. Similarly, along with this town, three other prominent towns arose with their own distinctive circles of learning.

There had been slight development of law on governmental level too. It was Umayyad caliphs, their governors and judges, whose contribution in development of early Islamic law is invaluable[19]. Their experience and knowledge in law mixed with knowledge of private scholars and soon crystallized into distinctive ‘so-called’ schools of law.

Islamic law has dramatically changed after 1st century A.H. when methods of law in certain centers has been systematized by learned and prominent scholars of law such as Ata ibn Rabah, Ibn Jurayj, Amr Ibn Dinar, Hammad ibn Sulayman, Ibn Abi Layla, Abu Hanifa, Sa’id ibn Musayyab, Malik ibn Anas, Awzai and others[20].

Roman law could have penetrated prior to emergence of classic schools of law and after emergence; it is not overstatement because in both stages one can discover influence of Roman law.

At the initial period, once conquest started Arabs conquered Middle Eastern lands one by one and in all conquered lands Arabs were compelled to adopt local customs and rules on administration[21]. The question of adoption of rules on ritual, marriage, divorce and inheritance is excluded since they were based largely on pre-Islamic Arab customs and early Qur’anic rules. It seems that Roman law influenced on such areas as the law of contract, taxation, endowment and public administration.

On the other hand, study of Albrecht Noth on Pact of Umar demonstrates that early Muslim conquerors were wary of non-Muslim customs. Particularly, he observed: «All these regulations (Pact of Umar) show that Muslims strove to draw a very clear distinction between the spheres of both groups, with the aim of protecting Muslim minorities in a new and alien environment, who had to be careful not to lose their (not yet fully developed) identity»[22]. It is however incorrect to assume that these regulations prevented Arabs to adopt non-Muslim law; they only prevented them to imitate each other mutually.

When Umar entered Syria did not change anything but concluded abovementioned pacts with non-Muslim population in conquered territories. It can be implied from this fact that Syriac law, both public and private continued its existence at least until caliph Abd al-Malik. As sources show, Syriac law has been under heavy influence of Roman legal concepts[23]. There have been never a Syriac law in technical sense; all Syriac legislation was rather a mishmash of different legal concepts that had been imported from different legal systems. It was Sachau who had extensive knowledge of both Syriac and Islamic law[24], attempted to relate Islamic law to Syriac law as a source for majority of legal institutions in Islamic law.

In his fundamental study of legal status of non-Muslim minorities, A. Fattal argued that Arabs imported some aspects of Byzantine administration after conquest of Syria and similarly they did with judicial system[25]. As evidence, he adduced numerous examples on how Byzantine imperial edicts continued to be applied on the territory of caliphate. Besides he showed that ecclesiastical authorities in caliphate continued to issue acts and rules which were however valid for Christian communities.

One of the documents survived is Nomocanon composed by David, Maronite priest in 673 A.D. 43 years after death of Prophet Muhammad. It was also known under its Arabic name ‘Kitab al-huda’[26]. It was devoted to ritual and other matters. It is not excluded that structure of Kitab al-huda could have influenced on structure of early Islamic books on law.

One of possible influence, known at this early period is a prohibition of witnessing of non-Muslims against Muslims. A.Fattal believes that this rule has been imported from Justinian Digests. This rule was also imported into Jewish law[27].

The Roman influence cannot be only restricted to Syriaс law; Arabs also conquered other countries such as Egypt, Iraq, Central Asia and Spain. It is also possible that Roman law could have penetrated through Egypt, Iraq or Spain.



3. – The issue of structural parallels


The issue of structural parallels has been discussed by Crone in her “Roman, provincial and Islamic law”. She strictly criticised Goldziher for committing mistakes when comparing Roman and Islamic law and for weak arguments on Roman influence. It is appropriate to discuss some of them here.

Her criticism was directed at equation or juxtaposition of legal terms that Goldziher did in order to show how apparent influence was. It would be clearer if it is demonstrated in table:


Roman term

Muslim term

Rerum divinarum atque humanarum notitia






Responsa prudentium




Opinio prudentium


Consensus doctorum ecclesiae


Leges scriptae

Written law

Leges non scriptae

Unwritten law

Utilitas publica

Maslaha mursalah



Ratio legis



In order to proceed further, it is necessary to clarify what these Muslim legal terms mean in the context of Islamic jurisprudence. Fiqh, according to Schacht, is science of Sharia, which is in turn «an all-embracing body of religious duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing ordinances regarding worship and ritual, as well as political and (in narrow sense) legal rules»[28]. Whereas it would be correct to draw parallels between rerum divinarum atque humanarum notitia and fiqh, it would be incorrect to do in respect of jurisprudentia, which exposes law in technical meaning and is a result of human work on principles of law and not deduced from sacred books.

Fatwa, again according to Schacht, is legal opinion of «specialist in law (mufti) who can give an authoritative opinion on points of doctrine»[29]. In Roman law, responsa prudentium is “sententiae et opiniones eorum quibus permissum est iura condere[30]. As one can see meaning both terms is almost identical and borrowing here should be excluded, because we also see similarities in structure of words: mufti is the one who gives fatwa and jurisprudents are the ones who give responsa or opinion prudentes. There have been no such institution in pre-Islamic Arabia, prior to emergence of Islam, neither there was during lifetime of Prophet Muhammed. Once Muslim empire expanded further to north, we can see emergence of such institutions as mufti and fatwa. It is not accidental; Iraq has been once territory of Byzantine, where Roman law was consistently applied[31].

As for parallels between ra’y and opinion, similarity between two terms is evident. Gai understood opinio as something which exclusively belonged to jurisprudent and in Islamic law, ra’y is opinion of faqih which belongs to him, without resort to any other source. Yet, in Islamic jurisprudence, faqihs could exercise their ray based on sources and their extensive resort to ra’y led to formation of legal thought and concepts in Islamic law[32]. In early Islam, especially during the reign of Umayyad dynasty, we have numerous evidences on how provincial judges and governors resorted to their ra’y and sometimes to the ra’y of private scholars. In one of traditions, governor of Medina, Marwan ibn al-Hakam writes to caliph Mu’awiya asking advice on insane person who committed crime, to which latter responded that insane person should be tied down and no punishment should be applied to him.[33] This was the case of clear exercise of ra’y by caliph, who did not resort to any sources beside his own opinion. Or in another tradition, Mu’awiya asks advice of private scholar Zaid ibn Thabit on matters of divorce.[34] Both cases show that ra’y had been extensively practiced in early Islam. But does it mean that it has been borrowed from Roman law? Muslim jurists as well as rulers could have resorted to personal opinion without aid of Roman legal methodology. There was a gap in law and it had to be filled by opinion of such authoritative person as caliph or judge. It is therefore not clear or evident that ra’y could have been borrowed from Roman law.

Ijma, is defined by Kamali, as «unanimous agreement of the mujtahidun (jurisprudents) of the Muslim community of any period following the demise of the Prophet Muhammed on any matter»[35]. There is a concept of consensus of jurists in Roman law but it is confined to certain matters and consensus can be modified or changed after when some fact arises or judge chooses to follow an opinion of different jurist or group of jurists. The position of consensus in Islamic law is somehow ambiguous and cannot be equated to Roman law, therefore any parallel between Islamic and Roman legal consensus should be dismissed.

Written law and unwritten law in Islamic law are Qur’an and Sunna. Qur’an is considered to be the Word of God revealed to Prophet Muhammad, compiled into one book and used as a source of law since then and Sunna is actions and words of Prophet Muhammad, which were transmitted orally until the middle of eighth century and used as a source of law in equal footing with Qur’an. Written and unwritten law never played such significant role in Roman law as it played in Islamic law. Therefore, possibility of borrowing should be discarded at once.

Maslahah mursalah is defined by Kamali as «unrestricted public interest in the sense of its not having been regulated by the Lawgiver (God) insofar as no textual authority can be found on its validity or otherwise»[36]. In Roman law, however, term ‘utilitas publica’ implies different meaning; it is the “justification of the praetor’s right to supplement and correct the jus civile”.[37] In Islamic jurisprudence, jurist has not right to do so in the interests of public if the rule has been clearly establish in Qur’an and Sunna. There is concept of istihsan, juristic preference, which however gave the right to jurist to abandon one established opinion of another in interest of public. In fact, istihsan can be somehow equated to utilitas publica as it is understood in Roman law but maslahah mursalah cannot be.

Istishab, according to Kamali, is «a rational proof that may be employed in the absence of other indications; specifically, those facts or rules of law and reason, whose existence or non-existense had been proven in the past, and which are presumed to remain so for lack of evidence to establish any change»[38]. In Roman law, praesumptio is mainly used in trial and is related to distribution of onus probandi[39]. Roman judge would consider some facts as non-existent unless contrary is proved by interested party. If it is proven, then onus probandi is re-distributed again between parties. This principle seems to have been borrowed from Roman law, since logic of construction of Islamic praesumptio is almost similar to Roman one.

Illa is one of the central concepts in Islamic jurisprudence and is defined as «an attribute of the asl (original case) which is constant and evident and bears a proper relationship to the law of the text»[40]. Illa seems to have been borrowed from ratio legis and even Crone does not reject such possibility but refers to missing Syrian or Greek links which can clarify this matter.

Crone dismissed these similarities in some cases; in other cases she suggested that it was influence of Jewish law or Greek law. Nowhere has she admitted that it was influence of Roman law, even though in some cases it is almost evident that Muslim jurists imported some Roman terms along with concepts.

However, Crone did not reject these similarities on bare ground; she has adduced ample of convincing arguments for advancing her own theory. She presented three counter-arguments or objections to Goldziher’s theory: (I) «Goldziher consistently exploits a structural similarity between the concepts of early Roman and Islamic law to postulate a genetic relationship between the two without regard for the fact that it was late Roman law that the Arabs came into contact»; (II) «here as elsewhere he fails to consider the Greek (not to mention Syriac) forms in which Roman legal concepts will have been current in the Near East. Even at Beirut, where Goldziher believed the teachers of the Muslims to have been educated , the teaching was done in Greek from the late fourth or early fifth century onwards, though the textbooks were in Latin»; (III) «parallels between Jewish and Islamic law are unlikely to have arisen through independent borrowing by Jews and Muslims from Roman law»[41]. Finally she concludes, «if a genetic relationship is postulated, the presumption must thus be that, whatever the relationship between Roman and Jewish law, the parallels in Islamic law arose through Muslim borrowing from the Jews»[42].

What is striking in observations of Crone is that she admits that Arabs came into contact with Roman law; even it is late Roman law. It does not matter what form of Roman law they came into contact with; what matters is that Arabs were compelled to import or borrow certain legal concepts from Roman law in order to fill gaps in early Islamic jurisprudence. Even research in early Islamic jurisprudence demonstrates how Muslim traditionists opposed the rational methods in jurisprudence. Where did such methods come from?

In his magnum opus “Zahiriten”, Goldziher showed that casuistry in early Islamic jurisprudence was condemned by traditionists and it hardly survived in Islamic law afterwards[43]. The only school where such casuistry can be said to have survived is Hanafi school of law, whose founder Abu Hanifa is considered to be foremost expert in matters of pure jurisprudence. He is the one who introduced rational methods into Islamic jurisprudence to be condemned later. There is no direct evidence on link between Abu Hanifa jurisprudence and Roman law but it can be assumed that he or his disciples practiced some borrowings from foreign system of law. It can also be suggested that Abu Hanifa could have encountered late Roman law when seeking for model on his version of jurisprudence.

Further, Crone admits that Syriac or Greek law could have served as vehicles for transportation of Roman legal terms into Islamic law[44]. Moreover, she admits that books were in Latin and that Muslims could have been educated in Beirut. Should it be so, then Abu Hanifa or his disciples or teachers could also be educated there and learned law from Latin books of law. It is on this ground, it seems, Jokisch have relied his theories on, and when suggesting that early Islamic jurists studied Roman law and copied their contents into books on Islamic law.

On the other hand, Crone dismisses the possibility of Muslim jurists engaging in copying Roman legal books by noting: «Given that the foreign origin of Islamic philosophy is openly admitted, the parallel with philosophy adduced by Gatteschi, Amos and later also by Goldziher is somewhat unfortunate»[45]. Domenico Getteschi[46] and Sheldon Amos[47] vigorously submitted the idea that Islamic law was not influenced by any legal system but by Roman law since the major source of Islamic law – Qur’an does not have much legal content, besides in Syria, which was the first seat of Arab conquerors, Roman law was not only applied but also studied. Therefore, they concluded that Islamic law is the “Roman law in Arab dress” which was certainly an overstatement but both of them as well as their successors like Santillana[48] and Enger[49] were right in asserting that Islamic law could not have emerged on bare ground.

Further, Crone denies the possibility of independent borrowing by Jews and Muslims from Roman law. She does not adduce sufficient explanation for such argument and forcefully assert the idea that Jewish law has served as one of the chief vehicles for transportation of Roman legal concepts into Islamic law. It will need further inquiry and additional research in Jewish law in order to test Crone’s theories.



4. – Parallels in contract law


One of the striking parallels can be discovered in Islamic law of contracts, where majority of concepts were clearly influenced by Roman legal institutions. Along with similarities, one can find differences which make Islamic law unique or at least not influenced by Roman law in these aspects.

One of the binding elements of Islamic law of contract is ijab and qabul. In this respect, Schacht commented: «Roman law, for instance, has no fixed technical terms for offer and acceptance. It is true that offer and acceptance express the agreement or consensus of the parties, but the so-called consensual contracts of Roman law differ essentially from the Islamic legal concepts of contract»[50].

This difference and appraently similarity can be demonstrated by comparison of the authoritative books on Islamic law and Gai Institutions.

In Mukhtasar of Ibn Ma’sud, Hanafi jurist of post-classical period[51], sale (baya) is defined as an exchange of one type of goods for another between two or more persons upon their agreement (67.1.1.)[52]. On the contrary, Roman law[53] defines sale (emptio-venditio) as an agreement, upon which one party – seller (venditor) agrees to present to other party – buyer (emptor) item, the goods (merx), and other party – buyer agrees to pay the price (pretium) to seller for sold item[54].

Unlike the definition of sale in modern law of obligations, Hanafi jurisprudence differentiates two types of sale[55]: sale of goods and sale of money (bayi sarf)[56] or money exchange and does not mix each other[57]. The form of obligation is reminiscent of aut enim re contrahtur obligatio but requires aut verbis as author stipulates further: If one party agrees for exchange of goods, i.e. says the word which confirms his consent such as “I sold it” or “did you sell” (67.1.2.)[58]. At some degree it conforms verbis obligatio fit ex interrogatione et responsione, veluti dari spondes? Spondee… (Gai 3.92).

Separately, Ibn Ma’sud emphasises the importance of verbal form: “Verbal contract of sale should be supported by the words uttered in present or past form” (67.1.3)[59], however he asserts that the contract of sale might not be concluded with the words in future tense, such as “will you sell it?”, “will you buy it?”; or “I will sell it”, “I will buy it”[60].

Interestingly, Ibn Ma’sud asserts that parties may exchange the goods without saying any word; even he extends such transaction to the goods of little value.[61] In some sense, it does reflect verbis obligatio which is made through stipulatio or verborum conceptio; however the difficulty is that Hanafi law also allows mute consent of the parties.

Then, the definition of the contract of sale, in the context of Hanafi law, should be sui generic contract, which allows both verbal and non-verbal forms of offer and accept. On the other hand, Roman jurists admitted that contract of sale is consensual agreement and does not require either verbal or written form[62].

As it can be clearly seen, some concepts seem to have been imported from Roman law without hesitation, not for sake of importing but in order to fill gaps in these aspects of contract law. On the other hand, it is not excluded that these concepts could have been rooted in provincial law, taking into account that Hanafi law allows local customs or customary law to be used in jurisprudence.

Further, comparison of such concept as error in contract will reveal how inevitable Roman influence was on Islamic law. This statement should not be taken however as imperative since Roman law affected only certain aspects of Islamic law.


Sab., D. 18,1,9 pr-2

Sarakhsi, al-Mabsut, 2, 114-115

Inde quaeritur, si in ipso corpore non erratur, sed in substantia error sit, ut puta si acetum pro vino veneat, aes pro auro vel plumbum pro argento vel quid aliud argento simile, an emptio et venditio sit.

If someone buys a ruby and it turns out to be piece of glass, the sale is invalid due to the difference in kind… And if someone buys a slave on the assumption that he is a male and the slave is in fact a female , the sale is invalid for us.  


Whereas the wording in both definitions is not exactly same, the logic which derives from both of them is same. Only on this basis, it can be inferred that Muslim jurists borrowed error in contrahendo from Roman legal books. Crone would have objected, arguing that it is only structural parallels and that it does not demonstrate that influence was direct. I can agree on that but logic in both definitions is same and moreover jurists seem to have used similar mode of reasoning when explicating error in contrahendo.

Another comparison also reveals same mode of reasoning exercised by Muslim jurists.


Ulp., 28

Al-Hattab, Mawahib al-Jalil Sharh Sidi al-Khalil, 2, 123-124

In venditionibus et emptionibus consensum debere intercedere palam est: ceterum sive in ipsa emptione dissentient sive in pretio sive in quo alio, emptio imperfecta est. si igitur ego me fundum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti, quia in corpore disensimus, emptio nulla est. idem est, si ego me Stichum, ty Pamphilum absentem vendere putasti: nam cum in corpore dissentiatur, apparet nullam esse emptionem

Malik’s distinction between the person who sells a ruby unknowingly and the one who, intending to hand the buyer a 1 dinar cloth, hands him a 4 dinar cloth, is that the first person behaved negligently and irresponsibly by not inquiring about the stone, whereas the second made just an accidental mistake, and an accidental error cannot be preempted: he therefore, has the right to rescind the sale and regain his cloth.


It is yet another demonstration of logical similarities in views of both Roman and Islamic jurists. Even the wording and contexts are different, one cannot miss chief similarity – logic in both explanations is the same.

Yet, to say that it is an evidence of direct influence would be committing same mistake as Jokisch, who without hesitation and speculating with sources, argued that Muslim jurists directly borrowed every single concept from Roman law and that early Muslim law books are mirror-image of Roman law books.



5. – Conclusion


Deriving from abovesaid, it should be emphasised that issue of Roman influence has not been yet resolved. It needs, as Crone pointed, looking at Syriac and Jewish sources of law. Yet, it is clear that in some cases, impact of Roman law on Islamic law is apparent. Crone was right when suggested that there was indirect influence, but some similarities, especially in contract law reveal that there were direct borrowings from Roman law through Roman legal books. Jokisch was partially right when advanced the idea of direct borrowing through Roman legal books but it is not clear when such borrowing took place and who implemented such large-scale enterprise.

It is also not clear whether influence of Roman law was decisive on formation of Islamic law because evidences shown in present study only demonstrate that influences were minor. Only cross-study of Roman, Jewish and Islamic legal principles can show how Roman legal concepts migrated through Jewish law into Islamic law. Crone already demonstrated on the example of patronate institution such migration, but her findings lead to conclusion that it was not Roman law that influence, but ultimately Greek law that came to serve as a source of influence.

As Crone and then Kofanov pointed during Roman law conference in Moscow, the question of influence should be tested through study of Roman-Syriac lawbook that require further attention and knowledge in ancient Syriac.

As far as direct influence concerned, the Roman and Islamic law of contract should be scrutinised in detail in order to discover whether such influence took place. The mere random study of certain contract law elements demonstrate that direct influence was possible, but it is not clear still. This study therefore yields for another comprehensive investigation, which author hopes to accomplish in future.




* This is an extended version of paper that has been presented at conference on Roman law reception in Moscow, 30 June, 2009. Author would like to thank Patricia Crone for her critical comments that shaped more critical attitude towards question of Roman influence on Islamic law and Prof. L.L. Kofanov, who encouraged to write this paper for this journal.


[1] Reland, H. Dissertationes Miscellaneae, Trajecti ad Rhenum 1706-8; Gatteschi D. Manuale di diritto publico e privato, Alessandria, 1865; Amos, S. History and Principles of the Civil law of Rome, London, 1883; Santillana D. review of M. Fathy in Rivista degli Studi Orientali, 1916-18; Enger M. (ed.) Maverdii constitutiones politicae, Bonn, 1853; Becker, C.H. Beitrage zur Geschichte Agyptens under dem Islam, Strassburg, 1902-3; Schmidt, F.F. Die Occupatio im islamischen Recht, Der Islam, 1910; Heffening, W. Das islamische Fremdenrecht, Hannover, 1925.


[2] Crone P. Roman, provincial and Islamic law: The origins of the Islamic patronate, Cambridge, 2002; Kremer, A. von, Culturgeschichte des Orients under den Chalifen, Vienna, 1875-7; Sachau, E. (ed. and tr.) Syrische Rechtbucherm, Berlin, 1907-14; Schacht, J. Origins of Muhammadan Jurisprudence, Clarendon Press, 1950.


[3] Goldziher, I. Muslim Studies, Vol. II, George Allen & Unwin Ltd. trans. by C.R. Barber and S.M. Stern, 1971


[4] Sezgin, F. Geschichte des Arabischen Schrifttums, Band 1 (1967), pp. 53-84


[5] Wael B. Hallaq, The Authenticity of Prophetic Hadith: A Pseudo-Problem, Studia Islamica, No. 89, (1999), 75-90


[6] B. Jokisch, Islamic Imperial Law (Studien Zur Geschichte Und Kultur Des Islamischen Orients), Walter de Gruyter, 2007


[7] Kremer, A. von, Culturgeschichte des Orients under den Chalifen, Vienna, 1875-7


[8] . J. Schacht, Origins of Muhammadan Jurisprudence, 5th ed., Oxford, 1979


[9] Ibid.


[10] Wael Hallaq, Was Shafii the Master Architecht of Islamic Jurisprudence? International Journal of  Middle East Studies 25, (Cambridge, 1993) pp. 587-605


[11] H. Motzki, The Origins of Islamic Jurisprudence, trans. By M.H. Katz, Brill, Leiden, 2002


[12] Christopher Melchert, Review of Harald Motzki, The Origins of Islamic Jurisprudence: Meccan Fiqh Before the Classical Schools, Islamic Law and Society, 11, 3, 2004, стр. 407-408


[13] S.D. Goitein, The Birth-Hour of Muslim Law? An essay in exegesis, Muslim World 50 (Harthford, CT, 1960) pp. 23-29


[14] Ibid.


[15] P. Crone & M. Hinds, God’s Caliph: Religious authority in the first centuries of Islam, Cambridge University Press, Cambridge, 2003, pp. 43-58


[16] Op. cit. Schacht, Origins


[17] Ibid.


[18] Op. cit. Motzki


[19] Op. cit. Crone & Hinds


[20] Op. cit Schacht, Origins; Motzki, Origins


[21] Schacht, Droit byzantin et droit musulmane, Accademia Nazionale dei Lincei, Fondazione Alessandro Volta, Atti dei Convegni, no. 12, Rome 1957


[22] A. Noth, Problems of differentiation between Muslims and non-Muslims: Re-reading the “Ordinances of ‘Umar” (al-Shurut al-‘Umariyya) in ed. R. Hoyland, Muslims and Others in Early Islamic Society, Vol 18, Ashgate Variorum, 2004, p. 104


[23] Op. cit Crone, Roman law


[24] Sachau, E. (ed. and tr.) Syrische Rechtbucherm Berlin, 1907-14


[25] Antoine Fattal, Le statut legal des non-Musulmans en pays d’Islam, Paris, 1947 (typed doctoral thesis), p. 321


[26] Ibid.


[27] Ibid. p. 322


[28] Schacht, Introduction p. 1


[29] Ibid. p. 73


[30] Gai, 1,7


[31] Op. cit. Schacht, Droit Byzantine


[32] Op. cit. Schacht, Origins


[33] Malik’s Muwatta, 43:3


[34] Ibid. 29:56


[35] M.H. Kamali, Principle of Islamic Jurisprudence, The Islamic Texts Society, 2003, 228.


[36] Op. cit. Kamali, p, 351


[37] Digest I, 1, 7


[38] Op. cit. Kamali, p. 384


[39] Д.В. Дождев, Римское частное право, Инфра-М, Москва, 1996, c. 226


[40] Kamali, p. 274


[41] Crone, Roman law, p. 103


[42] Ibid.


[43] I. Goldziherm The Zahiris: Their Doctrine and their history, Leiden, E.J. Brill, 1971


[44] Op. cit. Crone, Roman law


[45] Crone, p. 112 f18


[46] Gatteschi D. Manuale di diritto publico e private, Alexandria, 1865


[47] Amos, S. History and Principles of the Civil law of Rome, London, 1883


[48] Santillana D. review of M. Fathy in Rivista degli Studi Orientali, 1916-18


[49] Enger M. (ed.) Maverdii constitutiones politicae, Bonn, 1853


[50] Schacht, Introduction, p, 22


[51] Убайдаллах ибн Маъсуд, Мухтасар, Краткий комментарий к законам шариата, Ташкент, Издание Чолпон,, 1994


[52] Op. cit Muhtasar p. 154


[53] Gai Institutions (3.41)


[54] Prior to such definition there had been an extensive discussion among Roman jurists as to whether sale suggests exchange of an item for an item or for money. Such dispute was said to be held between jurists of Sabean and Proculian schools of Roman jurisprudence: Paul (III century jurist) referred to such dispute: “an sine nummis venditio dici hodique posit… veluti si ego togam dedi, ut tunicam acciperem” – yet, he does not refute such concept of exchange goods for goods but calls it disputable or doubtful (dubitatur).


[55] It does not mean however that it does generalize other types of contract; it is done to emphasize that Hanafi jurisprudence does not count money exchange as such but as sale.


[56] One of the other reasons for which Hanafi jurists distinguish bayi sarf is to exclude the possibility of usury in the transaction


[57] It is notable that Ibn Ma’sud unlike Marghinani does not generalise contract of sale but distinguishes each type of sale


[58] Op. cit. Muhtasar p. 155


[59] Ibid.


[60] Ibid.


[61] Ibid.


[62] Ideo autem istis modis consensus dicimus obligations contrahi, quia neque verborum neque scripturae ulla proprietas desideratur (Gai, 3. 136)