Islamic Imperial Law: Harun-Al-Rashid’s Codification Project

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Studien zur Geschichte und Kultur des islamischen Orients Beihefte zur Zeitschrift „Der Islam"

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Lawrence I. Conrad

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Benjamin Jokisch

Islamic Imperial Law Harun-Al-Rashid's Codification Project

Walter de Gruyter · Berlin · New York

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Foreword In the course of my preparations for this book I received assistance from many individuals and institutions to whom I would like to express my gratitude. So I am indebted to Prof. Dr. Lawrence Conrad for his counsel and for sharing his views about the issue of cultural interaction in early Islam. I am also most grateful to the German Research Foundation which accepted the research project and granted financial support for several years. Furthermore I would like to express my thanks to the staff of some libraries in Hamburg, particularly the State and University Library and the library of the Asien-Afrika-Institut. Last, but not least, I wish to acknowledge my deep gratitude to my family - Sabina, Anuschka and A vi - who supported my work with great leniency.

Benjamin Jokisch

Contents Introduction ....................................................................................................... I

Part I The Origins of Islamic Law I. Preliminaries ................................................................................................ 51 Chapter I: Special Indicators of Reception ..................................................... 59 1.1. The Emergence of Islamic Legal Literature ......................................... 59 1.2. Uniformity of Islamic Law ................................................................... 60 1.3. The Emergence of Personal Law Schools ........................................... 63 1.4. Critical Reactions ................................................................................. 66 1.5. Centralization of Judiciary ................................................................... 66 1.6. The Emergence of Islamic Humanism ................................................. 67 1.7. Wave of Codifications .......................................................................... 71 1.8. Abundance of Comparative Studies ..................................................... 74 Chapter 2: Circumstances of Reception .......................................................... 2.1. Muslims Involved in the Reception ..................................................... 2.2. Date and Place of the Reception .......................................................... 2.3. Translators ............................................................................................ 2.4. Commissions ........................................................................................

77 77 80 81 90

Chapter 3: Comparative Analysis ................................................................... 97 3.1. Sources ................................................................................................. 97 3.2. Structure ............................................................................................. 105 3.3. Legal Fields ........................................................................................ 109 3.4. Deficiency Law .................................................................................. 143 (a) Preliminaries .................................................................................... 143 (b) Historical Layers and Text Structure ............................................... 146 (c) Juristic Aspects: Survey ................................................................... 153 (d) Casuistry .......................................................................................... 166 (e) Terminology .................................................................................... 208 (f) Style ................................................................................................. 226 (g) Legal Reasoning .............................................................................. 229

Part II Islamic Imperial Law Preliminaries ................................................................................................. 261 Chapter 4: Ideological Basis ......................................................................... 265 Chapter 5: Codification and Dissemination .................................................. 5.1. The Imperial Code: Ziihir al-riwiiya .................................................. 5.2. Islamic Government and Codification ............................................... 5.3. Binding Force of the Imperial Code .................................................. 5.4. Centralization of the Judiciary ........................................................... 5.5. Dissemination of ljanafism ................................................................

279 279 280 282 287 305

Part III From Imperial to Jurists' Law Preliminaries ................................................................................................. 313 Chapter 6: The Byzantine Factor .................................................................. 321 6.1. General Predisposition to Cultural Exchange .................................... 322 6.2. Contacts .............................................................................................. 325 (a) Nafi' b. al-Azraq .............................................................................. 338 (b) Jabir b. Jjayyan ................................................................................ 347 (c) Ibn Kullab ........................................................................................ 357 (d) Photios ............................................................................................. 364 6.3. Names and Catchwords ...................................................................... 386 6.4. Literature ............................................................................................ 397 (a) Law .................................................................................................. 397 (b) Grammar .......................................................................................... 405 (c) Lexicography ................................................................................... 413 (d) Prosody ............................................................................................ 415 (e) Rhetoric ........................................................................................... 420 (f) Theology ......................................................................................... 425 (g) Exegesis ........................................................................................... 430 (h) ljadith .............................................................................................. 432 (i) History ............................................................................................. 433 U) Romance .......................................................................................... 436 (k) Adab ................................................................................................ 437 6.5. Chronology ......................................................................................... 439 (a) Survey .............................................................................................. 439 (b) Byzantine-Islamic Intertwinedness .................................................. 443

Chapter 7: The Origins of U$ttl al-fiqh ......................................................... 517 7 .1. Preli1ninaries ...................................................................................... 517 7.2. ShaybanI's U$11/Work ........................................................................ 520 (a) The Term U$ttl al-fiqh ..................................................................... 521 (b) Bipartition of U$tt! al-fiqh ............................................................... 522 (c) Rukh$a ............................................................................................. 524 (d) Mu'adh-Tradition ............................................................................ 526 (e) Jfadfth Criticism .............................................................................. 528 ( f) Other Elements ................................................................................ 531 7.3. The Shift to Orthodoxy: Shafi'I's Risa/a ........................................... 535 Chapter 8: The Islamic Organon ................................................................... 573 8.1. Preliminaries ...................................................................................... 573 8.2. The Divine Premise ............................................................................ 578 8.3. The Philosophical School... ................................................................ 581 8.4. Comparative Analysis: Organon - U$ztl al-fiqh ................................. 588 (a) Isagoge ............................................................................................. 591 (b) Categories ........................................................................................ 592 (c) Hermeneutics ................................................................................... 598 (d) First and Second Anal ytics .............................................................. 600 (e) Sophistical Refutations .................................................................... 605 (f) Rhetoric ........................................................................................... 606 8.5. Scientization of Jurisprudence ........................................................... 611 Conclusion .................................................................................................... 617 Appendix 1: Cases ........................................................................................ 627 Appendix 2: Judges ....................................................................................... 651 Appendix 3: Terms ........................................................................................ 663 Abbreviations ................................................................................................ 681 Bibliography ................................................................................................. 687 Index of Persons ............................................................................................ 747

Introduction

Most contemporary Shan'a experts - whether Muslim or non-Muslim firmly believe classical Islamic law to be the product of a continuous development1 which started sometime before the middle of the 8th century.2 While Muslim scholars trace its origins back to the Prophet himself,3 Western scholars are somewhat cautious. Some of them will not completely deny its early origins believing that at least parts of it go back to the 7th century.4 Others prefer to date it a little later, that is, about a century after the death of the Prophet.5 The later the dating, the more the possibility of non-Islamic influences is admitted.6 The essen-

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In some recent studies the continuity of this development even constitutes the premise for redating legal works (see, for instance, N. Calder Studies in early Muslim jurisprudence (Oxford 1993); C. Melchert 'Qur'änic abrogation across the ninth century: Shäfi'T, Abü 'Ubayd, Muhäsibl and Ibn Qutayba,' Weiss, B. (ed.) Studies in Islamic legal theory (Leiden 2002) 75-98). The only exception to this general opinion seems to be I. Schneider, who discovered a conspicuous break between the pre-literary (first 150 years of Islam) and the literary period of Islamic law which she is not able to explain (Kinderverkauf und Schuldknechtschaft. Untersuchungen zur frühen Phase des islamischen Rechts (Stuttgart 1999) 355). A. Hasan The early development of Islamic jurisprudence (Islamabad 1970) 12-28. A survey of the Muslim position on the early development of Islamic law is given in B. Krawietz Hierarchie der Rechtsquellen im tradierten sunnitischen Islam (Berlin 2002) 12-70. H. Motzki, Die Anfänge der islamischen Jurisprudenz• Ihre Entwicklung in Mekka bis zur Mitte des 2J8. Jahrhunderts (Stuttgart 1991) 263; idem 'Die Entstehung des Rechts,' A. Noth/J. Paul Der islamische Orient - Grundzüge seiner Geschichte (Würzburg 1998) 167; W. Hallaq, A History of Islamic Legal Theories. An Introduction to Sunrii Usui al-Fiqh, (Cambridge 1997) 16; see also F. Sezgin GAS 1/393. J. Schacht, An introduction to Islamic law (Oxford 1984) 27, 49; idem, 'The schools of law and later developments of jurisprudence,' Law in the Middle East, vol.1: Origin and development of Islamic law, ed. M. Khadduri et al. (Washington 1955) 57. U. Mitter, Das frühislamische Patronat. Eine Untersuchung zur Rolle von fremden Elementen bei der Entwicklung des islamischen Rechts (Nijmegen 1999) 13. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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tials of Islamic law, however, are usually regarded as purely Islamic.7 Apart from these prevailing convictions, there is nobody to doubt that it was independent Muslim jurists who, on a religious (Qur'än, Sünna) and/or a more secular basis (Umayyad administration practice)8 elaborated the kernel of Islamic law.9 This century-old discussion about the origins of Islamic law is a result of the lack of sources for the period in question. The principal source used so far to reconstruct the early history of Islamic law rests upon a bulk of traditions which Islamists usually believe to be an important source for the reconstruction of early Islamic legal history, but whose authenticity is highly controversial. One could say almost everything we believe to know about the development and nature of Islamic law before the emergence of the first legal works is based on these traditions.10 This is why a number of serious attempts were made to prove the authenticity of the hadTth material. But however sophisticated the 7 N. Calder, Studies, 201. T. Nagel Das islamische Recht. Eine Einführung (Westhofen 2001) 174. While J. Schacht regards the raw material out of which Islamic law was formed as being to a great extent non-Islamic he does not believe that Muslims consciously adopted foreign elements ('Pre-Islamic background and early development of jurisprudence,' Law in the Middle East, vol.1: Origin and development of Islamic law, ed. M. Khadduri et al. (Washington 1955) 28, 36); For further references see P. Crone Roman, Provincial and Islamic law. The origins of the Islamic Patronate (Cambridge 1987) 5. P. Crone herself does not share this conviction and tries to trace Islamic law back to Roman Provincial law. 8 J. Schacht, Introduction 23. 9 H. Motzki, 'Die Entstehung des Rechts,' 171; J. Schacht, Introduction 28, 209-10; S. FitzGerald, 'The alleged debt of Islamic law to Roman law,' LQR 67 (1951) 90 (n. 17); I. Lapidus, 'The separation of state and religion in the development of early Islamic society,' SI 6 (1975) 369; N. Coulson, A history of Islamic law (Edinburgh 1964) 52; A. d'Emilia, Ί1 diritto musulmano comparato con il bizantino dal punto di vista della tipologia del diritto,' SI 4 (1955) 60-61; D. Sourdel 'Gouvernement et administration dans l'orient Islamique jusqu'au milieu du Xle siecle,' HO 1/6/5/2 34; N. Calder Studies 220; A. Layish 'The transformation of the Shari'a from jurists' law to statutory law in the contemporary Muslim world,' WI 44 (2004) 86. 10 Almost all studies dealing with the early history of Islamic law more or less relied upon on hadTth (H. Berg 'Competing paradigms in Islamic origins: Qur'än 15:8991 and the value of isnäds,' Η. Berg (ed.) Method and theory in the study of Islamic origins (Leiden 2003) 289H.; Motzki 'Quo vadis, Hadlt-Forschung? Eine kritische Untersuchung von G.H.A. Juynboll: "Näfi' the mawlä of Ibn 'Umar, and his position in Muslim Hadlt literature",' Der Islam 73 (1996) 41). K. Lech emphasizes the importance of the historical context but postulates this context to be reconstructed on the basis of hadith (Geschichte des islamischen Kultus. Rechtshistorische und hadit-kritische Untersuchung zur Entwicklung und Systematik der 7bädät. Bd. I: Das ramadän Fasten (part 1) (Wiesbaden 1979) XIII). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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methods in modern hadith analysis there remains a considerable scope of uncertainty as to the provenance of the traditions.11 In fact, there is not even evidence that Islamic law as we know it from ShaybänT's Asl, Malik's Muwatta' or Shäfi'T's Umm really existed before the beginning of the literary period. One of the principal aims of the study at hand is to show that the early development of Islamic law was in no way continuous. It will be demonstrated, for instance, that the heterogeneous legal development in Islam preceding the literary period was superseded by a completely novel legal system at the end of the 8th century. This novel legal system - the basis of the later "Classical Islamic law" - did not originate from the Prophet nor from the so-called "ancient law schools", but was produced on the drawing board by a couple of state jurists in Baghdad. It was an imperial law in a religious guise. What happened may be summarized as follows: after seizing power in the middle of the 8th century the Abbasid caliphs tried to establish a state system that came very close to the centralist absolutism in Byzantium.12 One of the main features of centralism was the codification of law. It seems that both Mansür (754-775) and his successor Mahdl (775-85) strived to create a codex that would replace the existing heterogeneous law. But it was only by Härün al-Rashid (786-809) and above all his tutor Yahyä b. Khälid that the ambitious plan of codifying Islamic law was successfully put into action. There is some indication that shortly after Rashid's ascent to the throne a legal commission was constituted which consisted not only of Muslim (ShaybänT and Abü Yüsuf) but also of Jewish (perhaps Simon Qayyara and Pirkoi ben Baboi) and Christian (Bitriq) scholars. The different religious parties (at least the Muslim and Jewish group) each laid down a codex of its own, while at least the Muslim jurists relied upon a secular basis: the Digestsumma of the Anonymus in connection with the Glosse of Enantiophanes. The Muslim jurists were more eclectic than their Jewish colleagues. Apart from Roman law, which constituted the principal basis, they also drew on Jewish law and most probably Canon law. The output was impressive: ShaybänT composed the monumental Mabsüt along with some minor works which were to represent the fundament of clas-

11 P. Crone Roman, Provincial and Islamic law. The origins of the Islamic (Cambridge 1987) 31; I. Schneider Kinderverkauf 10. 12 For the relationship between Islam and Byzance see below 320.

Patronate

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sical Islamic law. His Jewish colleagues composed the Halakhot Gedolot and its shorter version Halakhot Pesuqot which heavily influenced the further development of Jewish law. As a novel legal system that claimed religious, and indirectly caliphal, authority the ShaybänT Codex13 provoked negative reactions in circles of independent scholars. During the following decades the politico-religious opposition grew so powerful as to force the absolutist regime to its knees. In 849 the caliph Mutawakkil accepted the triumph of Orthodoxy.14 Nevertheless there was enough time to establish the imperial law introduced under Rashld soon after 786 and it spread systematically throughout the Islamic empire until the middle of the 9th century. Thus there were at least three stages of development in Islamic law: 1) pre-imperial law, 2) imperial law and 3) post-imperial law. Preimperial law is not the primary object of this study. The focus is on imperial law and the gradual shift from imperial to jurists' law after the Mihna. The general presumption in this study is that the early development of Islamic law took place in a large historical context. In fact this is a truism15, but there are different ways to describe the historical context in scope and complexitiy. The context as described in the study at hand exceeds the limits of disciplines, states and religions.16 Within the Islamic context there are interactions between law, theology and philosophy. As to non-Islamic influences a distinction has to be made between political (Byzantium, Caliphate) and religious (Islam, Judaism, Christianity) interactions. All these interactions, though different in kind, are

13 The „ShaybänT Codex" includes ShaybänTs Mabsüt, Jämi' faghir, Jämi' kablr, Ziyädät, Κ. al-Siyar al-kablr and Κ. al-Siyar al-saghir. 14 „Orthodoxy", as used in the study at hand, is a neutral term, which refers to specific theological movements in Byzantium and the Caliphate. These movements emerged in the 7th century and laid particular emphasis on tradition. In the 7th-8th centuries they defended the doctrine of free will against the predestinarians. After the Monotheletic conflict had turned into the Iconoclastic conflict, they vehemently rejected the doctrine of the "createdness of the image/Qur'än". 15 G. Endress 'Handschriftenkunde,' GAP I (1982) 271; N. Calder Studies 196. 16 As we will see, the phenomenon of "global interaction" (i.e. the Islamic-European context), which, according to R. Schulze ('Was ist die islamische Aufklärung?' WI 36 (1996) 296), emerged in the 16th century, becomes manifest as early as the 7th century. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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intertwined and must be seen against the general politico-historical background. Indeed, many studies are based on the suggestion that Islam emerged in a cultural crucible and hence try to unveil the non-Islamic origins of single Islamic phenomena. However, most of these studies tend to reduce non-Islamic influences to accidental elements while the essentials of Islamic concepts are usually qualified as purely Islamic. The prevailing conviction in Western scholarship is that there were contacts between Islam and the neighbouring cultures, but that the impact of these contacts on Islam was rather limited. In fact, the relationship between Islam and contemporary civilizations in the Near East is not a question of sporadic contacts, it is a phenomenon that might be described in terms of a gigantic amalgamation of cultures. It will be demonstrated - not only with regard to Islamic law - that the intensity of cultural interaction goes far beyond what has been supposed. Every historical context is a puzzle consisting of an unlimited number of elements. The historian's task is it to fit together as many elements as possible on the basis of more or less authentic sources in order to come as close as possible to the historical picture as it really was. But how to define the limits of a historical context? Where does a historical context end and where does it begin? Which historical processes have to be seen as part of one and the same context and which other contexts though close in space and time may be ignored? In principle the history of mankind as a whole represents one comprehensive context. There is no doubt, however, that some processes of development are more closely interconnected than others. There are even historical processes that are so intimately entangled with each other as to make it completely unreasonable to analyze them in isolation.17 Veiy often the limits of historical contexts are equated with the limits of cultures. This, for instance, appears from the emergence of scientific disciplines con17 S. Conrad/S. Randeria 'Einleitung. Geteilte Geschichten — Europa in einer postkolonialen Welt,' S. Conrad/S. Randeria (eds.) Jenseits des Eurozentrismus. Postkoloniale Perspektiven in den Geschichts- und Kulturwissenschaften (Frankfurt/New York 2002) 9-49. As to the phenomenon of "connected histories" in the precolonial era see idem 'Einleitung,' 10; S. Subrahmanyam 'Connected histories: notes towards a reconfiguration of early modern Eurasia,' MAS 31 (1997) 735-62; V. Liebermann 'Transcending East-West dichotomies. State and culture formation in six ostensibly disparate areas,' MAS 31 (1997) 463-546; B. Andaya, Review of V. Liebermann Strange parallels: Southeast Asia in global context, C. 800-1830, vol.1: Integration on the mainland (Cambridge 2003) JESHO 47 (2004) 488. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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cerning specific cultures such as sinology, indology, Islamic studies etc. There is a certain tendency - not least due to the continuous process of specialization - to remain within the scope of a certain discipline.18 Studies dealing with the complexitiy of interrelations between two or several cultures are relatively few - at least in the field of Islamic studies19 - and those exceeding the limits of a discipline are usually restricted to very special subjects. Of course specialization may also result from the peculiarity of the historical sources which are not only rather special and fragmentary but also tendentious. Cultures frequently show the inclination to disassociate themselves from other cultures while searching for an identity of their own. This tendency is clearly reflected in a number of literary genres in the Islamic, Jewish and Byzantine culture. In spite of the critical philological work that has been done by Islamists it is difficult to get a precise idea of the extent to which Muslim scholars concealed non-Islamic influences in order to construct an Islamic identity. Be that as it may, without questioning the importance of specialization, which is no doubt expression and precondition of scientific progress, and without reflecting on the dialectic of generality and speciality, it may be claimed that general studies exceeding well-known limits are as important and necessary as special studies deeply engaged in a small section of a large context. A historical process which forms an essential part of a major context may be interpreted and explained only against the background of this context. If, however, the context exceeds the boundaries of nations, religions etc. and if it is completely ignored, suppressed or distorted in the historical sources, the crucial question arises of how to prove the existence of such a context. One of the general tendencies in historical science seems to be not to go further in interpretation than immediately interrelated sources allow.

18 S. Conrad/S. Randeria 'Einleitung,' 21. 19 One exception is the pioneering work of A. Vasiliev Byzance et les Arabes. See also the promising approaches of H. Lazarus-Yafeh Intertwined worlds. Medieval Islam and Bible critisicm (Princeton 1992) 4, P. Crone Hagarism. The making of the Islamic world (Cambridge 1977), A. Cameron/L. Conrad (eds) The Byzantine and earl Islamic East (Princeton 1992) or G. Heck Charlemagne, Muhammad, and Arab roots of capitalism (Berlin 2006). As to a similar pepective with regard to the early development of Muslim kingship see A. Al-Azmeh Muslim kingship. Power and the sacred in Muslim, Christian and Pagan polities (London/New York 1997) XV (preface). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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The study at hand is based on all kinds of historical sources and also embraces non-Arabic sources.20 But apart from conventional methods of interpretation this study is based on a systematic and comprehensive comparison of structures in a variety of fields in Islam and neighbouring cultures.21 The main structural unit in the historical contexts to be examined is the "concept". Concepts are usually connected with persons, groups, movements or institutions. There are legal, theological, philosophical and political concepts which influence each other, correlate with each other or provoke counterconcepts. As a rule, concepts contain a number of single statements (or rules) with specific terms and arguments. Since concepts always form part of a historical context, they appear at specific times and places. Sometimes, if mechanisms of transfer become operative, concepts move from one culture to another where they continue to develop in a modified form. In Islam this becomes clear in a number of examples: - The Byzantine conflict between Orthodox Christianity and Monophysitism is mirrored in the Islamic antagonism between Sunnism and ShI'ism. Sunnism and ShI'ism are intimately connected with the earliest theological movements in Islam: Qadariyya and Murji'a. Both movements result from the 6. Ecumenical Council (680/1), at which the Monotheletic controversy (free will versus predestination) reached its climax. - The hadlth movement, backbone of Sunnism and paralleled on the Jewish side by Karaism, originated in another fundamentalist movement of that time, the Iconophiles who had their focal point not in Byzantium but in Islam. - Islamic humanism, the immediate background of the codification of Islamic law, correlated with Byzantine and Carolingian humanism which emerged at about the same time. - In the second quarter of the 8th century in Byzance and Islam the emergence of absolutist regimes may be observed both resting on a 20 Since this approach aims at reconstructing the historical context on the basis of a particularly wide range of evidence, it may prove more attractive than other approaches which are restricted to specific Islamic sources (J. Koren/A. Nevo 'Methodological approaches to Islamic studies,' Der Islam 68 (1991) 106). 21 As to this approach see S. Conrad/S. Randeria 'Einleitung,' 18. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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century-old centralist concept, claiming divine inspiration, codifying law and suppressing the increasingly fundamentalist opposition while maintaining that the image of Jesus or, on the Islamic side, the (recitation of the) Qur'än is created. Around the middle of the 9th century both regimes were overpowered by the oppositional movements. This defeat, both in Byzance and Islam, marked the triumph of Orthodoxy and provoked a 'reshaping' of history. As will be seen, all these groups and movements, which seem to operate in different cultures and states and which represent specific concepts, in fact form part of one and the same historical context. There are two principle forms of analysis applied in this study:

Prosopographical Analysis It is clear that historical sources such as chronicles etc. represent the starting-point in any historical analysis in the field of Islamic studies. Apart from these sources, however, in this study the advantages of prosopographical literature are boldly used while the risks are not ignored. In contrast to Byzantine hagiography or biographical works in other cultures Arabic prosopographical literature is abundantly available, representing a tempting source for gaining insights into the social structures of Islam. Not all Islamists recognize the importance of this genre because it is no doubt tendentious.22 Most of the early biographical works primarily deal with traditionists while members of other parts of the Islamic society are neglected. Apart from this lack of representativeness, some reports are obviously manipulated and not infrequently persons are credited with opinions that they in fact didn't profess or unpleasant doctrines that they held were deliberately suppressed. Nevertheless, the portion of true details in the reports renders them an indispensable historical source. What is incumbent on the historian is the difficult task of separating the chaff from the wheat. Although an ingenious solution for eliminating the unhistorical elements has not yet been found there are still a number of procedures and methods which help to reduce the danger of misinterpretation.

22 N. Calder Studies 1, 20, 38. But see H. Motzki Anfänge 218-9; C. Melchert Formation XVIII (Introduction); J. Brockopp Early MälikT law 1. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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One of the most convenient ways to prove the correctness of a report is the corroboration by other reports. Reports on one and the same figure do not always share a common source, so that reliable data may be obtained by synopsis. With regard to a special author this procedure might reveal that he has made mistakes in special points while in other points or fields he proves to be trustworthy. The highly problematic dating of the birth and/or death of persons in the historical sources is a well-known problem. In some prosopographical works, such as the Fihrist by Ibn al-Nadlm, this problem becomes particularly conspicuous. When dealing with biographical data Ibn al-NadTm often did not know when the person in question lived or died but nevertheless ventured an estimate for the sake of completeness. On the other hand, he offered reliable data on the contents of books most of which he had directly seen.23 A more complicated way to prove historicity is the contextual analysis. If a report or a single element in it neither is corroborated nor contradicted by other reports, its historicity may be proven against the background of a context consisting of related data. This analysis is based on the suggestion that on the one hand the lives of persons are often intertwined and that, on the other hand, systematic manipulation never exceeds the limits of one biography. If it becomes clear that several biographies are interconnected, this may have a corrective effect according to the density of the material. The case of Ibn Kulläb (d. ca 855), an outstanding theologian in Baghdad and predecessor of the later Ash'ariyya, can be taken as an example. Several biographies allow us to assume that his family had been Islamic for generations and that his moderate doctrine grew out of a spectrum of rivaling doctrines discussed in Baghdad in the first half of the 9th century. His connection with a certain Fathyün, however, mentioned in passing in the Fihrist of Ibn al-NadTm, sheds some light on his real identity and the origins of his doctrine. As becomes clear in a separate prosopographical analysis, the Fathyün mentioned above is identical with Photios, the most prominent theologian in ninth-century Byzantium, who spent a great part of his life in Baghdad and represented the moderate wing of the Iconodules. According to Ibn al-NadTm he advised Ibn Kulläb in theological affairs. Both Photios and Ibn Kul-

23 We must consider, however, that it was often difficult for the bibliographers to distinguish between "author" and "transmitter" of a book (G. Schoeler 'Die Frage der schriftlichen oder mündlichen Überlieferung,' Der Islam 62 (1985) 219). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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lab fled Byzance to Islam sometime after the restoration of Iconoclasm in 815. But while Photios resisted conversion and later on returned to Constantinople, Ibn Kulläb became one of the "Nawäbit" (Neophytes), that is, Iconodules who, after fleeing from second Iconoclasm, converted to Islam and contributed heavily to the growth of Sunnism. A separate reception analysis reveals that his moderate doctrine is directly borrowed from the council acts.24 The principle purpose of this prosopographical analysis is to gain a deeper insight into the most important groups and movements which emerged in the first three centuries of Islam. The descriptions given in heresiographical literature since the late 9th century draw a somewhat confusing picture of the quantity, quality, interrelationship and origins of these groups. It is on the basis of a systematic analysis of prosopographical data in connection with the reception analysis (see farther below) that a more precise sketch of the Islamic movement structure will be attempted. Starting from the premise that there were parallel groups and movements in Byzantium as well as in Judaism at the same time, it becomes easier to understand why, where and how they emerged and who may be regarded as belonging to which group.25 Though far from exhaustive, the analysis at hand may provide a rather plausible context. The representation of personal data in biographical dictionaries usually follows a certain scheme: after the full name appears a standard set of data (not always complete) on the subject's birth and death, lineage, moral qualities, education, teachers, pupils, works, places of teaching and learning, official functions or adherence to a school or movement.26 According to the importance of the person described and the availability of relevant data, this material is supplemented by anecdotes, dreams, poems or reports on contact with other persons (disputes etc.), descriptions of his physical appearance or other special events. By combining all biograms which are interrelated in one way or another (contacts, teachers, pupils, kinship, concepts etc.) it is possible to construct a network of persons belonging to a certain group or movement.27

24 See below 362. 25 As to the general problem of determining the politico-theological attitude of scholars in Medieval Islam see R. Seilhein 'Gelehrte und Gelehrsamkeit im Reiche der Chalifen,' E. Kaufmann (ed.) Festgabeßr Paul Kirn (Berlin 1961) 73. 26 Μ Young 'Arabic biographical writing,' Μ. Young et al. (ed.) Religion, learning and science in the 'Abbasid period (Cambridge 1990) 170-171. 27 Prosopographical analysis comes very close to network analysis which serves to identify and describe social action nets (R. Loimeier/R. Reichmuth,'Zur Dynamik Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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In a second step these results have to be corroborated or corrected by relevant treatises by the persons, individual statements on the existence and character of the movements and, last but not least, a comparative analysis as mentioned above. What emerges from such an analysis is a tentative theory on a specific constellation of movements which in many points confirms earlier research, but in some other points clearly diverges from it. Apart from the enigma of origins which lies behind many of these movements it is their interrelationship which particularly became subject of controversy. How do we explain the alliance between Qadarls and Murji'Ts under the cloak of Mu'tazilism during the Mihnal What is the relationship between Khärijls and Qadaris? Why does the Kulläbiyya oppose the Mu'tazila while both movements are searching for a middle way? Another purpose of prosopographical analysis is the ascertainment of significant social tendencies in a variety of fields by way of statistical investigation. The large number of biographies offers the opportunity to determine approximately the portion of certain persons in specific sections of Islamic society. With regard to the spread of Islamic imperial law, for example, it becomes clear that most of the judges appointed between 786 and 849 were Hanafis who practised law on the basis of ShaybänTs Code. The hadlth movement in fact goes back to the Qadari movement although the Hanballs, as it seems, vehemently rejected Qadarism.

Reception Analysis (a) Preliminaries As mentioned above there are many concepts, groups, movements and historical processes within Islam which may be interpreted and explained only against a non-Islamic background. It is reception analysis which constitutes the methodological basis for proving a context which goes beyond the limits of Islam. Parallels or similarities of any kind represent a phenomenon that frequently occurs in Islamic studies as well as in other disciplines. The question which arises with regard to the nature of similarities is always

religiös-politischer Netzwerke in muslimischen Gesellschaften,' WI 145-85).

36 (1996)

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Introduction

the same: are they coincidental or genetic?28 Does a phenomenon originnate from another phenomenon which is more or less similar to the former? This question is crucial to the origins of Islamic law, Islamic theology and other Islamic sciences. But among hundreds or even thousands of incidents discussed by Islamists there are only a few which from the scientific point of view might be qualified as certain. Almost all of them remained controversial and this for one reason: proving the genetic connection between isolated, simple-structured phenomena consisting of a few elements only is simply not possible because convergence may not be definitely ruled out.29 Therefore all those who adhere to the Volksgeist theory30 and hence doubt the applicability of reception analysis31 seem to be on the safe side. 28 G. Heck Charlemagne 7; L. Wenger Die Quellen des römischen Rechts (Vienna 1953) 10; C. Hezser '"Privat" und „öffentlich" im Talmud Yerushalmi und in der griechisch-römischen Antike,' P.Schäfer (ed.) The Talmud Yerushalmi and Graeco-Roman culture (Tübingen 1998) 425. 29 P. Häberle 'Theorieelemente eines allgemeinen juristischen Rezeptionsmodelles' JZ Al (1992) 1035; H. Daiber, Das theologisch-philosophische System des Mu'ammar ibn 'Abbäd as-Sulamt (gest. 830 n. Chr.), (Beirut 1975) 76, 407-9; idem. Wäsil Ibn 'Atä' als Prediger und Theologe. Ein neuer Text aus dem 8. Jahrhundert n. Chr. (Leiden 1988) 6; idem. 'Anfänge und Entstehung der Wissenschaft im Islam,' Saeculum 29 (1978) 359; H. Lazarus-Yafeh, 'Judeo-Arabic culture' Encyclopaedia Judaica Yearbook (1977/78) 103; S. FitzGerald 'The alleged debt,' 94; J. Schacht, 'Adultory as an impediment to marriage in Islamic and in Canon law' RIDA 1 (1952) 123; F. Pringsheim 'Reception' RIDA 7 (1961) 246; U. Mitter Das frühislamische Patronat 86,89; M. Rheinstein 'Types of reception' AFDI 6 (1956) 32; A. Watson, Legal transplants. An approach to comparative law (Charlottesville 1974) 15; Μ Canard, 'Le ceremonial fatimite et le ceremonial byzantin. Essai de comparaison' Byzantion 21 (1951) 357 ; M. Cook Commanding right and forbidding wrong in Islamic thought (Cambridge 2000) 472; D. Sourdel L'etat imperial des calif es Abbasides (Paris 1999) 82. Convergence as opposed to reception, has the meaning of reaching independently from each other the same results (terms, rules, conceptions etc.) by using different arguments (J. van Ess, review of M. Seale Muslim theology. A study of origins with reference to the Church Fathers, in: BO 23 (1966) 102). But unlike completely independent developments, convergence presupposes a common original basis or similar exterior circumstances. 30 The Volksgeist theory was explicitly formulated by the ethnologist A. Bastian (Der Völkergedanke im Aufbau einer Wissenschaft der Menschen (Berlin 1881) 118-20) and, in the field of law, supported by outstanding jurists just as F. Savigny and F. Eichoni (J. Bardach 'La reception dans l'histoire de l'etat et du droit,' Η. Kupiszewski/W. Wotodkiewicz (ed.) Le droit Romain et sa reception en Europe (Warsaw 1978) 34). At about the same time G. Tarde rejected this theory (Les transformations du droit. Etude sociologique (Paris 1922) 162. 31 N. Calder, Studies in early Muslim jurisprudence (Oxford 1993) 196, 201, 213-4; W. Hallaq, 'The use and abuse of evidence,' JAOS 110 (1990) 90; U. Mitter, Das Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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13

But this is not the whole story. In fact Muslims prove to be specialists in borrowing not only single elements but also complete systems in many fields such as law, theology and philosophy. What we find in many cases is not superficial or mechanical imitation of non-Islamic concepts but "high-level receptions" that presuppose considerable familiarity with foreign systems and an impressive ability to transfer them by analogy into the Islamic context. Analogous transfers of this kind require systematic modifications in structure, terminology and content and are mostly accompanied by eclecticism, that is, Muslims often used several systems at the same time. Although this procedure of borrowing should to be called "appropriation32" rather than "reception", the latter term will continue to be used in the study at hand. The widespread term "reception" 33 will indicate all forms of borrowing while "appropriation" is reduced to the special meaning of creative reception. All kinds of reception occured in Islam and contributed to its development. But in a first step it is only the direct and systematic reception that may be proved. The fact that Muslims largely borrowed from other cultures and religions in no way questions the status of Islam as an advanced civilization.34 By contrast, the receptiveness of or curiosity about foreign cultures and the ability to take over parts of them is an essential prerequisite for reaching the rank of a highly developed culture. Indeed, there is no higher culture or religion in the history of mankind that did not borrow from other cultures. How do we understand, for example,

frühislamische Patronat 90; T. Nagel Das islamische Recht . Eine Einführung (Westhoven 2001) 174; Η. Bleuchot Droit musulman. Vol. 1: Histoire (D'Aix 2000) 74, 310-12. See also the critical position of Ζ. Maghen ('First blood. Purity, edibility, and the independence of Islamic jurisprudence,' Der Islam 81 (2004) 95): "The hasty assignment of entire realms of Islamic law to wholesale importation, or even to significant foreign influence, is often a misguided and misleading enterprise. Fiqh has a logic and a genus all its own". 32 A. Sabra, 'The appropriation and subsequent naturalization of Greek science in Medieval Islam: A preliminary statement,' HS 25 (1987) 223-9. As to the creative character of reception see also F. Holldack Grenzen der Erkenntnis ausländischen Rechts (Leipzig 1919) 101. 33 Apart from creative and non-creative reception, a distinction must be made between direct and indirect (en voie diffuse) reception, see C. Versteegh 'The origins of the term „qiyäs" in Arabic grammar,' ZAL 4 (1980) 7. 34 This misunderstanding we do find, for instance in Z. Maghen 'First blood,' 58. See also H. Bleuchot Droit musulman 312. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

the early development of Christianity without looking at Hellenism35 F. Nietzsche characterizes Christianity as the "Vampire of the Imperium Romanum36 -, the emergence of Jewish philosophy without considering Islamic philosophy and the flourishing of European humanism without taking notice of the cultural assets of Antiquity reactivated, transformed and mediated by the Arabs?37 It appears that Muslims dealt in a largely unbiased and original manner with the heritage of nonIslamic cultures, to the extent that they themselves became the leading cultural power in the early Middle Ages. It was only in the second half of the 9th century that the radical wing of traditionalism, much more than its counterpart in Byzantium, systematically began to suppress the Islamic cultural explosion.38 From about the middle of the 10th century onwards Islamic humanism more and more was driven out of Baghdad and forced on the outskirts of the Islamic world. With regard to the large number of similarities between Islam and its neighbouring cultures and considering the fact that there still is no adequate methodological basis for appreciating all these similarities39 it seems to be suitable to present something like a reception theory. It comprises an elaborated system of criteria that helps to distinguish coincidental similarities from genetic connections. In the field of Islamic law it aims at revising a number of paradigmatic premises that prevented SharVa research from unveiling the secret of the early history of Islamic law.

35 J. Pelikan Christianity and classical culture. The metamorphosis of cultural theology in the Christian encounter with Hellenism (London 1993) 19, 169. One striking example is the biography of Jesus, which seems to be patterned on that of Herakles (F. Pfister 'Herakles und Christus,' AR 34 (1937) 42-60). 36 A. Cameron Christianity and the rhetoric of empire. The development of Christian discourse (Berkeley 1991) 121. 37 As to the transmission of Antique wisdom from Islam to Europe see F. KleinFranke Die klassische Antike in der Tradition des Islam (Darmstadt 1980). 38 I. Goldziher, 'Die Stellung der alten islamischen Orthodoxie zu den antiken Wissenschaften,' GS 5 (1970) 367-8; H. Schöffler Die Akademie von Gondischapur. Aristoteles auf dem Wege in den Orient (Stuttgart 1980) 123. The writings of the outstanding Arabic philosopher Ibn Rushd (d. 1198) were burned, his teachings successfully suppressed and almost completely forgotten. On the other hand, Latin Averroism contributed to the development of rationalism and enlightenment in Europe (S. Wild 'Islamic enleightenment and the paradox of Averroes,' WI 36 (1996)380). 39 A first survey of the criteria of reception in the field of Islamic law is given in U. Mitter Das frühislamische Patronat 85-91; see also J. Bardach 'La reception' 2769. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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15

This implies that the primacy of hadith analysis, as postulated in recent studies40, has to be rejected. Hadith analysis, as will be demonstrated, is based on premises that may only be proven by reception analysis.41 Paradoxically, all those who try to reconstruct the early history of Islamic law by dating the traditions on the basis of hadith analysis are searching for a phantom that in fact did not yet exist. Islamic law as we know it today came into being just after the period which is particularly interesting for hadith analysts. Instead of hadith analysis, which till now in one way or another represented the principal method for exploring the early history of Islamic law,42 preference is given in this study to a comparative historical approach which starts from the general assumption that the life of law depends on borrowing.43 From the earliest times44 up to the present45 legal systems have developed by borrowing from each other. It is a matter of fact that the civil law of most modern legal systems goes back, directly or indirectly, to Roman law or English Common Law. 46 Even the Anglo-American legal system borrowed from Roman law.47 More than any other legal system, Roman law, because of its comprehensiveness and multifariousness, proved to be suitable for reception.48 40 U. Mitter Das frühislamische Patronat 90. 41 For example, the undeniable „pattern of transmission" which is essential in Motzki's argumentation does not indicate the authenticity of traditions but the existence of an Imperial law. This, however, becomes clear only against a background which has to be reconstructed on the basis of reception analysis. See below 236. 42 This is true for J. Schacht as well as for H. Motzki, G. Juynboll, Y. Dutton and other outstanding SharTa researchers, even though their methods largely differ in detail. P. Crone's comparative approach is quite different and was heavily criticized. For a survey of the different approaches see H. Motzki Anfänge 8-49; C. Melchert 'The early history of Islamic law,' H. Berg (ed.) Method and theory in the study of Islamic origins (Leiden 2003) 298-311. See also A. Cilardo Teorie sulle origine del diritto islamico (Rome 1990); J. Wichard Zwischen Markt und Moschee. Wirtschaftliche Bedürfnisse und religiöse Anforderungen im frühen islamischen Vertragsrecht (Paderborn 1995)45-51. 43 A. Watson Ancient law and modern understanding (Athens 1998) 4; F. Wieacker Privatrechtsgeschichte der Neuzeit (Göttingen 1967) 124. 44 A. Watson Legal transplants. An approach to comparative law (Charlottesville 1974)21,24. 45 Α. Schwarz Rechtsgeschichte und Gegenwart (Karlsruhe 1960) 151; M. Rheinstein 'Types of reception,' AFDI 6 (1956) 37. 46 A. Watson Legal transplants 22. 47 M. Reimann 'Introduction,' The reception of continental ideas in the common law world 1820-1920, ed M. Reimann (Berlin 1993) 13. 48 F. Pringsheim 'Reception,' RIDA 8(1961)253-4. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

It is also against this background that the relationship between Islamic and Roman law must be seen. The Islamic state claimed to be the heir of Hellenism, in which Roman law developed and the Corpus Iuris of Justinian was born. And it is the Islamic state which, after the decline of Roman law, contributed to its revival.

(b) General Reception Analysis (Criteria) (1) Definition of Reception In this study the diffuse term "reception"49 is used in a broad sense, indicating the conscious borrowing of single elements or whole systems from other cultures.50 In principle, it refers to all fields of human society such as techniques of production, customs or administration structures. The focus in the study at hand is on legal, theological and philosophical concepts. Most of the receptions examined in this study are direct (en voie erudite) rather than indirect (en voie diffuse), that is to say the borrowing text is more or less directly based on the original text. Direct reception, as defined in this study, includes the possibility of mediators between both texts.

49 H. Kiefner, Art. Rezeption (privatrechtlich), HRG, IV, 971; F. Holldack Grenzen der Erkenntnis 99. 50 The term „diffusion", used in anthropology, is even broader than reception comprising every kind of cultural spread from one people to another. "Acculturation" means a very intensive form of diffusion generally involving prolonged contact of whole culture complexes (Heine-Geldern, Art. „Cultural diffusion", IESS IV, 169). The process of diffusion between Byzantium and Islam might well be characterized as acculturation (see below 320). There are still other terms such as "assimilation", "adoption", "borrowing", "taking over", "infiltration", and "penetration" which are not clearly defined. In this study they are used in the same meaning as "reception". "Imitation" is defined by G. Tarde (Les lois de limitation. Etude sociologique (Paris 1895) 15-6) as the social version of " repetition" and must be distinguished from "oscillation" (physical version) and "generation" (biological version). "Syncretism" is a term used in the field of religious studies (B. Maier, Art. Synkretismus, I (Begriff) (2) LThK 9/1178; as to the different aspects of syncretism see U. Berner Untersuchungen zur Verwendung des Synkretismus-Begriffes (Wiesbaden 1982) 95-107). For the term "appropriation" see below 30. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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(2) Predisposition for Reception In archaeology we often find the belief that a certain culture borrowed from another one in spite of great distances in space and time.51 As a result, if two cultures exist at the same time and are closely connected geographically we may reasonably suppose that there is a good chance of reception. Indeed, nobody really denies the general predisposition of Islam to influence by different cultures in the conquered territories.52 In great parts of Western scholarship, however, we observe a considerable discrepancy between this general presumption and the recognition of concrete receptions, particularly in the field of Islamic sciences. Why should influence a priori be restricted to non-religious elements in a religion which is not yet fully developed? Apart from closeness in space and time, it is the compatibility of cultures which facilitates reception.53 In spite of an expressed exclusiveness Islam, Christianity and Judaism form something like a spiritual alliance.54 All of them being monotheistic and resting one upon another, they prove to be quite similar in structure.55 Communication between Jews, Muslims and Christians took place on the basis of similar theological, legal and philosophical standards.56 Of course, this was a process which grew in intensity so that by the 9th-10th centuries religious

51 According to G. Tarde (Les lois de Γ imitation 37) this is a specific feature of imitation: "Limitation est une generation ä distance ". 52 This is also the conviction of the Egypt jurist Muhammad Sa'Id al-AshmäwI (G. Krämer Gottes Staat als Republik. Reflexionen zeitgenössischer Muslime zu Islam, Menschenrechten und Demokratie (Baden-Baden 1999) 66); see also U. Mitter Das frühislamische Patronat 89; L. Goodman 'The Greek impact on Arabic literature,' A. Beeston et al. (ed.) Arabic literature to the end of the Umayyad period (Cambridge 1983) 465; F. Schmidt 'Die occupatio,' 300. As to the cultural interconnectedness in the 11th century see D. Goitein 'The unity of the Mediterranean world in the « middle » Middle Ages,' SI 12 (1960) 30: "Despite the many frontiers and frequent wars people and goods, books and ideas travelled freely from one end of the Mediterranean to the other". 53 H. Lazarus-Yafeh, 'Judeo-Arabic culture,' Encyclopaedia Judaica Yearbook (1977/78) 101; H. Daiber, Anfänge und Entstehung, 364. 54 Η. Lazarus-Yafeh 'Judeo-Arabic culture,' 102. 55 Ν. Calder Studies, 214; Μ. Ayoub 'The Islamic context of Muslim-Christian relations,' M. Gervers et al. (ed.) Conversion and continuity. Indigenous Christian communities in Islamic lands eighth to eighteenth centuries (Toronto 1990) 466. 56 D. Sklare 'Responses to Islamic polemics by Jewish mutakallimün in the tenth century,' H. Lazarus-Yafeh et al. (ed.) The majlis. Interreligious encounters in Medieval Islam (Wiesbaden 1999) 140. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

labels indicated formal rather than substantial differences57 just like different political parties with almost the same program. The emphasis of exclusiveness on one side and the predisposition for reception on the other had the effect that foreign elements were presented as own elements. For example, Jews who in early Christianity became Christians (Jewish Christians) heavily contributed to the development of Monophysitism which in principle continued Jewish tradition in a Christian guise.58 As we will see, similar effects may be observed in Islam. However, we may no longer speak of reception if one culture is completely absorbed by another.59 It is an essential point that the hard core of the cultures involved remains unaffected. The more two cultures closely connected in space and time and similar in structure remain conscious of their own identity and the longer the process of interaction goes on, the more intensive reception will be. This applies particularly to rival states such as Byzantium and Islam.

(3) Channels and Modes of Reception In order to get an idea of the general context of reception it is indispensable to examine the channels and modes of borrowing. In Islam, it seems, there existed certain centers and mechanisms of reception. With regard to the intensity of reception one has to distinguish between institutional (government, schools, organized circles and groups) and non-institutional channels of reception (single converts etc.). As a rule, the transfer of culture through institutions is much more intensive than a transfer through single individuals. If a state intends to introduce foreign concepts, it will do so in a direct and organized way using books, experts and technical means. Receptions of this kind tend to be more precise and have a better chance to come into circulation. On the other hand, independent individuals usually not even have the intention, let alone the possibilities, to take over whole concepts or systems. It is 57 Even the question of Christology, the subject of heated debates between Christians and Muslims (see A.-T. Khoury, Apologetique Byzantine contre VIslam (Vllle XHIe s.) (Altenberge 1982)), became in a modified form an integral part of Islamic theology (see below 460). 58 Radical Monophysitism, by emphasizing divine transcendence and the distance between God and man, reduces Jesus to a frame of flesh without a soul (sarx conception), while Nestorianism, the Hellenic, non-Jewish counterpart in Christianity, makes Jesus a full man more clearly separated from God but closer to man. 59 H. Lazarus-Yafeh 'Judeo-Arabic culture,' 101. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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19

very probable that single elements are transferred by individuals, but normally receptions en voie diffuse are hard to prove.60 We may suppose, however, that diffuse receptions contribute to the increase of predisposition in the host culture to accept comprehensive concepts which have been directly and systematically borrowed. For instance, a largescale integration of foreign female slaves who take care of the children and their education61 might have considerable repercussions on the receptivity of the next generation.62 Western scholars usually believe individuals to be responsible, by way of conversion and polemical disputes, for the infiltration of foreign elements into Islam.63 When ignoring the government and other institutions as chief mediators between cultures it became difficult to accept reception as an important issue. In fact, however, the most important receptions took place in large cities such as Basra, Küfa, Damascus and above all Baghdad where institutions or groups functioned as cultural mediators. In the seventh century it was mainly the theological movements in Basra and Küfa which put into motion the process of reception. These groups, like for instance the Azraqits, were not founded by Arabs, but originated from the Byzantine circus factions, parts of which converted to Islam during the Arab conquests and continued to exist as 60 In some cases, however, where more or less widespread customs are concerned, such as the veneration of images among Muslims at the end of the seventh century, there seems to be sufficient evidence for reception. The fact that 'Abd al-Malik b. Marwän tried to suppress the installation of images in mosques presupposes a certain cult of images among Muslims which previously did not exist in Islam while at the same time this cult was officially legitimized in Byzantium at the Trullan Council in 692 (see below 472). 61 Heine-Geldern emphasizes the function of foreign women as "agents of diffusion" (170) 62 This applies, for instance, to the 'Abbäsid prince Ibn al-Mu'tazz (d. 908), whose mother and grandmother were Greeks. He borrowed elements of Byzantine rhetoric (see below 422). 63 H. Wolfson, The philosophy of the kalam (Cambridge 1976) 131; J. Schacht 'PreIslamic background and early development of jurisprudence,' Law in the Middle East, vol.1: Origin and development of Islamic law, ed. M. Khadduri et al. (Washington 1955) 36; idem., EI2, Art. Fikh, II, 887; idem/New sources for the history of Muhammadan theology,' SI 1 (1953) 26; idem Introduction 20; G. Becker Islamstudien. Vom Werden und Wesen der islamischen Welt, vol.2 (Leipzig 1924) 433; H. Daiber, Anfänge und Entstehung, 363; W. Watt/M. Marmura Politische Entwicklungen und theologische Konzepte (Der Islam II) (Stuttgart 1985) 255; B. Spuler 'Die morgenländischen Kirchen,' HO 1/2 (Leiden 1964) 152-3; M. Cook 'The origins of kaläm,' BSOAS 43 (1980) 40; J. v. Ess, Review of M. Seale Muslim theology. Α study of origins with reference to the Church Fathers, BO 23 (1966) 102. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

politico-religious groups -like solitary islands - in the sea of Islam. One could say that these groups, well acquainted with Christian theological concepts and most probably still in contact with former fellowbelievers, introduced theology into Islam.64 Most probably they also provided the first basis for or heavily influenced Islamic sciences such as grammar, lexicography, poetry, exegesis etc. It seems that they represented relatively safe platforms within a chaos of social upheavals. Not even Muslim Arabs hesitated to join these groups, and in some cases they provoked internal conflicts and splits.65 A decisive step in the history of Islamic receptions is the foundation of Baghdad. In Baghdad, unlike in Basra, Küfa or Damascus, the exchange of culture was entirely institutionalized. There is a clear tendency in Western and Muslim scholarship to separate the early history of Baghdad, where humanism emerged and flourished, from the early history of law and other Islamic disciplines. But it is here, in the bosom of humanism, and not in Küfa, Madma or anywhere else, that Islamic law was born. The mechanisms of transfer in Baghdad were highly elaborated and effective: extensive collection of manuscripts were made accessible in a large library (bayt al-hikma), systematic translations were provided by at least one team of professional, well-educated translators, regular sessions took place with experts from all parts of the world, projects were instigated for compiling Islamic standard works in a variety of fields based on non-Islamic works and, with regard to law, a central judiciary administration was established to spread Islamic law. All these mechanisms of transfer, along with broad logistics (paper and book production, development of new writing systems more suitable for copying texts, institutions of learning etc.), provided the basis for a cultural explosion. This cultural development which was initiated by the government spilled over into private or semi-private circles which in their turn began to read, translate and discuss foreign texts. We may suppose that these discussions, primarily led by Christians,66 took place in the pres-

64 In fact they belonged to those early converts in Islam who helped to define Islamic faith (as to this phenomenon see R. Bulliet 'Conversion stories in early Islam,' M. Gevers/R. Bikhazi (ed.) Conversion and continuity. Indigenous communities in Islamic lands eighth to eighteenth centuries (Toronto 1990) 132). 65 See below 194. 66 Hunayn b. Ishäq explicitly mentions Christian reading circles in Baghdad (M. Meyerhof 'Von Alexandrien nach Baghdad,' Sitzungsberichte der preussischen Akademie der Wissenschaften, phil.-hist. Klasse, vol. XXIII (Berlin 1930) 396). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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21

ence of Arabs such as Kind!, who more and more became involved in the world of paedeia (adab). Most probably, it is also in one of these circles that the model for Ibn Tufayl's Hayy b. Yaqzän was born67, which in its turn possibly influenced Daniel Dafoe's Robinson Crusoe.6* At the end of the 9th century we observe in Baghdad the emergence of a full-fledged philosophical school which, in contrast to the private circles mentioned above, claimed to continue the tradition of Peripatos (school of Aristotle) and, as a scientific institution of learning, took on a more formal character. For the first time the doctrines of Aristotle, translated, explained and propagated in Arabic, became accessible to a broad Islamic public. As we will see, this philosophical school provided the intellectual background for the construction of usül al-fiqh (= Islamic legal theory) as a science.

(4) General Parallels Cultures usually consist of systems and subsystems which are more or less intertwined. It is useful to compare not only special phenomena but also the overarching systems such as the literary profiles of cultures. For instance, from the second half of the 8th century there was an increasing production of literature in Islam which, in view of the structure and form of the genres, seems to be a mirror of the Byzantine literature that experienced a revival at about the same time. Apart from literature, a comparative analysis may refer to art, architecture, institutions, movements or historical processes (chronology of specific historical events). Significant similarities on such a broad scale may be deemed an important indicator of interaction. If the combination of general and specific reception analysis makes it clear that two cultures correspond on both the general and the specific level in a variety of interrelated fields, we may no longer suppose that this is a coincidence.

(5) Chronology In reception analysis the factor "chronology" plays an important role. If similar specific phenomena appear at the same time in cultures which 67 See below 372. 68 L. Conrad 'Introduction,' 1. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

are geographically interconnected and dispose of channels of transmission, there is a large probability of a genetic connection. It is this factor in particular which caused Islamists69 as well as Byzantinists70 to speculate on the connection between Byzantine and Islamic Iconoclasm. Iconoclasm in Byzantium was officially introduced by Leo III immediately after the official prohibition of images in Islam. Another example is the emergence of the Islamic isnäd (chain of transmitters) at about 700.71 Only a few years before, in 692, the Trullan Council - for the first time in the history of Christianity - officially equated oral with written tradition. A third example concerns a theological movement. The end of the 8th century saw the beginning of the career of Bishr b. al-Mu'tamir, who is regarded as the founder of the Mu'tazila in Baghdad. His "moderate" movement was directly preceded by the "Moderates" (Politikoi) in Constantinople, who not only bore a similar designation but also developed a concept quite similar to the Mu'tazilit doctrine al-manzila bayna al-manzilatayn. If in this case a genetic connection is taken for granted, a re-dating of the beginning of the Mu'tazilit movement becomes possible and necessary, that is, the Mu'tazila did not emerge in the first half of the 8th century in Basra as suggested in Islamic sources, but about a half century later in Baghdad. As we will see, reception analysis in some cases provides the basis for re-dating historical processes and movements in Islam. Of course, chronology alone is not sufficient to prove a genetic connection, but along with related similarities it may be decisive.72 Most surprising is the high density of chronological parallels in the Byzantine-Arab relations. Historical events, political measures, movements, groups, concepts and other cultural phenomena are not only similar in form and content, they also take place or emerge at the same time. Islamic history from the outset up to the 10th century or even longer correlates with Byzantine history.73 One may say that such a continuous and regular series of similar phenomena at the same time all the more points to interaction.

69 P. Crone, 'Islam, Judeo-Christianity and Byzantine iconoclasm,' JSAI 2 (1980) 70. 70 A. Grabar, L'iconoclasm Byzantin (Paris 1984) 127-8; D. Sahas Icon and logos. Sources in eighth-century Iconoclasm (Toronto 1986) 19. 71 See below 544. 72 See also V. Liebermann 'Transcending East-West dichotomies,1 526. 73 See below 439 (chapter on chronology). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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(6) Network of Receptions If we discover several receptions in a given cultural context it may happen that one reception confirms the other. Receptions which are difficult to prove for one reason or another may be corroborated by other directly related receptions which are certain. For instance, Shäfi'T's Risäla indirectly rests upon a small section of the Digests. This, however, would be hard to prove unless we knew with certainty that Shaybäm had abundantly used the Digests. Since we know that ShaybänT composed a work on legal theory and that Shäfi'T learned with him, it is clear that the methodological concept of the Digests was transmitted via ShaybänT to Shäfi'T.74 Apart from this special case we may generally assume that a basic stock of certain receptions raises the probability of further receptions75. A network of receptions does not only confirm less certain receptions. In some cases it also helps to make a historical context more plausible. The reasons of many historical phenomena such as the Mihna, the growth of traditions at the end of the 8th century, the emergence of law schools etc. remained obscure or controversial. It is clear that the explanation of such complex phenomena depends on interpretation. Nevertheless, we may say that the historical context, reconstructed on the basis of reception analysis, presents interesting answers to hitherto unanswered questions.

(c) Special Reception Analysis Special reception analysis essentially aims at directly comparing texts which are supposed to be genetically connected. If these texts are comprehensive and complex in structure containing a large number of specific terms, arguments, formulations etc. it is possible to prove whether or not one text originates from the other. In the case of congruency of numerous specific elements which are interrelated in a specific way (congruency of systems), we may take a genetic connection for granted. This also applies to texts which at the first blush seem to be quite different from each other.76

74 See below 520. 75 Heine-Geldern, Art. „Cultural diffusion", IESS IV, 170 76 See below 28. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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One of the most intricate problems in the field of concealed receptions is to discover the relevant texts. This, of course, presupposes the conviction that direct, text-based receptions really may have taken place. With regard to Islamic sciences, and Islamic law in particular, however, the possibility of direct reception is generally doubted.77 Many Muslim and Western scholars argue that Roman law, which, next to Jewish law, represents the most important potential basis for Islamic law, was no longer practiced in the Byzantine territories conquered by the Arabs. This argumentation implies that an essential prerequisite for reception is current practice of the donor system.78 But how do we explain then the codification of the monumental Basilika in ninth-century Constantinople, or the reception of Roman law in eleventh-century Italy? In both cases there had been no tradition of Roman law for at least 150 years before its reactivation.79 It is clear that the Byzantines

77 C. Nallino Raccolta di scritti editi e inediti, vol. IV: Diritto musulmano. Diritti Orientali Cristiani (Rome 1942) 93: "Ipotesi completamente smentita dai fatti". I Gaiduk The great confrontation. Europe and Islam through the centuries (Chicago 2003) 159: "Religion formed an integral part of Muslims cultural and spiritual identity, and it resisted alien intrusion". See also N. Calder Studies 213; P. Crone Roman, Provincial and Islamic Law 2; S. FitzGerald, 'The alleged debt,' 101; J. Schacht 'Droit byzantin et droit musulman,' Atti dei Convegni 12 (1956) 203, 208; idem. 'Adultary as an impediment to marriage in Islamic and in Canon law,' RIDA 1 (1952) 122; idem. EI2, Art. Fikh, II, 887; F. Schmidt 'Die occupatio im islamischen Recht,' Der Islam 1 (1910) 303-304. A. v. Kremer Culturgeschichte 2/5334. Not even Μ. Seale, who adopts the method of juxtaposing the writings of Christian and Muslim theologians seems to assume direct, text-based receptions (Muslim theology. A study of origins with reference to the Church Fathers (London 1964) 1,2,31). 78 S. FitzGerald ('The alleged debt,' 97) explicitly emphasizes the impossibility of borrowing from legal systems that are no longer practiced; see also P. Crone Roman, Provincial and Islamic law 92. 79 In Byzantium the Digests and the other parts of the Corpus Iuris were officially replaced in 741 by the Ekloga. But already before this time the Corpus Iuris was not in the center of Byzantine legal activity (P. Pieler 'Byzantinische Rechtsliteratur' I. von Müller et al. (ed,) Handbuch der Altertumswissenschaft, 12/5/2: Die hochsprachliche profane Literatur der Byzantiner (Munich 1978) 429-30). In North Italy and West Europe there was even a gap of a half millenium between the last contacts with Roman law (the Digests in particular) and the deliberate adoption of the whole Corpus Iuris in the 11th century (P. Koschaker Europa und das römische Recht (Munich 1947) 57-8; Μ. Bellomo Europäische Rechtseinheit. Grundlagen und System des Ius Commune (Munich 2005) 40-41). If we suppose, however, that the revival of Roman law in Byzantium directly influenced the legal development in Italy - and this is more than probable - this becomes rather an example for borrowing a living legal system. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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introduced a legal system that had been out of use for a long time and that this reception took place on the basis of texts only.80 If the Byzantines were able to revive Roman law by no more than using legal writings, why not the Arabs, who possessed a considerable stock of foreign manuscripts? Another argument against the belief that Arabs directly borrowed Roman law is the lack of texts. Assuming that Arabs were not able to read Latin texts81, they only could have used Greek translations, which according to FitzGerald82 were not extant. In fact, however, we know of Greek commentaries, paraphrases, summae, indices, epitomae, scholiae etc. composed by Byzantine jurists such as Dorotheos, Isidoros, Theophilos, Anatolios, Thalelaios, Theodoros, Kyrillos, Stephanos or Kubidas in the life-time of Justinian I or somewhat later. 3 The Digestsumma of the Anonymos, composed in 555, is almost completely preserved in the Basilika. Who is to say that the Arabs, who definitely borrowed Greek philosophy, medicine, meteorology etc., could not have used a Greek version of the Digests or another part of the Corpus /w/is?84 The undeniable possibility of direct reception and the fact that many parallels between Roman and Islamic law have already been discovered seem to be strong arguments for further and more detailed comparative studies.

Interestingly, in Europe - just like in Islam - the introduction of Roman law as a completely novel system was possible only with the help of a legend. According to this legend, Roman law continued to exist in Europe up to the 12th century, when it was allegedly enacted by the Emperor Lothar II. It was only in the 17th century that the German jurist H. Conring (in his famous work "De origine iuris Germanici") unveiled the Lothar-legend and provoked a critical reassessment of Roman law with far-reaching consequences for the legal development in Europe (P. Bender Die Rezeption des römischen Rechts im Urteil der deutschen Rechtswissenschaft (Frankfurt 1979) 30). 80 G. Dahin Zur Rezeption des römisch-italienischen Rechts (Darmstadt 1955) 23. 81 Even this premise is untenable, because there were translators in Baghdad who mastered Latin as well (see below 88). 82 S. FitzGerald 'The alleged debt,' 87. 83 H. Peters 'Die oströmischen Digestenkommentare und die Entstehung der Digesten,' Berichte über die Verhandlungen der Königlich-Sächsischen Gesellschaft der Wissenschaften zu Leipzig 65 (1913) 3; H. Spenger, Art. Corpus iuris civilis ML 189. 84 It is even reported that 'Abdallah b. 'Amr gained possession of Byzantine legal text books in the battle of Yarmük (F. Sezgin GAS 1/397). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

(1) External Indicators With regard to single receptions we often observe specific phenomena which indicate foreign influences. For instance, the sudden emergence of a new literary work or genre that is unprecedented in this culture might indicate a reception. Of course it is always possible that a culture produces new literary genres in the course of time, but usually we are able to reconstruct one or several steps of development which led to the innovation. However, if there is a total lack of information about the development preceding the new phenomenon, we may ask where it comes from.85 This question becomes all the more justified if contemporaries of the innovator pose the same question. When 'Abd al-Mälik b. Marwän asked Hasan al-Basri where the qadar doctrine comes from, because he didn't know - and because it hardly may be distilled from the Qur'än86 - we may not rule out that this doctrine is new. In this special case we even find explicit references to Christian influences, which seem to be more than mere polemic because just the same doctrine was in the center of a heated controversy in Byzance at the same time. Apart from the sudden appearance of new phenomena, explicit references to foreign influences87 or critical reactions,88 we sometimes 85 This also applies to cases in which we are not able to explain the phenomenon on the basis of premises inherent in the culture (J. Schacht 'Droit Byzantin,' 123; H. Daiber Das theologisch-philosophische System 313; v. Grunebaum 'Byzantine iconoclasm and the influence of Islamic environment,' HR 2 (1962) 10). See also G. Makdisi 'Baghdad, Bologna, and scholasticism,' J. Drijvers/A. MacDonald (ed.) Centres of learning. Learning and location in pre-modern Europe and the Near East (Leiden 1995) 149: "A culture in which institutions cannot be related to indigenous antecedents must have received those institutions from an external source, i.e. a culture having the requisite indigenous antecedents". As to the sudden appearance of a highly developed phonetical system in the Kitäb al-'Ayn see S.Wild Das Kitäb al-'Ain und die arabische Lexikograhpie (Wiesbaden 1965) 37. 86 T. Nagel Geschichte der islamischen Theologie. Von Mohammed bis zur Gegenwart (Munich 1994) 47. 87 In the Islamic sources we often find references to Christians or Jews as mediators between Islam and other cultures. For instance, the authors frequently criticize the adoption of Christan and Jewish practices (M. Gronke '»Alles Neue ist ein Irrweg«. Zum mittelalterlichen arabischen Schriftum über religiöse Missbräuche', R. Brunner et al. (ed.) Islamstudien ohne Ende. Festschrift fiir Werner Ende zum 65. Geburtstag (Würzburg 2002) 138). We certainly may agree with J. v. Ess (Review M. Seale Muslim theology 102) that such references alone do not prove reception. But along with other indicators they may be regarded as relevant. 88 F. Schmidt 'Die occupatio,' 318. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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observe legends centering around the origins of movements or concepts. Very often these legends prove to be controversial, preventing us from reconstructing the real historical context. Was Wäsil b. 'Atä' the founder of Mu'tazilism, as stated by later Muslims in different versions, or do these legends veil the true genesis of the movement? What is the historical background of the shürä in 644 which in some way seems to be an innovation and is covered with a number of controversial stories? In all these cases it might be helpful to consider the possibility of reception.

(2) Circumstances of Reception Starting from the premise that there was no direct reception in the critical field of Islamic sciences, Islamists usually did not examine the circumstances of borrowing such as the time or place of a reception or the persons involved.89 Although a deeper insight into the circumstances as such is not a conditio sine qua non for proving a text-based reception, it is of course more convincing and may be useful for reconstructing the motive. Furthermore, it helps to get a more precise idea of the reception network mentioned above, which in its turn helps to discover or prove further receptions. Since most of the receptions in Islam took place secretly,90 we usually don't have reports on the circumstances. In these cases the receiv89 U. Mitter (Das frühislamische Patronat 90) explicitly rules out the possibility of reconstructing the circumstances; see also M. Allard Le probleme des attributs divins. Dans la doctrine d'al-As'ari et de ses premiers grands disciples (Beirut 1965) 161. 90 Concealment is a typical feature of legal, theological etc. reception in Islam as well as in other cultures (G. v. Grunebaum 'The problem of cultural influence,' D. Wilson (ed.) Islam and medieval Hellenism: social and cultural perspectives (London 1976) VIII, 87: "It is a characteristic tendency on the part of the receiving community to interpret heterogenetic change as orthogenetic". See also P. Magdalino, 'The road to Baghdad in the thought-world of ninth-century Byzantium,' L. Brubaker (ed.) Byzantium in the ninth century: Dead or alive? (Aldershot 1998) 196; I. Goldziher 'Stellung der alten islamischen Orthodoxie zu den antiken Wissenschaften,' J. Desomogyi Ignaz Goldziher. Gesammelte Schriften, vol. 5 (Hildesheim 1970) 366-7). We may not reasonably expect Muslim jurists to quote Pomponius, Sabinus etc. when borrowing Roman law (as FitzGerald suggests 'The alleged debt,' 86). Neither did Jewish jurists who borrowed Islamic law mention Muslim jurists. Instead of Abü Hanlfa or Shäfi'T they quoted Ravina or Resh Ashi respectively (Lazarus-Yafeh, H. 'Judeo-Arabic culture' 104). The same applies to Muslim theologians who were certainly not interested in mentioning the Church Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Introduction

ing texts themselves are the most important source. If the texts prove to be authentic and the authors are known, there is a good chance to elucidate the historical setting of the reception. Sometimes, however, the dating of a text represents a serious problem that has to be solved by contextual analysis. It is clear, for instance, that the famous story of Ibn Tufayl relies upon the History of Diodor and the Preparatio Evangelica of Eusebius of Caesarea and that the reception took place in Baghdad where both works were available. We don't know, however, who precisely borrowed the story and introduced it into the Islamic context. In view of a number of indications we may assume that the story was taken over in the first half of the 9th century and transmitted orally in different versions.91

(3) Comparison of Texts The cornerstone of reception analysis is the comparison of authentic texts92 which are considered to be more or less directly connected with each other. In order to prove a reception it does not suffice to compare single isolated elements detached from an overarching context. What we need is a large number of specific elements presented in a distinctive formal structure. If the systems to be compared show congruency in content (large quantity of specific elements) and structure (specific constellation of elements), we may no longer doubt that there is a genetic connection between these systems. This will become all the more clear if some elements contained in both systems are definitely not immanent. Congruency of systems, however, does not necessarily mean that each element of a system is exactly paralleled with a similar element in the other system. Nor does it mean that single elements and their counterparts are completely congruent. It is just this problem that led most of the Sharl'a experts to the conclusion that Islamic law does not have anything to do with Roman law. Indeed, many elements contained in Islamic law do not occur in Roman law and vice versa, and the formal structure of both systems at the first blush seems to be completely dif-

Fathers when taking over theological concepts from the Christians (M. Seale Muslim theology 1). 91 See below 372. 92 J. v. Ess, review of M. Seale Muslim theology, BO 23 (1966) 103. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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ferent.93 What we have to consider is the effect of high-level reception, that is the systematic transfer of a system from one culture into another one which sometimes implies considerable modifications.94 The important point here is that in spite of the transformation, parts of the original system are preserved and clearly recognizable. If essential features of the original system reappear in the new, modified system, the provenance of the new system will no longer be in question. The Ziyädät, for instance, have the same function within the Shaybänl Code as the Novellae have within the Corpus Iuris of Justinian. Interestingly, they also have the same title. But Shaybänfs Mabsüt, too, has a counterpart in Justinian's codification. It exactly corresponds to the Pandectae in scope, function and title.95 This is only one of numerous structurally interconnected elements in the Shaybänl Code indicating the Byzantine-Roman provenance. In principle, one may say what applies to the identification of material things applies to the identification of immaterial things as well. If a ship burns down, we are nevertheless able to identify it by specific features although the external appearance has changed considerably and there is little similarity with the original appearance. Likewise the descent of a boy from his father who looks quite different may be proved by a paternity test. Text-based reception analysis does not exclude the possibility of intermediate stages - written or oral - between the relevant texts. While the most favourable case of course would be to compare immediately connected texts, we are in fact confronted with a situation in which only small parts of the tremendous quantity of literature of Late Antiquity are preserved. We may not expect to find all the works that have been directly used by the Arabs. Nevertheless, with regard to the huge loss of literature in more than a millenium it is surprising how many relevant works survived the vicissitudes of time. One might ask to which degree Islamic humanism - in competition with Byzantine humanism - contributed to the transmission of Greek works. There is much to indicate that the Greek minuscule hand, along with a number of Arab hands, was developed in Baghdad at the end of the 8th century and that a large number of Greek works were copied in the Islamic metropolis.96 93 S. FitzGerald, 'The alleged debt,' 102; U. Mitter Das frühislamische Patronat 88. 94 Receptions always imply modifications (F. Pringsheim, 'Reception,' 246; F. Wieacker Privatrechtsgeschichte 124). 95 See below 106. 96 At any rate there emerged new writing systems in Baghdad at the end of the 8th century (see below 496), while the Muslims made ample use of Greek texts. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Be it as it may. Even if the original works are separated from the receiving treatises by one or several intermediary works or by a stage of oral transmission, there still will be a good chance of proving the genetic relationship. What counts is the transmission of characteristic elements in structure and content which are very often preserved in the receiving writings. Comparative analysis, which in principle applies to legal systems as well as to other systems (theology, grammar, prosody, rhetoric etc.), contains the following criteria: 1) Formal Structure Complex systems are usually characterized by multifarious structures which extend from the general external form down to the smallest details. In the Corpus Iuris of Justinian I., for instance, the legal material is divided into four bodies of rulings (Digests, Institutes, Code, Novels), each constituting a code in itself and fulfilling a specific function within the system. Some of these codices in their turn are subdivided into books, chapters (titles), leges and paragraphs. This is in no way selfevident, as might appear from the modern point of view, but must be regarded as the result of a century long development which was strongly influenced by Hellenism and, even more importantly, initiated by the state. Another system widespread in Late Antiquity, was the Q7

Organon of Aristotle which shows a no less complicated structure than Justinian's codification and may be recognized even in a strongly modified form. Numerous structural elements in the usül works reveal that the usülTs must have been extremely familiar with the epistemological system of Aristotle when they transferred it into a religious context. The same applies to standard systems in grammar, medicine, rhetoric, prosody, music, astrology etc. The Arabs did not arbitrarily select single elements from these systems but tried to understand them as organic unities. When there were several concurring systems they chose the best one to use it as structural basis and complemented it with elements of the other systems. This procedure, adequately called "appropriation"98, produced completely novel systems which, however, bear the unmistakable stamp of the basic systems. 97 H. Hunger Die hochsprachliche profane Literatur der Byzantiner, vol. 1 (Munich 1978) 15. 98 A. Sabra, 'The appropriation and subsequent naturalization of Greek science in Medieval Islam: A preliminary statement,' HS 25 (1987) 223-9. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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2) Textual Structure Not infrequently even parts of the textual structure of the sources reappear in the receiving works. The boundaries between the structures of texts and systems sometimes blur, but there are cases in which the textual structure is entirely independent of the system. The arrangement of legal cases in the chapters and paragraphs of the Digests is largely unsystematic and it fell to later jurists such as Enantiophanes to systematize the material, to a certain extent, by collecting similar or contradictory rulings." If quite different specific cases which follow one behind the other or at a small distance from each other in a certain chapter of the Digests occur in the same constellation in a corresponding chapter of Shaybäm's Asl, this can hardly be a coincidence. It is just this kind of text-based, detailed comparison that has been completely neglected in previous comparative studies. 3) Topics One of the principal objects of comparison is of course the substance of systems which differ in kind and receptiveness. Some systems may be filled with new material without loosing the original structure, while others constitute a homogeneous bloc of topics which may hardly be replaced by new ones. The doctrine of free will, for instance, consists of a set of topics that makes sense only when discussed in a constellation presented by the Christians. Qadarism, the Islamic version of Dyotheletism, may not be combined with elements of fatalism without becoming absurd. It is just this kind of contamination that made Mu'tazilism, based on tawhid, inconsistent. Likewise, HanbalTs and KulläbTs, by rejecting Murji'ism and anti-predestinarian Mu'tazilism at the same time, had difficulties in finding a plausible alternative. By contrast, the doctrine of images could well be transferred into an Islamic context by replacing the icon with the Qur'än, because the Iconudules already regarded the Holy Scripture as equally worthy of imitation. It is Roman law in particular that proved to be suited for reception.100 In the course of centuries it grew into a clearly organized system that step by step incorporated and distilled countless cases of everyday life at the same time gaining increasing importance as a stabilizing ele-

99 Hence his name „Enantiophanes" which means „contradictory" (ενάντιος). 100 F. Pringsheim, 'Reception,' 253-4. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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ment of the state.101 The impressive functionality of this system appears from the fact that a considerable number of rulings and principles still is in force in modern legal systems.102 On the other hand, it was always possible for the host cultures to replace parts of the rulings by rulings of their own without contravening the fundamental structure of Roman law. Roman law as represented in the codification of Justinian I is a casuistic law,103 that is to say between most of the rulings within the chapters there is only a loose connection. Moreover, the majority of these rulings concern very concrete cases which may be easily replaced by other similar cases. As a rule we don't observe overarching and explicit theories of certain legal institutions such as a theory of contracts or a theory of patronate. What we find, by contrast, are concurring or even contradicting approaches to legal phenomena. Although the tendency to systematization in Justinian's Corpus Iuris is apparent,104 it was obviously not the intention of Tribonianus and his legal commission to remove all of the divergent opinions.105 In this point there is no difference between the Digests and early comprehensive fiirü' works in Islam such as the Asl of Shaybäm or the Mudawwana of Sahnün. If we consider that the Digests contain tens of thousands of cases106 and the Mabsüt of Shaybäm about 27000 cases107 and if we suppose, furthermore, that the borrowing jurists used to select, rearrange, modify and supplement the casuistic material, it is not surprising that the modern SharVa experts - who a priori excluded the possibility of direct reception - simply overlooked the close connection between both systems. Even when they came across really striking parallels, they did not accept the possibility that Muslim jurists took these cases directly from Roman law. Schacht's rhetoric-thesis is a good example in this context. 101 With regard to the reception of Roman law in Germany see G. Köbler Lexikon der europäischen Rechtsgeschichte (Munich 1997) 503. Pringsheim (Reception, 2501) explicitly mentions the unifying effect of Roman law in states which are governed by concurring legal systems. It was just this problem that the 'Abbäsids faced after seizing power in the middle of the 8th century (Ibn al-Muqaffa' Risäla 41). 102 This is why even today Roman law is regarded as the greatest secular legal system that the world has ever seen (A. Watson Ancient law 19). 103 F. Schulz Prinzipien des römischen Rechts (Berlin 1934) 44. 104 See, for instance, Cod. 1.17.9-10. 105 Cod. 1.17.6. 106 The legal commission of Justinian I excerpted 150,000 versus (lines) from 2000 libri (books) (L. Wenger Die Quellen 580). 107 This is the rough estimate of Hasan b. Däwüd (KhatTb al-Baghdädx Tärtkh Baghdad 2/177). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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While he believed the general principles and maxims to be of Roman origin mediated by legally educated rhetoricians,108 he regarded the much more striking parallels between concrete and sometimes complex cases as coincidental.109 This is not convincing. Other scholars point at Jewish law as the potential source of these cases.110 Starting from the premise that it was Jewish law, more than any other legal system, that contributed to the early development of Islamic law, they suppose that all these cases were taken from Jewish law after Jewish jurists had borrowed them from Roman law. But this is implausible for one simple reason: there are hundreds or even thousands of specific cases which occur in Roman and in Islamic law, but not in Jewish law. Nobody will believe, however, that all these cases formed part of Roman Provincial law. It is quite possible that ShaybänT borrowed rulings from Roman law which he rediscovered in Jewish law, but most probably he was only interested in those cases of Jewish law which did not occur in Roman law. 4) Terminology When comparing corresponding systems of different cultures, specific technical terms belong to the most conspicious features indicating reception. Scholars who try to prove genetic connections between systems usually attach great importance to similar terms for similar phenomena in different cultures.111 Is it self-evident that both Roman and Muslim jurists use the term "putting down" (wada'a/deponere) for indicating the legal institution deposition! There are many cultures112 which use different terms for this institution and those which use a derivative of depositum or a translation of it are obviously influenced by

108 J. Schacht 'Droit byzantin et droit Musulman,' Accademia Nazionale dei Lincei, Fondazione Allessandro Volta, Atti dei Convegni 12 (1956)/ Convegno di Scienze morali storiche e filologiche (Rome 1957) 200-201; idem 'New sources for the history of Muhammadan theology,' SI 1 (1953) 27. 109 J. Schacht 'Droit Byzantin,' 211. 110 P. Crone Provincial law, 2-3; G. FitzGerald, 'The alleged debt,' 97-8; with regard to legal theory see J. Wegner, 'Islamic and Talmudic jurisprudence: The four roots of Islamic law and their Talmudic counterparts,' AJLH 26 (1982) 25-71. 111 H. Wolfson The philosophy of the kalam (Cambride 1976) 114 112 For instance, the corresponding term in the T'ang code (issued in 624) is chi (German transcription: ji) which has the connotation of "entrust" (G. Maccormack 'The law of contract in China under the T'ang and Sung dynasties,' RIDA 32 (1985) 21.) Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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Roman law. In many cases the sceptics113 point to the Qur'änic origin of such terms, arguing that, for instance, the term fiqh may be traced back to tafaqqaha (Q 9:122).114 But do these terms really go back to the Qur'än, where they mostly have a quite different meaning? One could also argue that it is not very difficult to reproject a new term on a comprehensive source such as the Qur'än by finding at least one similar term.115 The example of qadar might be illustrative. In his Risäla Hasan al-Basri (d. 728) frequently refers to the Qur'än, interpreting the term qadar in the sense of human - not divine - power. As we know, his opponents the Murji'its vehemently refused this interpretation, giving the term just the opposite meaning, i.e. divine omnipotence. What deserves attention here is the fact that just these Murji'Ts call their opponents Qadans, no doubt meaning "adherents of the doctrine of human power". Why do they use the term in a sense they clearly do not believe to be the true sense of the term? What would we say if the representatives of a left-wing party derogatorily designated the representatives of the right-wing party as communists? In fact the term "qadar" in the sense of "human power" does not go back to the Qur'än but to the Greek term " ένέργεια " which was in the center of a heated debate between Dyotheletics and Monotheletics about free will. The whole doctrine of Dyotheletism sanctioned at the 6. Ecumenical Council in 680/1 was taken over by Muslim circles in Basra and the central term " ενέργεια " was pressed into the Qur'änic term "qadar", 116 The historical background of Hasan's doctrine makes it clear that Qadarism as well as Murji'ism - sprang not from Islam but from a politicoreligious conflict in Byzantium. Still many other theological terms mentioned in Hasan's Risäla and other theological writings may be traced back to the council acts of 680/1 and the writings of the Church Fathers (Maximus Confessor, Basileus the Great etc.)117 which were abundantly used at the council.

113 U. Mitter Das frühislamische Patronat, 76, 85,87; T. Nagel Das Islamische Recht 177. 114 Also Muslims trace this term back to the Qur'än ( see, for instance, HäjjT Khalifa Kashf al-zunün 4/457). 115 See also M. Seale Muslim theology 94. 116 See below 460. 117 The writings of John of Damascus used by M. Seale in his Muslim Theology for proving the Christian origins of Qadarism are definitely not the basis of early Qadarism in Basra. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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This is just one example for the general tendency in Islam to produce an Islamic identity by tracing foreign terms back to the Qur'än. Consequently, even if a specific term occurs in the Qur'än we can not be sure whether or not this term was redefined with a new meaning some time after the redaction of the Qur'än. As we will see, it was the critical realm of "Islamic sciences" that underwent a process of Islamisization, particularly after the triumph of Orthodoxy in the middle of the 9th century. In fact, everybody knows that many technical terms were introduced into Arabic to the extent that the Queen of languages was finally recognized as a scientific language par excellence. The tremendous output of scientific terms produced by the translators118 particularly from the end of the 8th century must have appeared strange to many Arabs. Philosophical, legal and theological terms, not to mention the terminology in the natural sciences, came into circulation and provoked some confusion among the Muslims and, no less, among later Islamists. Not infrequently one and the same Greek (or Syriac etc.) term was translated with different Arabic terms119 while just as often one and the same Arabic term was used for translating different foreign terms. Whether the grammatical " κανών ", the theological " είκών ", the legal " quod proximus et consequens ei est" or the philosophical " συλλογισμός ", all of them were translated with qiyäs which, no wonder, took on a number of different meanings. On the other hand, both tadbir and iqtisäd were used to translate " οικονομία ", one of the most important terms in Christianity.120 Instead of tadbir or iqtisäd, however, it was the term ijtihäd, a literal translation of "πόνος", "ζήτησις" or "σπουδή", which in their turn are inseparably connected with " οικονομία ", that became the exact counterpart of "οικονομία " in Islam.

118 P. Thillet, 'La formation du vocabulaire philosophique arabe,' D. Jacquart (ed.) La formation du vocabulaire scientifique et intellectuelle dans le monde arabe (Turnhout 1994) 51; A. Schall 'Geschichte des arabischen Wortschatzes, Lehn- und Fremdwörter im klassischen Arabisch,' GAP (Wiesbaden 1982) 1/151. 119 G. Endreß 'Die griechisch-arabischen Übersetzungen und die Sprache der arabischen Wissenschaften,' G. Endreß (ed.) Symposium Graeco-Arabicum II. Akten des Zweiten Symposium Graeco-Arabicum. Ruhr-Universität Bochum, 2.-5. März 1987 (Amsterdam 1989) 121. 120 See below 563. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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It seems that the translators sometimes preferred transliteration to translation121 as the terms ikslr (= ξηρίον), anblk (= άμβιξ), 122 barTd and many others show. The term kharäj, traced back by P. Schwarz123 to the Greek term " χορηγία " and which has the alternative form of khurj, might also go back to " γεωργία " (farming). It may not be ruled out that the Islamic kutub al-kharäj which emerged in the second half of the 8th century have something to do with the " νόμος γεωργικός ", which was most probably composed in the lifetime of Leo III (d. 741).124

In some cases the translators invented completely novel words such as aysa (opposite of laysa = is not)125 or 'ariyya. The latter term is a derivation of 'äriya (loan) and was created to denote a specific case borrowed from the Digests}26 Later on there was a broad discussion among Muslim jurists about the meaning of this term which forms part of many prophetic traditions and plays a central role in the sensitive field of ribä (usury). Apart from the criterion of context and transliteration, there is a further criterion that reveals the non-Islamic origins of an Arabic term or its meaning. Many terms have a primary meaning and one or several connotations which sometimes strongly differ from the primary meaning. Arabic terms which show congruency both in the primary and the secondary meaning with a Greek term obviously go back to just this Greek term.127 The Greek origin will become all the more clear if these special terms emerge at the same time and/or in a similar context. The primary meaning of fitna, for instance, is "temptation", but it also has the quite different meaning of "civil war".128 The same applies to the Greek term " σκάνδαΛον " which was of great political importance in 121 A. Schall 'Geschichte des arabischen Wortschatzes,' 149-51; G. Endreß 'Die griechisch-arabischen Übersetzungen,' 124-9. 122 M. Ulimann, Art. Al-Kimiyä', EP V, 111. 123 P. Schwarz 'Die Herkunft von arabisch haräg (Grundsteuer),' Der Islam 6 (1916) 98. 124 See below 276. 125 According to P. Thillet, (La formation, 43-5) "aysa" most probably is a derivation of "laysa" for translating "είναι". 126 Dig. 18.1.39.pr. 127 Translations, in which the Arabic term is based on the primary meaning of the Greek term while taking over the secondary meaning of the latter may be observed in many cases (G. Endreß 'Die griechisch-arabischen Übersetzungen,' 130-31). 128 L. Gardet, Art. Fitna, EI2, II, 930-931. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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the 7th to 9th centuries in Byzantium. What is even more striking is the fact that Byzantines and Muslims used these terms to refer to similar historical events. The first fitna in Islam is marked by a political conflict between 'All and Mu'äwiya which broke out after the murder of the third caliph 'Uthmän (656) and culminated in the battle of SiffTn in 657.129 But it was also a theological conflict insofar as a third party, the Khärijits, rejected on religious grounds the arbitration agreement of a tribunal constituted for settling the conflict. According to the Khärijits it was not acceptable to set up a human tribunal above the divine word because judgement belongs to God alone.130 At about the same time (May 655) the head of the Dyotheletic and strongly traditionalist movement Maximus Confessor was brought to trial in Constantinople for his alleged support of a rebellion in North Africa. The political aspect of the trial was closely connected with a theological one concerning the Monotheletic Typos of Constance II. In this latter point Maximus clearly emphasized the exclusive prerogative of the Church meaning the Holy Scripture and the Apostolic tradition. One may say that the trial and the subsequent schism, termed "σκάνδαΛον", marked a turning point in Byzantine ecclesiastical history because it was the first time since Constantine the Great that the Orthodox Church overtly opposed the state. But still another point deserves attention. Maximus Confessor was condemned as "αποστάτης", a term which denotes „rebel" as well as „someone who goes out". Is it a coincidence that the term "khawärif (= rebels/those who go out) for those who did similar things in a similar context at about the same time has exactly the same meanings? The fact that the Khawärij called themselves shurät,m possibly a translation of the Christian term " παράβολος ",132 makes it even more plain that both the events and the terms are genetically connected.

129 130 131 132

M. Lecker, Art. §iff!n, EI2, IX, 552-6. G. Levi Delia Vida, Art. Khäridjites, EI2, IV, 1074-7. G. Levi Delia Vida, Art. Khäridjites, EI2, IV, 1075. C. Lawrence, 'Theophanes and the Arabic historical tradition: some indications of intercultural transmission,' A. Hakkert et al. (ed.) Byzantinische Forschungen 15 (1990) 38-9. According to E. Lane (Arabic-English Lexicon (New York 1956) 4/1546) the Khärijites explained the term sharä also in the sense of "to purchase": "Verily God has purchased us and our possessions". In this sense sharä corresponds to the Greek term ε ξ α γ ο ρ ά ζ ε ι ν (= to buy, redeem), which is one of the terms used in the Bible (Gal. 3,13; 4, 4-5) to indicate "redemption" (J. Gnilka, Art. Erlösung, II. Biblisch-theologisch LThK 3/803). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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5) Style Direct reception implies the possibility of taking over specific formulations, that is specific orders of words or sentences which as such may appear unimportant, but in reception analysis clearly prove the genetic connection between texts. If we find in a legal text a detailed description of cases with legally irrelevant expressions, phrases or transitions it is quite possible to rediscover at least some of these stylistic features in the receiving text. With regard to receptions in Islam this is of course a difficult enterprise because "translating" here very often means "paraphrasing". Apart from the fact that translations from Greek into Arabic met particular difficulties because of the structural differences of the two languages,133 the receivers did not shrink from modifying or reformulating the original texts. Nevertheless, one can find passages or sequences of sentences which reflect almost literal borrowings from the original versions. We may suppose, for instance, that after finishing the codification project Abü Yüsuf made the translators produce further, more precise translations of some legal texts which he transmitted along with the codex to his pupils in Baghdad. Fragments of these translations which come fairly close to the original texts reappear in later furü' works such as the Mabsüt of SarakhsT (d. 1089) or the MughmoiJbn Qudäma (d. 1221).134 6) Inconsistency Modern SharVa experts repeatedly point out inconsistencies in Islamic law and various theories have been put forward to give plausible explanations. In recent studies we observe a certain trend of redating legal works based on the presumption that original versions were revised by different authors in the course of time.135 Indeed, the revision of original works or the attribution of texts to earlier authorities is a wellknown phenomenon in Late Antiquity as, for instance, interpolations in the Digests or the revision of Aristotelian texts plainly show. In a num133 This is why the translators more and more preferred the detour via Syriac. 134 See below 98,125. 135 E. Chaumont, Art. al-Shaybänl, EI2, IX, 393. This approach was put to question by M. Muranyi Die Rechtsbücher des Qairawäners Sahnün b. Sa'Td. Entstehungsgeschichte und Werküberlieferung (Stuttgart 1999) 31; J. Brockopp, 'Competing theories of authority in early Mälikl texts,' B. Weiss (ed.) Studies in Islamic legal theories (Leiden 2002) 3-22; idem. Early Mälikl law. Ibn 'Abd al-Hakam and his major compendium of jurisprudence (Leiden 2000) 68-70; A. Görke Das Kitab alAmwäl des Abü 'Ubayd al-Qäsim b. Salläm. Entstehung und Überlieferung eines frühislamischen Rechtswerkes (Princeton 2003) 177-8. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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ber of cases we are able to give evidence for such a practice in Islam.136 However not all works containing inconsistencies prove to be revisions of earlier works. Moreover, it would be risky to suppose that legal developments always move from low to high.137 If we compare the Ekloga of Leon III with the Digests of Justinian I, nobody will doubt that the former is a step back and not a step forward in legal development. But this does not mean that the Ekloga was composed before the Digests. There are many factors to determine legal developments and the desire of single jurists to raise a legal system to a higher level might be one of them. Another one proposed in this study is reception. Inconsistency as such does not prove genetic descent. But in many cases it has a corroborating effect. Contradictions which till now found no or only unsatisfactory explanations may often be explained by reception. Many of them go back to translation mistakes. A ruling which in the original text was logical became illogical in the translation text because a certain term was misintrepreted. As has been indicated above, many Greek terms have several meanings and the translators sometimes had trouble in choosing the right one. A very special kind of translation mistake is the contraction of two or several cases. The Muslim jurists used a Greek epitome of the Digests in combination with a Catena written on the margin of the Summa. Since there was no clear separation between the single annotations in the margins, the translators sometimes wrongly assigned several annotations to one and the same case in the main text, producing really strange cases in this way.138 Later jurists took the greatest trouble to bring sense into these cases. But when we compare the original and the receiving text, we easily understand where the problem comes from. Similar inconsistencies result from the fact that some original texts, in particular those of compilatory character, contain material from different periods, that is, later historical layers supersede or contradict earlier ones. But while the different layers in the original texts are clearly separated and may be easily recognized, boundaries sometimes blur in the receiving texts. As everybody knows, the Digests reflect a legal development of more than 1000 years and contain an impressive spectrum of rulings and legal opinions. It is clear from the remarks and comments of later jurists that old edicts dating from the pre-Christian 136 G. Schoeler 'Die Frage der schriftlichen oder mündlichen Überlieferung,' Der Islam 62(1985)216. 137 A. Watson Legal transplants 13. 138 See, for instance, 182 (case 9). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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area were modified in the course of time. In fact many rulings, though introduced into the Digests, were no longer regarded as practicable in the time of Justinian I.139 Much of the death material is clearly marked in one way or another as a separate part within the text and very often, in the form of edicts, constitutes the starting point or nucleus of a whole chapter. If the borrower selects single elements of different historical parts of the chapter and rearranges them in a new text without indicating the historical layers, modifications caused by historical development will appear as legal inconsistencies. On the other hand, if we supposed that these contradictions went back to a specific historical process in the host system, this would mean that both systems resulted from a very similar historical development. Such a presumption, however, is not very reasonable because historical developments are extremely specific and in no way immanent. Another reason for inconsistencies is the use of different works at the same time. When extracting special parts of these works to construct complex syncretistic systems, contradictions appear to be inevitable. In the usül works, for instance, Aristotelian rhetoric is paired with post-Aristotelian rhetoric and also kaläm, the Islamic version of "Christian speech" which originates from post-Aristotelian rhetoric and was instrumentalized in a theological context.140 Not infrequently the concurrence of these rhetorical systems produced a problem of definition, as the terms 'ämm (general) and mutlaq (absolut) show. The observance of certain technical terms or highly developed arguments and concepts in an earlier Muslim work that are omitted in a later work does not mean that we have to redate the former as following after the latter. It is just a question of when the reception took place and how and where the borrowed material established in Islam. Shäfi'T, for example, was the only one in his time to resist imperial law with an usül work, his Risäla, which contained many novel elements from ShaybänI's usül work. The fact that Shäfi'T's discussion of naskh (abrogation) seems to reflect an advanced stage of development does not mean that his Risäla must be re-dated.

139 H.-D. Spengler, Art. Corpus iuris civilis ML 189. 140 See below 426. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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7) Motive The motive of reception, which is postulated as a central criterion in reception analysis,141 springs from a specific socio-historical context. In order to determine the motive we have to reconstruct this context. Sometimes we may draw conclusions from the borrowing texts themselves, but usually it is the milieu of the borrower that explains the purpose of reception. Single persons who borrow en voie diffuse may have reasons for doing so, but the lack of sources in these cases leaves much room for speculation. By contrast, systematic reception by persons who represent or adhere to institutions such as political groups or the state usually leave much more traces of literary evidence. Although the framework of narratives represented in Islamic historical literature is far from being complete we are able to distil a number of plausible connections which allow us insight into the motives of reception. Of course conversion forms the background of many receptions, but it is only one aspect of a much more complex phenomenon. Näfi' b. alAzraq (d. 685), for example, was the son of a Greek freedman who before his conversion most probably adhered to the Byzantine "Blues". But instead of assimilating to an Islamic society which in principle did not yet exist Näfi' founded a militant group which was conceived of as an Islamic counterpart of the Byzantine βένετοι and strongly inspired by the fundamentalist movement of Maximus Confessor. It must have been self-evident for Näfi' to perceive the political situation in the Caliphate through the spectacles of Qadarism which, in the form of Dyotheletism, was the burning question in Byzance at the same time. Although Näfi' and all the mawäli and Arabs who joined his terrorist organisation and took over his theological program were Muslims they did not adapt themselves to the Islamic community. On the contrary, they stubbornly claimed to be the only true Muslims fighting in the dar al-harb and dictating to other Muslims what real Islam is. In the first place this was a reconquista in an Islamic guise. Secondly, it was the continuation of the Monotheletic conflict on an Islamic platform. Another institution responsible for a great deal of receptions was the state. In this case conversion played no or only a minor role. In order to discover the motive here one has to look not at those who were directly concerned with the reception but on those who stood behind them. Shaybäm was a well-paid state jurist who largely agreed with Abbäsid ideology, but he was not the motor of the codification project 141 U. Mitter Das frühislamische Patronat 86. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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that in fact was initiated by the state. The introduction of Roman law in a religious guise formed part of a centralist policy particularly supported by the Barmakids. Since Justinian I, at the latest, it is clear that a unified legal system more or less controlled by the sovereign constitutes a decisive structural element of the state. Not long after the codification of the Ecloga in Byzance there was a discussion about a similar project in Islam. No doubt the early 'Abbäsids recognized the importance of a codex incumbent on all Muslims and were no less aware of the fact that Roman law was a highly developed legal system in the Near East. Moreover, Islam as represented by the caliphs claimed to be the heir of Hellenism and to follow in the footsteps of the Byzantine Empire. In the first half of the 10th century a new Islamic institution emerged, the madhhab (law school). Circles of Orthodox Muslims in Baghdad, Shäfi'Ts in the forefront, created this institution by swallowing up the philosophical school founded by Christians at the end of the 9th century.142 Although we may suppose that not a few Orthodox Muslims at this time were converts or descendants of converts in the first generation there are still other factors than conversion which contributed to the secret readiness of the ahl al-sunna to absorb Aristotelian logic. On one hand, Orthodox legal theory as introduced by Shäfi'T and broadly discussed since the middle of the 9th century already contained Aristotelian elements, though fairly rudimentary. On the other hand, the scientific methods of the philosophers represented a serious challenge to Orthodoxy as is clearly documented in a number of disputes. Indeed, there was no other way than to beat the adversary at his own game. Many moderate traditionalists must have attended the lectures of philosophers such as Ibn Karntb, Abü Bishr Mattä or Färäbl. To the extent that Orthodoxy incorporated philosophy, pure philosophy detached from a religious basis became more and more useless. 8) Formal Arguments In order to prove the specific character of a phenomenon it is helpful to show that this phenomenon occurs nowhere but in the two cultures compared. If it occurs in more than two cultures, this rather indicates its immanent character. Sometimes, however, we may not rule out that similar phenomena emerging in several cultures go back to a common

142 See below 583. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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source.143 It is a well-known fact that elements of Roman law penetrated almost all legal systems in the Middle East as well as the legal systems influenced Roman law.144 In this case it would be justified to suppose convergency of similar rulings only if there was no evidence for genetic dependence. On the other hand, if we find a similar complex phenomenon in a number of different cultures which don't show any cultural interaction it will be difficult to maintain genetic connection.145 Another formal criterion of reception is the degree of congruency which concerns single phenomena and, in a second step, complexes of phenomena. As has been mentioned above, the borrowed elements mostly differ from the originals in some aspects and the question arises which degree of congruency justifies the designation "parallel". With regard to casuistic legal systems,146 one might say that all cases which deal with the same legal problem,147 though in different ways, may be deemed parallels. For it is the legal problem that makes them comparable. Of course this applies all the more to parallels which extend to additional specific elements and/or which occur in two legal systems only. On the other hand, it is clear that single parallels of this kind do not yet prove genetic dependence. What we need in a first step are the basic elements of comparative analysis. In a second step we will have 143 For the most part this applies to cultures which are closely connected in space and time. 144 Before the emergence of Roman law it was particularly the Codex of Hammurabi or Greek law that influenced the neighbouring cultures in this region (M. Alliot 'Über die Arten des Rechts-Transfers,' Μ. Fikentscher et al. (ed.) Entstehung und Wandel rechtlicher Traditionen (Freiburg 1980) 162). However, there does not seem to be a single example for such a case. All cultures which show similarities with regard to complex phenomena also seem to be interconnected in one way or another. May we state with certainty that Indian philosophy was completely separated from Islamic philosophy (this is the presumption of H. Daiber, Das theologisch-philosophische System 5, 76, 313, 407-9) while we definitely know that Indian scholars came to Baghdad and Muslim scholars travelled to India? Even China maintained commercial relations with the Caliphate and in the course of time was partially islamisized. Nobody doubts that the technique of paper production, known in Islam since the middle of the 8th century, has its origins in China. 146 The majority of cases in a casuistic legal system of Late Antiquity are concerned with rather specific legal problems. Tendencies of systematic generalization and abstraction may be observed only later (for instance, in the Islamic qawä'id works since the 10th century or the generalia works of the glossatores in twelfth-century Italy). 147 A legal problem comprises all those elements of a legal case which are legally relevant and may not be omitted without affecting the legal problem. However, many cases also contain irrelevant or exchangeable elements. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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to examine how many parallels form part of comprehensive networks of legal cases. Who is to deny that the probability of genetic connection directly depends on the quantity of parallels which are interconnected?148 If interconnected parallels which very often contain specific, legally irrelevant elements and appear in a specific constellation occur in large numbers, we will have to suppose genetic connection.

(d) Hierarchy of Reception Criteria In accordance with the criticism put forward by adherents of the Volksgeist theory we must concede that the methodological standard of all previous comparative studies does not suffice to prove the genetic connection between Islamic and non-Islamic concepts and in particular between Islamic law and other legal systems. The complexity of reception has been heavily underestimated. In principle, it is a number of paradigmatic premises that prevented students from developing higher standards and defining further, more reliable criteria of reception. One of these premises is the a priori exclusion of direct, text-based reception. Starting from this premise there was nobody to search precisely those non-Islamic texts which form the potential basis for specific Islamic texts. It is clear that the textual criteria mentioned above did not play any role in these studies. Moreover, there was almost nobody to consider the fact that host systems, as a rule, considerably differ from the original systems. Differences, even if they outweigh the similarities, do not prove nor indicate genetic independence. More often than not Islamic concepts and systems, though strongly differing from the originals at the first glance, result from comprehensive and systematic reception, and this is of course no longer a question of bits and pieces. Finally, there is almost no comparative study which tries to reconstruct the context in which a reception took place. In a word, even if the study at hand produced negative results and underpinned the scepticism of the critics, it would nevertheless be justified and necessary because essential aspects of reception simply have been overlooked in earlier studies. Nevertheless reception, and concealed reception in particular, are not - or not always - a question of absolute certainty, but of relative probability. How do we define the boundary between coincidental simi148 U. Mitter, who rejects the "criterion of quantity" (Das frühislamische Patronat 89), does not consider the aspect of interconnected parallels. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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larity and genetic dependence? No doubt, it would be presumptuous to present a precise definition of this boundary. On the other hand, we may be sure that there is a point at which everybody or a large majority will reasonably accept that the boundary of coincidence is transgressed. The acceptance of a theory largely depends on the consistency and plausibility of its arguments. But it also depends on whether or not this theory is more probable than others and, last but not least, whether or not it is able to present answers to questions which other theories are not able to explain. The inner plausibility of reception analysis is based on a network of criteria which move from special to general, or the other way round, and produce a system of reciprocal corroboration. The following hierarchy of criteria, demonstrated by the example of a legal system and somewhat simplified for the sake of clarity, might give a general idea of how reception analysis will be applied in this study. 1) Hypothesis The presumption is that a culture (Islam) borrowed the legal system or large parts of it from another culture (Byzantium). 2) General Indicators The host culture proves to be closely connected with the donor system on several levels: a) It has conquered large parts of the donor culture. However, the latter continued to exist and remained the immediate political rival for centuries. b) Both cultures represented states in which religion was the basic ideology. The religion of the host culture was directly based on the religion of the donor culture. c) The host culture explicitly claimed to be the heir of Hellenism, which up to this time was the fundament of the donor culture. d) Nobody doubts that the host culture borrowed from the donor culture in profane fields such as philosophy, medicine, astronomy etc. which passed the cultural boundary through institutionalized channels of transmission.

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3) Specific Indicators a) The legal system of the host culture seems to have a mysterious history. Many theories have been developed to explain the question how a legal system was able to reach a standard in 150 years that other legal systems needed more than 1000 years to achieve. b) The sudden emergence of this system in its literary form is no less striking. While there is almost no literary evidence from the first 150 years we observe something like a literary explosion immediately after this time. c) At the same time critical reactions and heated debates about the sources of law became manifest. State jurists in the capital who composed the most voluminous legal works in that time were obviously opposed to theologians and jurists in the provinces. d) The immense production of legal literature in the capital coincided with a process of intensive reception in other fields in the same city. Moreover we observe the emergence of completely novel legal works in other religious groups in or near the capital. e) Modern scholars did not cease to suppose foreign influences on the host system, but they were not able to present the final proof. 4) Text Since single receptions en voie diffuse can not be definitely proved we need texts - if possible the original and the receiving text - which form the basis of a detailed comparative analysis. Usually it is a difficult task to discover just these texts, because it is not even clear whether they exist at all. Nevertheless, out of the bulk of legal literature produced in the host culture we may distill a comprehensive work which seems to be directly based on an extensive legal text composed in the donor culture. However, we may not expect to find a precise translation of the original text. After discovering the similarities - which is the first step of course - it is very important to look also at the differences which sometimes prove to be analogies, paraphrases, reinterpretations, rearrangements or simply unintentional modifications of the original. 5) Term Very often it is a specific technical term which first draws the attention because of its conspicuous similarity to a foreign term in the same context. If the congruency of the terms extends to special aspects of the context or to ambiguity and/or if there is a discussion among the jurists

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about the meaning of the term this is a first concrete indication of reception. 6) Case The next step is that the term forms part of a special case which as a whole corresponds to a case in the donor system. If the borrowed case deviates from the original case with regard to some elements we are nevertheless allowed to presume genetic connection if we find congruency of the legal problems and very special elements such as facts of the case, case solution, formulations, arguments or other terms. Furthermore, inconsistencies which may be explained on the basis of the original case and/or the fact that this case does not occur in any other legal system indicate genetic dependence. 7) Constellation of Cases What applies to a single case may apply to several cases in the same chapter. Since a specific constellation of cases in a casuistic system is in no way immanent, congruency on this level constitutes a strong argument for reception. In principle, nobody can then deny that the magic boundary of coincidental similarity is transgressed. Additional corroboration might come from inconsistencies caused by different historical layers in the original text and/or the fact that both chapters bear the same or a similar title. 8) Constellation of Chapters and Books The fact that a legal work is subdivided into books, chapters, paragraphs and single cases may not be deemed self-evident. With regard to the content, one has to examine whether or not other chapters and books show congruency with the donor system as well. If we concede that congruency on the level of several cases proves genetic connection this will all the more be true for the higher level of chapters and books which contain hundreds or even thousands of specific cases. 9) Constellation of Works There is only one legal system in Late Antiquity that was codified in four interconnected parts, each having a specific function, scope, structure and title. Any legal system that corresponds to this four-partsscheme and furthermore shows congruency with large parts of its content and substructure, as indicated above, must be reasonably regarded as originating from just this system. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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10) Circumstances After proving the genetic connection between both legal systems on a substantial level it will be proper to shed light on the external circumstances of the reception. Since the receiving text is known, we also know the author and his milieu. Thanks to the abundance of historical sources concerning the time of the author who acted on behalf of the government in the political center of the host culture we are able to gather a lot of relevant details and to reconstruct a context which as such is not reflected in the historical literature. 11) Motive It is just the context mentioned above that constitutes the starting point for determining the motive of reception. It becomes clear that the author does not act on his own behalf but rather represents a powerful institution, the state. The legal system produced by him forms part of a centralist policy which in its turn is paralleled with a similar state ideology in the donor culture. Both the legal system and the ideology provoking its revival go back to the donor system. In fact the motive of reception results from the complex politico-theological relationship between the two cultures. In order to obtain a better understanding of this relationship, one has to compare the politico-theological concepts of both governments. 12) Constellation of Movements The intertwining of the two cultures is corroborated by the fact that the parallelism of absolutism is paired with a parallelism of religious opposition. In principle the sovereigns of both regimes faced the same opposition which represented a politico-theological concept in two versions. Even the inner structures of the oppositional movements were congruent. 13) General Cultural Parallelism In order to prove the intertwining of the two cultures on the highest level, it is necessary to extend comparative analysis to general aspects such as intercultural contacts, literary profile, art, architecture, movements/ institutions (general survey), administration and historical processes (chronology of historical events). It becomes clear that a process of extreme acculturation took place. The whole constellation of movements in the donor culture, including historical developments and conflicts, is mirrored in the host culture. Even specific historical events in Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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one culture are paralleled in the other. Such a parallelism suggests that both cultures formed part of one and the same historical context. 14) Network of Receptions Apart from the legal reception, we observe a number of other receptions, each initiated by certain movements or institutions which in their turn are paralleled with similar movements or institutions in the other culture. It appears that some of these receptions are closely connected and influence each other. In many cases this accounts for the syncretism of concepts or systems which very often passed to the host culture through the same channels of transmission at the same time. To a certain degree, this also applies to the legal system which emerged in a multitude of receptions. Some receptions, though doubtful in some aspects, become certain because they are closely connected with the central legal reception. On the other hand, the legal reception itself is confirmed by a number of other related receptions. 15) Historical Context Of course many scholars vehemently refuse the hypothesis of reception and present a number of serious objections. This is why reception analysis, as presented in this study, claims to be more systematic and perhaps more convincing than earlier comparative studies in this field. But it has still another purpose. Starting from the premise that reception analysis has a certain validity it will be used for reconstructing an overarching historical context in which all of the single receptions took place. Since the quantity and quality of the historical sources leave much room for speculation there is a need for a structural background against which the fragmentary historical material149 may be interpreted. The extreme parallelism between both cultures and its correcting effect with regard to the interpretation of the sources may help to sketch such a background. What follows is that old questions find new answers which start from a different historical context. It will be demonstrated that questions on the relationship between state and religion, the origin and specific role of different movements, the Mihna, the mechanisms of hadith transmission, the genesis of legal theory, the emergence of the

149 F. Donner (Narratives of Islamic origins. The beginnings of Islamic historical writing (Princeton 1998) 268) speaks of "khabar history" which is highly fragmentary and does not consider the overarching context. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:27 AM

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law schools etc. may be answered more conclusively against this background. In this study two receptions are prominent: the reception of ByzantineRoman law (DigestsummalGlosse) and the reception of the Aristotelian Organon. These receptions are not only fundamental for the early development of Islamic law, they also may be proved by themselves, that is they don't need any other reception to be corroborated. Nevertheless, each of them is connected with a number of other minor receptions, some of which in their turn require the corroboration of the major receptions. Since the primary object of this study is legal history, the aspect of chronology was considered as far as possible. However, the chronological arrangement of receptions was not always strictly observed because in fact there are several strings of development (Byzantine, Islamic, Jewish) which depend on each other. The first part of this study focuses on the reception of ByzantineRoman law which marks the beginning of what was to become known as SharVa or Islamic law. Apart from the politico- theological background which will be dealt with in the third part, most of the aspects of this reception will be considered in the first part. Because of the complexity of the criterion "motive" and its extreme importance for understanding the political importance of Islamic law, it was necessary to treat it in a separate part (Part II). The third part aims at elucidating the process in which Islamic law was transformed from imperial law into jurists' law and which culminated in the reception and transformation of Aristotle's Organon in the 10th century. However, this process becomes plausible only against the background of a number of politicotheological movements, most of which originated in Byzantium. This is why the third part starts with a chapter on the close and complex relationship between Islam and Byzance.

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Parti The Origins of Islamic Law Preliminaries The reception of a Greek version of the Digests and elements of other legal systems in Baghdad at the end of the 8th century marks the beginning of Islamic law as we know it today. Although Islamic law continued to develop after this reception it is nevertheless the Shaybänl-Code and the largely non-canonical contributions of Abu Yüsuf that provided the substantial and partially structural fundament of later Islamic law. As will be demonstrated1, all Islamic legal works emerging later more or less rest upon Islamic imperial law and therefore contributed to its dissemination and final establishment. In fact, Shaybänl and Abü Yüsuf may be deemed the architects of Islamic law, although it was the government that initiated and furthered the codification project. The conception of an imperial law was already formulated by Ibn al-Muqaffa' (d. 758), who in his turn was inspired by a similar conception in Byzantium.2 Islamic imperial law formed part of a centralistic policy of the early 'Abbäsids who showed a particular interest in consolidating the Empire after the revolution and, much more than the Umayyads, tried to make religion an integral part of the state. However, "integration" in early 'Abbäsid times was tantamount to "streamlining", which caused serious tensions between the government and a growing religious opposition. It is very important to understand that the early 'Abbäsids claimed to play an active role in secular as well as in religious affairs, but in no way tolerated the undermining tendencies of a fundamentalist opposition.

1 See below 305. 2 See below 276. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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This is also true for the government of Härün al-Rashld (786-809), who is usually credited with a stricter form of Orthodoxy.3 Indeed, in the time between 786 and 803 we can observe a clear rapprochement between government and traditionists, but in fact this is only a political maneuver of the Barmakids who needed a separate power basis for counterbalancing the militaries. Immediately after the fall of the Barmakids in 803 Rashld again took up the anti-orthodox policy of his predecessors.4 It was just in this period that the codification of Islamic law was put into motion. And it is just the Orthodox policy of the Barmakids that gave Islamic law its strongly religious appearance. Though conceived of as an instrument for overcoming legal particularism and strengthening the central power it was presented as a religious law that formed part of the Islamic-Arabic tradition. It was traced back to the Qur'än, the Sünna - which at this time was not yet restricted to the prophetic tradition - and, last but not least, to Abü Hanifa, the alleged eponym of the Hanafi law school. We may take it for certain that ShaybänT and Abü Yüsuf studied with Abü Hanlfa. It seems, however, that law was not the primary concern of the Küfan scholar. All the works attributed to him deal with theology and in the numerous treatises of his pupils we don't find any reference to a legal work of his.5 Apart from the legal opinions and traditions traced back to him and put into circulation almost exclusively by ShaybänT and Abü Yüsuf we don't have any evidence that Abü Hanlfa was a jurist in the narrow sense, that is, a "faqih" as defined since Shaybäm's time.6 The presumption is that the term "fiqh" (juris3 W. Madelung, Art. Shi'a, EI2, IX, 424. 4 It is this Orthodox attitude of Rashld displayed between 786 and 803 that confused many Islamists (see, for example, M. Zaman Religion and politics under the early 'Abbäsids. The emergence of the proto-sunm elite (Leiden 1997)). In fact, Yahyä b. Khälid, who was in the same situation as the Empress Eirene (i.e. lack of military support), took over a moderate politico-theological concept (al-manzila bayna al-manzilatayn) developed by the Byzantine Patriarch Tarasios (d. 806) in Constantinople. This concept clearly aimed at absorbing the moderate wing of the religious opposition while keeping the door open for a centralistic policy (see below 485). 5 M. Muranyi 'Fiqh,' GAP II (Wiesbaden 1987) 309; N. Calder Studies VI (preface). 6 This seems to be corroborated by a few traditions of Abü Hanlfa transmitted by other scholars than Shaybänl and Abü Yüsuf. Out of eight traditions only one is a legal tradition in the narrow sense ('umrä) (Ν. Tsafrir 'The beginnings of the Hanafi school in Isfahan,' ILS 5 (1998) 8,19-21). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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prudence) which, in a certain legal sense, already existed at the end of the 7th century7 took on a quite different meaning after the codification of Islamic law. While it had a legal connotation, it was regarded in Umayyad and early 'Abbäsid times as a subsection of theology and hence used in religious circles only.8 Juristic activities in the realm of administration usually were not called fiqh, as appears, for instance, in the Risäla of Ibn al-Muqaffa'. While talking about law (property law, family law and penal law), and a codification project in particular, he does not mention the term fiqh though it does occur with a religious connotation in another section of his Risäla.9 Fiqh was the prerogative of independent theologians such as Hasan al-Basri, Ayyüb al-Sakhtiyäni, Ma'mar b. Räshid etc. and in principle was restricted to religious law in a narrow sense, that is, ritual, marriage, inheritance and patronate.10 Although in a few cases the theologians also dealt with secular law, they were not familiar with the details of this law, which was always a prerogative of the state in the Byzantine Empire. In so far as they had to decide secular cases they drew on the same general principles that they applied to religious law.11 In fact we observe a dichotomy between secular and religious law in the time before ShaybänT, although the boundaries were sometimes blurred. From this and some other facts we may conclude that the legal situation in early Islam, at least in North Africa, Palestine, Syria and 'Iraq,12 was similar to that in Byzantium.13 7 H. Ritter 'Studien zur Geschichte der islamischen Frömmigkeit,' Der Islam 21 (1933) 67: here Hasan al-Basri is praised by the caliph not only as theologian but also as faqih. 8 Even J. Schacht points to the close connection between fiqh and theology in early Islam (Art. Fikh, EP, II, 886; see also T. Nagel Das islamische Recht 171, 184). Interestingly, a similar explanation is given by Häjjl Khalifa, who identifies early 'ilm al-fiqh with 'ilm al-äkhira, that did not yet deal with special legal fields such as ijära (rent) or salam (forward buying) (Kashf al-zunün 4/457). 9 Ibn al-Muqaffa' Risäla 39,61. 10 It is a conspicious fact that most of the legal works attributed to earlier fiiqahä' deal with ritual (salät, hajj, §awm), marriage (nikäh) or patronate (walä'). There is no reference to works on loan ('äriya), rent (ijära), purchase (bay'), pledge (rahn), donation (hiba), endowment (waqf) and many other fields of law. The only exception seems to be the work of Mäjishün (d. 780/1), which deals with several legal subjects including purchase (M. Muranyi, Beiträge zur Geschichte der HadTt- und Rechtsgelehrsamkeit der Mälikiyya in Nordafrika bis zum 5. JH. D. H. (Wiesbaden 1997) 53-4). As to the special role of siyar works see below 398. 11 This is why at this time fiqh came very close to ra'y (personal opinion), see also J. Schacht, Art. Fikh, EI2, II, 886. 12 'Iraq as a whole never formed part of Byzantium, but the highly influential theological movements (Qadariyya and Murji'a) which originated in Byzantium and Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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Everybody knows that the Arab conquerors took over large parts of the Byzantine administration,14 including the office of the strategos and his far-reaching jurisdictional competence. On the other hand, we know of the emergence of several theological movements in 7th century Islam which in their turn were heavily influenced by Christian concepts15 and took over a specific understanding of law. Even in pre-Islamic times the Orthodox bishops in Byzantium competed to a certain degree with the secular judges,16 although the focus was on religious and not on secular law. In the 7th century the jurisdictional competence continued to increase as the secular judiciary declined more and more after the Persian and, a little later, the Arab

13

14

15 16

settled in 'Iraq produced a legal culture that must have been similar to that of their counterparts in Byzance. In principle we may presume that the legal systems of pre-Islamic times continued to exist, at least in the first decades, after the Arab conquest (J. Schacht, EI2, Art. Fikh, II, 887). The most important systems would have been Arab customary law (somewhat modified by the Prophet), Jewish law (with a certain focus in 'Iräq/Babylonia), Roman provincial law, Sassanid law and Canon law of the Orthodox, Monophysite and Nestorian Church (for a survey of pre-Islamic legal systems see I. Schneider Kinderverkauf282-9). With regard to Sassanid law it is not clear to which degree and in which way the national judiciary was replaced by private jurists or theologians after the entire collapse of the Sassanid Empire. The same applies to Byzantine-Roman law in the conquered territories. Most probably it was rather close to Roman provincial law (I. Schneider Schuldknechtschaft 282-3), but one might conclude that it merged into Orthodox Canon law after the episcopalis audentia of the bishops extended to those fields of law that had been covered by the national judiciary. Since conversion in the first Islamic century, or even longer, was rather limited (M. Morony 'The age of conversions: A reassessment,' M. Gervers et al. (ed.) Conversion and continuity. Indigenous Christian communities in Islamic lands eighth to eighteenth centuries (Toronto 1990) 135), there must have been many Orthodox Christians in the Western parts of the Islamic territories (of course not all of them fled to Byzantium). These Christians could only have addressed the bishops for settling legal conflicts. E. Tyan Histoire de Vorganisation judiciaire en pays d'Islam (Leiden 1960) 87. Many officials in the administration of the early Caliphate were Christians (A. Tritton The caliphs and their non-Muslim subjects (London 1970) 18ff. See below 457. K. Noethlich, 'Materialien zum Bischofsbild aus den spätantiken Rechtsquellen,' JAC 16 (1973) 43, 53; G. Rouillard L'Administration civile de l'Egypte Byzantine (Paris 1928) 231. As to the decline of secular judiciary in late antique Byzantium and the growing importance of the episcopalis audentia see W. Waldstein 'Zur Stellung der Episcopalis audentia im spätrömischen Prozeß,' D. Medicus/H. Seiler (ed.) Festschrift in honor of Max Käser (Munich 1976) 535, 556. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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invasion.17 The Orthodox bishops under Islamic rule, after being granted jurisdictional autonomy, probably had to cover all fields of law including the purely secular parts. But how did they fill the gap left by the Byzantine secular judiciary? Unlike their Monophysite, and of course Nestorian, colleagues who had already achieved a certain (legal) independence before the 7th century, the graecophone Chalkedoniens did not yet have much experience in exerting complete jurisdictional autonomy. We may not rule out that they relied on the Nomokanones and other legal collections which emerged in the 6th century and contained religious rulings as well as excerpts from Byzantine-Roman law.18 However, starting from the premise that these works provided only a rudimentary knowledge of Byzantine-Roman law, the bishops must have relied instead on Roman provincial law (or the regional customary law) and, above all, the general principles of Christian law such as the aequitas (canonica),19 a Christian reinterpretation of the Roman aequitas on the basis of oikonomia, the four-sources scheme (Holy Scripture, tradition, consensus and ratio)™ and specific principles of procedural law which was largely developed for settling legal conflicts in a Christian way.21 We can definitely rule out that the bishops slipped into the role of legal experts who plunged into the details of Roman law and cultivated it in a professional or even scientific way.22 17 According to J. Haldon (Byzantium in the seventh century. The transformation of a culture (Cambridge 1990) 275), the secular judiciary (first stage) was completely absorbed by the jurisdiction of the bishops at this time. 18 Some of these collections which have been completely ignored in SharTa research, are: Collectio 87 capitulorum, Collectio 25 capitulorum, Collectio Tripartita, Nomokanon of John Scholasticus, Nomokanon XIV Titulorum; for further details see N. Milasch Das Kirchenrecht der morgenländischen Kirche. Nach den allgemeinen Kirchenrechtsquellen und nach den in den autokephalen Kirchen geltenden Spezial-Gesetzen (Mostar 1905) 176-83; G. May, Art. Kirchenrechtsquellen I, TRE 19 (1990) 6; E. Said Les eglises orientales et leurs droits. Hier, aujourd'ui...demain (Paris 1989) 86-96 ; P. Boumis 'Das Kirchenrecht der orthodoxen Kirche,' Nyssen (ed.) Handbuch der Ostkirchenkunde, vol. 3 (Düsseldorf 1997) 146-50; Beck, H.-G. Kirche und theologische Literatur im byzantinischen Reich (Munich 1959) 140-146. 19 The term aequitas canonica emerged only later in Western Europe but is used here for the same principle applied by the Byzantines. 20 See below 537. 21 As to the incoherence of Orthodox canon law see H.-G. Beck 'Nomos. Kanon und Staatsraison in Byzanz,' Österreichische Akademie der Wissenschaften, phil.-hist. Klasse, Sitzungsberichte, vol. 384 (Vienna 1981) 15. 22 Not even their secular colleagues in Byzantium, the sucessors of the antecessor es, were able to hold up the decline of Roman law. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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Nevertheless it is very probable that this kind of legal understanding spread to the Muslim theologians who also borrowed the theological concepts. By any means, they laid particular emphasis on just those legal fields that had long represented the domains of the Orthodox Church, such as liturgy, marriage, inheritance and manumissio in ecclesia. Furthermore, they obviously introduced the central Christian principle of mercy into Islam. Its legal version, the aequitas (canonica), became istihsän in Islam, a principle of dispensation and the cornerstone of Hanafii law until today. It seems that also the term fiqh in the sense of jurisprudence goes back to Byzantine Christians, who in their turn took it from the Digests.24 In the Qur'än, where we find some derivations of it, it is obviously not a technical term, nor does it have a legal meaning. How do we explain then the development from its primary meaning "understanding" to its specific meaning "jurisprudence"? Of course one might argue that "jurisprudence" has something to do with "understanding". In fact, however, "understanding" is a characteristic feature of all sciences and not only of jurisprudence. As appears from the corresponding terms of jurisprudence in other legal systems, "jurisprudence" is not necessarily derived from "understanding". The only legal systems, which bring together both meanings in one term are Roman law and Islamic law.25 The Latin term (iuris)prudens used in the Digests26 was translated into Greek with φρόνιμος 27 (someone who understands). It seems to be a realistic supposition that the legal activities of the bishops who were replacing more and more the secular jurists and certainly had a rudimentary knowledge of Byzantine-Roman law were called φρόνησις (= iurisprudentia). When the Dyotheletic and the Monotheletic movements produced offshoots in Islam they

23 See below 458. 24 This seems to be also the conviction of I. Goldziher (quoted in J. Schacht, EI2, Art. Fikh, II, 887). 25 The Jewish term hokhmä (= arab. hikma), which I. Goldziher also traces back to "iurisprudentia" (quoted in J. Schacht, EI2, Art. Fikh, II, 887) , does not exactly mean "jurisprudence", even though it might have the same roots as "iurisprudentia" (both terms probably go back to the Stoic concept of wisdom/σοφία). The Jewish Dsn , which is related to the Islamic fmkam, is concerned with all fields of rabbinic scholarship (EJ, Art. Hakham, VII, 1146) while the faqih deals with (religious) law only. 26 See, for instance, Dig. 1.2.2.5 (prudentium), Dig. 1.1.10.2 (iurisprudentia). 27 Bas. 2.1.13; but it is also possible that prudens is a translation of φ ρ ό ν ι μ ο ς (άνδρας). This term is mentioned (in Greek) in a quotation of Demosthenes (Dig. 1.3.2) and refers to the wise men who deal with law. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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transmitted not only the theological concepts but also the specific legal concept of φρόνησις (= fiqh) which was intimately connected with the former. It follows from this that ShaybänT and Abü Yüsuf, much more than Abu HanTfa, deserve to be called "jurists". Instead of making theology their main concern, they essentially concentrated on law, which now comprised all fields with thousands of detailed rulings: ritual and religious observances as well as family law and the law of inheritance, property, contracts and obligations. What they created was the most comprehensive legal system in the Middle East. Not even Jewish law, which in the course of time introduced more and more elements of secular law reached such a degree of comprehensiveness.28 Of course neither ShaybänT and Abü Yüsuf nor the Barmakids and Härün alRashld could predict what was to happen about 60 years later. Had they known that the oppositional traditionists would deprive the Islamic state of this comprehensive legal system they certainly would not have codified it. However, by using the hadlth as catalyser for spreading the system they themselves largely contributed to this development. SharVa experts, while doubting the Roman origins of Islamic law, often point at its religious character which at first sight seems to be incompatible with secular law. In fact it is not very difficult to give a secular legal system a religious appearance. The complex of religious rulings is set up in front of a complex of secular rulings - this distinction ('ibädät/mu'ämalät) is still discernable today29 - quotations of secular jurists are replaced by quotations of religious authorities and both complexes are underpinned with verses of the Holy Scripture and traditions. Furthermore, the whole system or doctrine is traced back to an outstanding religious scholar who to a certain degree represents the religious tradition - this being the birth or, one should say, invention of the first Islamic law school. Finally, the complex of substantial law is additionally legitimized by a separate methodology (usül al-fiqh) which explicitly emphasizes the religious origins of the system.

28 For instance, since there was no Jewish state at this time, Jewish law does not deal with war law. 29 It is noteworthy that we don't find such a strict distinction in the Talmud. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:28 AM

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Chapter 1 Special Indicators of Reception 1.1. The Emergence of Islamic Legal Literature SharT'a experts usually make a distinction between the pre-literary and the literary period of Islamic law.1 The beginning of the literary period is dated approximately to the end of the 8 century2 and is marked by the emergence of a significant number of legal works, many of which are still preserved. Apart from a very few exceptions,3 we don't have any legal work that was composed before the literary period. Nevertheless several legal works are attributed to earlier scholars and some of these, still extant and composed at the end of the 8th century or later, claim to be redactions of earlier works or doctrines.4 What we definitely see, however, is a clear discrepancy between the legal literature produced before and after the end of the 8th century. Neither Western SharVa experts nor contemporary Muslim scholars try to deny this discrepancy. The abundance of works composed by Shaybäm, Abü Yüsuf, Mälik b. Anas and his pupils, 'Amr b. Khälid, Bishr b. Ghänim etc. sharply contrasts with a conspicuous paucity of legal literature before this time. Moreover, most of the works attributed to earlier scholars deal with one subject only and these subjects are essentially restricted to special legal fields such as ritual, marriage and patronate. The Kitäb al-fiqh by Mäjishün, the only work that comprises other sub1 I. Schneider Kinderverkauf 9. 2 Ν. Calder 'The significance of the term Imäm in early Islamic jurisprudence,' ZGAIW 1 (1984) 253. 3 For instance, the legal work of Ibn al-Mäjishün. A fragment of this work has been edited by M. Muranyi Ein altes Fragment medinensischer Jurisprudenz aus Qairawän. Aus dem Κ. al-hagg des 'Abd al- Άζϊζ b. 'Abd Allah b. Abi Salama alMägisün (Stuttgart 1985). 4 For instance, the Majmü' al-fiqh attributed to Zayd b.'AlT. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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jects, including purchase, is rather limited in scope. The difference between this work and the Mabsüt by ShaybänT, with regard to scope alone, is enormous. Another aspect of the development of legal literature at the end of the 8th century is the emergence of a new kind of title. While the titles of the earlier legal works usually served a practical purpose and more or less exactly denoted the content of the work, the symbolical titles of the new works did not. In principle a work titled Mabsüt (= stretched out) might also deal with theology or any other science, for we don't know what is stretched out.5 Among the works ushering in the new era of legal literary production those of ShaybänT6 and Abü Yüsuf are no doubt outstanding. Not only did they write by far the greatest number of works and the most voluminous works, they also composed works that are interconnected. ShaybänT was the first one to compose both a comprehensive compendium ( M a b s ü t ) and a short summary (Jami' saghlr) of it.7

1.2. Uniformity of Islamic Law Islamic law as represented in the first legal works at the end of the 8th century shows a striking uniformity of cases.8 However, not long before, in 756, it was described by Ibn al-Muqaffa' as extremely heterogenous.9 The great bulk of cases contained in the different versions of the Muwatta', for instance, may also be found in the works of ShaybänT or 5 Other works emerging at this period and bearing such titles are the A?/ (= foundation, also called Mabsüt) und the Hujja (= argument) by ShaybänT, the Muwaffa' by Mälik b. Anas (or his pupils) and the Umm (= mother) of Shäfi'T. On the other hand, there is no decisive evidence that earlier legal works bore symbolical titles. The attribution of symbolical titles to a few of these works in later literature seems to be highly uncertain. 6 P. Baker 'Islamic legal literature,' M. Young et al. (ed.) Religion, learning and science in the 'Abbäsid period (Cambridge 1990) 144. 7 The first epitome (Mukhtasar) composed by Mälikl and Shäfi'T jurists followed in the first half of the 9th century (for example, the Mukhtasar of Ibn ' Abd al-Hakam or MuzanT). Interestingly, the first commentaries (shurüh, derived from τέμνω) did not emerge until about a century after the beginning of the literary period (see below 613). 8 Only the solutions and arguments are different. 9 Risäla 41; see also I. Schneider Kinderverkauf354-5. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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Shäfi'L10 Even if we supposed that most of the legal traditions came into circulation already in the 7th century and were broadly used for the elaboration of Islamic law, we would not be able to explain this degree of uniformity, because thousands of cases are not directly based on traditions or Qur'änic verses.11 Is it imaginable that all the scholars in Mekka, Medina, Basra, Küfa, Damascus or Fustät elaborated the same cases independently from each other? We must consider that the Islamic Empire not only comprised the koine area described by P. Crone, but also Arabia, Mesopotamia and other territories in the East, all of which represented quite different legal cultures. Even those legal systems, which had a similar cultural background, such as Roman law and Jewish law, show a marked discrepancy with regard to concrete cases. While parts of Roman law most probably were borrowed by the Jews,12 10 See below 309. 11 With regard to MälikT law see M. Fadel ' "Istihsän is nine-tenths of the law": the puzzling relationship of usül to furü' in the MälikT madhhab,' Weiss, B. (ed.) Studies in Islamic legal theory (Leiden 2002) 164. 12 The influence of Roman law on Jewish law is just as controversial as that of Roman law on Islamic law. Apart from the fact that all these legal systems emerged in the same region the following aspects seem to confirm the reception hypthesis: 1) The Mishna emerged in Palestine a few decades only (ca. 200) after the Roman jurist Gaius (in Beirut) had composed his Institutiones (ca. 161), which soon became a widespread manual of Roman law (H.-D. Spengler, Art. Gaius, ML 270). It is the Jewish governor in Palestine, Juda, who, supported by the Romans (Y. Neusner Jerusalem and Athens 152), initiated the composition of the Mishna. The Mishna contains several chapters in the field of civil law (ßäba Qamma, Bäba Mezia, and Bäba Batra), which may be clearly distinguished from the other parts of the Mishna (W. Windfuhr Die Mischna. Text, Übersetzung und ausfiihrliche Erklärung, vol. 15 (Gießen 1913-25), see introduction) and which clearly remind us of corresponding chapters in the Institutiones of Gaius. 2) In the following two or three centuries the Jews composed the Tosefta (lit.: addition) which in title and function corresponds to the Novels (lit.: additions) of the Byzantine emperors. 3) At about the same time we observe the emergence of the Palestinian Talmud which correlates with the first major codifications in the Roman empire, the Codex Theodosianus, the Codex Gregorianus and the Codex Hermogenianus. There also semm to be many structural parallels with the Digests (C. Hezser 'The codification of legal knowledge in Late Antiquity. The Talmud Yerushalmi and Roman law codes,' P.Schäfer (ed.) The Talmud Yerushalmi and Graeco-Roman culture (Tiibingen 1998) 581-637) 4) According to J. Neusner (Jerusalem 148) the Babylonian Talmud was composed not until the end of the 6th century, i.e. after the codification of the Corpus Iuris by Justinian I in the first third of the 6th century. Just like the Digests, the Babylonian Talmud is a coherent compilation of earlier material (Mishna, Palestinian Talmud, etc.). Indeed many parallels between the Talmud and the Digests have been discovered (see, for instance, the comprehensive study of B. Cohen Jewish and Roman law. A comparative study, 2 vols. (New York 1966)). One of these parallels is the complex "stipulation of virginity" which appears in Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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the majority of cases found in comparable chapters of the Talmud and the Digests prove to be different. In principle there is a real possibility that all the uniform cases in Islamic law go back to one and the same source. On the other hand, Western scholars13 usually rule out that there was a significant exchange of legal doctrines between the centres of learning before the middle of the 8th century. How do we explain, then, that Islamic law, an extremely heterogenous legal system, became an uniform system within less than 40 years?14 Apart from this uniformity, we observe a lack of practical relevance in a number of cases which seems to be a new phenomenon in the literary period.15 Speculative casuistry is a well-known phenomenon in ancient legal systems such as Roman law or Jewish law, but usually it indicates a fairly high level of specialization that we find, for instance, in the Roman law schools in Athens and Beirut or in the Jewish academies in Pumbedita (Anbär) and Süra. Legal experts who construct legally interesting but practically irrelevant cases are most probably not directly concerned with the practical aspects of life. All those who maintain that Islamic law was elaborated by Muslim craftsmen and merchants,16 that is, practicians who had both feet firmly on the ground, will have to explain why, for instance, it was useful for Abü Hanlfa to barter equal commodities (meal against meal or dates against dates). From a commercial point of view such transactions simply don't make sense. Even less plausible is the proposition that only these craftsmen and merchants voluntarily extended the highly unfavourable rulings of ribä, by way of analogy, to a great number of commodities, although

Talmud, BB VI, 92b and Dig. 19.1.11-3. The specific combination of "stipulation of virginity" and some other aspects of deficiency law does not seem to be coincidental. 5) Against this background it comes of no surprise that the composition of the Jewish code Halakhot Pesuqot (and probably also the Halakhot Gedolot) correlates with the composition of the Zähir al-Riwäya. The general development of Jewish law obviously depended on that in the Roman, Byzantine and Islamic empires and confirms the Jewish legal principle that "the law of the land is law" (dina de-malkhuta dina). 13 G. Juynboll Muslim tradition (Cambridge 1983) 65; H. Motzki Anfänge 25. 14 The rapidity of this development has already been observed by J. Schacht 'Droit byzantin,' 229. 15 I. Schneider Kinderverkauf 356; Ν. Coulson A history 42; J. Wakin/A. Zysow, Art. Ra'y, EP (Suppl.) 688b. 16 B. Johansen Islam und Staat (Berlin 1982) 7; Η. Cohen 'The economic background and the secular occupations of Muslim jurisprudents and traditionists in the classical period of Islam,' JESHO 13 (1970) 43. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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there is no Qur'änic verse or tradition that would demand such an extension.

1.3. The Emergence of Personal Law Schools As indicated above a number of legal works and doctrines emerged at the end of the 8th century or a little later which were attributed to earlier scholars. Shaybäm (d. 805) and Abu Yüsuf (d. 798) traced their legal doctrine to Abü Hamfa. Malik! jurists such as 'All b. Ziyäd al-TünisT (d. 799)17, 'Abdailäh b. 'Umar (d. 805/6)18 and Sahnün b. Sa'Td (d. 854)19 attributed their versions of the Muwatta' to Mälik b. Anas, who himself most probably did not compose legal works. Ibrahim b. Zibriqän (d. 799)20 compiled the Majmü' al-fiqh which allegedly goes back to Zayd b. 'All (d. 740). YazTd b. AbT Hakim (d. after 835)21 and other Yemenite jurists, when issuing fatwäs, relied on the Jami' Kabir which is traced back to Sufyän al-Thawri (d. 778). The IbädT school took Abu Sha'thä' Jäbir b. Zayd (d. 711/2) as its teaching founder whose alleged fatäwä were collected in the first third of the 9th century by Abü Sufra 'Abd al-Mälik b. Sufra.22 All these early scholars who obviously failed to bequeath legal works of their own and whose legal activity or even identity is shrouded in fog and sometimes wreathed in legends became the eponyms of law schools or at least early outstanding representatives of legal doctrines. In fact, some time after 780 or so a number of provincial scholars who, apart from Mälik b. Anas, died before 780 and who were no more outstanding than other contemporary scholars, were brought from darkness into light and chosen as founders of comprehensive legal doctrines or even law schools. It is noteworthy that the tendency to "search for founders" may also be observed in other Islamic disciplines at the same time. Bishr b. al17 18 19 20

M. Muranyi Beiträge 7-10. Idem. 12-15. Idem. 33-55. W. Madelung Der Imäm al-Qäsim ibn Ibrahim und die Glaubenslehre der Zaiditen (Berlin 1965) 55. 21 H.-P. Raddatz Die Stellung und Bedeutung des Sufyän at-Tawrl (gest.778). Ein Beitrag zur Geistesgeschichte des Islam (Bonn 1967) 107. 22 J. Wilkinson 'IbädT theological literature,' Μ. Young et al. (ed.) Religion, learning and science in the 'Abbäsid period (Cambridge 1990) 35; another legal work of the Ibädls in this time is the Mudawwana of Abü Ghänim Bishr b. Ghänim (d. 815). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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Mu'tamir (d. 828), a protege of the Barmakids, introduced the Mu'tazilit doctrine in Baghdad, but the role of Wäsil b. 'Atä' (d. 748), the alleged founder of this theological movement, remains obscure. The same applies to a contemporary of Bishr b. Mu'tamir, the jurist and theologian Bishr al-MansT (d. 833)23, who propagated the new doctrine of khalq al-Qur'än (createdness of the Qur'än)2 , but it is the dubious figure of Jahm b. Safwän (d. 745) to whom the Jahmites attributed this doctrine. In grammar, the comprehensive system as reflected in Sibawayhi's Kitäb is usually presented as a bequest of the Basran scholar Khalll b. Ahmad (d. 776 or 791),25 while the Küfan doctrine is traced back to Ru'äsl (fl. in the 2. half of the 8th century) and his alleged work 26 Faysal (= distinction). In fact, however, we know that Sibawayhi's grammar constitutes a completely novel system that clearly differs from the grammatical systems of his predecessors, including Khalll b. Ahmad.27 The same Khalll also serves as the founder of lexicography ('ilm al-lugha)28 and prosody29 although the corresponding works were composed only after his death. In the profane area the whole science of alchemy represented in the corpus of Jäbir b. Hayyän (d. ca. 815) is traced back to Ja'far b. Sädiq (d. 765), who is professed to be the mas23 Carra de Vaux/A. Nader/J. Schacht, Art. Bishr b. Ghiyäth, EI 2 ,I, 1242. 24 According to W. Madelung ('The origins of the controversy concerning the creation of the Koran, ' J. Barral (ed.) Orientalia Hispanica, vol.1 (Leiden 1974) 5045), the controversy concerning khalq al-Qur'än already existed before the last quarter of the 8th century, but entered a new stage at the end of the 8th century. By any means it is rather doubtful that Jahm b. Safwän was familiar with this doctrine. 25 F. Sezgin Geschichte des arabischen Schrifttums, vol. 9 (Leiden 1984) 44-7; R. Sellheim, Art. al-Khaffl b. Ahmad, EI2 IV, 962. 26 C. Versteegh 'Die arabische Sprachwissenschaft,' GAP II (Wiesbaden 1987) 157; J. Danecki, Art. al-Ru'äsT, EI2 VIII, 573. 27 M. Carter speaks of „the creation of (Arabic) grammar" ('Arabic grammar,' 122); see also: idem. 'Les origines de la grammaire arabe,' REI 40 (1972) 75,77 ; M. Bernards Establishing a reputation. The reception of Sibawayh's book (Nijmegen 1992) 5; C. Versteegh 'Die arabische Sprachwissenschaft,' 153. 28 F. Sezgin Geschichte des arabischen Schrifttums, vol. 8 (Leiden 1982) 51-3. But the initial impetus to compile dictionaries is obscure (M. Carter 'Arabic lexicography,' M. Young et al. (ed.) Religion, learning and science in the 'Abbäsid period (Cambridge 1990) 109); later Muslim scholars attribute the fundamental dictionary Kitäb al-'Ayn not to Khalll b. Ahmad but to his friend and protege of the Barmakids Layth b. al-Muzaffar (R. Sellheim, Art. al-Layth b. al-Muzaffar, EI2 V, 711). According to S. Wild (Das Kitäb al-'Ain 14) the Kitäb al-'Ayn as a coherent work certainly does not go back to Khalll b. Ahmad. 29 Heinrichs 'Metrik,' GAP II (Wiesbaden 1987) 191; Ibn KathTr speaks of the invention (ikhtirä') of prosody (al-Bidäya wa l-Nihäya (Cairo 1933) 10/161). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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ter of Jäbir. Is it a coincidence that so many founders were discovered at the turn of the 9th century, while legal and other doctrines before this time usually were not connected with specific figures? Still another point deserves attention. It seems that some of the ancient law schools, that is, loose circles of legally versed scholars in Egypt, Syria and 'Iraq, disappeared after the emergence of the personal law schools. The scholars around Layth b. Sa'd (d. 791), for example, more and more joined the Malik! school which became dominant in North Africa.30 The Mekkan31 school and the Syrian32 school merged into the Shäfi'T school which was founded by Shäfi'T (d. 820) himself and, hence, does not fit into the pattern of genesis described above.33 Interestingly, not even the law school of Abü Hanifa continued to exist independently of Shaybäm and Abü Yüsuf in Küfa, where it had taken its origins, nor in any other town. This would mean that there was nobody to transmit the monumental legal doctrine of Abü Hamfa except ShaybänT and Abü Yüsuf, although the school's namegiver reportedly had a considerable number of pupils.34 Furthermore, this would mean that the whole doctrine was transferred from Küfa to Baghdad without leaving any traces in the former. In principle, this is what the SharT'a experts believe. However, in view of all the facts and considerations indicated above, one might also conclude that the alleged law school of Abü Hanlfa came into being only after his death and that his legal doctrine in fact was born in Baghdad. If this is so, one must explain the enormous rapidity of legal development in the capital.

30 See also J. Brockopp Early Mäliki law 2. 31 H. Motzki Anfänge 261. 32 G. Conrad Die Qudät Dimasq und der Madhab al-Auzä'L Materialien zur syrischen Rechtsgeschichte (Beirut 1994) 564. 33 The genesis of the Shäfi'T and the Hanball law school is quite different from that of the Hanafls and the Mälikls. Both the Shäfi'Ts and Hanballs emerged from traditionalist movements and combined the legal doctrines of the Hanafls and the Mälikls with specific theological concepts (see below 317, 577). 34 DhahabI Manäqib al-Imäm Abi Hariifa wa-sähibayhi Abi Yüsuf wa-Muhammad b. al-Hasan, ed. Muhammad Zähid al-Kawthan/Abü al-Wafa' al-Afghäm (Hydarabad n.d.) 11. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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1.4. Critical Reactions At the end of the 8th century we observe a significant polarization of the Islamic society, or parts of it, into two camps, the ahl al-hadith (traditionists) and the ahl al-ra'y (adherents of personal opinion). Although the Mälikis in fact no less relied upon ra'y than the Hanafis, it was particularly the Hanafi school that openly recognized the controversial principle of ra'y'5 and therefore became the focus of criticism. Ra'y was closely connected with istihsän (preference), which no doubt represented a central principle of Hanafi legal theory. Both principles, ra'y and istihsän, were vehemently rejected by the traditionists who stubbornly insisted on the primacy of Qur'än and Sünna. If we suppose that ra'y and istihsän constituted the cornerstone of Hanafi legal doctrine, that ShaybänT and Abü Yüsuf were the most important representatives of this doctrine and that they spread it at the end of the 8th century, we may conclude that the traditionist criticism was a reaction on just this legal doctrine. One might say that the ahl alra'y in Baghdad presented a new system which provoked strong reactions from the side of religious scholars. As we will see, this also explains the significant increase of traditions in the second half of the 8th century. However, the great bulk of legal traditions was produced shortly after, not before, the introduction of the new system in the late eighties of the 8th century. This means that most of the informants appearing in the isnäds (chains of transmission) as common links are in fact seeming common links.36

1.5. Centralization of Judiciary It is a well-known fact that the early 'Abbässids showed a particular interest in centralizing the judiciary37. But it was not until the end of the 8th century that the caliph created the post of the chief judge (qädi alqudät), who controlled the appointment and dismissal of judges in the Islamic cities. The first to assume this post was Abu Yüsuf, one of the two outstanding jurists in Baghdad who operated in close connection 35 In fact ra'y was a wide-spread principle already in the 7th century (I. Schneider Kinderverkauf 354). 36 See below 246. 37 J. Schacht Introduction 50-51. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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with the central power and also introduced the HanafT legal doctrine. While Shaybänl composed the Jami' saghir that represented an abridged version of his monumental Mabsüt and served as handbook forjudges, his colleague Abü Yüsuf was the first one to write a book on the "duties of judges" (Ädäb al-qädX). It does not seem that the basis of judicial decisions in this time was a heterogenous one because we know that the HanafT legal doctrine spread to many parts of the Empire in the decades following the centralization.38 Most of the judges must have used the standard works of Shaybärii, and his Jämi' saghir in particular. One might ask what sense the centralization of a judicial system will make if it does not start from a unified legal codex.39 Is it useful to control the judges, but not the basis of their decisions? The very combination of single facts suggests that the legal system introduced by Shaybänl and Abü Yüsuf was closely connected to the centralization of the judiciary. It seems that both elements, the legal doctrine and the centralization of judiciary, formed part of one and the same plan. This, however, might indicate that also the legal doctrine was systematically created.

1.6. The Emergence of Islamic Humanism 4 0 As we have seen, the focus of legal literature at the beginning of the literary period was in Baghdad. Since the uniformity of Islamic law suggests that there was only one source it is possible to conjecture that all legal works in that time more or less rely on the legal writings in the capital. This would mean that the first legal works emerged in a climate of humanism. 38 See below 287. 39 As to the interdependence of a centralized judiciary and an empire-wide normative reference in the early 'Abbäsid caliphate see B. Johansen Contingency in the sacred law (Leiden 1999) 26-7. 40 We certainly may agree with M. Schöller ('Zum Begriff des islamischen Humanismus,' ZDMG 151 (2001) 275-6), that "humanism" is a specifically European term which needs further specification when used in an Islamic context. But it does not make sense to create a novel term to designate a phenomenon which in many ways is parallel to and no doubt connected with European humanism. Both Islamic and European humanism rely upon Antique literature and show strongly anthropocentric tendencies (as to further parallels see idem 283-4). To separate Islamic from European humanism would mean to ignore the interdependence of these cultures. It is this interdependence which may explain a number of seemingly innate phenomena. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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Islamic humanism is closely connected with the triumph of the 'Abbäsids, the foundation of Baghdad and the explicit claim of the Muslim sovereigns to the Hellenistic heritage.41 The motive for incorporating profane sciences into the Islamic culture may be found in the relics of the Sassanid culture,42 but also, or even more, in Byzantium.43 It is not quite clear when exactly Islamic humanism came into being44, but there is much indication that it was under Härün al-Rashld, who no doubt represented a glorious era of cultural flowering. By any means, there would have been no humanism without the translations which proved to be the essential prerequisite for gaining access to the sciences of Antiquity. Although we can already observe translations of foreign texts into Arabic under the Umayyads and the early 'Abbäsids such as Saffah and Mansür,45 it was under Mahdl and, in particular, under Rashld in the cultural factory of Baghdad that translations became a systematic practice.46 It seems that the translation movement was put into motion by the Barmakids who constituted Greek and most probably Syriac, Persian and Indian translation teams and provided the organizational frame for a gigantic exchange of cultures. As the descriptions of Ibn al-Nadlm indicate, there was not only a significant increase of translations in this time but also a clear tendency to improve their quality, although these translations did not yet reach the standard set by ninth-century translators such as Hunayn b. Ishäq (d. 871). In several cases Yahyä b. Khälid rejected the translations of the Greeks and referred them to the Persians for revision.47 All these translations obvi41 M. Watt Der Islam 2/326. 42 D. Gutas Greek thought, Arabic culture. The Graeco-Arabic translation movement in Baghdad and early 'Abbasid society (2nd-4th/8th- 10th centuries) (London 1998). 43 See below 397. 44 G. Strohmaier 'Byzantinisch-arabische Wissenschaftsbeziehungen in der Zeit des Ikonoklasmus,' Η. Köpstein et al. (ed.) Studien zum 8. und 9. Jahrhundert in Byzanz (Berlin 1983) 180. 45 Translations before the time of Mahdl are sporadic and essentially restricted to special fields such as medicine, astronomy and astrology (M. Watt Der Islam 2/325). 46 A. Sabra 'The appropriation and subsequent naturalization of Greek science in medieval Islam: A preliminary statement,' HS 25 (1987) 228; see also M. Meyerhof 'On the transmission of Greek and Indian science to the Arabs,' IC 11 (1937) 23. 47 Ibn al-Nadlm Fihrist Y14 (it is very probable that the term jamä'a (group) used by Ibn al-Nadlm in this context, refers to a group of Greek translators who were supported by Persian translators). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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ously formed the basis of specific projects48 and regular symposia held in the palaces of the caliph and the Barmakids.49 In order to liven up the dead letters of Antique literature Yahyä b. Khälid invited experts from all parts of the world (Indians, Byzantines, Franks etc.)50 to take part in the scientific sessions in Baghdad and, if possible, to elaborate Arabic standard works in the different disciplines. It does not seem that religious affiliation played any role. Muslims, Zoroastrians, Buddhists, Jews, Christians etc., all of them formed part of a new humanistic community whose primary concern was plunging into the old sciences. Most probably the various sessions of musicians, jurists, literates, physicians, poets or theologians were interconnected, that is, members of one session sometimes also took part in other sessions and thereby transferred elements from one discipline to another. This might account for the considerable number of legal terms in Sibaywahi's Kitäb51 for instance or for elements of veterinary medicine in Shaybäm's Mabsüt.52 Apart from translations and sessions, the time of RashTd is credited with the foundation of a library (khizänat al-hikma), the later bayt al-hikma, and a hospital.53 Furthermore, the production of paper that started in Baghdad after the construction of a paper mill in 794 and the development of new writing styles, facilitated the duplication of texts. Nobody doubts that most of the profane sciences such as medicine, mathematics, philosophy, botany etc. were borrowed by the Arabs from foreign cultures.54 Pre-Islamic Arabs definitely did not deal with meteorology or logic. In fact we don't find a single Arab among the first representatives of these sciences in Islam. The first systematic contact with the heritage of Antiquity took place in Baghdad at the end of the 8th century. And this contact brought about not only a superficial insight into what was beyond or before Islam, but an outright incorporation or appropriation of foreign doctrines, concepts and systems. Nevertheless it seems to be common in the Muslim world as well as in 48 See below 90. 49 E. Neubauer Musiker am Hof der frühen 'Abbäsiden (Frankfurt 1965) 71; L. Bouvat 'Les Barmecides d'apres les historiens arabes et persans,' RMM 20 (1912) 49. 50 M. Meyerhof O n the transmission' 26 (with regard to Indians). 51 Even C. Versteegh points at this phenomenon (Greek elements in Arabic linguistic thinking (Leiden 1977) 14). 52 See below 199. 53 E. Savage-Smith, Art. Tibb, EI2, X, 455 ; J. Fiey Chretiens Syriaques sous les Abbasides, surtout ά Bagdad (749-1258) (Louvain 1980) 43; M. Watt Der Islam 2/326. 54 F. Sezgin GAS III, 5; IV, 308; V, 19. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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Western Islamic studies to make a sharp distinction between profane sciences on one side and purely Islamic sciences on the other.55 There is nobody to link the phenomenon of reception both to profane sciences and to Islamic sciences, although both types of sciences, in a literary form, emerged at the same time and in the same place.56 It is remarkable that some of the Islamic and Arabic sciences split into a modernist and a traditionalist wing just at this time. While the jurists at the end of the 8th century were divided into the ahl al-ra'y and the ahl al-hadTth, that is, adherents of personal opinion and traditionists, some poets such as Abü Nuwäs (d. 815) constituted a new wing called muhdathün (modernists) who were clearly contrasted with the ancients, that is, representatives of traditional poetry. In the same way the musicians split into two camps,57 one representing a new style with Ibrahim b. al-Mahdi (d. 839)58 and Ibn Jämi' (fl. under Rashld),59 and one relying on the old Arabic style with Ibrahim al-Mawsill and his son Ishäq (d. 850).60 It seems that also the grammarians were divided into two schools.61 While the Küfan school tolerated deviations from strict analogy (qiyäs 'alä shädhdh) the Basran school only accepted analogy based on tradition.62 The emergence of oppositional schools and camps

55 D. Hill 'Mathematics and applied science,' Young, M. et al. (ed.) Religion, learning and science in the 'Abbäsid period (Cambridge 1990) 250; C. Hein Definition und Einteilung der Philosophie. Von der spätantiken Einleitungsliteratur zur arabischen Enzyklopädie (Frankfurt 1985) 4; according to Η. Daiber ('Anfänge und Entstehung,' 358), the philological sciences in Islam resulted not from foreign influences but from the Qur'än. 56 G. Endress 'al-Munäzara bayna 1-Mantiq al-Falsafi wa 1-Nahw al-Arabi Π 'Usür alKhulafa',' JHAS 2 (1977) 348. 57 E. Neubauer Musiker am Hof der frühen 'Abbäsiden (Frankfurt 1965) 28. 58 According to Abü 1-Faraj al-l§bahänl (Kitäb al-Aghähi 9/35), Ibrahim b. al-Mahdl rejected the old style of music (al-ghanä' al-qadim) and tried to find a new way (see also §afadl Wäfi 30/32 (no. 41)). 59 A. Shiloah, Art. Ibn Djämi', EI2, ΠΙ, 749. 60 J. Fück, Art. Ishäq b. Ibrählm al-Mawsili, EP, IV, 110-11. 61 C. Versteegh 'Die arabische Sprachwissenschaft,' GAP II (Wiesbaden 1987) 1578; F. Sezgin GAS, IX, 122; according to another position the conflict between both schools is a back-projection of Mubarrad and Tha'lab at the end of the 9th century (M. Carter 'Arabic grammar,' 126; M. Bernards, Establishing 97; G. Weil Die grammatischen Schulen von Kufa und Basra (Leiden 1973) 7). If we suppose the developments of grammar and law to be closely connected (M. Carter 'Arabic grammar,' 120) it is more plausible to date the grammatical conflict to the same time as the legal conflict, that is, at the end of the 8th century. 62 C. Versteegh 'Die arabische Sprachwissenschaft,' 158; in contrast to the prevailing conviction one might say that the Basrans were the traditionists and the Küfans the Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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clearly indicates the clash of different concepts which might result from the multicultural character of the capital. But since we know that considerable quantities of foreign knowledge penetrated Islamic culture by way of systematic translations at just this time it seems to be equally justified to trace all these controversies back to novel concepts that had been borrowed.

1.7. Wave of Codifications At the turn of the 9th century we observe a significant increase of codifications in 'Iraq. Apart from ShaybänI's opus that might be regarded as a codification of Islamic law, we find similar enterprises in Babylonian Judaism, Zoroastrianism and in Christianity. While the Talmud and the Tosefta represent anonymous legal collections containing the oral tradition of the Tora, the Halakhot Gedolot and Halakhot Pesukot are codices which mark a new era of Jewish legal literature.63 For the first time in the history of Jewish law a full-fledged codex was systematically produced in a relatively short time and traced back to an authoritative Jewish scholar.64 The Halakhot Pesukot was reportedly composed by Jahudai ben Nahman (d.770), the outstanding Gaon in Pumbedita. Judaists, however, attribute this work to his pupils, because the strongly orthodox master was blind and therefore could not have composed it for himself.65 The other work, the Halakhot Gedolot, is problematic with regard to its dating and attribution. Some later sources point at Simon Qayyara as its author,66 but this is not corroborated by other sources. The dating of this work varies between 825, 85067 and 900.68 By any means both Halakhot works are interconnected in so far as one is de-

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modemists, because the grammatical qiyäs 'alä shädhdh of the Kufans exactly corresponds to the legal istifoän. R. Brody The Geonim of Babylonia and the shaping of Medieval Jewish culture (London 1998) 216. Up to this time the Babylonian Jews strictly observed the prohibition of writing down halakha (L. Ginzberg Geonica, Part 1: The Gaonim and their Halakhic writings (New York 1968) 97). R. Brody The Geonim 221. S. Baron A social and religious history of the Jews, vol.6 (New York 1971) 81; L. Ginzberg, op.cit. 107. R. Brody The Geonim 229. S. Baron A social and religious history 81; L. Ginzberg Geonica 1/107. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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pendent on the other or both works have the same source.69 Both works had a considerable impact on the further development of Jewish law and produced (oppositional?) offshoots in Palestine, Italy and other parts of the Jewish world.70 In 812 Pirkoi b. Baboi composed his lggeret emphasizing the primacy of Babylonian Judaism, that is, the ultimate authority of the academies in Pumbedita and Süra.71 Most probably his missive also alluded to the primacy of the Babylonian Talmud, the Tosefta and the two Halakhot works. Apart from these works there emerged still another genre of legal literature, namely methodological works which come very close to the first Islamic usül works. While the Seder Tannaim weAmoraim is a separate work, possibly composed at the end of the 9th century,72 there is another one that forms part of the Halakhot Gedolot. Both works are divided into two parts, one emphasizing the legitimacy of the Babylonian Jewry by presenting an uninterrupted chain of authorities, the other containing a catalogue of hermeneutical principles and instructions of how to deal with controversial legal matters. At the same time the Nestorians, too, intensified the production of legal literature.73 After Ishobokht, whose canonical work, written in Pahlawi and based on Persian customary law, was translated into Syriac at the end of the 8th century, Timotheus (d. 823), Isho bar Nun (d. 828) and Denha composed further legal works.74 According to H. Putman75 it was between 775 and 790 that the (East Syrian) Synodicon76 was compiled, most probably on behalf of Timotheus. In the 9th century both the Nestorians and the Monophysites produced Nomocanones, which were largely influenced by Islamic law.77 69 G. Libson 'Halakhah and law in the period of the Geonim,' B. Jackson et al. (ed.) An introduction to the history and sources of Jewish law (Oxford 1996) 206. 70 R. Brody Geonim 230-232. 71 J. Horovitz, Art. Pirkoi Ben Baboi, EJ 13/60-61; R. Brody The Geonim 113-6. 72 K. Kaiman Seder Tannaim weAmoraim, auf Grund mehrerer veröffentlichter und nicht veröffentlichter Texte bearbeitet, übersetzt, mit Einleitung und erklärenden Noten versehen (Frankfurt 1935) p. XIII. 73 A. Baumstark Geschichte der syrischen Literatur (Bonn 1922) 216. 74 Idem. 215,217,219-20. 75 Η. Putman L'eglise et l'Islam sous Timothee (780-823) (Beirout 1975) 62-3. 76 On the legal sources contained in the Synodicon see W. Selb Orientalisches Kirchenrecht, vol.l: Die Geschichte des Kirchenrechts der Nestorianer (von den Anfängen bis zur Mongolenzeit) (Vienna 1981). 77 W. Selb Orientalisches Kirchenrecht, vol. 2: Die Geschichte des Kirchenrechts der Westsyrer (von den Anfängen bis zur Mongolenzeit) (Vienna 1989); Η. Kaufhold Die Rechtssammlung des Gabriel von Basra und ihr Verhältnis zu den anderen juBrought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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At the beginning of the 9th century the religious leader (wehdän) of the Zoroastrians, Ädurfarubag ϊ Farroxzädän, compiled the monumental Denkard that contained, among other subjects, legal precepts.78 After the destruction of parts of the Denkard it was reconstructed by Emedän in the 10th century. All these activities may be regarded as particular enterprises which ushered to a new era of legal activity. After a longer period of literary abstinence we can observe a significant increase of legal literary activity at the end of the 8th century both in Judaism, in Monophysite and Nestorian Christianity, in Zoroastrianism and, of course, in Islam. Moreover, the starting-point of all these activities seems to be in or near Baghdad. The Jewish exilarch,79 the Nestorian catholicos,80 the Zoroastrian wehdän and also representatives of the Monophysites took Baghdad as their residence or at least stayed there for a while in this time. We also know of outstanding representatives of these religions having enough opportunity to exchange ideas and concepts by taking part in the majälis (sessions) of Rashld and Yahyä b. Khälid81. As we will see, the initial impetus for this development is to be found in Byzantium, where Leo III in 741 - that is about 200 years after the Justinian codification - presented a new code, the Ecloga. Not long after the 'Abbäsid revolution in the middle of the 8th century occurred the first attempt of the caliphs to produce a similar codex in Islam. But in contrast to the emperors in Byzantium the caliphs could only rely on unwritten legal doctrines of provincial scholars who were not willing to

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ristischen Sammlungen der Nestorianer (Berlin 1976) 33. A later Nestorian Nomocanon in Arabic was composed by Ibn al-Tayyib (Hoenerbach, W./Spies, O. (ed.) Ibn at-Tayyib. Fiqh an-nasräniyya. Das Recht der Christenheit, 4 vols. (Louvain 1956-7)). Boyce, Art. Ädurfarubag I Farroxzädän, Eran, I, 477; P. Gignoux, Art. Denkard, Eran, VII, 285. It is very probable that the Jewish exilarch Zakkai b. Akhunai, a contemporary of the Barmakids, resided in Baghdad ('Atlqa) (G. Vajda 'Le milieu Juif ä Baghdad,' Arabica 9 (1962) 390). By any means there was a close connection between the Barmakids and the Jewish exilarch (M. Gil 'The exilarchate,' Frank, D. (ed.) The Jews of Medieval Islam. Community, society and identity (Leiden 1995) 54). According to Mas'üdT, the exilarch took part in a session of Yahyä b. Khälid and spoke with the Muslim theologian Dirär b. 'Amr (D. Sklare Samuel Ben Hofni Gaon and his cultural world. Texts and studies (Leiden 1996) 73). In 775 the Nestorian Patriarch Hananyeshü (774-9) moved from the old residence Seleucia-Ktesiphon to Baghdad (A. Atiya A history of Eastern Christianity (London 1968) 271-2; see also H. Putman L'eglise 20). H. Putman L'eglise 141. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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cooperate with the state. At this time the conditions in Islam were not yet favourable to a codification project.

1.8. Abundance of Comparative Studies Although there is almost nobody to maintain direct reception we find a considerable number of studies comparing Islamic law with one of the pre-Islamic legal systems such as Jewish law, Sassanid law, Canon law (Monophysite, Nestorian), Babylonian law, Roman provincial law or Roman law. Comparative analysis with regard to Islamic law has a history of its own. From the 18th century with Renand up to the end of the 20th century with P. Crone or I. Schneider, the relationship between Islamic law and other legal systems attracted the attention of many SharVa experts.82 While none of these studies presented the final proof for reception the mere abundance of comparative studies might be regarded as conspicuous. It seems that Islamic law again and again made the students think of other legal systems, and Roman law in particular. Indeed, someone who first reads some books of the Digests and after this examines the corresponding parts of Islamic furü' works might gain the impression of dealing with related legal systems, although there are many passages, cases and case solutions, arguments etc. which clearly differ from Roman law. We don't have such an impression when comparing the Digests with, say, the Persian Mätakdän i hazär dätestän, which reflects the legal practice in Fars just before the Arab 83

conquest. It is interesting to observe that so many comparative studies have been made in the course of centuries without ever redefining the premises of comparative analysis. While, on one hand, there was a persistent belief in at least indirect reception, we don't, on the other hand, see any attempt to overcome the never ending aporia84 by revising the criteria of comparative analysis. What changed was the object of analysis only, that is, preference was given to Jewish law instead of Roman law, classical Roman law instead of later Roman-Byzantine law, Roman provin82 A general survey of this history is given in P. Crone Roman (preface). 83 M. Macuch Rechtskasuistik und Gerichtspraxis zu Beginn des siebenten Jahrhunderts in Iran. Die Rechtssammlung des Farrohmard i Wahrämän (Wiesbaden 1993) 1. 84 P. Crone Roman 31. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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rial law instead of Roman law etc.85 As a whole, however, one may clearly say that most of the SharVa experts gave preference to Roman law, classical or post classical, and secondly to Jewish law. As we will see, this tendency finds corroboration in the study at hand.

85 The fact that there is a controversy about which one of the legal systems in the Middle East influenced Islamic law does not indicate that there was no influence at all (as stated by U. Mitter Das frühislamische Patronat 85). By contrast, all these comparative studies indicate that Islamic law was influenced by several legal systems at the same time. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:29 AM

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Chapter 2 Circumstances of Reception

It is the comparative analysis following in the next chapter that forms the starting-point for reconstructing the circumstances of reception. As has been stated above the circumstances themselves do not prove the reception. Nevertheless, we are able to gather a number of reports and statements from Islamic and non-Islamic sources which yield a rather consistent picture of the circumstances and corroborate the facts resulting from the comparative analysis. Nobody can say that it was impossible or even absurd in Islam to borrow a foreign legal system. The ideological context, another corroborating aspect, will be treated in the second and the third parts.

2.1. Muslims Involved in the Reception As appears from the writings of ShaybänT and Abü Yüsuf ,1 it was these two jurists who directly borrowed a Greek version of the Digests. Neither before nor after the two HanafTs do we find any jurist who might be held responsible for the reception.2 Although many cases are traced back to Abü Hanlfa we have good reasons for ruling out that he himself used the Digestsumma and the Glosse and transmitted the material to his pupils ShaybänT and Abü Yüsuf. 1 As to the authorship of ShaybänT and Abü Yüsuf and the objections of N. Calder see below 98. 2 What applies to Abü Hanlfa may be said all the more of the jurists before him. A reception after the lifetime of ShaybänT and Abü Yüsuf may be excluded because of the quasi-impossibility that several scholars in different regions of the Islamic Empire independent from each other borrowed the same Greek version of the Digests. As will be demonstrated, all the Islamic legal works that emerged since the end of the 8th century depend on the writings and teachings of ShaybänT and Abü Yüsuf (see below 305). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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1) Abü HanTfa did not compose any legal work.3 On the other hand, KhatTb al-Baghdädl4 maintains that all the works but the Jami' saghir were composed by ShaybänT himself, that is at least the specific arrangement of the material is ShaybänT's and not Abu Hamfa's. But how do we explain then that the structure of the ShaybänT Code corresponds to the structure of the Corpus Iuris Civilis?5 2) There are many quotations in the Mabsüt referring not only to Abü HanTfa but also to Abü Yüsuf and ShaybänT, each presenting his own opinion. Some of these quotations are borrowed from the Digests and instead of the original names Pomponius, Sabinus etc. we find Arabic names.6 It is simply impossible that Abü HanTfa used the names of Abü Yüsuf and ShaybänT for islamisizing the Roman quotations and transmitted them to just these pupils. Of course it is imaginable that Abü HanTfa collaborated with his pupils, but in this case one might ask why only ShaybänT and Abü Yüsuf were credited with legal works and not the alleged school-founder Abü HanTfa. On the other hand there is the theoretical possibility that Abü HanTfa first used other Arabic names which later on, after his death, were replaced by the names of ShaybänT and Abü Yüsuf. But there seems to be no reason why this should have happened. Why should ShaybänT and Abü Yüsuf - in coordination - replace these names with their own names? 3) Although there are many quotations of Abü HanTfa in the Mabsüt we still find thousands of cases which are not traced back to him. From the fact that some cases are presented as Abü Hamfa's and others are not we may conclude that the latter go back to ShaybänT and Abü Yüsuf themselves.7 Of these cases, however, many prove to be borrowed from the Digests. 3 N. Coulson A history 51; M. Abü Zahra Abü Hanifa. Hayätuhu wa-'asruhu ärä'uhu wa-fiqhuhu (Cairo 1947) 187; see also above 52. 4 KhatTb al-Baghdädl Tärikh Baghdad 2/180. 5 Even if we supposed that Abü HanTfa produced legal texts, it would hardly be probable that they had the form of books with an elaborate structure as we have known them since the 9th century (G. Schoeler 'Die Frage' 210). 6 This procedure is not unusual in Middle Eastern cultures. Jewish scholars, for instance, in some cases replaced Abü HanTfa with Ravina or Shäfi'T with Rash Ashi (H. Lazarus-Yafeh 'Judeo-Arabic culture', 104). 7 According to MuzanT (quoted in KhatTb al-Baghdädl, Tärikh Baghdäd 2/176), ShaybänT was a master of derivation (tqfrT). It is also reported that the Kufans were proud of the 27000 rulings that ShaybänT had derived by way of analogy (idem. 2/177). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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4) If we suppose that Abü Hanifa assumed the difficult task of borrowing the whole system, we also have to presume that he was interested in transmitting the system. As indicated above, however, there was nobody to transmit the system except ShaybänT and Abü Yüsuf although Abu Hanifa is said to have taught a considerable number of pupils. 8 We even have to concede that the transmission started only at the end of the 8th century in Baghdad. 9 This corresponds to the fact that the conflict between the ahl al-ra 'y and the ahl al-hadith began at about the same time.10 Why don't we observe any reaction in the lifetime of Abü Hanifa (d. 767)? 5) Starting from the premise that the borrowed material was transmitted soon after the reception we may conclude from a hadlth complex that the reception in fact took place after 780. These traditions definitely contain material borrowed from the Digests,11 and one of them is traced back to 'Uthmän b. Hariz who died in 780. It is hardly imaginable that Abü Yüsuf transmitted rulings of the Digests in the name of Muslim scholars who had not yet died. 6) The reception of the Digestsumma and the Glosse was in no way an easy task. Since we may suppose that neither Abü Hanifa, who most probably was of Persian origin, nor his pupils knew Greek, it is clear that Abü Hanifa would have needed a translator. However, not every translator would have been able to render the text into Arabic because it reflected a legal system that was known in the East, if at all, only by name. Even more significant is the fact that the Greek text most probably contained a number of Latin terms in Greek letters. The only translator in 8th century Islam known to understand Latin resided in Baghdad and not in Küfa. 12 Although we also hear of the existence of Greek

8 See above 65. 9 In the introduction to his commentary on ShaybänTs Kitäb al-Siyar al-kabfr SarakhsT reports that Awzä'T (d. 774) saw this work of ShaybänT (Sarakhsl, M. Sharh Kitäb al-Siyar al-Kabir, ed. $alih al-Dln al-Munajjid, 3 vols., (Cairo 1957-60) vol.1, 1). But this is contradicted by Sarakhsfs remark in the same introduction that in this work ShaybänT does not mention his colleague Abü Yüsuf by name. This means that ShaybänT composed it after his dispute with Abü Yüsuf, that is, more than a decade after the death of Awzä'T. The whole story concerning Awzä'T seems to be legendary (see also W. Heffening Das islamische Fremdenrecht bis zu den islamisch-fränkischen Staatsverträgen (Osnabrück 1975) 160). 10 C. Melchert The formation of the SunnT schools of law, 9th - 10th centuries C.E. (Leiden 1997) 1 , 3 , 6 . 11 See below 237. 12 See below 88. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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books13 and private libraries14 in Küfa, there were definitely no translation movement and no translation teams in this town. No doubt it would have been rather difficult for Abu Hariifa to find an expert in Küfa sufficiently skilled in translating such texts. Furthermore, the translation would have been not only difficult but also expensive.15 7) Apart from the organizational and intellectual problems it is hard, from the viewpoint of Abü Hamfa, to find a plausible motive for plunging into such a project. Why should he - independently of the state borrow a whole legal system that was completely alien to him and that, at least in the Küfian milieu, would have aroused the suspicion of his colleagues. What sense does it make for a private religious scholar to exploit in a systematic way a secular legal system from a quite different culture while at the same time he well could have rested upon the living legal tradition in Küfa? On the other hand, one might suppose that Abu Hamfa was operating on behalf of the state. This would be corroborated by the fact that the concept of an imperial law was already discussed in his days. However, according to the sources it was Mälik b. Anas, and not Abü Hanlfa, who was asked by Mansür to codify Islamic law.16 The relations between Abü Hanifa and the caliph seem rather to have been strained in the last years of his life, which he spent in jail.17 Furthermore this would necessarily mean that Abü Hanlfa himself had produced a code. But this is definitely not the case.

2.2. Date and Place of the Reception Since it is clear who used the Digestsumma and the Glosse there remains the question when (between 767 and 798) and where (Kufa or Baghdad) the reception took place. If we accept the tradition mentioned above as starting-point we can date the reception between 780 and 798. 13 Hisham al-KalbT, for instance, consulted the archives and tablets of the Christian communities in al-HIra (W. Atallah, Art. Al-Kalbl, EI2, IV, 495). 14 A general trend for collecting books and founding libraries in and outside Baghdad may be observed only in the 9th century after the foundation of the Bayt al-Hikma (O. Pinto 'The libraries of the Arabs during the time of the Abbasides,' IC 3 (1929)215,220). 15 Translations, at least in Baghdad, were very expensive at this time (D. Gutas Greek thought 138-9). 16 See below 277. 17 J. Schacht, Art. Abü Hanlfa al-Nu'män, EI 2 1, 123. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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This would mean that the project most probably was performed in Baghdad because it must have been in the eighties that the careers of Abü Yüsuf18 and Shaybänl as state jurists started in the capital. Shaybam, who came to Baghdad after Abü Yüsuf,19 lived in the capital before 792 when he had a struggle with Rashld. There is no indication, however, that Shaybänl resided in Baghdad or served at the court before 786 when Rashid acceded to the throne. ShaybänT's close connection with Rashld is largely documented in the prosopographical sources while there is no hint at any contact with Had! or MahdL Since we observe a reaction to ShaybänTs code by Mälik b. Anas (d. 795), the terminus ad quern must be some time before 795. With regard to the facts that Shaybänl and Abü Yüsuf could only have operated in coordination and that Islamic humanism increasingly flourished after Rashld's seizing power we may conclude that the reception of the Digestsumma and the Glosse took place soon after 786.

2.3. Translators Although Shaybänl, unlike Abü Yüsuf, did not spring from an Arab family (but perhaps from a Greek family)20 it is not very probable that he knew the language of the Byzantines. At any rate we may rule out that he was familiar with Latin. From this we must conclude that the initiators of the codification project in Baghdad not only needed Muslim scholars who would do the difficult work of codifying law but also one or several translators who would provide for the basic legal material by transferring the non-Islamic texts into Arabic. Under the auspices of the Barmakids21 and possibly a chief translator (iattiin 'alä al-tarjama) such as Yuhannä b.Mäsawayh (d. 857)22 many 18 Abü Yüsuf is said to have worked as judge already under Mahdl, that is, prior to 785. 19 Sam'änl Ansäb 8/204. 20 His father lived in Harastä near Damascus and later moved to the East. Shaybänl was born in Was it and grew up in Kufa (Dhahabi Manäqib 50). 21 The Barmakids figure prominently as sponsors of the translation movement (D. Gutas Greek thought 128). 22 The translator Yuhannä b. Masawayh (on his biography see F. Sezgin GAS III, 231-6) seems to be the first to assume the post of an amin 'alä al-tarjama which was introduced under Rashld. The amm 'alä al-tarjama was prominent among the translators insofar as he controlled and corrected other translations and was even given scribes to assist him (M.-G. Balty-Guesdon 'Le bayt al-hikma de Baghdad', Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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texts were translated into Arabic and/or exploited for composing Arabic works. Most probably the texts were collected and registered in the newly founded khizänat al-hikma which also functioned as a translation centre.23 For the first time translation in Islam took on a systematic character and the number of translations increased significantly. Several translators or translator teams,24 closely attached to the court and, though focussing on certain languages, supporting each other, engaged in a vast field of disciplines such as medicine, philosophy, agriculture, astronomy, astrology, zoology or pharmacology. While Fadl b. Nawbakht (d. after 809) 25 , appointed by Rashld as translator in the khizänat al-hikma (library), Salm,26 the director of the same library or Sahl b. Härün (d. 830),27 the secretary of Yahyä b. Khälid, translated Persian texts,28 Mankah,29 who was invited by the Barmakids to come to Baghdad,30 Abän b. LähiqT,31 who composed a poem on behalf of the Barmakids for praising the Hanafis,32 Ibn Dahn al-Hindi,33 the administrator of the first hospital in Baghdad and the prominent theologian in Baghdad Bishr b. al-Mu'tamir34 translated from Indian into Arabic.

23 24 25 26 27

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29 30

31 32

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Arabica 39 (1992) 137). After Yuhannä b. Mäsawayh also Ibn al-Bitriq (Ibn Juljul Tabaqät al-Attibä' wal-Hukama , ed. Sayyid Fuad (Cairo 1955) 67) and Hunayn b. Ishäq (M.-G. Balty-Guesdon 'Le bayt al-hikma', 137) assumed this post. M.-G. Balty-Guesdon 'Le bayt al-hikma', 138 M.-G. Balty-Guesdon speaks of „working groups" which, however, should not yet be regarded as institutions ('Le bayt al-hikma', 137). Ibn al-Nadim Fihrist (Dodge) 2/651; F. Sezgin GAS VII, 114. F. Sezgin GAS IV, 271-2; M.-G. Balty-Guesdon 'Le bayt al-hikma', 141-2. According to M.-G. Balty-Guesdon, Sahl b. Härün was not a translator ('Le bayt al-hikma', 143) but it seems that he translated some Persian works (M. Zakeri, Art. Sahl b. Härün b. Rähawayh, EI2, VIII, 839). If we suppose Jabala b. Sälim to be the secretary of Hishäm b. al-Kalbl (Art. alKalbT, EI2, IV, 495) he must have been another translator of Persian texts in this time. F. Sezgin, however, identifies Hishäm (mentioned in Ibn al-Nadim Fihrist (Dodge) 2/589, 716) with the Umayyad caliph (F. Sezgin GAS V, 207). F. Sezgin GAS III, 194, 200-201. It was particularly the Barmakids who invited Indian scholars to come to Baghdad (M. Meyerhof 'On the transmission of Greek and Indian science to the Arabs,' IC 11 (1937) 26). Ibn al-Nadim Fihrist (Dodge) 2/716. The poem is contained in Süß, Abü Bakr Muhammad b. Yahyä Kitäb al-Awräq, ed. Η. Dunne (London 1934) 51-2; see also M. Chokr Zandaqa et Zindiqs en Islam au second siecle de l'hegire (Damascus 1993) 299. Ibn al-Nadim Fihrist (Dodge) 2/590, 710; F. Sezgin GAS III, 191. Ibn al-Nadim Fihrist (Dodge) 2/717 Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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Jibrfl b. Bukhtishü', recommended to Ja'far the Barmakid in 79135 and son of the physician-in-chief Bukhtishü' b. Jurjls (d. 801), Dädishü' 36 and Saläm al-Abrash,37 who also flourished under the Barmakids or Abü Nüh b. al-Salt,38 translated from or into Syriac. 'Umar b. Farrukhän, who served under Mansür, but also under Rashld and joined Yahyä b. Khälid, is credited with the translation of Babylonian texts.39 Apart from Persians, Syrians and Indians we also find Greeks among the translators in this time: Bitrlq, Yahyä (or Yuhannä) b. alBitriq, Ustäth,40 Ibn Fatlla, Abü Qurra,41 Jäbir b. Hayyän, Yahyä alNahwl, Hajjäj b. Yüsuf b. Matar42 and Politianos.43 Some of them, that is, Bitrlq, Yahyä b. al-Bitriq, Ustäth and most probably Jäbir b. Hayyän and Yahyä al-NahwI44 must have belonged to a group of Greek prisoners who were settled at the gate of Shammäsiyya in the North-East of Baghdad. Even J. Fiey45 was inclined to identify the group of Greek translators in Baghdad with the Greeks captured in Samälü. This is confirmed by several facts. 1) Both the head of the Byzantine group and the first Greek translator known to reside in Baghdad bore the title "bitrlq" (patrician) 46 Although we may not rule out coincidences, it is not very probable that several patricians who represented high-ranking personalities in Byzan-

35 36 37 38 39 40 41

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44 45 46

D. Sourdel, Art. Bukhtishü', EI 2 ,1, 1298. Ibn al-Nadlm Fihrist (Dodge) 2/588. Ibn al-Nadlm Fihrist (Dodge) 2/587. Ibn al-Nadlm Fihrist (Flügel) 341. F. Sezgin GAS VII, 111. G. Strohmaier, Art. Ustäth, EI2, X, 927-8. Abü Qurra (d. 828), the famous melkit theologian and spiritual pupil of John of Damascus is mentioned by Jähiz as one of the translators in Baghdad in the preHunayn period (Jähiz, Abü 'Uthmän b. Bakr Kitäb al-Hayawän (Cairo 1905) 1/39). It is not quite clear whether Hajjäj b. Yüsuf was a Greek and whether he translated directly from Greek into Arabic. By any means he had already worked as a translator in the time of Rashld (Ibn al-Nadlm Fihrist (Dodge) 1/586, 634; F. Sezgin GAS V, 86, 90). Politianos, melkit patriarch in Alexandria (768-813), translated along with Ibn Fatlla and on behalf of Yahyä b. Khälid the Greek work of Vindanius on agriculture into Arabic (G. Troupeau 'Kirchen und Christen im muslimischen Orient,' G. Dagron et al. (ed.) Bischöfe, Mönche und Kaiser (Freiburg 1993) 418-9). As to the identity of Jäbir b. Hayyän and his uncle Yahyä al-NahwI see below 347. J. Fiey 'Rüm ä l'est de l'Euphrate,' Le Museon 90 (1977) 386. As will be demonstrated below, the Comes of the Byzantine group was also a "patrician". Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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tine society and hence were rather limited in number came to Baghdad in the second half of the 8th century to spend the rest of their life there. 2) Both the Greeks in Shammäsiyya and the Greek translators had a direct or at least an indirect connection with the Barmakids. In Byzantium it was not so much Rashld - who was then only 16 years old - but rather the Barmakids Khälid b. Barmak and Yahyä b. Khälid, Rashld's tutor, who conducted the campaign against Samälü47 and most probably negotiated with the Greeks. It is therefore not surprising that the Greeks settled in a quarter of Baghdad that was given to the Barmakids as a fief 48 . The palaces of the Barmakids were only a few stone's throws away from Dar Samälü. On the other hand Yahyä b. al-Bitriq is said to have been in the company of Hasan b. Sahl49 who was a protege of the Barmakids.50 3) Both the patrician from Samälü and the translator Bitriq resided in Baghdad along with their families. According to Balädhuri the group of Greeks in Samälü consisted of several families. This is why the Greeks made it a condition not to be separated from each other. The fact that Bitriq had a son in Baghdad indicates that he, too, lived in Baghdad together with his family. 4) Both the Greeks from Samälü and the Greek translators, at least Bitriq and his son, were prisoners. While it is clear that the Greeks from Samälü were taken prisoner we may conclude that Bitriq was also a prisoner because his son, probably after his conversion to Islam, became a freedman (mawlä) thanks to Ma'mün. 51 5) Both the Greeks from Samälü and the Greek translators are described in the sources as groups. As appears from the stipulations in Samälü, the Greeks were strongly interested in staying together and no doubt they continued to exist in Baghdad as a homogeneous ethnical group. As late as the 10th century there was still a Greek community in Shammäsiyya.52 The Greek translators also seemed to form a group, as two letters of the Nestorian Catholicos Timotheos indicate.53 In these letters 47 48 49 50

Ibn KathTr Bidäya 10/146. I. Abbas, Art. Barmakids, Eran, III, 806. In Ab! Usaybi'a 'Uyün al-Anbä' fi Tabaqät al-Attibä' (Beirut n.d.) 1/174. D. Dunlop 'The translations of al-Bitriq and Yahyä (Yuhannä) b. al-Bitriq,' JRAS 3(1959) 141. 51 Ibn Juljul Tabaqät al-Attibä' 67. 52 Β. Hemmerdinger 'Les notices et extraits des Bibliotheques Greques de Baghdad parPhotios,' REG 59 (1956) 102. 53 H. Putman L'eglise et l'Islam sous Timothee I (780-823) (Beirut 1975) 106. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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he explicitly speaks of "several Greeks" who translated the Topics of Aristotle from Greek into Arabic. 6) Certainly it is no coincidence that the Greek-Arabic translation just mentioned was revised by Timotheos in 782. Shammäsiyya was a Nestorian quarter54 which was intimately connected with Dar Samälü after the arrival of the Greeks. The chronology is conspicuous, for less than two years after the foundation of Dar Samälü in 780 Timotheos makes his first translation while cooperating with a group of Greek translators. This is the first time that we hear of such a group in the sources. 7) The fact that the Muslims settled the Greeks of Samälü in Baghdad instead of putting them in one of the prisoner camps55 around Baghdad or somewhere else is something of a puzzle. Why did the Barmakids grant them such privileges while other Melkites usually were met by the caliphs with distrust?56 Of course we do not know what else - apart from the stipulation of non-separation - formed part of the agreement. But it is possible that the highly educated Barmakids intended to make use of the patrician's knowledge and to cause him and his compatriots to translate parts of the Greek manuscripts stored in Baghdad. At any rate this would have been a good opportunity to attain access to the books of Antique sciences, most of which were not in Persian or Syriac but in Greek. However, the identification of Bitriq with the Comes of Samälü raises a chronological problem. According to Ibn al-NadTm it was under Mansür (752-75) that Bitriq worked as translator while the Greeks of Samälü only arrived at Baghdad in 780. If Ibn al-Nadim is right we must concede that Bitriq and the Comes were different persons. But even D. Dunlop57 considered the possibility of putting the activity of Bitriq somewhat later than 775. If it is true, as Ibn al-Nadim reports, that Bitriq translated the Tetrabiblos of Ptolemy on behalf of 'Umar b.

54 J. Fiey 'Rüm ä Test de l'Euphrate,' 372. 55 In one of the camps near Baghdad the Iconodule Romanos (d. 780) was imprisoned (P. Peeters 'S. Romain le neo-martyr (+ Ier mai 780), d'apres un document georgien,' AS 30 (1911) 397). 56 WalTd II cut the tongue of the patriarch Stephen III (742-44). Theodore I was thrown into jail by Mansür and in 787 the patriarchs of Antioch and Jerusalem were exiled (G. Troupeau 'Kirchen und Christen,' 403, 412). 57 D. Dunlop'The translations,' 142 (n.6). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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al-Farrukhän, who wrote a commentary on this work under Ma'mün, 58 this will suggest that Bitriq made the translation after 775 and not 45 years (or more) before 'Umar wrote the commentary.59 In the same way, the considerable gap of 45 years between the translation activities of Bitriq and his son evokes suspicion. While it is obvious that Ibn alBitriq followed his fathers footsteps it is hard to understand why he should have waited so long to start his own career as translator. When he started translating under Ma'mün - Ibn al-NadTm's dating taken literally - he must have been at least 60 years old.60 On the other hand we know that Ibn al-Nadlm's datings very often are no more than mere estimates. At least in all those cases in which Ibn al-NadTm's indications are contradicted by other sources some caution is advised. The fact, for instance, that Ibn AbT Usaybi'a's chronological list of translators differs from that of Ibn al-NadTm indicates that there was some confusion among the later biographers as to the lifetimes of the translators. Unlike Ibn al-Nadim, Ibn AbT Usaybi'a mentions Ustäth and Ibrahim b. Bakküsh before and not after Bitriq.61 In Jähiz's list62 Ibn al- Bitriq precedes all other translators. In view of these considerations one may not rule out the possibility that Bitriq came to Baghdad a few years later and that it was MahdT, instead of Mansür, who ordered Bitriq to make translations. Put together, however, with the other considerations concerning the identity of the Byzantines of Samälü and the Greek translators in Baghdad, the possibility becomes a probability. Starting from the premise that the Comes of Samälü and Bitriq were one and the same person we may conclude that the Greek name of Bitriq was Gregorios Musulakios.63 The Comes obviously was one of the generals operating in the East of Byzantium.64 As the chronicle of 58 There is no indication that 'Umar wrote this commentary under Mansür as F. Sezgin maintains (GAS V, 167). Instead, QiftT explicitly reports that 'Umar wrote it under Ma'mün (D. Dunlop 'The translations,' 142). 59 We may conjecture that translations under Ma'mün started only in 819/20 when he returned to Baghdad and the civil war was over. 60 If we suppose that Ibn al-Bi{riq studied some years with his father and that he was 15 years old when his father died in 775 (at the latest), he must have been born in 760 at the latest. 61 D. Dunlop 'The translations,' 143 (no. 9). 62 Jähiz Kitäb al-Hayawän 1/38; see also D. Dunlop 'The translations,' 143 (no. 9). 63 This would, however, mean that Bitnq returned to Byzantium about two decades later and helped to overthrow the empress Eirene in 802 (PMBZ 2/60 (no 2407)). 64 In this time patricians usually commanded Byzantine armies (C. Petraitis The Arabic version of Aristotle's Meteorology (Beirut 1967) 28; Ibn Kathlr Bidäya 10/146, 157); see also W. Heil Der konstantinische Patriziat (Basel 1966) 65. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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Theophanes reports, in 778, that is, only two years before the surrender of the Comes in Samälü, there were the following commanders in the military provinces (themata) near Samälü: 1) Artabasdos (Anatolikon) 2) Baristeratzos (Armeniakon) 3) Tatzates (Bukollarion)65 and 4) Gregorios Musulakios (Opsikion). With the exception of the latter all these generals were called "strategoi". Gregorios Musulakios was the only one called "Comes", because the generals of Opsikion usually were given this special designation. On the other hand there was no one among the generals bearing the title "patrikios" but Gregorios Musulakios.66 It is also reported that he was opposed to the Empress Eirene and his dismissal seems to be somewhat obscure.67 No doubt he was an Iconoclast like most of the Byzantine generals in his time.68 In 778 the Eastern armies jointly launched an attack against the Arabs and pushed forward to Mar'ash (Germanikia).69 During the siege of Mar'ash, the hometown of the first iconoclast Emperor Leo III, some of the Byzantine troops moved to Däbek where Thumäma was conducting 7Π

a new campaign against the Byzantines. After the defeat of Thumäma the Byzantine troops returned to the West.71 Most probably some of these troops confronted the army of RashTd who approached from the south in 780. All these facts clearly correspond to the reports concerning the Comes in Samälü. The confrontation with RashTd's army and the defeat of the Byzantine troops might explain why the Comes of Opsikion found refuge in the fortress of Samälü which was situated not in Opsikion but in Bukollarion or Armeniakon.72 After a siege of more than a month the Greeks in Samälü gave up. It is certainly not a coincidence that the surrender took place only a few days after the death of Leo IV 65 L. Tritle ('Tatzates' flight and the Byzantine-Arab peace treaty of 782,' Byzantion 47 (1977) 283). 66 F. Winkelmann Byzantinische Rang- und Ämterstruktur im 8. und 9. Jahrhundert (Berlin 1985) 75, 77, 80,99. 67 F. Winkelmann Byzantinische Rang- und Ämterstruktur 75. 68 L. Tritle 'Tatzates' flight,' 298-9; see also W. Kaegi 'The Byzantine armies and iconoclasm,' Byzantinoslavica 27 (1966) 70. 69 L. Tritle 'Tatzates' flight,' 286. 70 Ibn KathTr Bidäya 10/133. 71 L. Tritle 'Tatzates' flight,' 287. 72 Samälü is identical with Cemele in modern Turkey and lies between Ankara and Kaysari. In the 8th and 9th centuries it represented a strategically important fortress near the Byzantine-Arab boundary and was conquered by the Arabs several times (F. Hild/M. Restle 'Semaluos Kastron,' JOB 23 (1974) 263-70). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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on 8th of September. Since the Comes most probably belonged to Iconoclasm, he was not willing to support Eirene who had already showed Iconophile sympathies in the lifetime of Leo IV and is said to have interfered in political affairs. Like Tatzates, who fled to the Arabs in 782 and became the governor of Armenia under Mahdi73, the Comes of Samälü must have preferred to collaborate with the Eastern neighbour. The fact that the circumstances of Gregorios' dismissal remained obscure might be explained by his defection to the Arabs. By any means in 782 Eirene appointed another loyal official of the court, Niketas, Comes of Opsikion.74 Apart from the assumption that Bitriq was identical with Gregorios, the Comes in Samälü, and that he belonged to the group of Greek translators in Baghdad we may conclude with some certainty that it was he who rendered the Digestsumma and the Glosse into Arabic. From the fact that these legal texts were exhellenized only at the end of the 9th century75 we may infer that the version used in Baghdad at the end of the 8th century contained many Latin terms transcribed in Greek letters. This means that the translator of these texts must have had a certain knowledge of Latin. Usually the translators in Baghdad knew many languages, as indicated above, but not Latin, which even in Byzantium has almost died out as a language of education.76 Nevertheless we find among the pre-Hunayn translators in Baghdad one figure which is associated with Latin: Bitriq's son Yahyä. In the biographical dictionary of Ibn Abi Usaybi'a 77 he is explicitly called a "Latinf. It has been suggested that the Latin provenance of Yahyä b. al-Bitriq was concluded from the term "Latlnl" in one of Ibn al-Bitriq's translations.78 But the 13th century biographer obviously possessed additional informations about Ibn al-Bitriq. How did he know that Ibn al-Bitriq employed the minuscule script and not the majuscule script? We may not rule out that 73 On this flight see L. Tritle's article 'Tatzates' flight,'279-300. 74 L. Tritle 'Tatzates' flight,' 299. 75 M. Fögen 'Reanimation of Roman law in the ninth century: remarks on the reasons and results,' L. Brubaker (ed.) Byzantium in the ninth century: Dead or alive? (Aldershot 1998) 12 (n. 7), 16). 76 Even in the 6th century Roman law was taught in Greek because most of the students were unable to understand Latin. This will apply all the more to the following centuries. According to M. Fögen ('Reanimation,' 14), in the 9th century there were probably few people at Constantinople who knew Latin. Even fewer will have understood the mixed Greco-Latin texts left by the antecessores. 77 Ibn Abl Usaybi'a 'Uyün al-Anbö' 1/174. 78 This is the claim made by C. Petraites The Arabic version 27. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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Ibn Abi Usaybi'a's hint at Ibn al-Bitriq's provenance relies upon other traditions which are no longer extant. At any rate there remains the fact that Ibn al-Bitriq used a Latin term in one of his writings. In his Arabic translation79 of Aristotle's Meteorology he explicitly presents with turbo/turbinis (= cyclone) the Latin translation of the Arabic term zawba'a. C. Petraites80 believes that it was SarjTs of Resh'aynä who introduced the Latin term into his Syriac translation of the Meteorology, which later on was to become the basis of Ibn al-Bitriq's Arabic translation. But there is no definitive evidence that Ibn al-Bitriq used a Syriac source at all.81 If Ibn Abl Usaybi'a describes him as a Latmi this will not only imply that he mastered Latin but also that he originated from a region in which Latin - or rather a Latin dialect - was spoken.82 Since elsewhere he is called a "Byzantine" (Rürriif 3 and according to Ibn Abl Usaybi'a84 also knew the Greek spoken in his time - and not (so much) classical Greek - he may have grown up in a part of Byzantium in which Latin was spoken: in Southern Italy.85 This would mean that Bitriq and his family first lived in Southern Italy and then moved to Opsikion in Minor Asia.86 In principle there is no reason to discard the "Latin story" as long as the different data given by the biographers

79 C. Petraites The Arabic version 85: "On cyclone which is turbina in Latin/al-qawl pl-zawba'a wa-hiya al-turbma bi l-Latmiyya". 80 C. Petraites The Arabic version 55. 81 We don't even know whether Ibn al-Bitriq knew Syriac (D. Dunlop 'The translations,' 148). Usually Ibn al-Bitriq is associated with Greek-Arabic translations (F. Micheau, Art. Yahyä (or Yuhannä) b. al-Bitrik, EI2, XI, 246; N. Rescher The development of Arabic logic (Pitsburgh 1964) 95). While there is evidence that Ibn al-Bitriq translated from Greek into Arabic (see for example F. Sezgin GAS V, 415), there is no evidence that he translated from or into Syriac. The syriacisms observed in one of Ibn al-Bitriq's translations rather go back to spoken Syriac (P. Schoonheim Aristotle's Meteorology in the Arabico-Latin tradition. A Critical edition of the texts, with introduction and indices (Leiden 2000) XV). We may not rule out the possibility that Ibn al-Bitriq was assisted by Syrian translators while translating from Greek into Arabic. 82 This is also the presumption of G. Strohmaier ('Byzantinisch-arabische Wissenschaftsbeziehungen,' 181), who regards Ibn al-Bitriq as a descendant of the North Africans or Spaniards. 83 C. Petraites The Arabic version 28. 84 Ibn Abi Usaybi'a 'Uyün al-Anbä' 1/174: "ya'rifu lughat al-Rüm al-yawm". 85 At the turn of the 9th century Salento and parts of Calabria were still under Byzantine domination (G. Noye 'Byzance et Italie meridionale,' (ed.) L. Brubaker Byzantium in the ninth century: dead or alive? (Aldershot 1998) 229. 86 C. Petraites, it seems, regards "Latin!" to be incompatible with "RümT" (The Arabic version 27). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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make sense. The presumption that Ibn al-Bitriq was born in Baghdad87 contradicts the fact that he faltered in spoken Arabic while at the same time he knew contemporary Greek.88 Furthermore it is clear that Bitriq once lived in Byzantium because the non-hereditary89 title "patrikios" could have been conferred upon him only in Byzantium. All patricians mentioned in Arabic historical sources directly originated from Byzantium.90 The fact that Ibn al-Bitriq and his father were the only translators in Islam associated with Latin and that they flourished in Baghdad in just those days in which the reception of the Digestsumma and the Glosse took place, but also the fact that only highly educated Byzantines like Ibn al-Bitriq or rather his father - and not the Syrian, Indian or Persian translators in Baghdad -had at least a rudimentary knowledge of Roman law or the Ecloga of Leo III and, last not least, the particular status of BitrTq and his son as privileged prisoners and their relationship with the Barmakids may be regarded as strong indication that they were the translators of the Byzantine-Roman legal texts.

2.4. Commissions There is much to indicate that the reception took place in a legal commission. By any means we know with certainty that it was not Shaybäm alone who carried out the codification project. As the sources clearly show, there were several commissions or working groups in Baghdad in the time of RashTd. These commissions, which represented a new phenomenon in the scientific history of Islam, may account for the considerable competence for appropriating Antique knowledge. In principle the commissions which consisted of experts of different races and religions formed a logical supplement to the translator groups which made the old texts accessible to the commissions. No doubt some of the translators at the same time were members in one or

87 C. Petraites The Arabic version 30. 88 Ibn Abi Usaybi'a 'Uyün al-Anbä' 1/174. 89 At least in the Arabic historical sources it was a well-known fact that this title was not hereditary (I. Kawar, Art. Bitrik, EI 2 ,1, 1249-50). 90 For examples see C. Petraites The Arabic version 28. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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several commissions.91 In these cases it may be hard to make a clear distinction between "translation" on one side and "creation" of new texts on the other. Most probably the commissions were closely connected with the majälis (sessions) regularly held in the palaces of Rashld and the Barmakids which covered fields such as theology, astrology/astronomy, grammar/rhetoric (adab), music, poetry and law. We may assume that at least some of the experts who took part in the majälis also worked in the commissions. It is clear that the commissions operated on behalf of the caliph, the Barmakids or other high-ranking officials and that they were invested with considerable financial means. Islamic humanism in the time of Rashld largely remained under state control93 and it was only after Rashld and the civil war, in the 9th century, that it took on a private or semi-private character. Usually the commissions were entrusted with special tasks or, one might say, projects. The general plan of Rashld and Yahyä b. Khälid was to produce Arabic standard works in various disciplines mostly based on highly elaborated systems or concepts of Late Antiquity. It was not their intention, however, simply to imitate the old systems but rather to exploit them in order to create new systems on a still higher level in an Islamic-Arabic context. This is why most of the commissions - some of them did not use a special system as basis - investigated the relevant sources, selected the most appropriate system and worked it up by rearranging or modifying the material, omitting elements or supplementing others from concurring systems. Whether the medical canon of Galen, the rhetorical system of Aphtonius and Hermogenes, the prosody of Hephaestion, the grammatical techne of Dionysios Thrax and the Kanones of Theodosios, the ptomeleic system or the corpus iuris civilis94 of Justinian, all these systems most probably formed the basis of projects carried out by the commissions. The following commissions are more or less explicitly mentioned in the sources: ΛΛ

91 This applies, for instance, to Jäbir b. Hayyän who read the (Greek) texts himself and exploited them to develop a system of natural philosophy in a workshop (see below 353). 92 Sibawayh, for example, took part in a session of Rashld in which he disputed with Kisä'I. But he was also member of a commission (see below 407). 93 M.-G. Balty-Guesdon 'Le bayt al-hikma' 137, 141. 94 Corpus Iuris Civilis is a European term developed in 1583 by Dionysius Gothafredus (H.-D. Spengler, Art. Corpus iuris civilis, ML 189). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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1) Geography According to Ibn Iyäs (d. ca. 1524)95 Rashid ordered his people to produce a map of the world. It is not clear whether or not Rashid set up a commission for this ambitious project, but we know that some years later Ma'mün established a commission with about 70 experts to carry out a similar project, the al-§üra al-Ma 'müniyya (geography of Ma'mün).96 After exploiting the writings of the Greeks the experts produced a "geography" that, according to Mas'üdl, was still better than the Geography of Ptolemy. 2) Music Some time between 786 and 804 Rashid ordered the outstanding musicians of Baghdad Ibrahim al-Mawsill,97 Ibn Jämi' and Fulayh b. Abl alAwrä'98 to make a selection of the prettiest songs. The result of this project was the famous compendium al-Aswät al-mi'a al-mukhtära (selection of hundred songs), which later formed the basis of Abü 1Faraj al-Isbahänl's Kitäb al-Aghäm (book of songs)99. Since Ibrahim al-Mawsill and Ibn Jämi', a pupil and friend of Abü Yüsuf,100 represented different schools, that is classicists and modernists, we may conjecture that Rashid aimed at reconciling the old system with the new one. It is in this way that novel elements entered the old systems (or the other way round), which received the final blessing after the triumph of the traditionalists in the middle of the 9th century. 3) Astrology Another project carried out on behalf of Rashid and most probably the Barmakids was the composition of a manual that contained horoscopes for all living conditions. According to 'Abdallah b. 'Ubaydalläh alAnisI,101 who himself worked in the commission and was familiar with Greek and Indian books on astrology, Byzantine, Indian, Persian and other experts were called to Baghdad in order to join a team of astrologers and to compose this book.102 We may assume that 'Umar b. al-

95 96 97 98 99 100 101 102

Quoted in F. Sezgin GAS X, 79. F. Sezgin GAS X, 80-81. E. Neubauer Musiker 182. Abü 1-Faraj al-Isbahänl Kitäb al-Aghärii 4/359-66. J. Fück, Art. IbrähTm al-Mawsill, EI2, III, 996. A. Shiloah, Art. Ibn Djämi', EI2, III, 749. F. Sezgin GAS VII, 110. This book is still preserved and explicitly dedicated to Härün al-Rashld (F. Sezgin GAS VII, 111). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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Farrükhän, the chief astrologer under Mansür and RashTd and closely connected with Yahyä b. Khälid103, also took part in this project. 4) Grammar The study at hand does not aim at presenting a new theory on the origins of Arabic grammar, a question that has attracted the attention of many arabists and remained controversial up to the present day. Nevertheless it might be useful to consider some new aspects. As has been indicated above104 the Kitäb of Sibawayh reflects a largely novel grammatical doctrine that provoked hard reactions from the Küfans. In principle Sibaywayh, who spent some time in Baghdad and was generously sponsored by Yahyä b. Khälid105, laid the foundation of Arabic grammar. No doubt he may be regarded as the first one to expound Arabic grammar in a comprehensive work. Since the development of Arabic grammar seems to be intimately connected with the development of Islamic law, we may suppose that the origins of these disciplines also result from the same historical context. Some of the indicators mentioned above with regard to Islamic law, also apply to Arabic grammar to some extent. On the other hand, what applies to Arabic grammar, may be referred to Islamic law in many cases. Starting from this premise it is an interesting fact that Ibn Kathlr (d. 1374), referring to a report of Tha'lab, explicitly mentions a commission (jamä'a) of about 40 grammarians, including Sibawayh.106 Of course the statement of Tha'lab might be interpreted as a polemical attack against the Basran school. Nevertheless it would require a considerable extent of imagination to invent such a story which exactly fits into the historical context. If we regard this report as authentic this means that the Kitäb of Sibawayh in fact represents a coproduction of a number of experts most probably flourishing in Baghdad in the last quarter of the 8th century. Such a premise might shed some light on the identity of the so-called nahwiyyün (grammarians), frequently mentioned in the Kitäb and, according to Talmon, assuming a key position in the grammatical discourse. They might be identified with the Greek translators in Baghdad who must have had a particular interest in reconciling Greek and Arabic grammar. But it also would explain the occurrence of legal terms in Sibawayhi's Kitäb, because we may not rule out that philologically

103 104 105 106

F. Sezgin GAS VII, 111. See above 64. F. Krenkow, Art. STbawaihi, EI1,1, 428. Ibn Kathlr Bidäya 10/176. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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versed jurists such as Shaybänl took part in the grammatical commission, too.107 5) Natural Sciences The monumental and homogeneous corpus of Jäbir b. Hayyän, who plunged into a large number of sciences and heavily influenced scientific development in Europe, raised many questions most of which remain controversial even today. While P. Kraus and some other scholars tend to date all these works to sometime after the middle of the 9th century, F. Sezgin dates the scientific activity of Jäbir about a century earlier.108 This latter position seems to be more plausible inasmuch as there is a certain probability that Jäbir b. Hayyän is identical with the famous Byzantine scholar Leon the Mathematician (d. ca. 863).109 It is probable that Jäbir b. Hayyän and his uncle John the Grammarian, who later became patriarch in Constantinople, were among the Greeks brought to Baghdad in 780. This means that Jäbir, who joined the Barmakids,110 did not need a translator for understanding the Greek texts which he read and exploited himself. The great number of his works could be explained by the possibility that Jäbir headed a group of scholars who assisted him in producing the corpus. 6) Prosody, Lexicography Perhaps still other fundamental works such as the Kitäb al-'Arüd in prosody or the Kitäb al- 'Ayn in lexicography were produced by working groups. While there is no explicit indication of commissions, we know that these works emerged at the end of the 8th century in Baghdad. Layth b. al-Muzaffar (d. shortly before 803), a secretary of the Barmakids, is credited with the redaction of the Kitäb al- 'Ayn attributed to KhalTl b. Ahmad. Later Muslim scholars, however, ascribe it to Layth rather than to KhalTl.111 The uncertainty about the authorship, the comprehensive and systematic character as well as the scope of this book, as opposed to the wordlists of Asma'I composed at the same time, the influence of Indian and also Greek elements 112 and, last but not least, the Barmakid milieu point to a coproduction which seems to have been usual in Rashld's days. 107 For further details on the early development of Arabic grammar see below 405. 108 F. Sezgin GAS IV, 183. 109 See below 347. 110 F. Sezgin GAS IV, 133, 154, 270. I I I S . Wild, Das Kitäb al-'Ayn und die arabische Lexikographie (Wiesbaden 1965) 14. 112 S. Wild Das Kitäb al-'Ayn 40; F. Sezgin GAS II, 140. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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The same applies to the Kitab al- 'Arüd which is also attributed to Khalfl and may have originated in similar circumstances. Itself lost, but known through references in later Arabic works on prosody, it presents a completely novel system of metrics. In this case we have clear evidence that a Greek standard work of prosody had been used: the Enchiridion of Hephaestion.113 7) Law From the indications mentioned above we may infer the general existence of commissions in the time of Rashld. Since the reception and reworking of Byzantine-Roman law no doubt was a major enterprise it must have been the work of more than one person. Already Justinian had aready set up a large commission for compiling the writings of the early Roman jurists. It is a matter of fact that at least two persons Shaybänl and Abü Yüsuf - were involved in the project, because it is impossible that Shaybänl attributed a great part of the borrowed rulings to his colleague without asking him. There must have been something like an agreement between the two jurists. Furthermore, we also find borrowings from Roman law in the Kitäb al-Kharäj of Abü Yüsuf, which are not contained in the Shaybänl Code. We can conjecture that the legal commission embraced still other persons who gave it an interreligious character. The fact that the Halakhot works, like ShaybänT's Zähir al-riwäya, represented novel codifications, which emerged at the same time and in the same place, as well as the fact that parts of the Shaybänl Code go back to Jewish law114 while other elements of Jewish law originate from Islamic law give rise to the assumption that Muslim and Jewish jurists sat at the same table and possibly used the same source. It is not clear who exactly these Jewish jurists were, but the sources point to Pirkoi b. Baboi and possibly Simon Qayyara who stood out among the Jewish jurists in this time and seemed to have a direct or indirect connection to the new Halakhot-works. If we suppose that the Jewish exilarch and his shadow academy had already settled in Baghdad at the end of the 8th century we

113 See below 415. 114 There is some indication that Jewish law was influenced by Islamic law (G. Libson 'Islamic influence on Medieval Jewish law? Sefer Ha'arevuth (Book of surety) of Rav Shmuel Ben Hofni Gaon and its relationship to Islamic law,' 5 / 7 3 (1991) 8; Y. Meron 'Points de contact des droits Juif et Musulman,' SI 60 (1984) 93). Possibly a detailed comparison between the Shaybänl Code and the Halakhot works on one side and between the Digestsumma/Glosse and the Halakhot works on the other will prove the interdependence of these works. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:31 AM

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may infer, that also Zakariyä' b. Akhunai, the current exilarch, and like the Barmakids of Persian origin, was involved in the project. Since not only the Jews but also the Nestorians showed significant legal activity at this time and small parts of Eastern Canon law may be rediscovered in the Mabsüt of ShaybänT, it is possible that a Nestorian scholar, perhaps Timotheus himself, took part in the commission. Another Christian most probably connected with the project was the translator of the legal texts Bitriq.

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Chapter 3 Comparative Analysis 3.1. Sources The comparative analysis is based on sources which are considered genetically interconnected. On the Arabic side it is above all the Mabsüt (or Asl) of ShaybänT, but also his Jami' kabTr, J ami' sagh.Tr, Ziyädät, Siyar saghlr and Siyar kablr as well as Abü Yüsufs Kharäj which directly rest upon non-Islamic legal sources. The principal sources on the non-Arabic side are the Digestsumma of the elder Anonymos and the Glosse of the younger Anonymos (= Enantiophanes). Apart from the Greek sources the state jurists in Baghdad also used the Talmud and possibly the Syriac law book. It does not seem, however, that these latter sources were translated into Arabic. It is much more probable that they were conveyed orally by Jewish and Nestorian scholars who took part in the legal commission.

Mabsüt (Asl) The original title of Shaybäm's principal work is certainly Mabsüt (= stretched out), because Mabsüt is an Arabic translation of Pandectae The alternative title Asl (= foundation) was given to this work by ShaybänT in order to emphasize the fundamental and binding2 character of the Mabsüt that consisted of more than 50 books (kutub) and soon spread throughout the Islamic empire. ShaybänTs Mabsüt is sometimes confused with a Mabsüt of Abü Yüsuf.3 However, this latter work, which obviously was not handed down as part of a comprehensive corpus, did not represent the canonical version of the Codex. It is likely 1 See below 107. 2 Instead of Qur'än and Sünna it was the Asl (or the other parts of Shaybärifs Code) that was to form the direct basis of Muhammadan jurisprudence (see below 282). 3 Häjji Khalifa Kashf al-Zunün 'an Asämi l-Kutub wa l-Funün, ed. Hügel (London 1850) 5/364. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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that Abü Yüsuf, perhaps after his disagreement with ShaybänT and the latter's move to Raqqa in 796, tried to compose another version of the Mabsüt which no doubt contained additional material borrowed from the Digestsumma and the Glosse. By any means, fragments of this shadow work still existed in the 10th century4 and were most probably used by jurists such as Jassäs and his pupil Abü Ya'lä (d. 1068). In the Mabsüt of Sarakhsl or the MughnT of Ibn Qudäma (d. 1221) - both relying on the works of Jassäs and/or Abü Ya'lä - we find a number of borrowed fragments traced back to Abü Yüsuf but not contained in the Mabsüt of ShaybänT or attributed to him. It is highly possible that Abü Yüsuf used a second translation of the Digestsumma and the Glosse, which was closer to the original texts than the first one. Whole sentences or even sequences of sentences may be clearly identified as translations of passages in the Digests. N. Calder5 recently questioned Shaybäm's authorship suggesting that the Mabsüt or a major part of it was in fact composed by later jurists. He even puts to doubt the existence of a work entitled Mabsüt in Shaybäm's time. In his opinion later jurists put together single books by ShaybänT to a comprehensive work and gave it the title Mabsüt. Although Calder's theory shows a number of interesting aspects it is as a whole untenable. As comparative analysis shows, the Mabsüt, Jämi' Saghlr, Jämi' KabTr, Ziyädät and the Siyar works form a unity which in structure, function and content exactly corresponds to the Corpus Iuris Civilis and therefore only may be explained by a systematic reception. This reception, as has been argued, took place neither before nor after the end of the 8th century. The Mabsüt was the first work composed by ShaybänT, followed by the Jämi' saghTr, Jämi' kabTr and the Ziyädät. The Siyar works, at least the Siyar Kabir, were composed relatively late, that is, after ShaybänT's disagreement with Abü Yüsuf.6 The same applies to some other works of ShaybänT such as his Muwatta' and Hujja. ShaybänT wrote them after oppositional Hijäzi jurists began to exploit the Mabsüt and other parts of the Codex in order to produce codices of their own. These works of ShaybänT, which contain a sharp criticism of "MälikT law" and hence are regarded as the first ikhtiläf works, mirror the conflict between 4 Ibn al-Nadim Fihrist (Dodge) 503. 5 N. Calder Studies 39. 6 Sarakhsl Sharh al-Siyar al-kabJr 1/1. In the same account (Sharh al-Siyar al-kabir 1/3) Sarakhsl tells us that Awzä'T had seen the Siyar al-kabTr, but this is chronologically impossible, because Awzä'T died more than 20 years before the conflict. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Reichsrecht and Volksrecht7 and clearly have to be distinguished from later ikhtiläf works which reflect the divergence of independent law schools. The Mabsüt, like all fiirü' works since Shaybärifs time, consists of two parts, the 'ibädät (conduct of men toward God, i.e. ritual) and mu'ämalät (conduct of men among themselves, i.e. transactions, sale etc.). This division is inspired by the separation of secular and religious law in Byzantium. Although there was a certain tendency in Byzance to mingle both fields, they never merged into a homogeneous body of law. On the other hand, the incorporation of religious law (in the narrow sense) into the Mabsüt might go back to Jewish law which already combined both fields in the Talmud, though in a different order. But certainly the unification of religious and secular law in a single legal system also has to be explained by the state ideology governing the codification project. Ritual, a central part of religion, was intended to come under state control, while at the same time it gave the new legal system a religious character. It is clear that only the secular part of the Mabsüt rests upon Byzantine-Roman law. To what extent the 'ibädät in ShaybänT's opus were developed before the end of the 8th century remains for further research. In view of the legal collaboration in Baghdad it is quite possible that the complex of early Islamic ritual was further elaborated on the basis of Jewish and Canon law.8 While there is ample evidence that ShaybänT used legally relevant verses of the Qur'än we do not know to what degree Islamic customary law entered the Mabsüt. In principle we must assume that most of the rulings which are not borrowed from other legal systems originate from legal traditions circulating in Islam before ShaybänT.

Digestsumma/ Glosse The Digestsumma of the older Anonymos represents the only Greek Summa of the Digests which is almost completely preserved.9 It was 7 See below 576. 8 As to possible Jewish influences in the field of 'ibädät see A. Wensinck 'Die Entstehung der islamischen Reinheitsgesetzgebung,' Der Islam 5 (1914) 62-80. 9 The first edition was published by C. Heimbach in the 19th century. A second edition by Scheltema followed in the sixties of the 20th century. For additional fragments of the Digestsumma see L. Burgmann 'Neue Zeugnisse der DigestenBrought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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composed between 633 and 65010, detached from the Latin Digests some time before 58011 and commented upon in 620 by the younger Anonymos, who is identical with Enantiophanes.12 Although the Digestsumma, along with the Glosse, is no doubt one of the most important documents of Byzantine law in the 6th and 7th century it has not attracted the attention of the SharVa experts. Studies on foreign elements in Islamic law focussed on the Institutes of Gaius, the Latin Digests, the Talmud or even the Nessana papyri, but not on Greek legal texts produced after the middle of the 6th century. This is possibly due to the fact that the Digestsumma is preserved in another work, the Basilika, which was compiled at the end of the 9th century and, apart from the Digestsumma as the basic text,13 contains fragments of the Codex, the Institutes and the Novels. The fragments of the Glosse form part of the scholia antiqua which were most probably attached to the Basilika in the 11th century.14 As the analysis of the Mabsüt and other dependent works shows, Shaybäm had used a voluminous Greek work consisting of two interrelated texts, that is, a main text and another text written at the margin, which well might have had the character of a Catena. Even H. Peters15 believed the Glosse of Enantiophanes to be a Catena, but his thesis was sharply rejected by H. Scheltema.16 The latter suggested that the fragments of Stephanos, Dorotheos, Cyrillos etc. represented independent works until the 10th century, detached from the Digestsumma as well as from each other.17 Although H. Scheltema is not able to give positive evidence for the non-existence of the Catena (negativa non sunt probanda)}9, he presents a number of arguments against H. Peter's Catena theory. Unlike Peters he cannot discover any formulation in the scholia indicating a connection between the fragments. The term "anonymos", summa des Anonymos,' Fontes Minores VII, ed. D. Simon (Frankfurt 1986) 10116.

10 N. Van der Wal 'Die Juristennamen in der Digestensumma des Anonymos,' TR 46 (1978) 148. 11 N. Van der Wal 'Die Juristennamen,' 149. 12 N. Van der Wal 'Wer war Enantiophanes?,' TR 48 (1980) 125,135. 13 B. Stolte 'The Digest Summa of the Anonymos and the Collectio Tripartita, or the case of the elusive Anonymi,' SG 2 (1984) 48. 14 A. Schminck Studien zu mittelbyzantinischen Rechtsbüchern (Frankfurt 1986) 52. 15 Η. Peters 'Die oströmischen Digestenkommentare,' 10. 16 H. Scheltema 'Über die angebliche Anonymoskatene,' TR 25 (1957) 284-301. 17 Idem. 296. 18 Idem. 293. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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according to Peters frequently used by Byzantine theologians in their catenae19 and, therefore, indicating Enantiophanes' (= the younger Anonymos) Glosse to be a catena, is not accepted as evidence by Scheltema. There is, however, another point ignored by both scholars. The great majority of the titles (tituli) in the Digests annotated by Cyrillos20 in at least one case (lex) are also commented upon by the younger Anonymos. Out of 430 titles 64 are commented by both, while 305 titles are commented on by neither of them,21 that is, there is a congruency with regard to 369 titles. Only 61 titles have fragments of Cyrillos, but not of Enantiophanes/Anonymos. With regard to these 61 titles we must consider the possibility that Enantiophanes did not make annotations to all titles. On the other hand it is possible that some fragments with no inscription in fact go back to Enantiophanes. When looking at the distribution of commentaries we observe complexes of titles with annotations of both commentators followed or preceeded by complexes which are commented by neither of them. In principle the same applies to Stephanos, whose fragments, however, are rather limited in number.22 If we suppose with H. Scheltema that the commentaries of Cyrillos, Stephanos and the Anonymos up to the 10th or 11th century represented independent works which - as fragments - never formed part of a catena, it becomes difficult to explain why in the appendix to the Basilika so many scholia antiqua of different commentators are connected with the same titles. One plausible explanation seems to be that Enantiophanes, who obviously was familiar with a great number of sources, commented on the Digestsumma of the older Anonymos and added to his own comments fragments of other commentaries. Later on, parts of the Catena got lost so that the Byzantine jurists in the 11th century only could use the preserved parts.

19 No doubt the genre of catenae was developed in ekklesiastical circles. Most probably Prokopios of Gaza was the first to compose a catena at the turn of the 6th century (N. Wilson Ά chapter in the history of scholia,' CQ 17 (1967) 252). 20 The question of whether or not the commentary of Cyrillos could have formed part of the Glosse seems to be open (see the controversial positions of H.Peters 'Die oströmischen Digestenkommentare,' and F. Pringsheim 'Über die BasilikenScholien,' 290). 21 Out of these 305 titles 213 don't have commentaries at all. 92 titles do have commentaries, but none of them has a inscription of Cyrillos or Enantiophanes/Anonymos. 22 There are 32 titles with fragments bearing the inscription of Stephanos. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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could use the preserved parts. This would explain the considerable gaps in the appendix.23 It is conspicious that these gaps largely cover up just those areas of the Digests which were borrowed by ShaybänT and Abu Yüsuf. Whether sale {bay'), endowment (waqj) or patronate (walä'), in all these fields the codifiers in Baghdad relied on the Digestsumma. But in most of these areas we don't find scholia in the appendix of the Basilika. Only in a very few cases do we find scholia corresponding to fragments in Islamic legal works. These scholia clearly prove that Shaybäm and Abü Yüsuf had used the Glosse.24 Since we know through comparative analysis that they had also used the Digestsumma,25 which was connected with the Glosse, we must infer that the Shaybäm Code and the Basilika are based on the same source. This is no coincidence. The title "Basilika" has been used since the 11th century.26 Before the 11th century the sixty books of Leo VI were called τό πλάτος (breadth),27 which obviously is a translation of al-Mabsüt (stretched out/breadth). The most outstanding legal opus in Byzantium compiled after Justinian's Digests bore the same title as the principal work of ShaybänT and both works, al-Mabsüt and τό πλάτος, rest on the same source, the Digestsumma. It is more than probable that the whole project of compiling the Basilika, the motives of which remained obscure up to the present day, was inspired by the ShaybänT Code. We can even conjecture that the codification of Islamic law in Baghdad was the conditio sine qua non for the legal project in Byzance insofar as the Byzantines used the same source as the Muslims. Although there is a controversy about the quantity of legal writings available in Byzance after Justinian, it seems to be a realistic estimate that at least the Greek Digest material was rather limited at the end of the 9th century. In 741 at 23 It is not very probable that parts of the scholia got lost after they had been attached to the Basilika in the 11th century. According to A. Schminck (Studien 46, 52) all scholia were attached to the Basilika at the same time (possibly in the law school in Constantinople) and even at this early stage the different manuscripts show a considerable congruency with regard to the arrangement of the scholia. On the other hand there is no reason to suppose that the Byzantine jurists deliberately omitted specific parts of the scholia material. Why, for instance, should the jurists make extensive use of the scholia material on usury law (Dig. 22.1) while at the same time completely ignoring the material on deficiency law (Dig. 21.1)? 24 25 26 27

See below 116, 135. See below 189, 528. A. Schminck Studien 53-4. P. Pieler 'Rechtsliteratur,' 453,455. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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the latest, that is about 150 years before the compilation of the Basilika, the Digests were entirely replaced by the Ecloga of Leo III and since then there had been nobody, professional or amateur, to deal with the principal opus of Justinian. The Digestsumma used in Baghdad must have been the most complete version of the Digests available in 9th century Byzantium. Apart from the title also the arrangement of the Digests material in the Basilika shows parallels with that in the Mabsüt. Like in the Mabsüt the material in the Basilika is organized in a more systematic way with related issues gathered in one section instead of being dispersed throughout the work.28 In both works the number of 50 books (librilkutub) contained in the Digests is raised to more than 50. The Mabsüt has ca. 55 and the Basilika 60 books. Possibly the division of the Basilika into 6 volumes (έξαβίβλος) 29 goes back to the six-partsstructure of the ShaybänT Code. Particularly striking is the fact that the compilation of the Basilika was connected to a discussion about legal theory. Just like ShaybänT, the Byzantine patriarch Photios composed a treatise on the function and methodology of law, which is based on the same part of the Digests (Dig. 1.2-3) as Shaybäm's usül work.30 But just like Shäfi'Ts Risäla it was rejected by the state because it reflected the two-powers-theory represented by the Iconophile movement.31 Interestingly, the law book that was attached to Photios' Prooimion and most probably competed with a more comprehensive codification in this time, the Basilika, was given the title "Epanagoge" (= reduction), which strongly reminds one of ShaybänT's Asl. Both works claimed to contain rulings which go back to authoritative sources and hence should form the basis of jurisprudence. Furthermore, we observe the incorporation of Aristotelian logic into the Prooimion. We may conjecture that the specific combination of law (Digests), philosophy (Organon) and theology (absolute character of the είκών/Qur'än as divine medium) formed part of an interreligious process which, in 10th century Baghdad, led to the systematic "aristotelization" of usül al-fiqh. Is it a coincidence that Photios, who spent a great part of his life in Baghdad and later on returned once more to the Islamic empire to visit the caliph and 28 This is also the clear intention of the compilers indicated in the Prooimion of the Basilika (A. Schminck Studien 22-3). 29 Ν. Van der Wal 'Spuren einer Einteilung in sechs Bände der Basiliken in den jüngeren Scholien,' TR 25 (1957) 274-83; P. Pieler 'Rechtslitertur,' 456. 30 See below 520. 31 Not long after Photios had composed this treatise he was dismissed and exiled by Leo VI, who started a policy of restoration (see below 512). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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compile the Bibliotheca, used just the same section of the Digests as ShaybänT for formulating a legal theory? The least we can assume is the involvement of Photios in the transfer of the Islamic idea of reanimating Roman law on a broad basis and constructing a legal methodology. Starting from the premises presented above, the fate of the Digestsumma and the Glosse between the beginning of the 7th century and the end of the 9th century may be sketched. Sometime before the end of the 8th century - possibly already in the 7th century - the Muslims gained possession of a manuscript of the Digestsumma and the Glosse while conquering the Byzantine terretories. Since the Arab conquerors were particularly interested in foreign books of any kind (including legal books) they well might have discovered a copy of this work in one of the libraries. On the other hand we can not assume that there were many copies available in all parts of the empire because the work was composed only a few years before the Arab conquest. Furthermore, we must consider that the general literary activity of the Byzantines in the so-called "dark period" was extremely limited.32 In the eighties of the 8th century the caliph - or rather the Barmakids - decided to produce a code of Islamic law on the basis of the Digestsumma and the Glosse. Since the Greek source still contained Latin terms, it was the patrician Bitriq, a professional translator in Baghdad and most probably also familiar with Latin, who was entrusted with the translation of this text or parts of it - into Arabic. This translation, which was made in the margins of the Greek manuscript and which formed the basis of Shaybänl's Mabsüt, was characterized by a great number of creative interpretations and mistakes.33 The translator reinterpreted or misunderstood many legal terms and not infrequently combined fragments in the Summa and the Glosse which in fact do not belong together. The focus of the translation was on the Glosse, while the major part of the Summa remained untranslated. Soon after the first translation and possibly after the development of the minuscule hand, a copy was made of the Greek source. Yet, instead of copying the whole text the copyist largely omitted those parts which had been translated into Arabic. In the nineties, presumably after the disagreement with ShaybänT, Abü Yüsuf went on exploiting the first translation in composing legal works of his own. But 32 P. Speck speaks of a total cultural collapse in 7th century Byzantium ('Konstantinopel - ein Modell für Bologna? Zur Gründung einer Rechtsschule durch Irnerius,' Varia 3, PB 11 (1991) 310-11). 33 About a century later the Byzantine jurists in Constantinople met with quite similar difficulties (M. Fögen 'Reanimation,' 15). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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he also asked the translator, possibly Ibn al-Bitriq, to render a few further parts of the manuscript into Arabic. This translation was not made in the margins of the original manuscript and it shows a higher quality than the first translation. Two or three decades after the deaths of Shaybänl and Abü Yüsuf the Iconophile Photios and his family arrived in Baghdad seeking refuge from the Iconoclastic persecutions in Byzance. It is likely that he observed the legal development in Baghdad and that he recognized the connection between the ShaybänT Code and Byzantine-Roman law. Since Photios spent a considerable part of his life in Baghdad, showed particular interest in the manuscripts available in the Islamic metropolis and obviously had insider knowledge of ShaybänT's usül work, and since later on he officially visited the caliph and then became a highly influential figure in his birth town and most probably inspired the whole codification project,34 we may not rule out that it was also he who transferred to Byzantium a copy of those parts of the original manuscript, which were not yet translated into Arabic.

3.2. Structure As has been indicated above, the most productive writers among the early jurists in Islam were ShaybänT and Abü Yüsuf. It is interesting to observe that some of the works composed by ShaybänT form a comprehensive body of legal texts which are interconnected in a specific way. These works are: Mabsüt, Jämi' saghir, Jami' kabir, Ziyädät, Siyar saghir and Siyar kabir. All of these works form a coherent body of law which in its turn has a name: Zähir al-riwäya. This means that all these books were considered authentic and transmitted by ShaybänT's many disciples.35 In the Hanafi madhhab they represent the highest level of authoritative doctrine.36 We must note that such a combination of legal works was unique not only in the time of ShaybänT but also afterwards. Instead of explaining this system by a later inner-Islamic development,37 it seems more reasonable to trace it back to the Corpus Iuris Civilis of Justinian, which consists of four interconnected parts: Digests, Institutes, Code and Novels. These law books of Justinian, which 34 P. Speck 'Konstantinopel,' 321. 35 P.Baker 'Islamic legal literature,' 144. 36 W. Hallaq 'Takhrij,' 325; B. Johansen 'Coutumes locales et coutumes universelles aux sources des regies en droit musulman Hanefite,' AI 27(1993)33. 37 Ν. Calder Studies 39-40. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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became known as Corpus Iuris Civilis only after the edition by Dionysius Gothofredus in 1583,38 were previously called by the Byzantines ρητόν (= law/lit.: that what is explicitly told). Since the term ρητόν clearly refers to the original Latin version of these books39 it may be translated with "authentic transmission (of the law books of Justinian)". Each part of the corpus has a specific function. While the Digests represent the principal and basic work containing almost the whole body of Byzantine-Roman law,40 the Institutes, which were obviously modelled on the Institutes of Gaius, form a small summary of the Digests and, could therefore be used by beginners or judges as a manual.41 The Code, larger in scope than the Institutes, comprises imperial constitutions, i.e. difficult cases decided by the emperors or high-ranking officials. Since new cases emerged after the codification of the works mentioned above, Justinian issued new laws42 which were later gathered in a collection called Novels. All these works have a precise counterpart in Shaybänl's Zähir al-riwäya. The Mabsüt, the most comprehensive work of ShaybänT, corresponds to the Digests. The J ami' saghTr, a small summary of the Mabsüt43 and intended as handbook for the judges,44 is congruent with the Institutes. Special or difficult cases are contained in the Jami' kablr,45 which in this function comes close to the Code. New cases, possibly decided by the caliph himself, were collected in the Ziyädät46 which correspond to the Novels. Particularly striking is the fact that these works not only correspond to each other in function and scope but also bear the same titles. Although the title Mabsüt, which in Islamic law signalizes a new era of symbolic titles, is

38 H.-D. Spengler, Art. Corpus iuris civilis, ML 189. 39 Η. Scheltema 'Das Kommentarverbot,' 311. 40 Completeness was at least what the codifiers were aiming at, as appears from Cod. 1.17.1.2-12 (omnem Romanam sanctionem colligere), but also from the alternative Greek title "Pandectae", which means "all-embracing". 41 Cod. 1.17.1.11. 42 The justification for the emperor's legislation is given in Cod. 1.17.2.18 43 Most of the 1532 cases contained in the Järni' saghir are also contained in the Mabsüt. See also G. Wiedensohler (Mängel beim Kauf nach islamischem Recht (Bonn 1960) 9-10), who emphasizes the concise character of the Jami' saghTr. 44 Häjjl Khalifa Kashf al-zunün 2/553. 45 Häjjl Khalifa Kashf al-zunün 2/565; G. Wiedensohler Mängel 28. Interestingly, the arrangement of the material in the Jami' kablr is just as diffuse as in the Code. With regard to the deficiency law see G. Wiedensohler Mängel 12. 46 By any means this work contains cases which are not contained in the other works of the Zähir al-riwäya (Häjjl Khalifa Kashf al-zunün 3/553). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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not a correct translation of the titles Digests or Pandectae, we nevertheless discover a connection between the Arabic and the Greek title. It is more than probable that the translator of the Greek term Pandectae erroneously believed this term to be of Latin origin.47 In his opinion Pandectae must have been derived from the Latin word pandere (= stretch out) and therefore became Mabsüt (= stretched out) in Arabic. This would not be surprising because many legal terms found by the translator in the Greek text were Latin48. This belief is confirmed by the precise translation of another title: Novellae were rendered into Ziyädät. Nobody can deny that Novellae and its Greek counterpart νεαραί exactly correspond to Ziyädät. The attribution of Jämi' saghlr (= Small collection) and Jämi' kablr (= Great collection) to Institutes and Code respectively is more difficult. However, in reading some passages in the Code49 concerning Justinian's codification project and the function and structure of each of his law books we observe a significant frequency of terms such as consummatio, compositio, colligere, conferre or derivations of them referring to one or several parts of the Corpus Iuris Civilis. All of them in this context have the meaning of "collection" or "collect". We can not rule out that these passages, more or less modified, formed part of the Glosse of Enantiophanes and were later exploited by Shaybänl. This in its turn is corroborated by another parallelism. As suggested above the Jews in one way or another were involved in the codification project in Baghdad producing the Halakhot pesuqot (= Decided laws) and the Halakhot gedolot (= Great laws). The Babylonian Talmud (= Learning) and the Tosefta (= Addition), which correlate in function, scope and -in regard to the Tosefta - title with the Digests and the Novels respectively, were supplemented at the time of the Geonim by the two Halakhot works, so that each part of the rheton had a Jewish counterpart. The small Halakhot pesuqot corresponds to the Institutes, while the more comprehensive Halakhot gedolot forms the pendant of the Code. If this is so we will easily recognize (see the table below) that the 47 Pandectae goes back to the Greek term π α ν δ έ κ τ η ς (something all-embracing) (L. Wenger Die Quellen 578), which in Late Antiquity was frequently used as title of works. Roman jurists latinized the Greek term by attaching Latin suffixes (see, for instance, Cod. 1.17.12: "digestorum vel pandectarum nomen habere sancimus") It seems later on Byzantine jurists took over the latinized term, transcribing it with Greek letters. 48 M. Fögen 'Reanimation,' 12 (no.7). 49 Cod. 1.17.1-2. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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J ami' saghir correlates with the Halakhot pesuqot and the Institutes while the J ami' kabir corresponds to the Halakhot gedolot and the Code. Rheton

Zähir al-riwäya Talmud

Pandectae

Mabsüt

Institutiones

Jämi' saghir

Halakhot pesuqot

Codex

Jämi' kabTr

Halakhot gedolot

Novellae

Ziyädät

Tosefta

However, there are two further works, the Siyar saghir and the Siyar kabir, which form part of the Zähir al-riwäya, but don't have a counterpart in the Corpus Iuris Civilis. We can see that these two works are the only works which deal with a special field of law, i.e. law of war. Since other works of the Zähir al-riwäya and even the Digests, the basis of the Mabsüt, contain chapters or rulings on law of war, Shaybänl could well have integrated the Siyar works into the Mabsüt and the other works. Later fitrü' works, too, treat the field of siyar/ jihäd as an integral part of the furü'. A plausible reason for ShaybänT to deal with this field of law in separate works is that this genre of legal literature, particularly important for the state, already existed in the time before ShaybänT. Early Muslim scholars such as Awzä'T50 (d. 774) introduced this genre into Islam after borrowing it from Byzantine works on τακτηκά (= siyar)51. Apart from the specific interconnection of several works, we also find parallels with regard to the inner structure of the principal works, the Pandectae and the Mabsüt.52 The Digests are divided into books 50 Apart from Awzä'T also Fazän (d. 805) and 'Abdallah b. al-Mubärak (d. 797) composed siyar works (M. Muranyi 'Das Kitäb as-siyar von Abü Ishäq al-Fazäri. Das Manuskript der QarawiyyTn-Bibliothek zu Fes,' JSA1 6 (1985) 70-71) which most probably preceded those of ShaybänT. 51 See below 398. 52 The inner structure of the Jämi' saghir, Jämi' kabir and (most probably) the Ziyädät does not follow that of the Institutes, Code and Novels respectively, because it was only a version of the Digests that was at the disposal of ShaybänT and Abü Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(libri), chapters (tituli) and fragments (fragmenta or leges),53 the latter often containing several cases. The inner structure of the Mabsüt is quite similar: books (kutub), chapters (abwäb) and fragments, many of which consist of several cases. The term fragmenta (or leges) corresponds to the term δίγεστα, which is frequently used in the Glosse of Enantiophanes and in its turn proves to agree with fitrü' (branches) in Islamic law.54 Furthermore we observe that the chapters and fragments both in the Digests and the Mabsüt - at least in the book on sale - are numbered.55 This phenomenon seems to be unique in the whole of early Islamic legal literature.

3.3. Legal Fields ShaybänI's Mabsüt consists of about 55 books each of which deals with a specific field of law. Most of the fields treated in the Mabsüt and concerning interhuman relations (mu 'ämalät) have a counterpart in the Digests although the arrangement and the distribution of the material is different.56 One could say that the arrangement in the Mabsüt is more systematic because those parts in the Digests which deal with similar subjects but occur in different books and chapters are gathered under common headings in the Mabsüt. No doubt the rearrangement was facilitated by the numerous cross-references in the Glosse of Enantiophanes which bring together similar or contradicting rulings dispersed throughout the Digests.

53 54

55

56

Yüsuf. Only general features of the inner structure of the latter works could have been taken from the descriptions in the Glosse. Η. Hausmanninger Römisches Privatrecht 53. Single rulings in the fragmenta were not numbered until the Middle Ages. The term δ ί γ ε σ τ α is a Greek transcription of digesta, indicating single rulings derived from general principles. Like farra'a the verb digerere has the primary meaning of "dividing" or "branching". The books in the Mabsüt are not numbered. While the books in the Digests are numbered, the books in the Mabsüt bear titles indicating the content. This might go back to the fact that legal books composed in the time before ShaybänT always bore titles. Interestingly, chapters and fragments in those books of the Mabsüt which deal with ritual are not numbered. Of course, these books are not based on Roman law. Possibly the arrangement of the books and chapters follows that of the Talmud (W. Heffening 'Zum Aufbau der isalmischen Rechtswerke,' W. Heffening et al. (ed.) Studien zur Geschichte und Kultur des Nahen und Fernen Ostens. Festschrift in honor of Paul Kahle (Leiden 1935) 101-18). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Of course it might be deemed self-evident that extensive collections such as the Digests, the (Babylonian) Talmud or the Mabsüt cover all fields of law. But one has to consider that there are also very specific complexes of rulings contained in the Digests and the Mabsüt, but not in the Talmud. The latter does not comprise separate books or chapters on warfare, endowment, defects or donations. On the other hand there are fields treated in the Mabsüt and the Talmud but not in the Digests, such as forward buying, sharecropping or immolating animals. The following complexes (A-E) of specific elements or cases will show that the state jurists in Baghdad relied upon different parts of the Digests.

Complex A All of the following elements appear close together at the beginning of the chapter on sale in the fiirü' works although not every furü' work contains all elements.57 A quite similar constellation of specific elements we find in the Glosse of Enantiophanes at the beginning of the chapter on pacta.5* It is worth mentioning that neither the Talmud nor any other late antique legal text in the Middle East presents these elements so near to one another. Most of the specific elements are entirely missing in them. 1) 'Aqdl Contractus 'Aqd (contract), which like contractus has the primary meaning of "putting together" and which in Q. 5:1 rather seems to have the meaning of "ordinance of God",59 is discussed in the furü' works in close connection with bay' (sale), the core of obligations in Islamic law.60 The basis of the Islamic contract is Dig. 2.14 (De pactis), which in its Greek version by the older Anonymos and Enantiophanes (Bas. 11.1) 57 However, most of these elements are contained in the Mughm of Ibn Qudäma (4/560-68), who obviously incorporated a great deal of Hanafi material (possibly introduced by Abü Ya'lä into the HanbalT madhhab) into his commentary on Khiraqf s Mukhtasar. 58 Bas. 11.1.1-7. 59 R. Paret (Der Koran. Kommentar und Konkordanz (Stuttgart 1971) 113) interprets " 'uqüd" as "(göttliche) Verpflichtungen" in the narrow context of hajj. 60 J. Schacht, Art. Bay', EI2, I, 1112. There is no discussion in Islamic law about contracts in general. By combining the chapters on pacta and emtio Shaybänl and Abü Yüsuf treated the contract of sale as representative of all other contracts. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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contains a number of explicit or implicit references to related subjects in the Digests such as Dig. 18.1 (De contrahendo emptione...), Dig. 45.1 (De obligationibus verborum), Dig. 41.1 (De acquirendo rerum dominio) and Dig. 12.1 (De rebus creditis). By exploiting these different complexes of material and combining elements of them in a specific manner, ShaybänT and Abü Yüsuf constructed a new model of contract which as such did not exist in Roman law but nevertheless can not be explained without it. At the beginning of the chapter on sale both the furü' works and the Digests give a definition of sale: sale is the exchange of things.61 In the same context explicit mention is made of the transfer of ownership as a constitutive element of sale.62 Although the commercial purpose of sale may be regarded as evident it is in no way evident to use similar formulations for describing its raison d'etre: "because the one needs what the other one possesses".63 As to the contracts in general we find in the Digests64 the formulation quae inter eos placuerunt servare,65 which exactly corresponds to Sarakhsl's66 formulation iqämat masälih al'ibäd. Another specific element is the etymological explanation in De pactis67 of the term pactum, which is paralleled in the Mughnf8 with the etymological explanation of the term bay'. 2) 'Urf/Ius gentium According to Ibn Qudäma,69 who points out the general admissibility of the contract of sale in Q. 2:275,™ the details of sale such as ihräz (occupation), tafarruq (separation) or qabd (taking possession) have to be 61 Dig. 18.1.1.pr (utilibus inutilia permutare) - Ibn Qudäma Mughm 4/560 {mubädalat al-mäl bi l-mät). 62 Dig. 18.1.1.pr (dominium praebere) - Ibn Qudäma MughnI 4/560 (tamlik). 63 Dig. 18.1.1.pr (quod alteri superest alteri desit) - Ibn Qudäma Mughm 4/560 (lianna häjat al-insän tata'allaqu bi-mä fiyad sähibihi). 64 Dig. 2.14.1.pr. 65 This passage contains the Greek paraphrase (annotation on the term pactum, Bas. 11.1.1.1.): "[...] τ α σ ύ μ φ ω ν α τ α μ ε τ α ξ ύ τ ί ν ω ν γ ε γ ε ν η μ έ ν α φ υ λ ά τ τ ε ι ν [...]", which is explained more precisely in the next sentence with the term προαίρεσι,ς (intention, i.e. contracts are concluded by intention and interest and not by necessity). Ibn Qudäma (Mughm 4/560) speaks of gharad (intention, interest) instead of masälih. 66 Sarakhs! Mabsüt 12/108. 67 Dig. 2.14.1.pr. 68 Ibn Qudäma Mughm 4/560 (ishtiqäquhu min al-bä'). 69 Ibn Qudäma Mughm 4/561. 70 „God permitted sale, but prohibited usury". Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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determined on the basis of customary law ('urj). This is surprising insofar as Muslim jurists do not recognize 'urf as an independent source of law.71 It seems that all rulings based on 'urf are regarded as exceptions. Muslim jurists do not explain why customary law is accepted in these specific cases and why it is not in many other cases. In the Digests72 the contract of sale is presented as an agreement by universal law (ius gentium/εθνικός νόμος). In the scholia of the 7? Basilika we even find a comprehensive annotation on the term ius gentium, which is possibly a fragment of Stephanos. Particularly striking is the fact that both Roman 74 and Muslim75 jurists point to customary or universal law when talking about the specific element of "occupation" (occupatio/ihräz) .76 3) $idq wa-amnlFides It becomes clear in many cases in the Digests that the principle of fides (faith) plays an important role in Roman law. This also applies to the conclusion of contracts: "For what so accords with human faith as that which men have decided among themselves to observe?."77 In the annotation on pactum,78 which might well have been part of the Glosse of Enantiophanes, the phrase congruum fidei humanae is split into "δίκαιον" και "αίτη πρέπον τη φύσει". While the second part approximately reflects the original meaning "according with human faith", the first part is an addition meaning "sincere". Both elements, that is "faithful" and "sincere", reappear in a prophetic tradition mentioned by Ibn Qudäma79 just at the beginning of the chapter on sale: "The faithful and

71 B. Jokisch Islamisches Recht 195-6. While there is a tendency in Islamic law to establish 'urf its a secondary source, the Muslim jurists in many cases did not try to construct a plausible connection between the rulings of customary law and the primary sources Qur'än and Sünna. It is not clear, for instance, in which way the Muslims directly or indirectly derived ihräz from the nusüs. 72 Dig. 2.14.7.pr = Bas. 11.1.7; Dig. 18.1.1.2 (est autem emptio iuris gentium). 73 Bas. 11.1.7.1. 74 Dig. 41.1.1.pr;41.1.3.pr; 41.1.5.7; 41.1.7.1 etc. 75 Sarakhsl Mabsüf 16/33; Ibn Qudäma Mug hm 4/91, 283, 298-300; Hujjäwi Iqnä' 2/61-2; Bahütl Kashshäf al-Qinä' 'an Matn al-Iqnä' (Riyadh n.d.) 3/160. 76 Since occupatio is not a technical term in Roman law we also find other terms such as acquisiüo or captio. The same is true in Islamic law, which also has akhdh, hiyäza or husül (Β. Jokisch Islamisches Recht 17). 77 Dig. 2.14.1.pr (transl. A. Watson). 78 Bas. 11.1.1.1. 79 Mughrii 4/560. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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sincere merchant is with the Prophets, those who speak veraciously and the martyrs." 4) 'Iwad/Aequalitas quantitatis Paulus80 makes clear that the exchange of things becomes easier when use is made of a materia which represents the equivalent (aequalitas quantitatis), i.e. the price. It is just this element that distinguishes sale from barter, a matter further discussed in the following paragraph.81 For emphasizing the importance of the 'iwad (equivalent), Ibn Qudäma82 uses the formulation: "he (the seller) does not offer it (the thing) without an equivalent". 5) Majlis/Conventio Conventio, usually translated as "agreement", is a central element of the contract in Roman law.83 Derivations of this term are frequently used in the chapter on pacta and elsewhere. However, the term has still another meaning: meeting or session. This original meaning is explicitly indicated in a comparison: "just as those who are collected and come from different places into one place are said to come together, so those who, from different motions of the mind, agree on one thing".84 In principle conventio contains both a corporal and a non-corporal element, insofar as the contracting parties usually come together (corporal aspect) and, during a session, form one opinion (non-corporal aspect). The physical presence of the contracting parties is, however, not a conditio sine qua non for reaching a valid agreement.85 What counts is the manifestation of the intention whether by deeds (sive re) or by words (sive verbis).86 Both meanings of conventio have a counterpart in Islamic law: majlis87 (session) and tarädin (agreement),88 which already appears in the

80 81 82 83 84 85

Dig. 18.1.l.pr. Dig. 18.1.1.1. MughnT 4/560: lä yabdhuluhu bi-ghayr 'iwad. Dig. 2.14.1.3. Dig. 2.14.1.3 (transl. A. Watson) = Bas. 11.1.1.2. Bas. 11.1.2.1: Ή κονβεντίων ού πάντως των δύο μερών σωματικήν απαιτεί παρουσίαν. This fragment of the scholia explicitly mentions the term σωματικός (corporal), which is not mentioned in the Digests. 86 Dig. 2.14.1.3 = Bas. 11.1.1.2. 87 Ibn Qudäma MughnT 4/565-6. 88 Ibn Qudäma MughnT 4/560, 561 etc. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Qurän (Q. 4:29/33).89 The distinction between corporal and noncorporal convention is indicated in the discussion about tafarruq (separation),90 the very opposite of convention. Muslim jurists usually make a distinction between tafarruq bi l-abdän (corporal separation)91 and tafarruq bi l-aqwäl (non-corporal separation).92 The specific formulation "motions of the mind" {motus animi)93 used in the Digests to indicate the non-corporal aspect of convention is reflected in the Mughnf4 by the somewhat strange term "ruh" (spirit, soul). Just like Roman law, 5 Islamic law96 also permits the conclusion of contracts between absent (absens/änchv/ghä 'ib) parties by way of letter {per epistolam/bi ε τι ιστολής/kätaba) or messenger (per nuntium! δι άγγελου/räsalä). 6) Akhras/Mutus According to Pedius97 agreement (conventio) forms the basis of a contract in Roman law: "There is no contract, no obligation, which does not consist of agreement." The agreement in its turn is based on the real intentions of the contracting parties, that is, Roman jurists not only recognize explicit agreements but also those implied by the contract.98 This becomes particularly evident in the Glosse of Enantiophanes: "Whatever is indicated (in an agreement) through deeds, spoken words, written words or allusions99 is a contract".100 According to this principle even a mute is allowed to close contracts.101 89 The term tarädin is contained in the Qur'än. But with regard to the specific constellation of elements we have to suppose that this term was used to translate conventio. 90 As to tafarruq see below 117. 91 Ibn Qudäma Mughm 41563. 92 Ibn Qudäma Mughm 4/564. 93 See also Bas. 11.1.1.2. 94 Ibn Qudäma Mughm 4/566: "[...] because the separation took place both physically and spiritually (li-anna al-fiirqa hasalat bi l-badan wa l-rüh ma'an)". 95 Dig. 2.14.2.pr = Bas. 11.1.2. 96 Hujjäwl Iqnä' 2/57. 97 Dig. 2.14.1.3 (transl. A. Watson). 98 Dig. 2.14.2.pr;2.14.4.pr. 99 In this context, νοείται seems to indicate an indirect form of expression, different from those preceding. 100 Bas. 11.1.1.2: έξ ών( κ ο ν β ε ν τ ί ω ν ) πράττεται, ή λ έ γ ε τ α ι , ή γ ρ ά φ ε τ α ι , ή νοείται δ η λ ο ύ μ ε ν ο ν είναι σ υ ν ά λ λ α γ μ α (a similar formulation may be found in the first part of this fragment, which has no inscription). 101 Dig. 2.14.4.1 = Bas. 11.1.4. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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The Muslims took over not only the general term for what indicates (δηλούμενον) the agreement (daläla 'älä al-tarädT)102 but also the special example for an agreement by implication: the agreement with a mute (akhras/mutus). 10 7) Ijäb - qabül!Obligatio - acceptio In Islamic law ijäb (obligation) and qabül (acceptance) represent constitutive elements of the contract. 104 If ijäb and qabül prove to be congruent, there is an agreement (tarädin). It must be noted, however, that ijäb alone - contrary to its literal meaning - does not yet constitute an obligation. If there is an ijäb but no qabül, there is no agreement and no contractual obligation. Interestingly, there is no tradition confirming the legitimacy of this concept. According to Ibn Qudäma 105 ijäb and qabül did not even form part of the legal practice in early Islam. This might indicate the artificial character of this concept which seems to be foreign not only to early Islam. Neither in Roman law nor in any other legal system do we find the specific combination of "obligation" and "acceptance" as basic elements of the contract.106 Nevertheless, it is Roman law that provided the basis for this concept. While exploiting the chapter on pacta, Shaybänl and/or Abü Yüsuf first came across a passage 1 7 concerning agreement and obligation: "[...] the agreement produced for constituting and cancelling the obligation" In this passage, which omits or blurs important elements of the original text in the Digests,108 conventio/συναίνεσις may be interpreted as an agreement that makes the obligation either definitely effective or definitely void. If we interpret "obligation" 102 Ibn Qudäma Mughni 4/561, 562. 103 Ibn Qudäma Mughni 4/566. 104 J. Schacht Introduction 22. The Hanballs hold a different point of view and reject this model of contract (Ibn Qudäma Mughni 4/561-2). 105 Ibn Qudäma Mughni 4/561-2. 106 J. Schacht tries to trace this concept back to Babylonian law ('Vom babylonischen zum islamischen Recht,' OLZ 30 (1927) 664-9; idem Introduction 22). But there is no evidence that Babylonian law still existed in early Islam. Furthermore, Schacht erroneously believes that all law schools accepted this concept (see above). The critical reactions from the Hanballs seem to indicate that the concept was not part of the legal practice. 107 Bas. 11.1.1. 108 Instead of negotium (translated by A. Watson with "contract"), we find "obligation" (ένοχη). The term transactio (i.e. transigendumque) is rendered into διάλυσις, which has "cancellation" as primary meaning and "settlement" as secondary meaning only. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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in this context as a kind of offer, the consent of the other contracting party must be required as a logical complement to the obligation in order to achieve the agreement. A specification of this complement may be found in the Glosse of Enantiophanes.109 In an annotation referring to the passage mentioned above he tries to explain the relationship between agreement and obligation by giving a negative example: "If I give you something as a loan and you accept it as a donation, the agreement will not be binding." 8) Mu 'ätät!Synallagma A special kind of contract in Roman law is the formless Synallagma {do ut des),u0 which reappears in the furü' works111 as mu'ätät, the literal translation of Synallagma, and which is discussed by many Muslim jurists in close connection with the formal contract (ijäb/qabül). Just like in the Digests, Ibn Qudäma directly opposes the formal contract (first type) to the formless mu'ätät (second type) which he and Mälik b. Anas believe to correspond to Islamic legal practice. Unlike the Roman and some Muslim jurists, however, the large majority of Muslim jurists regards sale as a contract which underlies certain formal restrictions. Though based on consensus the contract of sale usually presupposes in the Jjäb the formulation bi'tuka (I have sold you) and in the qabül the formulation ishtaraytu (I have bought). Similar formulations are permitted, but the discussion about whether or not the Tjäb may be preceded by a question (will you sell to me?) or a command (sell to me!) makes clear that formalism plays a considerable role in the process of achieving a valid agreement. Some examples of contractual formulations in the Glosse,112 quite similar to those mentioned above and the implicit reference to the chapter on stipulations113 justify the presumption that in Islamic law the formless pactum was mixed with the formal stipulatio. This is corroborated by the term lafzlH (formulation) which, like the Roman counterpart verbumn5 (Greek: ρήμα), is used in this context.

109 110 111 112 113 114 115

Bas. 11.1.1.2. Dig. 2.14.7.2. Ibn QudämaMughrii4/561-2; HujjäwT Iqnä' 2/57. Bas. 11.1.1.2;11.1.7.1. Dig. 45.1. Ibn Qudäma Mughrii 4/561. Bas. 11.1.1.2. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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9) Tafarruq/Discessio According to most Muslim jurists,116 tafarruq bi l-abdän (corporal separation of the contracting parties) marks the moment in which the contract becomes either definitely binding or non-binding. If the contracting parties achieve a definite agreement in the session the contract is effective with the separation. If, on the other hand, there is no agreement in the session or the agreement is revoked before the separation the contract is definitely ineffective with the separation. To emphasize the importance of (corporal) separation some jurists117 rely upon a report traced back to Näfi': "After buying a thing 'Abdallah b. 'Umar used to move away a little (from the session) and then returned in order to make the contract of sale obligatory." Ibn Qudäma118 discusses some special aspects of tafarruq, one criterion being the space (fadä') in which the session takes place. In the Digests,119 the chapter on stipulations, we find the following ruling: "When someone who is present asks a question but leaves (discessit) before a reply is made to him, he makes an ineffective stipulation; if, however, he is present and asks, then leaves, and the reply is made to him on his return, he creates an obligation; for the interval between does not vitiate the obligation." The situation described in the Digests is clearly reflected in the tradition of 'Umar, as both contain five central elements: 1) contract; 2) (corporal) presence of the contracting parties; 3) separation; 4) return; 5) effectiveness of the contract. Ibn Qudäma, in his discussion about tafarruq, presents the sixth element fadä' (= intervallum). One element, however, is different. While in the Digests (second version)120 the agreement is achieved after the separation only, in the Umm of Shäfi'I the agreement seems to be reached already before the separation. The tradition itself is somewhat ambiguous in this point, but the formulation "he bought the thing"121 without mentioning any dissent after the contract as well as the formulation "he ('Umar) did not want to cancel it (the contract)" contained in an alternative tradition of Näfi' 122 rather point to an agreement prior to the separation. Yet, if we accept this interpretation, it is difficult, from 116 117 118 119 120 121 122

Ibn Qudäma Mughm 4/563. Shäfi'I Umm 3/3; Ibn Qudäma Mughm 4/564, 565. Ibn Qudäma Mughni 4/565. Dig. 45.1.1.1. In the first version there is no agreement at all. ibtä'a al-mabV. Ibn Qudäma Mughm 4/565 : fa-aräda (an) läyuqtlahu. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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the juristic point of view, to explain the return of 'Umar, because the contract becomes definitely binding with the separation. 'Umar's return to the session is simply unnecessary. It becomes clear that the element "return" was borrowed from the Digests although it no longer fit into the somewhat modified legal context. "Separation" as a contractual element is not only indicated in the chapter on stipulations but also in the chapter on pacta, though in a different context. The distinction between pactum ex continenti (a contract following immediately upon [the main contract]) and pactum ex intervallo (a contract concluded after an interval),123 discussed in close connection with the effectiveness of the (main) contract, as well as the term abirelάπειμι (go away), used several times in the following paragraph124 in the sense of rescinding a contract, made the borrowers in Baghdad believe that "separation" was an essential element of the contract, marking the moment in which the contract definitely becomes effective or ineffective. 10) Khiyär!Actio Actio, an essential institution of Roman law, has both the meaning of "action" (procedural level) and of "claim" (civil level).125 In the Digests many cases deal with actiones as claims resulting from contracts or other legal acts and embracing different rights such as rescinding from the contract or claiming damages. It is a characteristic feature of Roman law that the actiones, in the field of contracts, are treated in close connection with specific types of contracts. Usually they arise from contracts which are clearly defined and have names such as sale, hire, pledge or stipulation.126 This means that not all agreements (conventiones) may be regarded as contracts creating obligations and claims. As becomes clear in the chapter on pacta,127 a "simple agreement" that does not fit into one of the established patterns of contract - the socalled pactum nudum - does not give rise to an actio. Only a pactum ex continenti, that is, a simple agreement achieved immediately upon the main contract128 yields an actio. It is important to note that in many passages of the Digestsumma there is no difference between pactum 123 Dig. 2.14.7.5. 124 Dig. 2.14.7.6 = Bas. 11.1.7.17; see also Bas. 11.1.7.14, where is used ά ν α χ ω ρ έ ω (go back). 125 M. Käser Römisches Privatrecht (Munich 1981)31. 126 Dig. 2.14.1.3. 127 Dig. 2.14.7.5. 128 Dig.2.14.7.5: in ingresso contractus = Bas. 11.1.7: έ ν α ρ χ ή σ υ μ φ ω ν ο ύ μ ε ν α . Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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and contractus. Both terms are translated with σύμφωνον. Furthermore, the term conventio with the primary meaning of "coming together" appears several times in this context. All this might give the impression that the contract is connected with a claim when concluded in -and not after (ex intervallo) - the session. In the narrow context of actio/pactum nudum, we find further specific elements: 1) to confirm the dependence of pacta nuda on main contracts, an example is given of matrimonial law129 2) the buyer's right of rescission may be transmitted to his heirs130 3) it is affirmed, that, by a pact, one can withdraw in part from a sale, the effect being as though the sale as to part has been made afresh (renovatus).m The Islamic counterpart of actio is khiyär. Khiyär, usually translated with "option", seems at first sight to be a specific phenomenon in Islamic law. It denotes the conventionary or legal right of one or several parties to terminate a legal act (mostly contracts), to claim damages or to choose between different objects of the contract. There are different kinds of options such as khiyär al-'ayb,132 khiyär al-shart, khiyär alru'ya and khiyär al-ta'yin. One rather specific form of option is the khiyär al-majlis discussed in the context of tafarruq.m According to a prophetic tradition frequently used for justifying khiyär al-majlis, both parties of a contract of sale have a right of rescission as long as they don't separate from each other (i.e. leave the session).134 This right of rescission goes back to the actio discussed in the Digests in the context of pactum ex continenti. As indicated above, the Muslims interpreted pactum ex continenti as a contract closed during a session. Agreements achieved after the session are deemed irrelevant just like the pacta concluded independently of the main contract (i.e. after an interval). The central dictum in the Digests,135 that actions arise from "simple agreements" (pacta nuda) only if they are closely connected with the main contract, is reflected in Islamic law by the close connection between (this kind of) khiyär and majlis. Actio, which most probably was not yet 129 Dig. 2.14.7.6. 130 This is indicated in Dig. 2.14.7.6. 131 Dig. 2.14.7.6 = Bas. 11.1.7.13; the term άνανεύω (to renew) is also used in Bas. 11.1.7.17. 132 See below 159. 133 Ibn Qudäma Mugrii 4/563-6. 134 Ibn Qudäma Mugrii 4/563: idhä tabäya'ä al-rajulän fa-kull wähid minhumä bi lkhiyär mä lam yatafarraqä. 135 Dig. 2.14.7.5. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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rendered into Greek in the 8th century, and which in view of its complexity was difficult to translate into Arabic was interpreted by the Muslims as a right of rescission.136 Contractus ('aqdibay'),137 conventio (majlis/tarädin) and discessio (tafarruq) formed the legal context in which actio, the fourth central element, had to be embedded. Interestingly, it is also in this context that the Muslim jurists use quite similar 1w ι io terms such as 'aqd mujarrad (pactum nudum), ibtidä' al-'aqd (ingressum contractus) or itmäm al-'aqdm (απαρτίζω). Just like the Roman jurists they explain 'aqd mujarrad by giving an example of matrimonial law141 and permit the bequeath of claims.142 A passage in Shäfi'T's Umm deserves particular attention. In order to confirm the position that the contract becomes definitely binding (or non-binding) either by separation (tafarruq) or by option (khiyär), w Shäfi'T relies upon an analogy. Khiyär, just like tafarruq, is the "renewal" (tajdid) of something that makes the contract (of sale) binding.144 The term tajdid, exactly corresponding to renovatio and used in the same context, is conspicuous. But another similarity is even more striking. Both in ShäfiTs Umm and in the Glosse145 we find the cancellation (tafarruq) of the whole contract paralleled with the transformation of the contract, which in the Glosse is closely connected with actio (khiyär). Complex Β This complex consists of one single case only, which however contains a relatively great number of specific elements and is discussed at length

136 In Dig. 2.14.7.6 actio is directly linked with "cancellation". 137 Although Dig. 2.14 deals with pacta in general, we often find - particularly in those parts which have been borrowed - the contract of sale used as an example for all other contracts (see, for instance, Dig. 2.14.1.4; 2.14.7.1;2.14.7.5; 2.14.7.6). 138 In the MughnI (4/563, 567) by Ibn Qudäma it appears in the form bi-mujarradihi (ial- 'aqd). 139 Ibn Qudäma Mughm 4/567. 140 Ibn Qudäma Mughm 4/564. 141 Ibn Qudäma Mughm 4/563. 142 Shäfi'T Umm 3/4. 143 Khiyär in this case does not mean khiyär al-majlis but khiyär al-shart. 144 Shäfi'T Umm 3/3: käna l-khiyär tajdid shay' yüjibuhu (i.e. al-bay') ka-mä käna ltafarruq tajdid shay' yüjibuhu. 145 Bas. 11.1.7.13. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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in the fiirü' works.146 While some elements of the 'ariyya-case differ from law school to law school, it has a firm core: exchange of a limited quantity of dried dates for an estimated equal quantity of fresh dates on the tree.147 Since this contract is in fact a muzäbana contract, which is prohibited, the criterion of necessity is required in order to explain the dispensation (rukhsa) from the general prohibition. The 'ariyya-case, frequently used in Islamic legal reasoning, supposedly rests on a number of prophetic traditions. There is no Muslim jurist who questions the authenticity of these traditions, all of which contain the controversial term 'ariyya. While some jurists148 suggest the meaning of "palm-tree", which forms part of a specific contract, other jurists149 believe 'ariyya to be the designation of the contract itself. In spite of the importance of 'ariyya in Islamic law and its uninterrupted transmission via several strands,150 we observe a considerable degree of uncertainty about the provenance and meaning of this term. There is good reason to believe that 'ariyya is in fact a neologism derived from 'äriya (loan). This is confirmed not only by the Hanafi jurist TahäwT, who explicitly traces back 'ariyya to 'äriya, but also by the specific Hanafi position that this contract - in fact a contractus innominatus -

146 Shaybänl Kitäb al-Hujja, ed. Abü al-Wafa' al-AfghänT (Beirut 1968) 2/547; TahäwT al-Mukhtasar (Cairo 1950) 78; Sarakhsl Kitäb al-Mabsüf 30 vols. (Istanbul 1982) 12/192-3; MarghinänT, al-FarghänT. al-Hidäya, printed with Ibn alHumäm Fath a/-QadTr, 8 vols. (Cairo 1937) 5/195; Käsänl Badä'i' αΐ-ξαηα'ί' β Tartlb al-Sharä'i', 1 vols. (Cairo 1970) 7/3131-2; Mälik b. Anas. Muwatta' (Cairo 1921) 2/80; Sahnün al-Mudawwana al-Kubrä, 4 vols. (Cairo 1906-7) 4/258; Bäji al-Muntaqä, 7 vols. (Cairo 1914) 4/224-31; Ibn Rushd Bidäyat al-Mujtahid wa lNihäyat al-Muqtapd, 2 vols. (Cairo 1971) 2/180; Shäfi'T al-Umm, 7 vols. (Cairo 1968-9) 3/47; MuzanI al-Mukhtasar, printed with al-Shäfi'T Kitäb al-Umm, 7 vols. (Cairo 1968-9) 2/175; ShTräzT Kitäb al-Muhadhdhab (Cairo n.d.) 1/274; Ghazäll Kitäb al-Wajiz (Beirut 1979) 1/150; Subkl, TaqT al-DTn. al-Majmü' Sharh alMuhadhdhab, vol. 10-13 (Cairo 1966) 11/3; Nawawl Minhäj al-Tälibin, 3 vols., ed. L. van den Berg (Batavia 1882) 1/406; Idem. Rawdat al-Tälibin, 7 vols. (Damascus 1968) 3/560; DimashqT Rahmat al-Umma fi Ikhtiläf al-A'imma (Cairo 1967) 137; Abü 'Ubayd Kitäb al-Amwäl (Cairo 1981) 437; Ibn Muflih. Kitäb alFurü', 6 vols. (Beirut 1982-4) 4/158; Hijjäwl al-Iqnä' (Beirut n.d.) 2/118; BahütT Kashshäf al-Qinä' 'an Matn al-Iqnä', 4 vols. (Riyadh n.d.) 3/259; MardäwT Kitäb al-In$äf li-Ma 'rifat al-Räjih min al-Khiläf, 12 vols. (Cairo 1955-57) 5/29-30. 147 J. Schacht Introduction 40. 148 BahütT Kashshäf 3/258; 'Abd al-Razzäq al-Musannaf, 11 vols. 8/103 (no. 14468). 149 TahäwT Sharh Ma'äm l-Äthär (Cairo 1969) 31. 150 Β. Jokisch Islamisches Recht 136-7.

(Beirut 1972)

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may not be regarded as sale (or barter).151 Indeed this contract comes close to a contract of loan ( ' ä r i y a ) , insofar as, according to the Hanafls, the palm-trees are left for a certain time to the other contracting party for taking the crop without any valuable consideration. The fact that the owner of the palm-trees changes his opinion and gives dried dates instead of fresh dates does not represent for the Hanafls a separate contract of sale (barter), but a donation, which forms part of the basic contract. In principle loan may be regarded as a donation of the usufruct (manfa'a) of a thing.152 Another argument supporting this hypothesis is the fact that the 'ariyya-case represented a novelty in Islam at the end of the 8th century and was completely unknown to Muslim scholars in the time before ShaybänT and Abü Yüsuf. If 'ariyya is a technical term which has no other meaning and is used exlusively in this context, and if the 'ariyyacase was introduced into Islamic law by ShaybänT and his companion, there is no other possibility than to regard this term as a neologism. The basis of the 'ariyya-case is a ruling in the Digests153: "A man selling olives on the tree stipulated that the price should be ten pounds of oil to be produced from the crop. The probable interpretation is that he intended the price to depend upon the yield of the crop up to ten pounds. Hence if the yield be only five pounds, the purchaser cannot claim more than that. This was the reply of many jurists." This case was treated by the translators and/or codifiers in the context of the proceeding rulings,154 which however represent cases of their own and may not be treated as parts of Dig. 18.1.39.1. By combining the principal case with elements of some other cases, a complex case emerged which as such is novel. The following elements point to the provenance from the Digests'.

1) bay' (sale) Although the nature of the contract may be subject of controversy both the Digests and the fiirü' works explicitly speak of venditioluQCLoiqJ

151 Bay' in the context of 'ariyya means „barter". 152 There is, however, no agreement among Muslim jurists about the question of whether manfa'a includes the crop of fruit trees (B. Jokisch Islamisches Recht 62). 153 Dig. 18.1.39.1 (transl. A. Watson) = Bas. 19.1.37: και cm τοϋ καρπού ήρτημένου π έ π ρ α κ ά σοι έλαιον, ή έπηρωτήσιν δέκα μέτρα, και συνέβη, μ ό ν α πέντε γ ε ν έ σ θ α ι . Ούκ ά π α ι τ η θ ή σ ο μ α ι π λ έ ο ν τών πέντε. 154 Dig. 18.1.35.1 - 18.1.38 In the Digestsumma, which is a summary of the Digests, all these cases are much more compressed than in the original version. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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bay'. As indicated above the Hanafis tried to interprete bay' in a figurative sense (majäzan). 155 2) hiba (donation) The term donatio or derivations of it do not appear in Dig. 18.1.39.1. Instead, we find in the preceding paragraphs156 a number of rulings which deal both with venditio and donatio. According to one of these leges, a contract may not be regarded as a sale, if the seller, though determining the price, intends to donate the thing. 3) thamara (fruits) The object of the contract of 'ariyya is fruit. The olives mentioned in Dig. 18.1.39.1 were replaced by (fresh) dates in Islamic law.157 This may be due to the fact that the contract of 'ariyya was treated in the context of the prohibition of muzäbana which also has dates as object. The combination of fresh dates (rutab)158 and dried dates (tamar) exactly corresponds to the combination of olives and oil. Both oil and dried dates are products of the fruits sold, that is, of olives and fresh dates respectively. In both cases the objects of sale (barter), one being the product of the other, are exchanged with each other. 4) khars (estimate) Although the sale of fruits on the tree implies the necessity of estimating the fruits, the term aestimatio (estimate) does not occur in Dig. 18.1.39.1. However, in Dig. 18.1.35.1 a derivation of aestimatio is explicitly mentioned. Obviously there was an agreement among the Roman jurists that it is not permitted (imperfectum esse negotium) to sell a thing estimated by the purchaser. It is clear that Shaybänl and Abü Yüsuf had some difficulty in harmonizing this ruling with Dig. 18.1.39.1. We don't know whether or not Enantiophanes and possibly the other commentators of the Digestsumma pointed at this contradiction and attempted to classify the latter ruling as an exception. By any means the codifiers in Baghdad took recourse to the principle of "auctoritas",159 which became rukhsa in Islamic law.160 But by preferring a 155 See for instance Sarakhsi Mabsut 12/193. 156 Dig. 18.1.36; 18.1.37; 18.1.38. 157 This clearly appears from Mabsüt 5/92 (no. 24) where Shaybänl presents the original (but short) version of this case and explicitly mentions zayt (oil) and zaytün (olives). 158 The formulation 'alä ru'üs al-nakhl (= on the tree; see for instance Sarakhsi Mabsüf 12/192) seems to be a translation of pedensl^QTi} μένος. 159 See for instance Dig. 1.3.16. 160 See below 524. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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restrictive interpretation of Dig. 18.1.39.1 they seemed to contravene a more pragmatic legal practice. There was a clear tendency among the non-Hanafis to undermine the prohibition of muzäbana by extending the applicability of 'ariyya.161 5) kayl (measure) Another term used in the context of 'ariyya and closely connected with khars162 is kayl (measure). While it is permitted, by way of exception, to estimate the fresh dates on the trees, the quantity of the dried dates has to be determined by measure. Ibn Qudäma163 makes it clear that the dried dates may not be estimated at random (juzäfan). In the Digests the term mensura (measure) follows only a few sentences after the term aestimatio.m According to Gaius the sale of fungibles, at least in some cases, may not be regarded as perfect unless the fungible things are determined by measuring, counting or weighing. In this context he also uses the term quantumcumque which has the same meaning as juzäfan. 6) Five awsaq/five pounds One of the most striking parallels is the specific quantity of the products to be exchanged. Both the Digests and the furü' works indicate the quantity of five pounds/awsa^. The quantity of ten pounds stipulated by the seller in the Digests seems to have a counterpart in Abü Ya'lä's165 analogy with 'ushr (tithe). Even more striking is the element lä ziyäda in connection with "five awsaq" (i.e. no more than five awsaq), which corresponds to non amplius quam quinque pondo166 in the Digests. In Roman law the seller may not claim more than five pounds. In Islamic law the quantity of dates to be exchanged may not exceed five awsaq. In the same way both the Digests and the furü' works discuss the problem of quantities falling below a certain measure. The element usque ad decern pondo (up to ten pounds) was mixed with the element "five awsaq" and became düna khamsa awsaq (less than five awsaq) in Islamic law. Interestingly, there is agreement in both Roman and Islamic law as to quantities exceeding and falling below a certain measure. 161 Ibn Qudäma Mughnl 4/69; see also J. Schacht Introduction 40. 162 In one of the prophetic traditions transmitted by Zayd b. Thäbit, khars is directly juxtaposed to kayl (Ibn Qudäma Mughni 4/69). 163 Mughrii 4/69. 164 Dig. 18.1.35.5. 165 Ibn Qudäma Mughrii ΑΠΟ. Interestingly, Abü Ya'lä uses the formulation al-'ushr al-sahih, meaning the tenth of the actual yield. This is exactly the point in the Digests. If the seller stipulates ten pounds, this means what is actually produced up to ten pounds. 166 = Bas.: ουκ [...] π λ έ ο ν τ ω ν π έ ν τ ε . Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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However, a quantity of exactly five pounds/ awsaq, which is not discussed in the Digests, became a subject of controversy in Islamic law. 7) jär (neighbour) It would not be surprising to find in the context of Dig. 18.1.39.1 and the 'ariyya case terms such as "garden" or "land". Indeed the terms fundus (land)167 and bustän or hä'it (garden)168 appear in or near the cases in question. One may not expect, however, to find a specific element such as "neighbour", because such an element, from the juristic point of view, would be irrelevant. The fact that the owner of the palmtrees, according to some furü' works,169 sells the fruits to his neighbour, is of no legal importance. A plausible explanation for the introduction of this element may be found in another ruling of the Digests,™ which deals with the sale of land. In this special case the seller does not reveal to the purchaser the relevant fact that he (the seller) has a neighbour (conyz/iis/άγρογείτων). It is possible that the element qaräba (kinship), that in some furü' works is mentioned along with jär,171 also goes back to the Digests.112 Ulpian declares a contract of sale concluded between spouses to be void if the husband intends to donate parts of the thing and correspondingly reduces the price.

Complex C In the comprehensive jurü' work of Ibn Qudäma173 we find a chapter on the sale of fruits and "roots" (bäb bay' al-thimär wa l-usül) which is preceded by a chapter on usury and money changing (bäb al-ribä wa lsarf).m Since Ibn Qudäma's work is a commentary on KhiraqT's Mukhtasar, it essentially follows the structure of the latter. In many cases, however, Ibn Qudäma adds to the single rulings of KhiraqT's work large fragments of other works. It is very probable that he used the legal writings of Abü Ya'lä who is frequently quoted throughout the Mughm 167 168 169 170 171 172 173

Dig. 18.1.37. Ibn Qudäma Mughm 4/68; SarakhsT Mabsüt 12/193. Ibn Qudäma Mughnl4/68. Dig. 18.1.35.8. Ibn Qudäma Mughm 4/68. Dig. 18.1.38. Ibn Qudäma Mughm 4/74-92. This chapter does not end on p. 92 but merges into other subjects which don't have separate titles. 174 Ibn Qudäma Mughm 4/3-74. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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and, in particular, in the chapter on fruits and roots. As we know, Abü Ya'lä, after learning with Jassäs (d. 981) and becoming familiar with the details of HanafT law, became a Hanball and obviously introduced great parts of Hanafi law into Hanball law. We also know that parts of Abü Yüsufs writings were still extant in 10th century Baghdad,175 where Jassäs, in his turn a pupil of KarkhT, for some time headed the Hanafi madhhab.176 It seems that both chapters mentioned above go back to the noncanonical writings of Abü Yüsuf which in their turn contained borrowings from a corresponding chapter in the Digests: De usuris et fructibus et causis et omnibus accessionibus et mora.111 While the term sarf (money changing) and all related rulings represent a supplement that has no counterpart in the Digests, the terms ribä (usury) and thimär (fruits) reflect the terms usuris and fructus respectively. The fourth term usül (roots) is something of a puzzle. Ibn Qudäma178 clearly uses this term in the sense of "roots" in several cases, but it is highly unlikely that usül in the title of the chapter has this meaning. Many cases treated in the chapter on fruits and roots in fact deal with fruits (as parts of a plant) or with incidentals. This applies not only to cases in the chapter179 which don't have anything to do with "roots" (apart from fruits) but also to those in which garlic, onions or other roots18 are mentioned. In all these cases the essential juristic question is whether or not a thing forms part of the thing sold. But in none of these cases does the term asl (pi. usül), which in the broader sense also means "basis" or "fundament", refer to the essential parts of the thing sold. Instead, the legal meaning of usül throughout the chapter is "incidental". Usül, thimär and ribä in fact represent parallel legal categories. This raises the question of why the Muslim jurists used the term asl for indicating something that has exactly the opposite meaning. 175 176 177 178 179

Ibn al-Nadim Fihrist (Dodge) 503. O. Spies, Art. al-Djassä§, EI2, II, 486. Dig. 22.1. See, for instance, Mughm 4/82, 85. As examples may be mentioned twigs or leaves of a tree (Ibn Qudäma Mughm 4/81); assets of a slave (idem. 4/86); milk of a sheep (idem. 4/86); land or buildings of a village (idem. 4/87); roof (idem. 4/86), padlock, bed, food, doors, shelves, pegs, casks or curtains (idem. 4/88) in a house; buildings (idem. 4/86), well, source (idem. 4/90) or mineral resources (idem. 4/89) in or on the ground; millstone of a quern (idem. 4/88). 180 In some cases the unmistakable term 'urüq (roots) is used (see for instance Ibn Qudäma Mughni 4/85). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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The contradiction results from the term causa in the Digests, which was rendered to πράγμα in the Digestsumma,but is still preserved as καυσα in the scholia of Enantiophanes or Cyrillos. Causa, like asl, usually has the meaning of "reason", "source" or "cause", but in Dig. 22.1 it is used - by way of exception - in quite a different sense, having the opposite meaning of "incidental". Apart from the formal structure inspired by the Digests we also find substantial borrowings from the latter. At least one case seems to go back to Roman law. According to Ibn Qudäma 184 the buyer of land may claim the roots of the plants which emerge from the seed sowed in the land before the sale. Whether or not the buyer knew of the seed and the invisible roots is deemed of no relevance for his claim. A similar case appears in the Digests,185 which was mixed by the translators with a similar case in the next paragraph. In this case the buyer, and not the seller, sows the seed. That the translators believed this case to be part of the preceding case most probably results from the fact that the formulation in the Digestsumma is not quite as clear as it is in the Latin Digests. The passive construction "μετά τό σπαρήναι [...] τούς καρπούς" (after the fruits have been sowed...) 186 leaves open the question who - the buyer or the seller - sowed the seed. Apart from the basic elements 1) purchase (bay'/emptio/ayoQaoiς) 2) land (ard!fundus! ay οός) and 3) seed (badhr/sementis/onoQος) in the juristic context of incidentals,187 we find still more specific elements. 4) Istihqäq/evictio/έκδίκησις (claim, vindication) In the case in the Digests the land sold to the buyer in good faith may be evicted by a third person. Yet in the Digestsumma and the annotation of Enantiophanes this aspect is only alluded to by the terms alienus/ αλλότριος and evictio/έκδίκΓ\σις. Starting from the premise that causa means "root", the translators also reinterpreted the term αλλότριος. With regard to the context there is some probability that αλλότριος in the sense of "unknown" became mustatir (veiled) in Islamic law alW

181 182 183 184 185 186 187

1ΟΛ

1

See for instance Bas. 23.3.2 (possibly exhellenized). Bas. 23.3.2.2. Bas. 23.3.2.1. Ibn Qudäma Mughm 4/85-6. = Bas. 23.3.25.1. Dig. 22.1.25.2. It is a remarkable fact that in the Talmud (BB, IV-V), which discusses the problem of incidentals much more comprehensively than the Digests, not even one case with these three elements appears. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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though the terms don't have exactly the same meaning. The same applies to the term λήψι,ς which is frequently used in the Digestsumma. The term λήψις not only means "taking", as in the Digests, but also "perception", which correlates with the term zähir (visible) in the Mughnl While in the Digests the buyer acquires the fruits by gathering (perceptione fructus suos faciat...) the buyer in the Mugrii acquires the roots by perceiving (law käna zähiran käna lahu). Interestingly, he may also claim the roots when they are invisible (fa l-mustatir awla). 5) 'abd (slave) Despite the omnipresence of the prohibition of risk in Islamic law, Ibn Qudäma188 permits the sale of invisible seed. The seed, he argues, is subordinate (täbi') to the principal thing (matbü'), the land, and therefore does not fall under the prohibition of risk. To support his position he uses an analogy: the purchase of land sowed before the contract is like the purchase of a slave and his (future) assets.189 In the Digests190 we find the same analogy: "[...] fruits (sowed by the seller and) gathered from the land (by the purchaser) are like acquisitions which slaves make by their labor, since in taking fruits one looks more to rights over the thing191 from which they are taken than over the seed". 6) haml (foetus)llaban (milk) Immediately after the analogy mentioned above, Ibn Qudäma192 uses further analogies: the seed in the soil is like the milk in the udder or the foetus in the sheep. Both cases are explicitly mentioned in Dig. 22.1.28.pr, that is, shortly after the seed-case. But the decisive impetus comes from Enantiophanes,193 who in the context of the seed-case refers to Dig. 41.1.48, where just these cases appear in the second paragraph: "The young of sheep count as fruits and so belong to the purchaser in good faith, even if the sheep were pregnant at the time of sale or had been stolen. And, certainly, there can be no doubt that he takes ownership of their milk, even though they were sold with full udders;

188 Mughnl 4/85-6. 189 This case is discussed at length in Mughnl 4/190-1 and has a parallel in Dig. 18.1.29 (see also Dig. 18.1.31 and Dig. 18.1.34.pr). 190 Dig. 22.1.25.1. 191 In Bas. 23.3.25.4, most probably a fragment by Enantiophanes, the term corpus (= thing) is translated with σ ώ μ α , which in this context means "principal thing". 192 Ibn Qudäma Mughm 4/86: : ka l-labanfll-dar' ma'a l-shäh wa l-haml ma'a

umm. 193 BS 23.3.25.16. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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the rule is the same for their wool."194 Interestingly, Ibn Qudäma195 discusses the 'abd-case along with the analogies to "milk" and "foetus" in still another context. In this context even the fourth element "wool" (süf) is mentioned. 7) 'ayb (defect, vice) According to Ibn Qudäma the seed in the soil may also be regarded as a defect. If, for instance, the purchaser intends to sow his own seed, he first will have to remove the seed in the soil or, another restriction of the usufruct of the soil, he will have to wait until the seller has yielded the crop. In principle there is nothing extraordinary in discussing this aspect in the context of incidentals. However, the seed-case proves to be the first of only a very few cases in the chapter on "fruits and roots" to touch the legal aspect of 'ayb.196 Many other cases could well have considered the aspect of 'ayb too, but they do not.197 And this also applies to the Glosse and the Digestsumma, which deal with vices only in the context of the seed-case. By using the terms "attestation" (διαμαρτυρία) and knowledge (γνώσις) with regard to the properties of the thing, Enantiophanes198 clearly points to the field of deficiency law, which is treated systematically in the preceding librum (Dig. 21.1) and which had been abundantly exploited by Shaybäm199 and Abü Yüsuf. In the same annotation Enantiophanes refers to Dig. 41.1.48, where - in the Digestsumma200 -the term ψόγος (vice) appears. According to this ruling, legal defects in the thing sold do not prevent the purchaser in good faith from taking ownership of its fruits. Although the details of the legal excursion were interpreted differently by the codifiers in Baghdad, the latter nevertheless took interest in the general aspect of vices. This may be corroborated by some further specific terms which Enantiophanes uses in his annotation and which reappear in the Mughrii in the context of 'ayb. In order to make it clear that the eviction of the 194 Dig. 41.1.48.2 (transl. A. Watson) = Bas. 50.1.47: ή γ ο ν ή ώ ν ή γ ό ρ α σ α θ ρ ε μ μ ά τ ω ν , ώς κ α ρ π ό ς έμή εστίν, κ α ν έ γ κ υ μ ο ν ο ϋ ν τ α , πραθώσι,ν ή ά φ α ι ρ ε θ ώ σ ι ν , ώ σ π ε ρ και τό γ ά λ α και τ ό έρι,ον. The scholia on this part of the Digestsumma are not preserved, but most probably they contained additional material from the Latin Digests (for instance „milk in the udder of a sheep" instead of the short description „milk" in the Digestsumma). 195 Ibn Qudäma Mughrii 4/190-1. 196 Ibn Qudäma Mughrii 4/88, 89, 90. 197 See, for instance, Ibn Qudäma Mughni 4/82. 198 BS 23.3.25.16. 199 See below 143. 200 Bas. 50.1.47. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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thing does not impede the usucaption of the fruits, Enantiophanes uses the term διακοπή (lit. breaking through)201, χρήσις (usufruct)202 and μακρός χρόνος (a long time). These terms, rendered into tafwTt (making escape), manfa'a (usufruct) and 'äm/zaman (year/time)203 respectively, were combined in the Arabic formulation as follows: "because it (the seller's yielding the crop) prevents him (the purchaser) from making use of the soil for a year," that is for a long time. In the following line Ibn Qudäma uses the formulation zaman yaslr (short time) to indicate that the removing of the seed is not a defect if it takes only a short time. While the dependence on Roman law is evident in a few points, it is Jewish law that in one way or another influenced the whole chapter on "fruits and roots". Even the seed-case, which was taken from Roman law, seems to contain elements of Jewish law. Two comprehensive chapters in the Talmud deal with the problem of incidentals, presenting a great number of specific cases, terms, formulations and arguments. The distinction between zähir (visible) and mustatir (invisible) made by Ibn Qudäma in the seed-case and some other cases of the chapter is characteristic of the Jewish discussion on incidentals.204 The same applies to the distinction between "adjacent" (muttasil)205 and "separate" (munfasil).206 The standard formulation Oirou; na "731 xm (it and everything contained in it), frequently used in the Talmud ,207 seems to be the counterpart of (shay'un) bi-huqüqihä}m The characteristic term 731? 209 (except), often used in the Talmud for indicating the exclusion of incidentals from the contract, is paralleled with istithnä' in the same chapter in the furü' works.210 All these terms and formulations no doubt make sense in the legal context of incidentals, but nevertheless they

201 In this context the term has the meaning of „impeding" or „interrupting" the usucapio. 202 This term forms part of the formulation χ ρ ο ν ί α ς χρήσεως δεσποτεία, which is a Greek circumscription of usucapio (usucaption). 203 Ihn Qudäma Mughni 4/86: li-annahu yufawwitu 'alayhi manfa 'at al-ard 'äman. 204 See for instance Talmud BB, V, 82a. 205 Ibn Qudäma Mughni 4/75, 88. 206 Ibn Qudäma Mughni 4/88. 207 See for instance Talmud BB, IV, 65a, 67b. 208 Ibn Qudäma Mughni 4/86, 87, 88. 209 See for instance Talmud BB, IV, 69b. 210 Ibn Qudäma Mughni 4/76. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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don't play a role in the corresponding chapter of the Digests,211 Even more striking is the great number of specific cases occurring in this field both in Islamic and in Jewish law, but not in Roman law. Incidentals such as water in a well,212 trees213 or grain214 growing on the ground, stones in the soil,215 roofs,216 fastened doors,217 keys,218 padlocks219 or outbuildings220 of a house, or plants221 of a village are discussed both in Islamic and Jewish law. A very special case deals with a pollinated tree 222 The Muslim jurists and their Jewish colleagues expound it at length and trace it back to a particularly binding authority: the Muslims to the Prophet and the Jews to the Torah (Gen. 23.17). This is striking because there are only a very few cases in this field directly based on the Holy Scripture or the Prophetic tradition. Another case deserves no less attention, because it contains a bundle of specific elements which may not be necessarily expected to appear in this constellation. While discussing the incidentals of a mill, the Jewish jurists mention shelves, pins, vessels and millstones. The latter are divided into upper and lower millstones.223 All these elements form part of a single case in Ibn Qudäma's Mughni224

Complex D In the chapter on imperfect contracts (buyü' fäsida) contained in the Kitäb al-buyü' wa l-salam of Shaybäm's Mabsüt225 we find a complex of cases which also appears in the chapter on contracts of sale in the 211 Outside Dig. 22.1 it is of course possible to find some of these terms and formulations (as to exceptions and incidentals see Dig. 18.1.76.pr; 18.1.77; 18.1.80.pr). 212 Talmud BB, V, 78b - Ibn Qudäma Mughm 4/91. 213 Talmud BB, V, 81a - Ibn Qudäma Mughm 4/87. 214 Talmud BB, IV, 68b - Ibn Qudäma Mughm 4/83-4. 215 Talmud BB, IV, 68b - Ibn Qudäma Mughni 4/88. 216 Talmud BB, IV, 61a - Ibn Qudäma Mughm 4/88. 217 Talmud BB, IV, 65b - Ibn Qudäma Mughni 4/88. 218 Talmud BB, IV, 65a - Ibn Qudäma Mughni 4/88. 219 Talmud BB, IV, 65a - Ibn Qudäma Mughni 4/88. 220 Talmud BB, V, 6 1 a - Ibn Qudäma Mughni 4/88. 221 Talmud BB, IV, 68b - Ibn Qudäma Mughni 4/87. 222 Talmud BB, IV, 69b-70a - Ibn Qudäma Mughni 4/74-8. 223 Talmud BB, IV, 67b. 224 Ibn Qudäma Mughni Am. 225 Shaybänl As15/83-93. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Digests,226 In the Digests they occur in relatively small sections of the chapter the first running from Dig. 18.1.6.pr to 18.1.11.1 and the second from Dig. 18.1.34.2 to 18.1.39.1. The following cases in the bäb al-buyü' al-fäsida may be rediscovered in the two sections of the Digests: 1) purchase of a freeman.227 2) sale of a run away slave.228 3) sale of herd animals or other things piece by piece without the final price being fixed.229 4) determination of the price by the purchaser allone.230 5) sale of oil that will be produced from the olives (on the tree).231 6) purchase of a slave who proves to be a slave girl.232 7) sale of vine which proves to be vinegar.233 8) sale of a foetus.234 9) sale of fishes in the water.235 10) sale of milk in or wool on herd animals.236 226 Dig. 18.1: De contrahendo emptione, et de pactis inter emptorem et venditorem compositis, et quae res venire non possunt. The latter part of this title, "et quae res venire non possunt" (and things which cannot be sold), refers to imperfect contracts and, therefore, explains the title buyü' fäsida in the Mabsüf. The following chapter on contracts of purchase connected with imperfect stipulations (bäb albuyü' idhä käna fihä shart yufsiduhä) seems to refer to the other part of the title in the Digests "de pactis inter emptorem et venditorem composites" (special terms agreed between the vendor and the purchaser). 227 Shaybänl Mabsüt 5/84 (no. 4) - Dig. 18.1.34.2 (see also Dig. 18.1.6.pr). 228 Shaybänl Mabsüt 5/89 (no. 17) - Dig. 18.1.35.3. The ruling in the Digests indicates that the Roman Senate issued a law that generally prohibited the sale of run away slaves. 229 Shaybänl Mabsüt 5/5/85 (no. 7) - Dig. 18.1.35.5-6. 230 Shaybänl Mabsüt 5//87-8 (no. 13) - Dig. 18.1.35.1. It must be noted that both Shaybänl and the Digests expound this case by using direct speech. 231 Shaybänl Mabsüf 5/92 (no. 24) - Dig. 18.1.39.1. Later on this case was modified and became known as the 'ariyya-czse (see above 120). 232 Shaybänl Mabsüt 5/93 (no. 29) - Dig. 18.1.11.1. 233 Shaybänl Mabsüt 5/84-5 (no. 6) - Dig. 18.1.9.2. 234 Shaybänl Mabsüt 5/91 (no. 2 2 ) - D i g . 18.1.8.pr. 235 Shaybänl Mabsüt 5/91 (no. 2 1 ) - D i g . 18.1.8.1. 236 Shaybänl Mabsüt 5/91 (no. 22). This ruling does not occur in Dig. 18.1, but most probably was referred to in the Glosse of Enantiophanes in the context of Dig. 18.1.8.1 (sale of a foetus). As appears from Dig. 22.1.28.pr and Dig. 41.1.48.2, the Digests mention offspring, milk (in the udder) and wool (on the animal) in close connection. In at least one case Enantiophanes definitely refers to one of these rulings (see above 128). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Further parallel cases may be found in the Mughni of Ibn Qudäma, which is indirectly based not (or not only) on the Kitäb al-buyü' of Shaybäm but, most probably, on the non-canonical and more elaborated Kitäb al-buyü' of Abü Yüsuf. This is corroborated by the fact that excerpts of the extended version are contained in another work of Abü Yüsuf, the Kitäb al-kharäj237 Apart from the cases 2,238 8,239 9240 and 10241 which appear in close connection in the Mughm we find the following two cases which occur in this section of the Mughnt42 and which have a counterpart in the sections of the Digests mentioned above: 1) sale of a bird in the air.243 2) "chance sale" based on throwing stones (bay' al-hasäh).244 There is no agreement among the Muslim jurists upon the concrete meaning of bay' al-hasäh. According to one opinion it means that all things hit by the stones will be sold for a dirham. Other jurists believe the validity of the whole contract to be dependent on throwing stones. This exactly corresponds to (res) missiles (stones or similar things for throwing) which in Roman times used to be thrown into the crowd by the emperor and whoever obtained one of them was freed from tax. Another term used in this context is alea (risk) which corresponds to gharar in the Mughrii. Ibn Qudäma even adduces a prophetic tradition which contains both bay' al-hasäh and bay' al-gharar. Interestingly, bay' al-haml and bay' al-hasäh almost directly follow one behind the other in both the Mughrii and the Digests. If we take for certain the reference of Enantiophanes to "milk in the udder" and "wool on the animal" there are even four specific cases appearing in very close connection in both sources. In the sections mentioned above Shaybäm and Ibn Qudäma combine several legal aspects: 1) sale 2) risk and 3) res communes 237 238 239 240 241 242 243

Abü Yüsuf Kitäb al-kharäj 49-50. Ibn Qudäma Mughrii 4/221-2. Ibn Qudäma Mughrii 4/230. Ibn Qudäma Mughrii 4/223. Ibn Qudäma Mughrii 4/231. Ibn Qudäma Mughni 4/221-31. Ibn Qudäma MughnT 4/222. The Digestsumma (Bas. 19.1.7) has "bees" instead of "birds" (Heimbach-edition, in the edition by Scheltema this ruling is almost completely missing). Additional elements from the Latin Digests must have been contained in the scholia on Dig. 18.1, which are not preserved. For further parallels in this context see F. Schmidt 'Die occupatio,' 337. 244 Ibn Qudäma Mughni4/229-30-Dig. 18.1.8.1. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(mubähät). The second aspect "risk" refers to the sale of things which are not yet existent {ma'dum!sine re/χωρίς τοϋ πιπρασκομένου πράγματος). The third aspect comes close to the second one and refers to things which belong in common to all men. Before taking possession of the res communes they may not be sold because the seller 1) is not yet the owner and 2) is not able to deliver them. All these aspects, along with some specific cases, also appear in a fragment of Abü Yüsufs Kharäj.245 In some points the fragment presents further details, as appears from a tradition traced back to 'Umar b. 'Abd al-Άζϊζ 246 (d. 720): "Abü Yüsuf said: Abu Hanlfa, may God be pleased with him, reported from Hammäd who said: I appealed to 'Abd al-Hamid b. 'Abd alRahmän so that he wrote to 'Umar b. 'Abd al-Άζϊζ asking about the sale of fishes to be caught from shallow waters {bay' sayd al-äjäm).247 'Umar wrote him that there is no objection to it and he called it "keeping" (back) {habs)." In fact this tradition goes back to a ruling in another chapter {De divisione rerum et qualitate) of the Digests;248 : "No one, therefore, is prohibited from going in to shallow waters (αιγιαλός)249 to fish, provided he keeps clear of houses and buildings (and monuments),250 since they do not, as the sea certainly does, belong in common to all men. So it laid down the deified Pius in a rescript to the fishermen of Formiae and Capena. These, however, are the designations of the places." The following parallels may be observed in the texts: 1) fishes (indicated in the terms αλεία and sayd al-äjäm respectively) 2) catching {sayd! indicated in the term αλεία) 3) shallow water {ajama/ αιγιαλός) 4) permissibility (lä ba'sa/ούδείς κωλύεται) 245 Abü Yüsuf Kharäj 49-50. 246 There is some confusion about the identity of 'Umar. ShaybänT traces the tradition (short version) back to 'Umar b. al-Khatfäb (d. 644). By any means Abü Yüsufs version is more plausible, because 'Abd al-Hamld b. 'Abd al-Rahmän (d. ca. 738) was appointed governor in Küfa by 'Umar b. 'Abd al-'Αζϊζ (SafadT Wäfi 18/70 (no. 67)). 247 The term ajama in this context designates a place of water collected together. The term "fishes" is not explicitly mentioned, but the context necessarily implies "fishes" to be the object of the contract. This is also the interpretation of all Muslim jurists. 248 Dig. 1.8.4.pr. = Bas. 46.3.2.1. 249 The primary meaning of α ι γ ι α λ ό ς is "sea shore", but it also has the meaning of "shallow water". 250 The elements "and monuments" are not contained in the edition of G. Heimbach. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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5) state authority (Emperor Pius/Caliph 'Umar b. 'Abd al-Άζϊζ) 6) rescript (&ζΥά&α/αντεγραφή) 7) recipients of the rescript (the fishermen of Formiae and Capena/'Abd al-Hamid b. 'Abd al-Rahmän) 8) designation (fös/myya/γνώρισμα) 9) keeping (back) (habasa/απέχω) The final sentence in Abü Yüsufs tradition "he called it keeping (back)" corresponds to the final sentence in the Greek fragment "these, however, are the designations of the places", which is contained in the Glosse but not in the Digestsumma nor in the Latin Digests. It was obviously interpreted as part of Pius' rescript. Τόπος was referred not to Formiae and Capena, but to the places of fishing. The designations of these places were erroneously understood to refer to "keeping (back)" as the only characteristic feature in this context. The verb προσελαύνω was translated with the primary (transitive) meaning "bringing (up) to" instead of the secondary (intransitive) meaning "going on to".251 Correspondingly, the translators supposed that the impersonal subject in the subordinate clause, contained in the verb άπέχεται, was the fishes and not the fishermen. In view of these interpretations the translation in Baghdad must have been as follows: "No one, therefore, is prohibited from bringing (fishes) into shallow waters for the sake of (later) fishery, provided they (the fishes) are kept (in waters surrounded) by houses and buildings, since they (the waters) do not, as the sea certainly does, belong in common to all men. So laid it down the deified Pius in a rescript to the fishermen of Formiae and Capena. These (i.e. the activities of keeping the fishes) are the designations of the places of fishing." One essential element, however, is missing in the rescript of Pius. He does not touch the problem of sale. While Pius simply allows fishing in shallow waters, 'Umar b. 'Abd al-Άζϊζ talks about selling fishes. The general connection with res communes252 as well as the concrete term "fishery" (αΛεία) in Dig. 18.1.8.1 allow us to conjecture that in his annotation to the latter ruling Enantiophanes referred to Dig. 1.8.4 where αΛεία forms part of rulings on res communes. This would explain why the rescript of Pius was interpreted in the context of sale and why sale became an essential element of Abü Yüsufs tradition. At any

251 This is corroborated by the verb arsala (arsalahu fi l-ajama) used in SarakhsTs Mabsüt (13/11-12). 252 See also Dig. 18.1.34.1 where the sale of res communes is prohibited. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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rate, in Dig. 1.8253 Enantiophanes explicitly refers to Dig. 18.1 and probably also to Dig. 41 A,25 where we find a complex of rulings on the acquisition of ownership. Conspiciously in Dig. 1.8.2.1, that is, shortly before Dig. 1.8.4.pr, we find still another ruling with a parallel in Abü Yüsuf s Kharäj a few pages after the 'Umar-tradition: "And by natural law the following belong to all men: air, flowing water and the sea, and therewith the shore of the sea."255 The corresponding ruling in the Kharäj is embedded in a prophetic tradition with a detailed description of the historical context. The legally relevant part is as follows: "Three (things) belong in common to the Muslims: water, grass and fire". 256 Not only the basic legal aspects (qualification of certain natural goods as res communes), the specific term κοινο/shurakä' (common), the restriction to three elements (air, water, sea/water, grass, fire)257 and the reference to the owners (all men/(all) Muslims) are similar, the whole syntactical construction is also the same. Furthermore, we can observe a certain inconsistency. Mubähät in fact are not restricted to water, grass and fire, but clearly extend to other goods such as birds in the air or fishes in the water.258 By replacing "air" and "sea" with "grass" and "fire" Abü Yüsuf in principle excluded many wild animals and other things from this ruling. Though vested with prophetic authority of restrictive aspect the ruling was simply ignored.

253 254 255 256

BS 46.3.5.10 (reference to Dig 18.1.73). BS 46.3.1.2 (reference to Dig. 41.1.34). BS 46.3.2.1. Abü Yüsuf Kharäj 55: al-muslimüna shurakä'fl thaläth: al-mä' wa l-kala' wa lnär. 257 The transformation into „grass" and „fire" might well be an adaption to Arab culture. 258 Abü Yüsuf explicitly mentions „birds in the air", „fishes in the water" and "gazelles on the earth" in the same context (Kharäj 49-50). Interestingly, all three elements (air, water and earth), along with the aspect "taking possession," are mentioned in Dig. 41.1 (Dig. 41.1.1.1 and Dig. 41.1.3-5) which is referred to by Enantiophanes in Dig. 1.8. Abü Yüsuf implicitly makes clear that everybody who takes possession of them acquires ownership of them and, therefore, is allowed to sell them. This is also the argumentation of Ibn Qudäma (MughnI 4/283). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Complex Ε Many modern islamists as well as most of the Muslim scholars259 are inclined to trace back the institution of waqf (endowment) to Islamic origins.260 Earlier statements261 that the pious endowments in Islam were influenced by the Byzantine piae causae/ενσεβεις αίτίαι (lit. pious purposes)262 are rejected on the grounds that endowments in early Islam, at least outside Egypt, were not restricted to rural areas, while Byzantine (koptic) endowments rather represented an urban phenomenon.263 Although it is not the intention of this study to maintain or even 259 See, for instance, A. Berki 'Vakiflann tarihi, mahiyeti, inki$afi ve tekämülü, cemiyet ve fertlere sagladigi faideler,' Vaktflar Dergisi 6 (1965) 9-10. 260 R. Peters, Art. Waqf, EI2, XI, 60; U. Mitter Das islamische Patronat 33; A. Sanhuän Till God inherits the earth. Islamic pious endowments in al-Andalus (Leisen/Boston 2007) 57; C. Cahen Les peuples musulmans dans I'histoire medievale (Damascus 1977) 302. M. Macuch presumes a Persian influence (Rechtskasuistik und Gerichtspraxis zu Beginn des siebenten Jahrhunderts in Iran. Die Rechtssammlung des Farrohmard i Wahrämän (Wiesbaden 1993) 1); idem 'Die sasanidische Stiftung „für die Seele" - Vorbild für den islamischen waqf?,' P. VavrouSek (ed.) Iranian and Indo-European Studies (Prague 1994) 164, 180. See also A. Perikhanian 'Iranian society and law,' Ε. Yarshater (ed.) The Cambridge History of Iran, vol. 3 (2): The Seleucid, Parthian and Sasanian periods (Cambridge 1983) 664-5; S. Arjomand 'Philanthropy, the law, and public policy in the Islamic world before the modern era,' W. Ilchman et al. (eds) Philanthropy in the world's tradition (Bloomington 1998) 110-11. Another group of scholars emphasizes the similarity between waqf and the reslaedes sacrae of Roman law (A. Mukherji 'Islamic institutions of waqfs: origin and practice in Muslim India,' ICLQ 10-11 (1990-91) 114). 261 C. Becker 'Zur Entstehung der Waqfmstitution,' Der Islam 2 (1911) 404-5; idem Islamstudien 1/62; W. Heffening, Art. Wakf, EI1, 4/1189; F. Köprülü 'Vakif müessesinin hukuki mahiyeti ve tarihi tekamülü,' Vakiflar dergisi 2 (1942) 7-9; N. Coulson A history of Islamic law 28; A. d'Emilia 'Roman law' 75; J. Barnes An introduction to religious foundations in the Ottoman empire (Leiden 1986) 12-6. According to some scholars the Byzantine piae causae represent one of several factors which influenced the Islamic waqf: J. Schacht 'Droit byzantin,' 214; idem Introduction 19; idem 'Early doctrines on waqf,' Fuad Köprülü Armagam/Melanges Fuad Köprülü (Istanbul 1953) 443; A. Fyzee Outlines 266; D. Santillana Istitutioni di diritto musulmano malichita con riguardo anche al sistema sciafiita, vol. 2 (Rome 1938) 416; P. Hennigan The birth of a legal institution. The formation of the waqf in third-century A.H. Hanafi legal discourse (Leiden 2004) 68. 262 Another term is ευαγείς οίκοι (latin: sacrae/invulnerabilis/venerabilis domus) (P. D u f f ' The charitable foundations Byzantium,' Cambridge legal essays, written in honour of Doctor Bond, Professor Buckland and Professor Kenny (Cambridge 1926) 89-90). 263 R. Peters, Art. Waqf, ΕΙ2, XI, 60. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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to prove Byzantine influences on waqf by way of legal practice in the first 150 years of Islam it may be argued that Becker's restriction of piae causae to urban areas is untenable. We can assume, for instance, that the importance of piae causae in rural areas increased to the same extent as the social function of the holy men gained in importance, particularly from the 7th century. Holy men who settled not only in large cities but also in the country - including the territories conquered by the Arabs - became favourite objects of veneration, which very often took place in endowed buildings.2 It is hardly imaginable that the Muslims, some of them Christian converts, were not aware of these institutions. Be it as it may. By any means we have ample evidence that it was ShaybänT and Abu Yüsuf who introduced waqf as an elaborated institution into Islamic law. The characteristic and somewhat confusing combination of waqf ahlJ (endowment in favour of one's relatives and descendants) and waqf khayri (endowment in favour of mosques and public utilities)265 goes back to the fact that piae causae, a christianized heritage from Roman law,266 were treated in the Glosse in close connection with fideicommissum.267 Two different institutions, the fideicommissum of Roman law and the piae causae of Orthodox Canon law, merged into one institution and became waqf in Islam.268 Since piae causae represented a central economical and social factor in Byzantine society it is no wonder that the emperors tried to get them under control by issuing a number of laws. Five Novels of Justinian alone deal exclusively with piae causae 269 It is particularly these Novels that formed 264 G. Dagron 'Byzantinische Kirche und byzantinische Christenheit zwischen Invasion und Ikonoklasmus (von der Mitte des 7. bis zum Beginn des 8. Jahrhunderts,' G. Dagron et al. (ed.) Bischöfe, Mönche und Kaiser (642-1054) (Freiburg 1994) 85-6. 265 R. Peters (Art. Waqf, EI2, XI, 59-60) believes waqf ahli to be an earlier type of Islamic endowment preceding the waqf khayri in development. 266 G. Dagron 'Christliche Ökonomie und christliche Gesellschaft (8.-10. Jh.),' G. Dagron et al. (ed.) Bischöfe, Mönche und Kaiser (642-1054) (Freiburg 1994) 296. 267 Dig. 30-32 (De legatis et fideicommissis). Although there are no scholia on these books of the Digests we may be certain that the canonist Enantiophanes, while commenting on fideicommissum, referred to the Novels concerning piae causae. The preserved parts of the Glosse show that Enantiophanes used to refer to relevant Novels. The particular importance of the Novels on piae causae is evident. 268 Interestingly, the classical doctrine does not clearly distinguish between waqf khayri (charitable waqf) and waqf ahli (family waqf). This distinction was made only much later in modern legislation (R. Peters, Art. Waqf, EI2, XI, 60). 269 Nov. 7 (issued 535), 40 (536), 46 (537), 65 (538) and 120 (544). Some other Novels such as Nov. 131,9-14 contain further rulings on piae causae. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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the basis of Islamic waqf in content and designation. The term waqf (impediment, restraining),270 which does not occur in the Qur' än,271 is a translation of the Greek term κώλυσις that has exactly the same meaning and appears in Nov. 7,1:"[...] We have used the general term alienation in order to prohibit (impede) sale, donation, barter [...]." 272 In this context it is important to know that the essential feature of piae causae - at least since the time of Leo I273 - is the prohibition of alienating Church property.274 This general prohibition, which appears at the beginning of all Novels mentioned above, is clearly reflected in the furü' works. SarakhsT275 defines waqf as "restraining property from being alienated." A more precise version of this prohibition can be found in a prophetic tradition276 according to which sale, donation and bequeath of (waqf) land is not permitted. The first two elements "sale" and "donation" appear in all formulations of the Novels explaining the general term "alienation".277 It ought to be noted that the earlier prohibition of Emperor Leo I, that contained "sale" only,278 was extended by Justinian to other forms of alienation. Interestingly, the prohibition of alienation, which constitutes the nucleus of waqf (al-asl tahrim al-bay'),219 has a considerable number of exceptions.280 Contrary to the principle of unalienability, it is allowed in cases of necessitiy (darüra)2 1 to sell the whole property of waqf or parts of it. Why do the Muslims lay down a general principle while at the same time largely undermining it? In fact, both the principle of unalienability and its restrictions mirror a specific development of endowments in Byzantium. After observing a growing tendency to sell

270 Another term often used and having the same meaning is habs. 271 J. Barnes An introduction 11. 272 Nov. 71: "[...] τό δέ της έκποιήσεος ό ν ο μ α γ ε ν ι κ ώ τ ε ρ ο ν δια τοϋτο τεθείκαμεν, ϊνα κ ω λ ΰ σ ω μ ε ν και π ρ ά σ ι ν και δωρεάν και άμειψιν [...]." 273 See Cod. 1.2.14. 274 Nov. 40 (praefatio):"[...] κωλύσεως των εκκλησιαστικών εκποιήσεων [...]". 275 Mabsüt 12/27: habs al-mamluk 'an al-tamllk min al-ghayr. 276 Ibn Qudäma Mughnl 5/597-8. 277 Nov. 7 (praef.); 7,1; 7,2; 7,5; 7,11; 120,1. 278 Nov. 7,5. 279 Ibn Qudäma Mughnl 5/634. 280 Ibn Qudäma Mughnl 5/631-4. As to the controversy on this point see Ibn Hubayra Kitäb al-Ifsäh 'an Ma'änial-$ihäh (Riyadh 1980) 2/54. 281 Ibn Qudäma Mughnl 5/634. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Church property Justinian extended the prohibition of Leo I282 and decreed far-reaching restrictions to the practice of alienation.283 At the same time, however, there seemed to be many endowments which proved to be economically weak and unable to cover the expenses.284 In many cases it became necessary to sell parts of the property or even to give it up entirely. All the Novels of Justinian on piae causae issued after 535 deal with this problem and, by referring to the principle of necessitiy (ανάγκη),285 provide an increasing number of exceptions to the general prohibition of alienation. We may hardly suppose that there was a similar historical background in Islam which would explain this specific principle and the numerous exceptions made to it. A characteristic feature offideicommissum is the "substitution", that is the succession of several generations disposed by will.286 In the Novels the succession is restricted to 4 generations.287 This particular question became the subject of a controversy in Islamic law.288 While the HanbalTs and Mälikls regarded the succession as perpetual unless the wäqif mention any restrictions to it and used only the general phrase naslan ba'da naslin (generation after generation),289 other jurists believe the property to become the property of the poor in the fourth generation.290 While the first position goes back to the more liberal rulings in the Digests, the second position has to be explained by the more

282 In 470 Leo I. introduced the prohibition to protect the Church property (H. Köpstein 'Zu den Agrarverhältnissen,' F. Winkelmann et al. (ed.) Byzanz im 7. Jahrhundert. Untersuchungen zur Herausbildung des Feudalismus (Berlin 1978) 18-9.) 283 Nov. 46 (praef.). 284 This problem is discussed at length in the Novels. See also A. Knecht System des Justinianischen Kirchenvermögensrechtes (Stuttgart 1905) 133-41. 285 Nov. 40 (praef.), 46 (praef.), 65 (Nov. 65 was issued in Latin and has the term necessarius). 286 Dig. 31.32.6; 31.69.3. 287 The restriction applied both to fideicommissum (Nov. 159; see also M. Kaser Römisches Privatrecht 305) and piae causae (Nov. 131.13, with regard to clerics). It seems that it was even extended by analogy to the grant of church property (land) as empheteusis (Nov. 7 (praef.); 7.3), which was prohibited to exceed 3 generations. 288 Ibn Qudäma Mughm 5/609. Even in the Ottoman Empire the jurists had to deal with this problem (C. Imber Ebu'S-Su'ud. The Islamic legal tradition (Edinburgh 1997) 155-6). 289 Ibn Hubayra Kitäb al-Ifsäh 'an Ma'änTl-$ihäh 55. 290 C. Imber Ebu'S-Su 'ud 155. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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restrictive rulings in the Novels.291 In this context the terms batn and nasi are of particular significance. Both terms, when used in a waqf deed or another legal text on waqf, have the meaning of "generation". Unlike nasi, however, the term batn has a primary meaning that clearly differs from the secondary meaning: womb. Although "womb" in the broadest sense has something to do with "generation", it is by far not the same as "generation". The reason for the use of batn in this context may be found in the Novels,292 where the formulation τέτρασιν ύστερον γενεαίς (after four generations) contains both the term γενεά (progeny) and ύστερα (womb).293 The term ύστερος, which in the Novels means "successive", was interpreted by the translators in Baghdad as ύστερα and hence translated with "womb". The term γενεά, which appears in still another formulation of the same Novel, however without the term ύστερον, was correctly translated as nasi (progeny). Apart from the similarity in substantial law294 and the circumstances of reception it is also the historical frame which points to the birth of waqf as an elaborated institution at the end of the 8th century. When Eirene, the widow of the Byzantine emperor Leo IV, seized power in 780, Iconoclastic policy was gradually replaced by Orthodox policy. Eirene not only sanctioned the cult of images but also supported ecclesiastical or quasi-ecclesiastical institutions such as hospitals,295 almshouses or other endowments296 which had been heavily neglected by her predecessors. This is why endowments, the institutional basis of the Iconophile movement, boomed at the turn of the 9th century. After the interplay of Second Iconoclasm (815-842), founding trusts as a social 291 Nov. 131.13 makes clear that a cleric is allowed to inherit from his relatives up to the fourth generation and that his property will become Church property if he dies without will and descendants. 292 Nov. 159.2. 293 ύστερα is the feminine form of ύστερος. Unfortunately we don't have scholia on this part of the Digests. But we may assume that there was a similar formulation in the Glosse. 294 For further similarities between piae causae and waqf both in the basic construction (relinquishment of the property by the founder and its division into dominium/raqaba and uselmanfa'a) and secondary provisions see G. Baer/M. Hoexter 'The Muslim Waqf and similar institutions in other civilizations,' M. Borgolte (ed.) Stiftungen in Christentum, Judentum und Islam vor der Moderne. Auf der Suche nach ihren Gemeinsamkeiten und Unterschieden in religiösen Grundlagen, praktischen Zwecken und historischen Transformationen (Berlin 2005) 260-62. 295 T. Miller The birth of the hospital in the Byzantine Empire (Baltimore 1997) 95. 296 G. Ostrogorsky Geschichte des byzantinischen Staates 151. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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phenomenon became even more significant297. This is reflected in an increasing number of canons dealing with trusts298. Since the development seemed to be getting out of control the Orthodox Church tried to impose some restrictions. A first sign of efforts in Islam to deal with trusts on a theoretical basis seems to be connected with Abü Yüsuf. In a report299 he is said to have visited Madlna, and after seeing the ribät (hostels) of the companions he departed from the negative position of Abü Hanlfa (ghayr jä'izJnot permitted) and not only permitted trusts but made them also binding. However legendary, this report reveals that it was not yet clear in this time whether or not endowments should constitute an integral element of Islamic society. By permitting trusts and presenting a bulk of relevant rulings, which in fact abrogated the qur'änic regulation on inheritance,300 Abü Yüsuf and Shaybänl shifted the switches for the spread of one of the most important institutions in Islam. The oldest waqfiyya documents now known date from the mid 9th century at the latest.301 All this is interesting insofar as trusts flourished at the same time in Byzance and both states, Byzantium and the Caliphate, persued an Orthodox policy.302 We may conjecture that the spread of trusts was further stimulated after 815 by the Iconophile immigrants, many of whom settled in Baghdad and, as nawäbit, converted to Islam.303 The increasing importance of waqf in the 9th century is indicated by the emergence of legal works which exclusively deal with this institution. At least two outstanding jurists, Hiläl al-Ra'y (d. 859)304 and Khassäf (d. 874)305 composed a Kitäb Ahkäm al-waqf.

297 R. Morris Monks and laymen in Byzantium, 843-1118 (Cambridge 1995) 18-9. 298 Many canons in the Syntagma Canonum, issued in 882, deal with the foundation of monasteries (R. Morris Monks 146). 299 SarakhsT Mabsüt 12/28. 300 J. Barnes An introduction 12. 301 R. Peters, Art. Waqf, EI2, XI, 61; A. Sanhuän Till God inherits the earth 64-5. 302 As to the interdependence of both states see below 321,485. 303 See below 359. 304 F. Sezgin GAS 1,435-6. 305 F. Sezgin GAS 1,436-7. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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3.4. Deficiency Law (a) Preliminaries The following analysis focusses on the special field of deficiency law which is treated in a separate chapter both in the Digests306 (De aedilicio edicto et redhibitione et quanti minoris) and the Asl of ShaybänT (Bäb al-'uyübβ l-buyü' kullihä).301 The purpose of this analysis is not only to present another positive proof of ShaybänT's use of the Digests but also to give a systematic insight into the way ShaybänT borrowed and modified the foreign material. As became clear in the preceding chapters, the texts directly used by ShaybänT and Abü Yüsuf are the Digestsumma and the Glosse. Yet, since there are almost no scholia on Dig. 21.1 the following comparative analysis is based on the Digestsumma and, equally important, on the Latin Digests, which apart from other sources form the direct basis of the Glosse of Enantiophanes. Many rulings, arguments, terms and formulations which must have been contained in the Glosse but now are lost, may be reconstructed by means of the Latin original.308 On the other hand, the Asl and the other works of ShaybänT don't contain all the material that ShaybänT took over from Roman law. After composing the basic works ShaybänT himself and Abü Yüsuf continued to use the foreign sources and transmitted the material to their pupils.309 This is why later furü' works310 which contain much of this borrowed material have to be used in addition to the Asl and the other works of ShaybänT.

306 Dig. 21.1. 307 Kitäb al-Asl fi l-Furü', I, part 1; ed. C. Chehata (Cairo 1954), p. 177-211; for a German translation of this chapter see G. Wiedensohler Mängel beim Kauf nach islamischem Recht (Bonn 1960). 308 This means that in all those cases in which Arabic fragments are directly compared with Latin fragments we have to assume a mediating Greek text which was directly used by the translators in Baghdad. Not infrequently, however, the syntactical structure of the Greek fragments comes rather close to that of the Latin fragments. 309 We may assume that parts of this material were incorporated into the nawädir works (i.e. works containing rare or exceptional cases) which were composed by many of the pupils of ShaybänT and Abü Yüsuf. When it became usual to compose commentaries from the 10th century onwards the HanafT jurists not only rested upon the writings of ShaybänT and Abü Yüsuf but also upon the nawädir works. 310 This applies particularly to the comprehensive furü' works of Ibn Qudäma and SarakhsT. There is no doubt that Ibn Qudäma and Sarakhsl- directly or indirectly used the same source, which in its turn contains additional borrowings by ShaybänT or Abü Yüsuf (possibly his Kitäb al-buyü'). Several passages in the Mughrii Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Although Western scholars discovered a great number of parallels between Roman and Islamic law311 they never ceased to point at the different character of the latter. However, it must be noticed - and this is particularly important in the analysis at hand - that the transformation of Roman into Islamic law was determined by factors ignored in ealier comparative studies. These factors, some of which have already been mentioned in the preceding chapters, may be summarized as follows: 1) Starting from the premise that there was no direct reception, Western scholars usually relied upon the Latin Digests instead of looking for the texts directly exploited by the Muslims. However, the basis of Islamic law are not the Latin Digests, the Institutes of Gaius or other Roman legal texts written in Latin, but the Digestsumma and the Glosse, which are written in Greek and, as a whole, are different in character. They may be deemed responsible for many specific features contained in Islamic law but not in the Latin texts of Roman law.312 2) The translation of the Greek (Latin) legal texts into Arabic proved to be difficult.313 A number of strange cases, 314 contradictions31 and obscure arguments in fact go back to misunderstandings of the transla-

(4/168, line 9; 4/159, line 18-22) and the Mabsüt (13/105, line 23-5; 13/106, line 12,5-6) prove to be almost identical and contain borrowed material. 311 This applies also to the special field of deficiency law (A. d'Emilia 'Roman law and Muslim law,' 79; A. v. Kremer Culturgeschichte des Orients unter den Chalifen (Vienna 1875-7) 1/508 (no. 1)). For critical remarks see U. Mitter Das frühislamische Patronat 40-41. 312 The Digestsumma and the Glosse in their turn were modified to some extent in the course of time. The versions edited by C. Heimbach and Scheltema are not identical with the versions used by ShaybänT and Abü Yüsuf. Apart from (small) modifications resulting from transmission (misreadings, interpolations, omissions etc.) since the 9th century (A. Schminck Studien 53-4), we have to consider the process of exhellenizing, that is the transformation of Latin legal terms into Greek terms (M. Fögen 'Reanimation' 16). No doubt the versions used by ShaybänT and Abü Yüsuf still contained Latin terms which in the above-mentioned editions appear as Greek terms. 313 G. Endreß 'Die griechisch-arabischen Übersetzungen,' 110-11. For a detailed analysis of an early Greek-Arabic translation see J. Mattock 'The early translations from Greek into Arabic: an experiment in comparative assessment,' G. Endreß (ed.) Symposium Graeco-Arabicum II. Akten des Zweiten Symposium GraecoArabicum. Ruhr-Universität Bochum, 2.-5. März 1987 (Amsterdam 1989) 73-102. 314 For example, cases produced by contracting two or several cases which in fact do not belong together. 315 For example, contradictions produced by inadequate translation of technical terms. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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tors.316 About a century later, Byzantine jurists met quite similar problems in rendering Latin legal terms into Greek.317 Furthermore, we must consider that Bitriq very often did not translate word by word, but rather summarized the text.318 3) The material taken from Roman law was not only selected and rearranged, but also mixed with elements from other legal systems such as Jewish law. It is above all the combination of cases, terms and arguments from different legal systems that accounts for the specific character of Islamic law which, taken as a whole, differs from all other legal systems. 4) In some cases we can assume that Shaybänl tried to replace abstract rulings with more concrete rulings in order to make them understandable to the Muslims. In other cases which refer to names or titles, specifically Roman elements were replaced with Islamic elements. Sometimes the state jurists in Baghdad re-examined the cases and suggested solutions different from those in the Digests. 5) It is clear that the reception of Shaybänts basic law books by other Muslim jurists produced further modifications. MälikT or Shäfi'T law, though largely dependent upon imperial law, were nevertheless produced in opposition to the latter and, therefore, contain additional material or present different arguments and solutions. 6) In order to vest the new legal system with authority, Shaybänl and Abü Yüsuf used the important weapon of hadith319 that was recognized by the religious opposition. Many traditions from the Prophet or other Muslim authorities were introduced into the legal texts and, along with the preceding complex of rulings on ritual, gave this legal system a thoroughly religious character which, of course, is absent in the Corpus Iuris Civilis. 7) After the reception of the Organon of Aristotle in the 10th century, Islamic law entered a further stage of development. From now legal reasoning took place in a highly "scientific" way which was quite dif-

316 The difficulties in translating a Greek legal text also becomes clear in the Arabic translation of the Ecloga (S. Leder Die arabische Ecloga (Frankfurt 1985) 19-20). 317 M. Fögen 'Reanimation' 15. 318 Μ. Ulimann Wörterbuch zu den griechisch-arabischen Übersetzungen des 9. Jahrhunderts (Wiesbaden 2002) 44, 46. This is why later Muslims criticized the translations of Bitriq (idem. 35). 319 Qur'änic verses in the Mabsüt are extremely few. This becomes particularly clear when the Mabsüt is compared with the Umm of Shäfi'T, which, wherever possible, presents a Qur'änic verse. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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ferent from that of the Roman jurists. As we will see320 the systematic combination of Justinian's Corpus Iuris Civilis with the Organon of Aristotle marked an important step in the development of science.

(b) Historical Layers and Text Structure The chapter on defects in the Digests constitutes the product of a complex historical process which goes back to the pre-Christian era.321 We may assume that the first edict on defects was issued in the first century B.C. or earlier.322 The curule aediles in Rome who, quite similar to the άγορανόμοι in the Greek cities, exerted the function of market inspectors, laid down explicit rulings concerning commercial law and so protected the interests of the purchasers.323 Although we may not rule out that Greek law and Plato's Laws in particular, which also deal with deficiency law, in one way or another influenced the edicts of the aediles,324 it seems to be clear that early Roman deficiency law to a great extent resulted from the commercial practice on the markets in Rome.325 A specific element of this practice is the sale by auction which forms the immediate background of the edicts and is reflected in the characteristic obligation of the vendor to proclaim (pronuntiare) the defects of the object of sale.326 Some time after issuing the first edict which exclusively deals with the defects of slaves and which received a number of admendments in the course of time the curule aediles issued a second one which was restricted to the defects of iumenta (beasts of burden).327 Slaves and beasts of burden were obviously prominent among the commodities dealt with on the Roman markets. Indeed, the slave trade in Rome, no doubt boosted by the permanent influx of pris320 See below 573. 321 The problem of liability for defects in the field of purchase law is of course very old and already appears in the Codex Hammurabi (§ 278). Unlike Roman law, the Codex Hammurabi shows a rudimentary stage of development in this field and deals with the special defect of "epilepsy" only (H. Honsell 'Von den aedilizischen Rechtsbehelfen zum modernen Sachmängelrecht,' D. Nörr/D. Simon (ed.) Gedächtnisschrift fur W. Kunkel (Frankfurt 1984) 53). 322 E. Jakab Praedicere 128-9; R. Lederle Mortuus redhibitur (Berlin 1983) 13. 323 Dig. 21.1.1.2. 324 Ε. Jakab Praedicere 129 (no. 38). 325 Ε. Jakab Praedicere 129. 326 E. Jakab Praedicere 147. 327 E. Jakab Praedicere 139. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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oners of war, was highly specialized328 and took place at different slave markets. The most important markets were on the Campus Martius. Female slaves were usually sold near the Venus Temple or at the Via Sacra, while "de luxe" slaves could be found in the backrooms of exclusive shops. Even monsters and dwarfs were offered for sale and had a market of their own. On the other hand, we also hear of a Forum Bovarium which points to the particular significance of cattle as objects of sale. The two edicts were regarded as the principal texts on deficiency law and hence formed the basis of numerous commentaries.329 Outstanding jurists such as Ulpian, Paul and Gaius330 specified and extended the aedilician prescriptions and so produced a further layer of deficiency law that not only confirmed but also corrected the earlier layer. Many of the more concrete rulings in the edicts are opposed to the more abstract rulings of the commentators.331 While the edicts don't give a general definition of "defect" and specify no more than 6 defects, the commentators discuss in detail the meaning of "defect" and define it as everything that reduces the usability of the thing. For exemplifying the general definition the jurists mention almost 100 defects or diseases, most of which are listed in the Digests in clearly discernible complexes immediately following after the edictal texts. As mentioned above, the edicts were restricted to slaves and beasts respectively, but Labeo332 extended the object of the edicts to all things whether movable or immovable. Unlike the edicts which deal with sales, only later commentators consider still other types of contract.333 A further important stage in the development of Roman deficiency law is the compilation of all this material by Justinian's jurists in the 6th century. Fragments of the edicts and the different commentaries were gathered in a separate chapter so that there emerged a complex but heterogeneous body of rulings on deficiency law. The arrangement of the material is extremely specific and in no way systematic. Many cases dealing with the same or similar juristic aspects are dispersed throughout the chapter, while other cases concerning quite different aspects 328 329 330 331

E. Jakab Praedicere 5-6. E. Jakab Preadicere 128. Out of 65 fragments (in Dig. 21.1), 51 go back to these three jurists. Of course we have to consider the problem of interpolation in the post-classical period. But according to recent studies this problem may not be overestimated. 332 Dig. 21.1.1.pr; see also below 166. 333 See below 156. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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appear in close connection. The only organizing principle discernible in Dig. 21.1 is the central role assigned to the edictal texts. No doubt the edicts form the basis of the chapter. Most of the material selected from the later commentaries is arranged according to the single rulings of the edicts which in their turn prove to be heterogeneous. In principle the chapter consists of two edicts, the single rulings of which have been expounded in detail on the basis of later legal literature.334 We can assume that the Greek version of this chapter, that is another stage of development, took on a more systematic character because Enantiophanes brought together what in his opinion belonged together. This means that at least some of the rulings contained in the edicts and commented upon only later in the chapter were directly connected with the relevant comments of the classical and possibly postclassical jurists. We even must assume that Enantiophanes not infrequently referred to relevant rulings and aspects outside the chapter in the Digests, the Code, the Institutes and the Novels. In some cases this clearly lead to structural discrepancies between the Latin and the Arabic text. But to the extent that the translator depended on the Digestsumma and ignored the Glosse the original structure of the Latin text had good chances to get over to ShaybänTs Asl. On the other hand we have to consider that the specific text structure of the Greek version no less influenced the Arabic text. Large fragments in the Latin Digests beginning with inscriptions dwindled into concise anonymous rulings in the Digestsumma, so that it became difficult to tell them apart. This is why a number of specific juristic aspects appear in close connection both in the Digestsumma and the Asl or later commentaries. Another important feature linked with the preceding one is the juxtaposition of Digestsumma as the main text and Glosse as the marginal text. Even Byzantine jurists met some difficulty in assigning the παραγραφαΐ to the corresponding rulings in the Summa,335 As appears from an analysis of the chapter on defects in ShaybänT's Asl, the structure of both the Latin and the Greek texts are reflected in the Arabic text. The most conspicuous features are the lists of defects

334 In fact, this structure reflects the catena format that the Christian theologians frequently used in their exegetical works. In order to interpret the single verses of the Holy Scripture, they gathered the explanations of earlier authoritative scholars and attached them to the verses. 335 B. Stolte 'The Digest Summa,' 49. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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concerning slaves and animals respectively.336 They are clearly discernible in Asl 17-19 (slaves)337 and Asl 23 (animals). Although there are further defects mentioned in other parts of the chapter - just like in the Digests and the Digestsumma - it is in these sections that we find a systematic enumeration of defects. The first list is larger than the second one both in the Digests and the Asl. While the Digests usually present a more or less detailed exposition of each of the single defects and diseases, most of them are reduced to one single term - the designation of the disease - in the Asl. But as appears from later commentaries ShaybänT and/or Abü Yüsuf also borrowed some of these additional explanations in a second stage of reception.338 Traces of the edictal text preceding the first list of defects are still detectable in the Mabsüt of Sarakhsl.339 In his comments on Asl 15, that is, exactly where ShaybänT begins to treat single defects, Sarakhsl expounds the fundamental principle of Islamic deficiency law: things sold without stipulation340 have to be free of defects.341 Likewise at the beginning of the complex "deficiency law"342 Ibn Qudäma adds the vendor's obligation to proclaim (bayän/certior facere or pronuntiare) all defects and diseases. In order to vest the general principle with authority Sarakhsl quotes a prophetic tradition: "The Prophet, God bless him and grant him salvation, bought a slave from al-'Addä' b. Khälid and laid down in the contract: this is what Muhammad, the Messenger of God, bought from al-'Addä' b. Khälid b. Hawdhä: a slave (who is) free of diseases, mental defects and debts, and sold by a Muslim to a Muslim,"343 All these fragments which 336 In the Digests the first list concerning slaves is explicitly indicated with "So let us give examples of slaves who are genuinely defective or diseased" (Dig. 21.1.1.8). 337 But already in Aj/ 15-16 ShaybänT deals with single defects. In the following are only given the numbers of the cases contained in the chapter on defects. For example, Afl 15 means case 15 in the bäh al- 'uyüb of ShaybänTs Asl. 338 See, for instance, cases 9 and 14 (see below 182, 200). 339 Sarakhsl Mabsüt 13/105-6. 340 The formulation "without stipulation" imutlaq) refers to the vendor's possibility to exclude any liability for defects. 341 Sarakhsl Mabsüt 13/105, line 23-24: wa l-a$l anna mutlaq al-'aqd yaqtadT salämat al-ma'qüd 'alayhi 'an al-'ayb. 342 There is no separate chapter on deficiency law in the Mughni of Ibn Qudäma. But it is treated as a coherent part within the "book on sale" (Mughni 4/158-198). 343 Sarakhsl Mabsüt 13/105-6: [...] anna l-nabiya (?) ishtarä min al-'Addä' b. Khälid 'abdan wa-kataba fi 'uhdatihi: hadhä mä shtarä Muhammad, Rasül Alläh, min alAddä' b. Khälid b. Hawdhä: 'abdan lä dä' wa-lä ghä'ila wa-lä khibtha, bay'a Muslim min al-Muslim. (see also Ibn Qudäma Mughrii 4/159; Ibn Mäja Sunan 2/756 (no. 2251 = tijärät 48); TirmidhT Sunan 3/511 (no. 1216 = buyü' 8». Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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appear in a conspicuous position in the commentaries of SarakhsT and Ibn Qudäma mirror the nucleus and oldest344 part of the first edict on slaves345: "Those who sell slaves are to apprise purchasers of any disease or defect in their wares and whether a given slave is a run away, a loiterer on errands, or still subject to noxal liability." All the defects or categories of defects mentioned at the beginning of Dig. 21.1.1.1 reappear in the same order in the prophetic tradition: dä'/morbus, ghä'ilal fiigitives or erro346 and khibthalnoxa?41 The fact that elements of the first edict appear close to the lists of defects in Sarakhsl's Mabsüt but not in Shaybänfs Asl may be explained by different stages of reception. The first translation of the Greek text focussed on the Glosse, which probably expounded in detail the single aspects of the first edict. This means that all the aspects treated at length in the Digests and the Digestsumma after the first list of defects were discussed in the Glosse before the list of defects. Indeed, several aspects of the first edict are discussed between Asl 1 and Asl 15. In Asl 1 we find a detailed treatment of the aspect "noxave solutus non sit"34S which in the Digests, too, appears near the beginning of the chapter, but which was linked by Enantiophanes with Dig. 21.1.17.17349 and misinterpreted in the first stage of reception as "exclusion of liability for any defect" (barä'a min kull 'ayb). Other aspects of the edict reflected in the Asli50 are the deterioration or improvement of the thing after the

344 E. Jakab Praedicere 127. 345 Dig. 21.1.1.1: Qui mancipia vendunt certiores faciant emptores, quid morbid vitiive cuique sit, quisfiigitivus errove sit noxave solutus non sit [...]. 346 In Roman deficiency law particularly the features fiigitivus and erro represent the category of mental defects. 347 Khibtha (lit.: badness) is a precise translation of noxa which as technical term means "(noxal) liability" but has the primary meaning of "damage" or "evil". Most probably it is the confusion among later Muslim jurists (SarakhsT Mabsüf 13/106, line 5) about the secondary meaning of khibtha that made them prefer the term istihqäq. 348 Dig. 21.1.1.1: [...] or still subject to noxal liability. 349 Dig. 21.1.17.17 explicitly refers to this part of the edict: When the aediles say, "he is not free firom noxal liability," that means not that the vendor must declare the slave not to have committed a delict, but that he must declare that the delictal liability has been discharged, that is, that no noxal action will lie in respect of the slave. [...]. (Quod aiunt aediles "noxa solutus non sit", sic intellegendum est, ut non hoc debeat pronuntiari nullam eum noxam commississe, sed illud noxa solutum esse, hoc est noxali iudicio subiectum non esse [...]). In the first translation noxa was interpreted as "defect". 350 Asl 5 , 9 , 1 0 . Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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sale. Several cases concern accessions or profits that the purchaser acquired through the defective thing while being in his possession. The deliberate concealment of a defect mentioned at the end of the edict appears in Asl 7. Interestingly, there is one aspect - Labeo's extention of the edict to all movable and immovable things - which precedes the edictal text and appears at the beginning of the whole chapter both in the Digests and the As/.351 We may conclude that the translator started with the first ruling of the chapter which will have correlated in the Digestsumma and the Glosse and then turned to the detailed comments upon the edictal text in the Glosse. Starting from this premise we are able to explain the close proximity of the two lists of defects in the Asl. As we have seen they appear in great distance from each other in the Digests. What happened is that all the material treated in the Digests after the first list of defects was advanced in the Glosse and treated before the first list of defects, so that the two lists moved closer together. Nevertheless, they remained clearly separated complexes. Just like in the Digests we find in the Asl a ruling which deals with the relationship between the two edicts.352 This ruling directly precedes the second list of defects both in the Digests and the Asl. Since all that applies to slaves in principle also applies to beasts of burden353 Enantiophanes obviously did not deem it necessary to deal more closely with the second edictal text. In any case, we don't discover traces of it in the Arabic texts. The following diagram gives a rough survey of the text structure of the chapters on defects in the Digests!Digestsumma and the Asl·.

Part (Digests) 1

Digests Introductory ruling

2 3

First edict

Asl Introductory ruling Comments upon the first edict First edict (reflected in the Mabsüt)

Part (Asl) 1 2=5 3

351 See below 166. 352 See below 196. 353 Dig. 21.1.38.3. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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4 5 6 7

8 9

First list of defects Comments on the first edict Second edict

First list of defects

4

Prescription mediating between first and second edict Second list of defects Comments on the second edict and other material

Prescription mediating between first and second edict

7

Second list of defects

8

Comments on the second edict and other material

9

5=2 6

It ought to be noticed that apart from the general structural congruency there are numerous parallels with regard to the position of specific cases.354 Not infrequently vicinal but different cases in the Digests merged into one single case in the Arabic translation. On the other hand we have to consider that parts of the original structure blurred because of the insertion of non-Roman material and, not to forget, special rearrangements either by Enantiophanes, the translators, ShaybänT or later Muslim commentators. The striking congruency in content and structure, if traced back to coincidence, would mean that Islamic deficiency law developed in the same way in some 150 years as Roman deficiency law over roughly 1000 years. In a first stage, the Prophet would have paid particular attention to the sale of slaves and required - in no way self-evident - the proclamation of defects. By laying down the fundamental prescription he would have used a formulation which is almost identical with the kernel sentence of the first aedilician edict. The same would apply to animals. Later on, we would have to suppose, the restriction to slaves and animals became obsolete and the jurists formulated further and more abstract rulings in this field. Again we observe that almost all specific aspects discussed by the Muslim jurists355 are also dealt with 354 See below 196. 355 See the following chapter on "juristic aspects". Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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by the Roman jurists, but surprisingly not by Jewish, Zoroastrian and other contemporary jurists. In a third stage one of the jurists - perhaps Shaybäm - would have collected - like Justinian and his jurists - all the material and composed a full-fledged legal work. Of course he could have distributed the rulings of deficiency law over various chapters, as for instance the Jews did, but instead he preferred to gather the material in a separate chapter. In spite of the obsolescence ShaybänT did not hesitate to insert the specific rulings on slaves and animals and - like the Romans - to present two lists of defects which exclusively deal with just these categories. He did not even try to harmonize the contradictory rulings. The material in his chapter is arranged in the same way as that of the Digests in this field and even the specific introductory ruling at the beginning of the chapter as well as the mediating ruling in the middle are congruent in content and position. Such coincidence does not seem to be a realistic assumption because independent legal developments in principle may be expected to be different and, hence, bring about different legal texts. Parallels of the kind mentioned above and observable on several interconnected levels rather point to genetic descent. Our conclusion is - and this will be further corroborated in the following analysis - that Islamic deficiency law does not directly or indirectly go back to the Prophet, but in fact is a modified reflection of legal practice in Old Rome.35

(c) Juristic Aspects: Survey Neither Roman law nor Islamic or Jewish law deserve to be described as "systematic". One of the most characteristic features of these legal systems is "casuistry". Although the mass of cases is structured in books, chapters etc. the true starting point of Roman, Islamic and Jewish jurisprudence is the single case. Overarching concepts resulting from a network of related cases may change from jurist to jurist and, though used in legal reasoning, do not themselves serve as legal source.357 For the sake of a better survey, however, it seems to be 356 This is corroborated by the fact that the slaves mentioned in ShaybänTs chapter on defects exclusively belong to the category of "household slaves", who do not seem to have played a significant role in eighth-century Islam (J. Brockopp Early Mälikl law 146). Most of the slaves were entertainers, soldiers or officials. 357 Although Muslim jurists clearly tried to distill overarching principles from the mass of cases (see for instance the five major principles acknowledged by all law Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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proper, to depict the bulk of cases jumbled in the corresponding chapters according to categories which are foreign to these jurists. The purpose of this categorization is to show that the outlines of Roman deficiency law are almost identical with those of Islamic deficiency law.

(1) Purpose of Deficiency Law It is a question of morality to provide a balance of interests between the vendor and the purchaser. When the aediles introduced the vendor's obligation to proclaim (pronuntiatio) all the defects the thing of sale has, they clearly intended to protect the position of the purchaser against the wiles of the vendor.358 In principle this is the raison d'etre of deficiency law. Another question is to which extent commercial practice corresponded to the moral requirements of the aedilician edict. A great number of Greek deeds which explicitly exclude the liability for defects359 signal a contrary tendency. The few prescriptions in the Roman-Syriac law book360 concerning deficiency law largely deal with just this aspect: the exclusion of liability for defects. One might believe that deficiency law as laid down by the aediles, reworked by Roman jurists and revived some centuries later by Justinian361 was regarded by the merchants as being far from practice. Islamic legal literature leaves the impression that the Prophet, himself a merchant, was in the same way concerned about the purchaser's interests as the aediles. At the beginning of Ibn Qudäma's section on

358

359 360 361

schools, W. Heinrichs 'Qawä'id as a genre of legal literature,' Weiss, B. (ed.) Studies in Islamic legal theory (Leiden 2002) 369), they never questioned the primacy of the This becomes explicit in Dig. 21.1.1.2.: This edict was promulgated to check the wiles of vendors and to give relief to purchasers circumvented by their vendors [...]. E. Jakab Praedicere 198; J. Straus L'achat et la vetite des esclaves dans I'Egypte Romain (Munich 2004) 153 (no. 283), 328, 334, 336. K. Bruns Syrisch-Römisches Rechtsbuch aus dem fünften Jahrhundert (Leipzig 1880) 34-5 (§113) (Syriac version), 56 (§35-6), 88-9 (§ 40-1), 124 (§35-6). There is no discussion in the Digests on this aspect. But the formulation bonis conditionibus emptum (= purchased in good terms) in Dig. 21.1.54 (which corresponds to καΛή πρασι,ς in the Syriac-Roman law book, 34) reveals the codifyers1 cognizance of the legal practice. See also the venditio simplaria in Dig. 1.48.8, which, according to M. Memmer ('Der "schöne Kauf' des "guten Sklaven",' SZ 107 (1990) 16-7) implies the excemption from liability for defects and goes back to (non-Roman) legal practice. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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deficiency law362 we are confronted with a number of traditions condemning the vendor's wiles and demanding the proclamation (bayän) of defects. At the same time, however, the Muslims were well acquainted with the other ruling concerning the exclusion of liability for defects (,barä'a min kull 'ayb). Although they were entirely aware of the incompatibility of barä'a with the whole of deficiency law,363 most of them364 permitted the exclusion of liability and so undermined the purpose of deficiency law. In our days consumer protection is self-evident and anchored in a number of laws, on a national as well as on an international level. There is good reason to suppose that the kernel of this idea goes back to Roman law which was revived in Western Europe in the 11th century.365

(2) Definition of "Defect" Both Roman366 and Islamic367 law present a general definition of "defect": defect is everything that reduces the usefulness and serviceability 362 Ibn Qudäma Mughrii 4/159. 363 Sarakhsl Mabsüt 13/92: shartyamna'u müjib al-'aqd. 364 ShaybänT A$l 1; idem. Jami' kablr 231; idem. Hujja 2/509; idem. Makhärij 37; TahäwT Mulditasar 81; DabüsT Τα'sis 69; Marghinänl Hidäya 5/182; QädTkhän Fatäwä 2/215-18; Qudüri Mukhtasar 40; SamarqandT Tuhfa 2/150-53; SarakhsT Mabsüt 13/91; Käsänl Badä'i' 7/3080, 3324-9; TarsüsT Fatäwä 258-64; Nasafi Kam 1/216; Shäfi'T Umm 3/62; MuzanT Mukhtasar 2/198; ShTräzT Muhadhdhab 1/288; idem Tanbih 58; Ghazäll Wajlz 1/143; NawawT Rawda 3/470; idem Minhäj 1/361; Subkl (TaqT 1-DTn/Täj al-DTn) Majmü' 12/397; DimashqT Rahma 142, Mälik b. Anas Muwatta' 2/75, 77; Sahnün Mudawwana 4/349; Bäjl Muntaqä 4/179; QayrawänT Risäla 206; Ibn Rushd Bidäya 2/153-4; Ibn Hazm Muhallä 9/41; Ahmad b. Hanbai Masä'il 276; KhiraqT Mukhtasar 87; Ibn Hubayra Ifsäh 1/347; Majd al-DIn b. Taymiyya Muharrar 1/326; Ibn Qudäma, Muwaffaq al-DTn Mughrii 4/197; idem Muqni' 2/32; Ibn Qudäma, Shams al-DTn Sharh kabir 4/59-60; Ibn 'Ubaydän Zawä'id 1/134; Ibn Qayyim al-Jawziyya I'läm 3/336; Ibn Muflih Furü' 4/65; Ibn Rajab Qawä'id 250; MardäwT Insäf 4/359; idem Tanqlh 128; idem Tashlh 4/65-66; Hujjäwi Iqnä' 2/82; idem Zäd 39; BahütT Rawd 2/77; BalabänT Käfi 211;Manqür Fawäkih 1/356-7; Ba'll Mukhaddarät 222-3; Ibn 'Abd al-Wahhäb Mukhtasar 289. 365 According to Η. Honsell ('Von den aedilizischen Rechtsbehelfen zum modernen Sachmängelrecht,' D. Nörr/D. Simon (ed.) Gedächtnisschrift für W. Kunkel (Frankfurt 1984) 61) all continental legal systems slavishly took over Roman deficiency law. 366 Dig. 21.1.1.8: quod usum ministeriumque hominis impediat. 367 SarakhsT Mabsüt 13/106: mä yanqusu l-mäliyya (wa l-isti'mäl). The element in brackets is not connected with the other elements but appears in the same context. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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of the slave (or thing). Since this definition was given not by the aediles themselves but by later Roman jurists it appears in the Digests only after the edictal text. This is also true for SarakhsTs Mabsüt, where the definition of "defect" may be found in the middle of the chapter, but like in Dig. 21.1 - close to the text of the first edict.368

(3) Objects of Deficiency Law Originally Roman deficiency law was restricted to slaves369 and beasts of burden.370 Later on Roman jurists371 extended it to all movable and immovable things. In the Digests which contain both old and new material the restrictive rulings of the edicts are directly opposed to the less restrictive rulings of the later jurists. This discrepancy is clearly reflected in ShaybänT's Asl where we find rulings concerning all things372 and those concerning slaves and animals only.373 Later Muslim jurists blurred the discrepancy and believed Islamic deficiency law to refer to all things.374

(4) Extension to Other Contracts Roman deficiency law essentially applies to contracts of sale. But we also find rulings concerning other contracts such as barter,375 hire376 or donation.377 Correspondingly the standard contract in Islamic defi-

368 As has been demonstrated above, Mabsüt 13/105-6 contains traces of the edictal text. 369 Dig. 21.1.1.1. 370 Dig. 21.1. 38.pr. 371 Dig. 21.1.1.pr. 372 ShaybänT Ay/1. 373 See for instance ShaybänT Asl 18. 374 This is why G. Wiedensohler (Mängel 92-3) interpreted the casuistic rulings of ShaybänT as representative for all objects. 375 Dig. 21.1.19.5. 376 Dig. 21.1.63. 377 Dig. 21.1.62. "Donation" is explicitly mentioned, but according to Modestin the edict of the curule aediles does not apply to this type of contract. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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ciency law is sale. Some rulings, however, deal with barter,378 donation379 or dowry.380

(5) Categories of Defects The general term for "defect" in Roman law is vitium/αίτία, which is divided into subcategories. The main distinction is between disease (morbus/νόσος) and defect in a narrow sense. Since mental defects (vitia animi) are distinguished from morbus they have to be regarded as subcategory of vitium in the narrow sense. The same applies to legal defects which refer to noxa in particular. Morbus in its turn is divided into diseases which affect the whole body (in toto) and those which affect only a part of it (in parte). Apart from this latter division the Roman jurists distinguish between chronic (perpetuus) and temporary •

381

(temporarius) diseases. The general term for "defect" in Islamic law is 'ayb382 as appears from the title of ShaybänT's chapter on defects. In Asl 1, however, ShaybänT makes a distinction between 'ayb in a narrow sense and dä' (disease).383 As a result, 'ayb like vitium in Roman law has both a broad and a narrow meaning. 'Ayb in the narrow sense has to be further divided into ghä'ila (mental defect) and khibtha (legal defect) because the prophetic tradition mentioned above contains ghä'ila and khibtha apart from da. Since we may expect that the tradition refers to all kinds of defects and since da differs from 'ayb in the narrow sense, ghä'ila and khibtha have to be interpreted as subcategories of 'ayb in the narrow sense. The other special categories perpetuus and in toto corpore are paralleled with läzim384 and fi sä'ir al-badan3S5 respectively. The term temporarius has no counterpart in Islamic law386 and in parte was

378 379 380 381 382 383 384 385 386

ShaybänT Asl 40. Idem Asl 33. Idem Asl 34. Dig. 21.1.6. Some jurists also use naqs or naqisa. The alternative term is marad. Asl 7, 18. Sarakhsl Mabsüt 13/106. Possibly this is due to the fact that Dig. 21.1.6.pr where this term occurs has no counterpart in the Digestsumma. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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misinterpreted as jawf (inner).387 The following diagram gives a survey of the categories:

vitium/'ayb (general)

vitium! 'ayb (in a narrow sense)

morbus!dä'

in toto corpore! fi sä'ir al-badan

in parte! distorted to jawf

vitium animi! ghä'ila

noxa! khibtha

morbus!da'

perpetuus Häzim

temporarius! -

(6) Lists of Defects As has been indicated above, the chapters on defects in the Digests and the Asl contain lists of defects concerning slaves and animals respectively. Neither the Roman jurists nor ShaybänT contented themselves with defining "defect" and presenting some categories but listed a great number of single defects and discussed their legal relevance.388

387 See below 168. 388 See below 171. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(7) Claims In case the purchaser discovers a defect in the thing of sale or a deviation from what has been stipulated he may, according to Roman389 and Islamic390 law, choose between two possibilities: 1) either he returns (radd/redditio) the defective thing and takes back the price391 or 2) he retains (imsäk) the thing and claims the price difference (arsh* 92 /id quod interest/bux§zQov). Interestingly, neither in Roman393 nor in Islamic law may the purchaser claim the defect to be removed. There is no claim at all if the defect is apparent (zähir/apparens/nQO(\>avr\q) and the purchaser know it at the sale.394 The two forms of claim in Roman deficiency law, the actio redhibitoria and actio quanti minoris, are paralleled in Islamic law with the khiyär al- 'ayb which in fact consists of the khiyär al-radS95 (= actio redhibitoria) and another "option" which refers to arsh but has no specific designation.396 In the same way as khiyär al-'ayb may compete with khiyär al-ru'ya and khiyär al-tadlls in Islamic law,397 the actio 389 Dig. 21.1.1.1; 21.1.38.pr; 21.1.19.5; see also H. Hausmanninger Römisches Privatrecht 244. In classical Roman law purchasers of defective things could only rely upon the actio empti (Dig. 19.1.13.pr) (U. Manthe 'Zur Wandlung des servus fugit i v e , ' TR 44 (1976) 145). 390 Ibn Qudäma Mughrn 4/159; it must be noticed that the second claim is not subsidiary to the first one as maintained by G. Wiedensohler (Mängel 79-80). With regard to standard cases (i.e. no change of the defective thing after the sale) Ibn Qudäma explicitly says: lahu l-khiyär bayna l-imsäk wa l-faskh (he can choose between retaining (the thing) and annulling the contract). 391 It was only under Justinian I that the actio redhibitoria gained considerable importance in Roman law (P. Mader 'Mortuus redhibitur? Eine Untersuchnung zum aedilizischen Sachmängelrecht,' SZ 101 (1984) 207). 392 Arsh (lit.: disagreement) is a direct translation of δ ι α φ έ ρ ο ν which has the meaning both of "disagreement" and "difference" (the passive form δ ι α φ έ ρ ο μ α ι signifies "to disagree"). While referring to the former meaning of δ ι α φ έ ρ ο ν as the semantic link the term arsh also took on the latter meaning and became "(price) difference" in the legal context. As appears from Shaybänfs Muwatta' (ed. 'Abd al-Wahhäb 'Abd al-Latlf, 229-30) the Mälikls set the indigenous term 'aql (blood money) against the new term of ShaybänL 393 Η. Honseil 'Von den aedilizischen Rechtsbehelfen' 55. 394 Dig. 21.1.14.9-10; 21.1.48.4 - Asl 6, 12. 395 Ibn Qudäma Mughni 4/160. 396 As has been indicated above the Islamic khiyär-syslem reflects the Roman actio system. The Muslim jurists did not grasp the procedural aspect of actio which in the Digests signifies both "civil claim" and "action" (M. Käser Römisches Privatrecht 31, 311). 397 Hujjäwl Iqnä' 2/93. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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i q q

empti and the actio de dolo are regarded as subsidiary to the actio redhibitoria/quanti minoris in Roman law. Unlike radd/redditio, which simply consists of returning the thing and taking back the full price the alternative claim concerning the difference raises a problem because it is not clear whether id quod interest refers to the price or the value of the thing. Prima facie, the Digests do not seem to refer to the price400 but to the value. In fact this interpretation contradicts the principle of in integrum restitutio mentioned several times in the Digests.m According to this principle, vendor and purchaser have to be restored to their original positions so that it is as if the sale never took place. If, for instance, the purchaser buys something for a price which amounts to more than half the objective value of the thing and claims indemnification for a defect which, too, is estimated at half the objective value, he is allowed, according to the first interpretation, to retain the thing and to claim the full price. For in this case, the full price is identical with half the objective value of the thing. As appears from the Mughni,402 the Muslim jurists were entirely aware of this contradiction and, therefore, interpreted arsh as referring to the price.403 There is no term of prescription in Islamic deficiency law. However, in Asl 51 we find a case in which someone buys a girl slave and the seller may claim the child born by the girl slave in less than 6 months after the conclusion of the contract. The term of exactly 6 months seems to reflect the term of prescription (6 months)404 in Roman deficiency law. It is worth mentioning that one of the Roman rulings concerning the term of prescription appears in close connection with a case, which is almost identical with that in Asl 51.405 398 399 400 401 402 403 404 405

Dig. 21.1.19.2; 21.1.23.pr; see also H. Hausmanninger Römisches Privatrecht 243. Η. Hausmanninger Römisches Privatrecht 286-7. D. Medicus Id quod interest (Graz 1967) 124. Dig. 21.1.23.1; 21.1.23.7; 21.1.60. Ibn Qudäma Mughni 4/163. See also Asl 4, 30,40. Dig. 21.1.19.6; 21.1.48.2; 21.1.55. Dig. 21.1.31.2 was mixed with Dig. 21.1.28. The term of exactly 6 months is conspicuous, because both the Greek (R. Walzer 'Galens Schrift "Über die Siebenmonatskinder",' RSO 15 (1935) 344, 349, Arabic text: 339) and Arabic (J. Bummel Zeugung und pränatale Entwicklung des Menschen nach Schriften mittelalterlicher Religionsgelehrter über die Medizin des Propheten (Hamburg 1999) 150) physicians believed the minimum duration of pregnancy to exceed 6 months by a few days. Another question is why Shaybänl favoured the purchaser by laying down the minimum duration (or less) instead of formulating a just ruling and choosing the average duration of pregnancy. We can assume that Shaybänl associBrought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(8) Stipulation Apart from the categories mentioned above, Roman and Muslim jurists distinguished between objective and subjective defects. Objective defects refer to all those features of a thing which from an objective point of view make the thing defective. Most of the defects dealt with in the Digests and the Asl belong to this category. But it is also possible that the purchaser requires the thing to have a specific feature, the absence of which must be regarded as a subjective defect. Both Roman406 and Islamic407 deficiency law treat this aspect in separate rulings.

(9) Perdition, Deterioration and Improvement of the Thing after the Sale Many rulings in Roman and Islamic deficiency law deal with the essential question of what happens if the defective slave or thing changes after the sale. With regard to negative changes408 Roman and Muslim jurists distinguish between perdition (talaf), such as the death of the slave409 or emancipation,410 and deterioration (nuqsän/deterior facere)411 such as defloration412 or cracking nuts.413 Another distinction concerns the question of whether or not the purchaser is responsible for the perdition or the deterioration 414 The specific terms culpa (remissness) and dolus (deliberate intent), relevant in this context, correspond to tafrit (remissness) and tadlis (deceit) in Islamic law 415 The latter

406 407 408

409 410 411 412 413 414 415

ated the Roman rulings with Qur'änic verses (Q. 31:14 etc.) and Islamic traditions on pregnancy (J. Bummel Zeugung 153 (η. 574)), which may well have been in circulation in his time. Dig. 21.1.1.1; 21.1.17.20; 21.1.18.pr-2; 21.1.19.pr-4. See below 200. The aspect of „negative changes" is indicated in Islamic law by hudüth al- 'ayb (see for instance Ibn Qudäma Mughni 4/164). Ibn Qudäma distinguishes between "old defect" ('ayb qadim) and "new defect" ('ayb hädith). The term hädith (lit.: happening) corresponds to the Greek term γ ε ν ό μ ε ν ο ς , used in Bas. 19.10.23.pr in the same context. Dig. 21.1.31.11; 21.1.47.1; 21.1.48.pr-As/ 9. Dig. 21.1.47.pr - Asl 8. As to this problem in general see Dig. 21.1.23.pr - Ibn Qudäma Mughni 4/180. Asl A. Asl 29. Dig. 21.1.25.5 - Asl 9. Dig. 21.1.25.5-Ibn Qudäma Mughni4/1*5). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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term, an infinitive form of the roots d-l-s, goes back to the Greek term δόλος. 416 It might be deemed unnecessary to emphasize that the purchaser has to make good only those defects which occur subsequent to the sale and the delivery and that he bears no liability for anything happening before the sale. At any rate, both Roman417 and Muslim418 jurists explicitly point to this aspect. The Roman maxim commodum eius esse debet cuius periculum est, frequently mentioned in the Digests419 and other parts of the Corpus Iuris420 and possibly referred to by Enantiophanes in the context of Dig. 21.1.25.pr is clearly reflected in the prophetic tradition al-kharäj bi l-damän (he who takes the risk may take the profit).421 Both the Roman and the Islamic version appear in the context of deterioration or improvement of the thing after the sale. As to "positive changes", Roman and Muslim jurists discuss many special cases and present a complex system of distinctive terms. Most of the Latin/Greek terms which originate from philosophical categories rather than from legal practice424 and which were not yet regarded in Roman law as technical in the narrow sense, have precise counterparts in SarakhsT's ziyäda-model.425 In this model ziyäda (accession) is subdivided into muttasil (connected) and munfasil (separate), which in their turn are both divided into mutawallid min al-ast 6 (born of the basic thing) and ghayr mutawallid min al-asl (not born of the basic thing). The latter four categories resulting from the twofold division are exemplified by a number of specific forms of ziyäda. All these categories and terms may be rediscovered in Roman law. While the main term ziyäda corresponds to accessio*21 the more special catego416 Of course, it is possible that dilsa or other derivations of the roots d-l-s existed already in pre-Islamic times. See also below 213. 417 Dig. 21.1.25.pr. 418 Sarakhsl Mabsüt 13/105; Ibn Qudäma Mughni 4/160,166,167-8. 419 Dig. 18.6.7.pr; 50.17.10. 420 Cod. 4.48.1; Inst. 3.23.3. 421 Ibn Qudäma Mughni 4/160,167-8; BayhaqI Sunan 5/321. 422 Dig. 21.1.1.1. 423 Asl 5, 14. 424 M. Käser Römisches Privatrecht 108. 425 Sarakhsl Mabsüt 13/103-4; more or less similar models may be found in Ibn Qudäma Mughni 4/160-1; ShirazI Muhadhdhab 1/285; Bäj! Muntaqä 4/198-9; Samarqandl Tuhfa 2/146-8. 426 Instead of al-a$l the jurists use also al- 'ayn. 427 Dig. 21.1.1.1; 21.1.31.24-5; 21.1.33.pr. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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ries munfasil and muttasil are paralleled with separatus428 and cohaerens42a/σνντ\μ\ιένον respectively. To indicate the basic thing the Romans use the term corpus,430 which comes close to asl or 'ayn. The term «aiMs/γεννηθέντον431 proves to be the counterpart of mutawallid. Even some of the examples given in SarakhsT's and Ibn Qudäma's model may be rediscovered in the Digests: thamara/ fructusAi2/καρπός (fruit), kasb433/acquisitio434/nQosπορισθέντον (acquisition), khidma435/ ministerium436 (service), wasiya431/legatum43S/\r\yaTov (legacy), uj439 440 441 442 ra /merces '/μισθός (remuneration), laban /lac (milk), walact43/ partus444 (young) or sabgh fi l-thawb445llanam inficere446 (dying cloth). Although we don't find a coherent model of accessio in the Digests, all the relevant fragments quoted above may well have been referred to by Enantiophanes in the Glosse. These fragments in the Digests contain not only most of the specific terms used by ShaybänT, SarakhsT and Ibn Qudäma but also a number of arguments and aspects paralleled in Islamic law in the same context.447 The following diagram, distilled from 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447

Dig. 7.4.13; 22.1.25.1. Dig. 41.3.30.pr. Dig. 21.1.25.1. Dig. 21.1.1.1. This term is frequently used in the Digests, see for instance Dig. 7.4.13; 21.1.1.1(= Bas. 19.10.1.1); 21.1.31.24-25; 22.1.25.1; 22.1.45. Ibn Qudäma Mughm 4/160. Dig. 21.1.1.1 (the form used here is adquisitum). For the Digestsumma see Bas. 19.10.1.1. Ibn Qudäma Mughm 4/160. Dig. 22.1.25.1. Ibn Qudäma Mughni 4/160. Dig. 21.1.23.9. Ibn Qudäma Mughni 4/160. Dig. 21.1.23.9 (=Bas. 19.10.23.9). Asl 14. Dig. 22.1.28.pr. Asl 14. Dig. 21.1.31.2. Asl 5; Sarakhsl Mabsüt 13/103. Dig. 41.1.26.3. See for instance the aspect "donation" (Dig. 39.5.6. - SarakhsT Mabsüt 13/104, line 17-8), the question of whether or not the accession forms part of the contract (Dig. 21.1.33.pr - SarakhsT Mabsüt 13/104, line 10-11), the question of whether the accession occurred before or after taking possession of the thing (Dig. 21.1.1.1 - SarakhsT Mabsüt 13/103, line 24-5). The term täbi' (subordinate) or derivations of it used in this context by SarakhsT (Mabsüt 13/104, line 7, 13, 15; see also Ibn Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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SarakhsTs Mabsüt and the Digests respectively, provides a survey of the Roman-Islamic system of deteriorations and improvements of the thing after the sale: taghayyur (change)

qabla l-qabd/ (before taking possession)

ba 'd al-qabd/post traditionem (after taking possession/delivery)

ziyädalaccessio

(accession)

muttasil/cohaerens

mutawallid/natus (born)

nuqsän/deterior facere (deterioration)

munfa$il/separatus

(connected)

ghayr mutawallid (not bom)

siman $abgh fi l-thawb/lanam (fatness) inficere (dying cloth) etc etc.

mutawallid/natus

laban/lac (milk) thamara/fructus (fruit) walad/partus (young)

(separate)

ghayr mutawallid (not born)

kasb/acquisitio (acquisition) khidma/ministerium (service) wasiya/legatum (legacy) ujra/merces (remuneration)

Qudäma Mughrii 4/160, line 12) corresponds to the term cedens appearing in the same context in the Digests (Dig. 41.1.26.pr). The controversy among Roman jurists (Proculians versus Sabinians) about the legal effects of mixture (M. Kaser Römisches Privatrecht 108) is clearly reflected in Islamic law (SarakhsT Mabsüt 13/103-4). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(10) Proxy One of the aspects discussed by Roman448 and Muslim449 jurists in the context of deficiency law is proxy (wikäla/mandatum). They make it clear that it is the cognizance of the agent and not that of the mandator that has to be deemed relevant 450 As a result, unless the agent knows of the defect at the sale, the mandator has a claim and the vendor has to take back the defective thing. However, if the mandator knows of the defect he has no claim against the vendor. This variant also has a parallel in SarakhsTs Mabsüf51 though it is distorted in the same way as the first one.

(11) Plurality of Vendors, Purchasers and Things A certain group of cases in Roman and Islamic law deals with the plurality of contracting partners, objects of contract or other elements involved in one way or another in the contract. Cases of this kind are dispersed throughout the Digests and the furii' works and may be regarded as a characteristic element of Roman and Islamic casuistry. This applies also to deficiency law, where we find cases dealing with several vendors,452 purchasers453 or things of sale.454

448 Dig. 21.1.23.4; 21.1.51.pr.-l. 449 Asl 37, 38,43; Sarakhsi Mabsüt 13/120-121; Ibn Qudäma Mughni 4/184. 450 Dig. 21.1.51.pr: [...] scientiam servi, non domini spectandam esse [...] = Bas. 19.10.51.pr: [...] ή εϊδησις αύτοϋ, ο ύ χ ή έμή σ κ ο π ε ί τ α ι [...] = Sarakhsi Mabsüt 13/120, line 9: lä tahtäju ilä stitlä' ra'y al-ämir. The translator's interpretation of σκοπείται as „ascertaining" and hence the mandator's consent to the return of the thing is a distortion. Interestingly, neither the Islamic nor the Greek ruling is formulated in the third person. This is conspicuous because almost all rulings in Islamic and Roman deficiency law are formulated in the third person (see below 228). 451 Sarakhsi Mabsüt 13/120, line 10-11. 452 Dig. 21.1.31.10; 21.1.44.1. 453 Dig. 21.1.31.10 -Asl 39. 454 Dig. 21.1.34-36; 21.1.38.pr; 21.1.38.12-14; 21.1.39; 21.1.40.pr; 21.1.59; 21.1.64.pr-l - Asl 11 (see below 194). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(12) Usury Some of the cases in Dig. 21.1455 deal with aspects which are associated with ribä (usury) in Islamic law. As a highly elaborated complex which assumes a central position in Islamic law and penetrates almost all legal fields, ribä goes back not to Roman, but to Jewish law. We can assume that all those cases in ShaybänI's chapter on defects concerning the two forms of ribä, that is ribä al-nasT'a (usury concerning delay of payment) and ribä l-fadl (usury concerning a surplus)456 result from the necessity of harmonizing problematic parts of Roman deficiency law with the severe rulings of ribä. It is a conspicuous fact that all these cases form part of a coherent section within the chapter on defects. On the other hand, we know that the rulings on defects in the Talmud457 are directly connected with rulings on usury.458

(d) Casuistry459 Case 1 Asl l 460 : If someone sells a slave, a bond maid, a house, a garment or something else (and if he at the conclusion of the contract exempts himself from liability to the purchaser for any defect, so this is valid [..·]). Bas. 19.10.1.pr: This chapter deals with sales of things movable as much as of those immovable.461 In fact, Asl 1 is a contraction of two rulings which in the Digests462 and in the Digestsummam follow one behind the other. The first ruling 455 456 457 458 459

Dig. 21.1.27; 21.1.29.2; 21.1.43.6-7. Ay/ 41-50. Talmud, BB, VI, 92a-98a. See for instance Talmud, BB, VI, 95b. For a survey of the original texts (Arabic, Greek, Latin) see below (Appendix 1: Cases). 460 In the following the single cases are indicated by the numbers of the fragments contained in ShaybänTs al-Asl fi l-Furü', 1,1, ed. C. Chehata (Cairo 1954) 177211. 461 The original text in the Dig. 21.1.1.pr is as follows: ULPIAN, Curule Aediles' Edict, book 1: Labio writes that the edict of the curule aediles concerns the sales of things immovable as much as of those movable or animate. 462 Dig. 21.1.1.pr and 21.1.1.1. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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deals with the objects (movables/slave etc., immovables/house) of deficiency law, while the second (in brackets) concerns the question of "freedom from liability".464 The focus is here on the first ruling. It requires notice that both the Digestsumma and the Mabsüt place this ruling at the beginning of the chapter. ShaybänT's version is more concrete. Instead of "movables" he mentions "slave", "bond maid", and "garment". The abstract term "immovables" is replaced by the concrete term "house". By using the formulation "or something else" (aw shay'an min al-ashyä') he extends the small group of objects explicitly mentioned to a vast multitude of things. This is surprising insofar as ShaybänT's deficiency law in principle is a law of slaves and pack animals. None of the numerous defects listed in Asl 17-19 and 22-23 refers to things other than slaves and animals. In Asl 18 ShaybänT makes explicitly clear: "All that reduces the price of slaves, pack animals, camels and cows is a defect." It is evident that this formulation may not be interpreted in the special context of slaves where it occurs,465 because ShaybänT explicitly points also to animals, the possible defects of which are listed somewhere else in a separate fragment. What ShaybänT obviously means here is that the whole of deficiency law is restricted to defects of slaves and pack animals. This, however, clearly contradicts the general ruling in Asl 1 466 How do we explain this? As indicated above early Roman deficiency law, too, was restricted to these special defects. The two edicts of the aediles, incorporated in Dig. 21.1 without significant modifications and forming the kernel of this chapter, exclusively deal with the defects of slaves and pack animals. The extension to other objects is the work of later jurists. When reading the original Latin text it becomes clear that these rulings reflect different stages of development. In the Digestsumma, however, the boundary between edictal texts and later commentaries is no longer discernible. ShaybänT and the translators evidently were not aware of the complex character of the material and the contradictions resulting from it.

463 Bas. 19.10.1.pr and 19.10.1.1. 464 This latter question is a distorted version of one of the aspects treated in Dig. 21.1.1.1, i.e. whether a given slave is subject to noxal liability. See above 150, and below 219, 237. 465 All defects listed in Asl 17-19 exclusively refer to slaves. 466 G. Wiedensohler {Mängel 93) already pointed out this contradiction. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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Case 2 Mafowi/SarakhsT467: "The definition of disease (in the sense of da) appears in a saying that al-Hasan transmitted from Abü Hanlfa, may God have mercy upon them. He said: Disease (in the sense of marad) is what affects the whole body (while) disease (in the sense of dä') is what affects the interior (jawf) of it, (as for instance) the liver (kabid) or the lung (rfa)." Bas. 19.10.1.7468: "Disease as an unnatural physical condition may affect the whole body, as for instance tuberculosis and fever, or only part thereof, as for instance blindness (τύφλωσις)". In Islamic as well as in Roman deficiency law we find a discussion of both single defects and general categories of them. The principle distinction in respect to slaves is made between fault (vitium/αιτία/'ayb) and disease (morbus! πάθος! marad).469 A special category concerns mental defects called vitii animi, ψυχικά αίτια and ghä'ila470 respectively. As appears from the quotation above, physical defects in their turn are further divided into diseases which affect the whole body and those which affect parts of it. While the Roman distinction between "whole body" (in toto corpore) and "part thereof " (in parte) is logical, the opposition of "whole body" (sä'ir al-badari) to "interior" (jawf)411 in Sarakhsi's Mabsüt is not quite as consistent. Apparently in Islamic law there is no category of physical defects restricted to the exterior 467 SarakhsTAiaZ«Mfl3/106, line 3-4. 468 Bas. 19.10.1.7 corresponds to Dig. 21.1.1.7: It is to be noted that a definition of disease as an unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with health of body appears in Sabinus. Such a condition may affect the whole body or only a part thereof (Tuberculosis and fever exemplify the former, blindness, even from birth, the latter). 469 Dig. 21.1.1.1 (= Bas. 19.10.1.1); conspicuously it is also at the beginning of the chapter on defects (Asl 1) that ShaybänT makes this distinction. However, in other parts of this chapter he uses the term 'ayb in a broad sense (see for instance Asl 17). 470 Gha'ila refers to defects resulting from the (bad) conduct (of slaves) such as running away or stealing (Mafeswf/SarakhsT 13/106: wa l-ghä'ila mä yakünu min qibal al-afäl ka l-ibäq wa l-sariqa). The original meaning of ghä'ila is closely connected with ghül (= evil demon). 471 The terms kabid (kabid signifies both „liver" and „interior") and ri'a (lung) seem to exemplify the general term jawf (interior). Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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parts of the body. This is surprising because ShaybänT mentions many single defects which belong to just this category. Furthermore, we observe that Abü Yüsuf who identifies marad with da', does not confirm ShaybänT's distinction.472 We have to conclude that this inconsistency in fact goes back to a misinterpretation of the ambiguous term τύφλωσις which means not only "blindness" but also "interior". By ignoring or overseeing the important passage κατά μέρος τοϋ σώματος, Bitriq and/or his son translated only the example τύφλωσις, which follows immediately after this passage and consequently had to be interpreted as "interior" instead of "blindness". The fact that these categories are given specific designations (marad as opposed to da') may be due to the combination of Dig. 21.1.1.7 and Dig. 21.1.5,473 where we find a categorization of diseases. In Dig. 21.1.4.6 which directly precedes the latter fragment, Pomponius touches another aspect which also occurs in Dig. 21.1.1.8, that is in close connection with Dig. 21.1.1.7: "Not every disease, as for instance trivial feverishness, is a defect." We may not rule out that Enantiophanes or the translators themselves interpreted Dig. 21.1.1.7-8 in the context of Dig. 21.1.4.6. - 21.1.5. The categorization and definitions in Sarakhsrs Mabsüt are presented as comments on a prophetic tradition 474 which he quotes without mentioning his informants. According to this tradition the Prophet Muhammad prohibited the sale of slaves which have physical, mental or legal defects 475 In fact, this tradition reflects the kernel of the first edict of the aediles. Apart from the quotation concerning the distinction between marad and dä', Sarakhs! presents further elements which go back to ShaybänT and Abü Yüsuf. The Latin passage "(It is to be noted, that) a definition of disease... appears in Sabinus"476 corresponds to the Arabic passage "the definition of disease (dä') appears in (a saying that al-Hasan transmitted from) Abü Hanlfa."477 In the Latin version we find in the same sentence the central terms "usefulness" (usus), "impair" 472 SarakhsT Mabsüt 13/106, line 4. 473 The text of Dig. 21.1.5 is as follows: "And just as there is a distinction between those defects which the Greeks describe as a malignant form of disease and those which they categorize as ills, diseases, or sickness, so there is a distinction between these faults and a disease whereby the usability of a slave is reduced." 474 SarakhsT Mabsüt 13/105-6. 475 SarakhsT (Mabsüt 13/106) makes clear that this tradition requires things of sale to be free of defects (yaqtadi salämat al-mabT 'an al- 'ayb). 476 Dig. 21.1.1.7: „morbum apud Sabinum sic definitum esse [...]". 477 SarakhsT Mabsüt 13/106, line 2: „wa-tafsTr al-dä' flmä rawähu al-Hasan 'an Abi Hanlfa". Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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(deteriorem facere) and "purpose" (causa), which reappear in Sarakhsl's Mabsüt in the same context as mäliyya,478 naqasa and maqsüd.419 Another specific term used in the Digests480 and closely connected with usus is "serviceability" (ministerium). Correspondingly the term mäliyya in the Mabsüt is closely connected with the terms isti'mal or istikhdäm (= use or service).481 We can assume that also parts of Dig. 21.1.1.6 - via the Glosse of Enantiophanes - reached ShaybänT and Abü Yüsuf: "If a defect in or a disease of the slave is perceptible - and defects reveal themselves generally through symptoms [,..]." 482 This passage was transformed into a general definition of defect: "If someone wants to know (what) a defect (is) he has to observe the usage of the merchants."483 The following features prove to be congruent: 1) The essential elements of the first edict of the aediles are reflected in a prophetic tradition which forms the basis of SarakhsT's comments. 2) A distinction is made between diseases affecting the whole body and those affecting (special) parts of it. The different designations marad and dä' used in the Mabsüt of Sarakhsl might go back to a related fragment in the Digests. 3) The distinction between "whole body" and "interior of it" proves to be inconsistent because of the specific term jawf which goes back to a secondary meaning of τύφλωσις (blindness/ interior). 4) The distinction is preceded by the specific formulation: "A (the) definition of morbus/dä' appears in Sabinus/Abü Hanlfa." Both Sabinus and Abü Hanlfa are juristic authorities. 5) In the same context use is made of specific terms such as "usefulness" (usus/mäliyya), "serviceability" (ministeriumlistikhdäm), "impair" (deteriorem facer el naqasa) and "purpose" (causalmaqsüd). 6) The elements "perceptibility of defects" and "usually becoming apparent through signs" were transformed into: "knowledge of defects by observing the usage of merchants." 478 479 480 481

In this context mäliyya means the value of a thing because of its usefulness. Sarakhsl Mabsüt 13/106, line 7-9. Dig. 21.1.1.8. Sarakhsl Mabsüt 13/106, line 10-11; the formulation yumkinu stikhdämuhu (it is possible to use him) exactly reflects the meaning of "serviceability", 482 Dig. 21.1.1.6: „Si intellegatur Vitium morbusve mancipii ut plerumque signis quibusdam solent demonstrare [....]." 483 Sarakhsl Mabsüt 13/106, line 5-6: "al-marja' fi ma'rifat (intellegatur) al-'uyüb (vitii) ilä 'urf(solere) al-tujjär". Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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7) The syntactical structure or arrangement of words in the Arabic text in some places comes close to that in the Greek or even the Latin text: 1 tafsTr

The definition of

2 al-dä'

3 Fi

morbum

Apud

disease

(appears) in

4 (insertion) mä rawähu l-Hasan 'an

5 AbiHariifa Sabinus

what al-Hasan transmitted from

6(=1)

sic definition ..

Authority

Case 3 The following cases (cases 3-11) deal with single defects. Although many defects mentioned in the Digests prove to be of a rather specific kind they have a counterpart in Shaybäm's Mabsüt or in later fiirü' works. But apart from the defects as such it is also the way in which some of them are expounded that reveals the close connection between the texts.

1 2

wart bed-wetting

3 4

squinting lack of a tooth

484 485 486 487 488 489 490 491 492 493

Thu'lüf84 bawl 'alä lfiräsh486 ahwar - · 492 sinn saqita

clavum485 urinam in m lecto facere strabonus490 dens abesse493

έν τή κοίτη ουρείν 488 στραβός

Asl 17. Dig. 21.1.12.pr. Asl 18. Dig. 21.1.14.4. Bas. 19.10.14.4. Asl 18. Dig. 21.1.12.4. Bas. 19.10.12.4. Asl 17. Dig. 21.1.11.; is mentioned but not regarded as a defect. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

Comparative Analysis

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blear-eyed one-eyed lack of a finger

a'mash*94 a'war™ isba' - . 499 naqisa

lippitudo495 luscus498 pauciores digitos habere500

8

additional finger

isba' zä'ida502

plures digitos 503 habere

9

muteness

akhras505

mutus506

5 6 7

10

deafness

asamm

11

stammering limping

V " « V 1

12

494 495 496 497 498

4

508

509

όφθαλμία 4 9 6 ήττονας δακτύλους ν - 501 εχειν πλείονας δάκτυλους ν - 504 εχειν άλαλος 507

surdus

κωφός 510

balbus512 clodus515

ψελλός 513 κυλλόπους 5 1 6

A?l 17. Dig. 21.1.4.6. Bas. 19.10.4.6. Shaybäni Jämi'kabir 231. This defect is not mentioned in Dig. 21.1 but in Dig. 50.16.101.2; it is possible that Enantiophanes while commenting on Dig. 21.1 also referred to other parts of the

Digests. 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516

Ibn Qudäma Mughrii 4/168. Dig. 21.1.lO.pr-2. Bas. 19.10.10.pr-2. Shaybäni J ami' kabir 231. Dig. 21.1.10.2.; is mentioned but not regarded as a defect. Bas. 19.10.10.2. Ibn Qudäma Mughrii 4/168. Dig. 21.1.3; 21.1.9. Bas. 19.10.3; 19.10.9. Ibn Qudäma Mughrii 4/168. Dig. 21.1.3. Bas. 19.10.3. Ibn Qudäma Mughrii 4/168. Dig. 21.1.1.7; "stammering" is qualified as a fault (vitium) but not as a disease (morbus); see also Dig. 21.1.10.5. Bas. 19.10.1.7; 19.10.10.5. Ibn Qudäma Mughrii 4/168. Dig. 21.1.13. Bas. 19.10.13. Brought to you by | Nanyang Technological University Authenticated Download Date | 6/3/15 2:33 AM

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The Origins of Islamic Law 13

castration

spado518

khisä'511

14

pregnancy

habaf

praegnans

15

irregular continuation of menstruation interruption of menstruation (great) silliness

mustahada

quae mense tur524

16

17

irtifä' hay