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Islamic law and its foundation: The cart and the horse

Reader comment on item: How Islamic Are Muslims?

Submitted by dhimmi no more (United States), Aug 1, 2014 at 09:04

Dr. Pipes

On pages 8 and 9 Askari and Rehman wrote:

When the subject of the negotiations were pack animals the buyer had the right to return the animal up to three days after the deal was finalized (Khyar Hayawn) These rights of annulment ensured that the market participants were protected against a lack or faulty information

Now let me get this very poor Arabic transliteration out of the way: Khyar Hayawn must be خيار حيوان which would be read by an Arabic speaker as Cucumber Animal. It is very clear that the authors have no clue about the rule of the Arabic definite article al and that it should be خيار الحيوان (the word خيار ir really اختيار) and the meaning now becomes clear and it would mean the selection/option (of) THE animal/beast and it is well known among Shia Muslims something that the authors do not tell us and why is that?

http://www.al-milani.com/library/lib-pg.php?booid=32&mid=393&pgid=5120

So where did this come from? Ignaz Goldsiher believed that Islamic law is really no more than classical Roman Law and i do believe that he was correct (I also beileve that Patricia Crone was correct in claiming that Islamic law in the case of Egypt and Syria was very much provincial law)

And indeed in Roman law (which is really the foundation of western law and therefore the law in places like New Zealand) jurists were able to separate ownership (and in my humble understanding the right to use a thing) and possession (or the ability to use and manipulate the thing) which in my humble understanding again the right to retrun an item within a period of time

And indeed we have extant papyri of contracts from 642CE from Egypt (in Greek and Arabic) about buying of sheep with all the obligations in Roman/Byzanitne law that you can return an item that you bought within a period of time

http://www.islamic-awareness.org/History/Islam/Papyri/PERF558.html

This means that the Arabs were using contracts this early based on Roman law where jurists separated contracts and legal obligations and also the ability of the buyer to return an item within a period of time.

The point here is laws do not drop from the sky and that Islamic law owes its existence to older legal codes and the most important is Roman law which also means that it was with great ease that one can refute the bogus claims of Askari and Rehman that in the case of Ikhtyar or Khyar al-Hayawn is an Islamic idea because such laws already existed. It also proves that in the case of New Zealand (and I'm not a legal historian) there must be laws on the books that got into New Zealand law from Roman law of ownership and possession as well as contracts and obligations

Oh next? It will be their reading of Q2:256

As I wrote before Askari and Rehman should be ashamed of themselves


Note: Opinions expressed in comments are those of the authors alone and not necessarily those of Daniel Pipes. Original writing only, please. Comments are screened and in some cases edited before posting. Reasoned disagreement is welcome but not comments that are scurrilous, off-topic, commercial, disparaging religions, or otherwise inappropriate. For complete regulations, see the "Guidelines for Reader Comments".

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Reader comments (48) on this item

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2A lot of effort, to post a lot of gibberish [394 words]Peter HallJan 26, 2016 07:42223105
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Note: Opinions expressed in comments are those of the authors alone and not necessarily those of Daniel Pipes. Original writing only, please. Comments are screened and in some cases edited before posting. Reasoned disagreement is welcome but not comments that are scurrilous, off-topic, commercial, disparaging religions, or otherwise inappropriate. For complete regulations, see the "Guidelines for Reader Comments".

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