By Ayman Dahe
Hirundo, the McGill Journal of Classical Studies, Vol.3 (2004)
Introduction: Law, much like language, is an ever-evolving body closely linked to the culture and society. A tree is often used as a metaphor for the relation of languages: for example, Spanish, Italian, Romany and Sanskrit all share a common lineage, or branch. They are all Indo-European languages and all differ from the Semitic languages of the Middle East, a different branch. Due to political factors, however, many Arabic words have been assimilated into Indo-European languages. This integration was exterior, either imposed on or incorporated into the receiving culture. The onlooker can pinpoint why a “foreign” word, has made its way in another language. The word is truly foreign, it has no lineage or roots in its new language; it is borrowed and then used in its new home, assimilated to fit its host culture. Does this phenomenon apply to law? Do different legal traditions borrow from each other? Can legal concepts be taken from another tradition, and made to fit into a host legal system? This is the general topic of this paper; a plunge into historical comparative law.
Comparative law is the study of legal institutions, and constructions of different legal traditions, with the purpose of ascertaining similarities and differences. This inevitably leads the comparatists to examine origins as well. The nexus of our analysis will be Roman law. Roman law has been accepted as having greatly influenced, if not wholly shaped, the legal structures of many European countries, possibly because no unifying political force emerged in theWest after the fall of the Roman Empire. Roman law, as an institution, was more resilient than the individual customary laws of the Germanic tribes that ruledWestern Europe. Scholars have tried to locate the different times in which Roman law was “received” back into the different emerging legal traditions of theWest. But what of its evolution in the East? Did Roman law have the same impact on the Arab-Islamic tribes that conquered the eastern Empire? Some orientalists have stated that “Islamic law is Roman law in Arab dress.” Is the answer so simple?