Arabic legal
literature. Again, he is often loose and vacillating in the use of
the English words he has selected as corresponding to the technical
phraseology of the Arabian jurists, and sometimes infelicitous in the
selection of his English terms. It has occurred to us that he would
have succeeded better in rendering the exact meaning of his originals,
had he availed himself more of technical phrases of the Roman law
which are familiar to all European jurists. Is does not occur to
us that he would by doing so have been in danger of Romanizing the
Mahometan to an extent that might mislead. Mill, in his History of
British India, has noticed how closely the classification of the
Mahometan approaches to that of the Roman jurists. An attentive
perusal of Mr. Baillie's volume has convinced us that the analogy in
the substance is quite as strong as in the arrangements. This fact
seems susceptible of being accounted for on historical grounds.
Mahometanism is in fact a sect or heresy of Christianity. The views
and sentiments, the aggregate of which make up the body of Christian
opinion, are not all of Jewish or Christian origin. They are the moral
creed of societies whose opinions and civilization have been derived
in part from other sources. The philosophy of Greece and the law of
Rome have contributed in nearly equal proportions to the theosophy
of the Hebrews. The jurisprudence of all Christian nations is mainly
referable to Rome for its origin, and the same is the case with at
least the Sunnite Mahometans. The nations of Islam took only their
religious creed from their Prophet; the jurists of Kufah retained and
expounded the civil law which prevailed among them before his time.
That law was the law of the Greek Empire, developed in the same way as
that of the Western Empire under the judicial and legislative auspices
of Roman Praetors and Pro-Consuls, aided by Roman jurists. Theophilus,
one of the jurists employed by Justinian for his compilations,
lectured in Greek on the Institutions; and the substance of
his lectures still survives under the name of the Paraphrase of
Theophilus. The Greek edicts and novels of Justinian's successors are
mainly Roman law. Throughout the Byzantine Empire (within which Kufah
and the region where Bagdad now stands were included) Roman law was
paramount, and Roman jurists were numerous. The arrangement, the
subdivisions, and the substance of Mahometan jurisprudence, show
that it has been pri