THE Government of British India have not neglected to countenance
the study of the indigenous and other systems of law which they found
established on acquiring possession of the country. Warren Hastings
was the first to recognize the value of such knowledge; and to his
encouragement, if not to his incitement, we are indebted for the
compilation of Hindoo law translated by Halbed, Jones, Colebrooke,
Macnaghten, Hamilton, and a pretty numerous body of accomplished
men, of whom Mr. Baillie is the most recently enrolled laborer in
the vineyard, have carried on the good work. More comprehensive and
accurate views of Hindoo law have gradually been developed, and the
more advanced and more influential system of Mahometan jurisprudence
has also shared in the attention of European students. There is,
however, still much to be done in this field of inquiry; as a few
remarks on the nature of the present publication, and the source
whence its materials are derived, will show.
[Footnote 4: The Moohummadan Law of Sale, according to the Hunefeea
Code: from the Futawa Alumgeeree, a Digest of the whole Law, prepared
by command of the Emperor Aurungzebe Alumgeer. Selected and translated
from the original Arabic, with an Introduction and explanatory Notes,
by Neil B.E. Baillie, Author of "The Moohummadan Law of inheritance."
Published by Smith and Elder.]
The law of Mahometan jurists is for India pretty much what the Roman
law is for Scotland and the Continental nations of Europe. Savigny has
shown how, throughout all the territories formerly included within the
limits of the Roman Empire, a large amount of Roman legal doctrines
and forms of procedure continued to be operative after the Empire's
subversion. The revival of the study of the Roman law, as embodied
in the compilations of Justinian, by the doctors of the school
of Bologna, augmented and systematized these remnants of Roman
jurisprudence, and extended their application to countries which (like
great part of Germany) had never been subjected to the sway of Rome.
In like manner, throughout that part of India which was permanently
subdued and organized by the Mogul dynasty, and also those parts in
which minor Islamitic states were established, the organization of
the courts of justice, and the legal opinions of the individuals who
officiated in them, necessarily introduced a large amount of Mahometan
jurisprudence. This element of the law of India was augmented and
systematized by the writings of private jurists, and by compilations
undertaken by command of princes. As with the Roman jurisprudence in
Europe, so with Mahometan jurisprudence in India, only so much of its
doctrines and forms could at any time be considered to possess legal
force as had been reenacted by the local sovereigns, or introduced by
judges in the form of decisions. A systematic knowledge of the whole
body of Mahometan law was important to the Indian lawyer, as enabling
him more thoroughly to understand the system, and its various isolated
doctrines; but the whole body of that law was at no time binding in
India. Since the establishment of British sway, only so much of the
Mahometan law as has kept its ground in the practice of the courts,
or has been reenacted by the "regulations" or "ordinances" of the
Anglo-Indian Government, _is law_; the rest is only valuable as the
"antiquities of the law," which help to trace the origin of what
survives, and thereby throw light upon what in it is obscure or
doubtful.
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.
* * * * *
The following, from Southey's "Gridiron," now first published in his
Memoirs, ought to be set to music for the Beef-Steak Club:--
"Now the perfect Steak prepare!
Now the appointed rites begin!
Cut it from the pinguid rump.
Not too thick and not too thin;
Somewhat to the thick inclining,
Yet the thick and thin between,
That the gods, when they are dining,
May comment the golden mean.
Ne'er till now have they been blest
With a beef-steak daily drest:
Ne'er till this auspicious morn
When the Gridiron was born."
* * * * *
The most ignorant of the world's fools are those called "knowing
ones," a phrase satirical with the very glee of irony.
* * * * *