BOOKS.

JURISPRUDENCE OF THE MOGUL EMPIRE: THE PANDECTS OF AIIRUNGZEBE.* THE Government of British India have not neglected to counte- nanoe the study of the indigenous or other systems of law which they found established on acquiring possession of the country.

Warren Hastings was the first to recognize the value of such knowledge ; and to his encouragement, if not to his incitement, we are indebted for the compilation of Hindoo law translated by Halhed. Jones, Colebrooke, Maenaghten, Hamilton, and a pretty numerous body of accomplished men, of whom Mr. Buillie is the most recently enrolled labourer in the vineyard, have carried on the good work. More comprehensive and accurate views of Kin- doe law have gradually been developed, and the more advanced and more influential system of Mahometan jurisprudence has also shared in the attention of European students. There is, however, still much to be done in. this field of inquiry; as a few remarks on the nature of the present publication, and the source whence its materials are derived, will show.

The law of Mehemet= jurists is for India pretty much what the Roman law is for Scotland and the Continental nations of Europe. Savigny has shown how, throughout all the territories formerly included within the limits of the Roman Empire, a large amount of Roman legal doctrines and forms of procedure con- tinued to be operative after the Empire's subversion. The revival of the study of the Roman law, as embodied in the compilations nf Justinian, by the doctors of the school of Bologna, augmented and systematized these remnants of Roman jurisprudence, and extended

their application to countries which great part of Germany) had never been subjected to the sway. of Rome. In like manner, throughout that part of India which was permanently subdued and organized by the Mogul dynasty, and also those parts in which .minor Islamitic states were established, the organization of the courts of justice, and the legal opinions of the individuals who

i officiated n them, necessarily introduced a large amount of Maho- metan jurisprudence. This element of the law of India was aug- mented. and systematised by the writings of private jurists, and by compilations undertaken by command of princes. As with the Roman jurisprudence in Europe, so with Mahometan jurisprudence in India, only so much of its doctrines and forms could at any time be considered to possess legal force as had been reenacted by the local sovereigns or introduced by judges in the form of decisions.

A systematic knowledge of the whole body of Mahometan law was -important to the Indian lawyer, as enabling him more thoroughly to understand-the system and its various isolated. doctrines ; but the whole body of it,,j_a_w was at no time binding in India.. Since the establishment of Bali& -sway, only so much of the Mahome- tan law as has kept its ground in the pracilse-aftheeourts, or has been reenacted by the " regulations "or " ordinances " of the Anglo- Indian Government, is law; the rest is only valuable as the "anti- quities of the law," which help to trace the origin of what sur- vives, and thereby throw light upon what in it is obscure or doubt-

Among the most valuable, if not indeed the most valuable of the compilations from which we may obtain a knowledge of Ma- hometan jurisprudence, is the " Futawa Alumgeeree," mentioned in Mr. Baillie's titlepage. Its value is not confined to the par- . poses of those who would make themselves acquainted with Ma- hometan jurisprudence in the peculiar form it assumed in India. It is highly esteemed throughout Islam, and is quoted even by the doctors of Mecca as the Futawa-i-hind, or the Indian revonsa pru- d,entum. It was compiled by the orders of the Emperor Aurung- zebe. It is a digest of the " Futawa" of the most celebrated jurists of the Fanifeh (or, as Mr. Baillie spells it, Hunefeeak) sect or school. Mr. Bailhe informs us in his preface, that "futawa is the plural form of futtca, a term in common use in Mahometan countries to signify an exposition of law by a public officer called the tnooftee or a case submitted to him by the kazee or judge." The " futwl," therefore, seems to correspond not so much with our English " decisions " or " preeedents " as with the "response prudenttun," that fertile source of doctrines in the Roman law. The " Futawa Alumgeeree" consequently resembles the Pandects of Justinian in being a systematical arrangement of selections from juridical authorities—compiled by Imperial authority; but differs from it in this, that the selections are made exclusively from the "response prudentam," and a few legal treatises, whereas ju.stin- Ian's digest combined with these excerpts from judicial decisions, praetorian edicts, &c. With this distinction, we may regard the " Futawa Alumgeeree" as the Pandects or Digest of Mahometan Law. As in the Roman work of that name, to each extract is ap- pended the name of the original work from which it is taken; and the whole of them are so arranged as to form a complete digest of Mahometan law.

A work of this kind, is invaluable to the student who would make himself master of Mahometan jurisprudence as a system. But great care must be taken not to misapprehend the exact na- ture of the knowledge to be obtained from it. The "Futawa .Alumgeeree" is a systematic exposition of the principles of Ma- hometan law ; it assuredly does not enable us to ascertain what doctrines of that law are now of legal force in India, or even what

• The 3foohummudan Law of Sale, according to the Hunefeea Code: from the Pntawa Alumgeeree, a Digest of the whole Law, prepared by command of the Em- peror Anrungzebe Alumgeer. Selected and translated from the original Arabic, with an Introduction and explanatory Notes, by Neil B. E. Baillie, Author of 'The Idoohummudan Law of Inheritance." Published by Smith and Elder.

doctrines have at any time had legal force in India. It does not appear to have been Aurungzebe's intention to promulgate it as a code, but to present it to lawyers as a complete text-book. Even if he did by ordinance attribute to it the power of law, au& ordi- nance was only effectual at any time in the provinces of the Mogul Empire ;. and since the disruption of that empire, it has been su- perseded and modified by laws and the practice of law-courts in the various independent states erected on its ruins.

Again, the general scholar must be on his guard against the delusion that he will find in this digest materials illustrative of the social condition of India under the Mogul dynasty. The juridical works excerpted in it are almost all foreign to Iiindostan ; the special cases illustrative of abstract doctrines are taken from other countries, and many of them from ages antecedent to the invasion of India by the Moguls.

Though Persian was the court language of the Mogul dynasty, there is scarcely. any Persian element in .A.urungzebe's legal com-

pilation. The Shiite views of jurisprudence, as of theology, pre- vailed in Persia ; the " Futawa Alumgeeree" is strictly Sunnite. It is not difficult to account for this. The Mahometan conquerors of India were mainly of Turkish or Tartar race ; they came from Turan, a region which from time immemorial has stood in antago- nistic relations to Iran or Persia. This may account for the fact that the races of Turan which have embraced Mahometanism have

uniformly adhered to the Sunnite sect—the sect most hostile to the Persian Shies—not only. when they settled in the countries

where the Sunnite sect originated, but when they remained in their native regions. The views of the Sunnite& were first pro- mulgated and have prevailed most extensively in those regions of Islam which were once part of the Roman empire, which nomi- nally at least was Christian ; those of the Shiites, in the countries where, under the Sassanides and Arsacida1/2 the doctrines of Zara- aster predominated. The Euphrates forms pretty nearly the line of demarcation between them. The Caliphs dominated over both countries and both sects. Under their orthodox protection the Sunnite doctrines were able to strike root in Balkh and Samar- kand—the ancient Turan, and therefore hostile to Iran or Persia. When Islam was reorganized after the anarchy which ensued upon the overthrow of the Caliphs, Persia became the appanage of the Sophis or Shiite dynasty • the regions to the West of the Eu- phrates—the ci-devant lionmn Empire—acknowledged the rule of

Turkish dynasties, which were Sunnite. On the Oxus and fur- ther East--the old Timm—the Sunnite sect was sufficiently strong to defy the efforts of the Shiite sovereigns of Persia to eradicate it. The doctors of Samarkand and Bokhara continued (and continue) as orthodox Sunnites as those of Kufah, Mecca, and Stamboul

Accordingly, we find the authorities excerpted in the "Fatima .Alumgeeree" consist almost exclusively of two classes ; they are either the immediate disciples of Hanifa at Knfah and l3agdad, or the jurists of Samarkand and Bokhara. The law-cases they ex- pound are such as had originated, or might have originated, in those countries—in Babylonia or Turan. And they are for the most part taken from a state of society, and illustrative of social rela- tions, which prevailed in these countries at a period long antecedent to that of Aurungzebe. To attempt to illustrate the civil and social condition of India under that Emperor by their aid, would be as preposterous as to attempt to illustrate the civil and social condition of those parts of Germany where the Roman law still possesses authority from cases recorded in the Pandects of Justinian. The real use and value of the " Futawa Alumgeeree" may be briefly explained. In every country of Europe where the

Roman law is still recognized as more or less authoritative— and indeed in every country where the common law has bor- rowed more or less from the Roman—an acquaintance with

the system of Roman jurisprudence as it is embodied in the law-books of Justinian has its value for the scientific lawyer. In like manner, a knowledge of Mahometan jurisprudence as embodied in the FiZtawa Alumgeeree" cannot fail to be instructive for the lawyers of all the countries of Islam, and the lawyers of India, where so much of the existing practical law has been derived from that source. To the general scholar, who wishes to master the civil history of Arabia and Babylonia, in which the Stmnite sect, anti more particularly the Hanifite subdivision of it originated, or

to familiarize himself with the moral theories which regulate the judgments and actions of the modern Turks, Turcomans, Ara- bians and Egyptians, the digest of Aurungzebe is also a valuable repertory of facts and illustrations. For this reason, we ineline to be of opinion that Mr. Baillie is mistaken in thinking that a selection from the two books of the

" Futawa Alumgeeree," which embrace the subject of "sale," can have much utility for Indian practitioners. It does not follow, because a legal doctrine is declared sound in this work, that it is or ever has been practically applicable in India. As an au- thoritative declaration of legal doctrines, the book is as likely to mislead as to guide aright. On the other hand, as an exposition of the general principles of Mahometan law, even with regard to sale, it is necessarily imperfect. The work from which it is taken is a collection of legal opinions, which had in their day the force

of judieial decisions—of something equivalent to the response

prudentuni." of Roman jurisprudence. Each is expounded on its own merits ; and all the special doctrines involved in it are laid down. Hence it comes, that much that is calculated to throw

light on the principles of the law of sale must be sought under other heads ; and that much included in the chapters ostensibly

treating of sale refers to ether topics. As part of an entire digest of the law compiled on the same principle as that of Justinian, the two books relating to sale are sufficient ; but for an isolated trea- tise on "sale," they contain at once too much and too little.

Nevertheless, we welcome Mr. Baillie's publication as a valuable addition to juridical anti even to general literature. The transla- tion, though not by any means free from defects, is the best speci- men of a really good Mahometan law-book that has yet been pub- lished. The defects to which we allude are twofold. In the first place though Mr. Baillie mentions that in the original the name of the treatise from which it is taken is appended to every excerpt, he has not in his translation given those references. His work is not therefore what the original is, a Chrestomathia of the best Arabian jurists—a succednneum for their complete works—an illustration of Arabic legal literature. Again he is often loose and vacilla- ting in the use of the English words he has selected as correspond- ing to the technical phraseology of the Arabian jurists, and some- times infelicitous in the selection of his English terms. It has oc- curred 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 Eu- ropean jurists. It 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. Bail- lie's volume has convinced us that the analogy in the sub- stance is quite as strong as in the arrangement. 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 Chris- tian nations is mainly referable to Rome for its origin, and the same is the case with at least the Sunnite Mahometans. The na- tions of Islam took only their religious creed from their Prophet ; the julists of Kufah retained and expounded the civil law whicn pre- vailed 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 Prie- tors 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 arrange- ment, the subdivisions and the substance of Mahometan jurispru- dence, show that it has been principally derived from tins source. Some of its doctrines are doubtless aboriginal engrafted on the law of the Empire ; and it has been modified in some respects to re- concile it to the religious dictates of Islam, just as the 'law of Pa- gan Rome was modified after Christianity became the religion of the Empire. But still Mahometan jurisprudence retains undeni- ably the lineaments of its parentage. This consideration places in a strong light the importancitof the study of Mahomettuf 'law. The increasing intimacy of ,olir rela- tions with independent Mahometan states makes it of'the utmost consequence that we should entertain correct views of their opi- nions and institutions; and no better key to the knowledge of both can be found than in the historical study of their law. Again, we are called urn to legislate and supply judges for British India, a large proportion of the inhabitants of which are Mahometans. Even the Hindoos of the former Mogul Empire have adopted many legal forms and doctrines from their conquerors. A minute and accurate acquaintance with Mahometan jurisprudence is an indis- pensable preliminary to judicious legislation for British India. For these reasons, it could be wished that Mr. Baillie, or some other equally accomplished labourer in that field, would set him- self to do for the " Futawa Alumgeeree " what Heineccius and other modern civilians have done for the law-books of Justinian—pre- sent the European public with an elegant and exact abstract of its contents.