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For this reason we incline 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.
The "Futawa Alumgeeree" is a systematic exposition of the principles of Mahometan law; it assuredly does not enable us to ascertain what doctrines of that law are now of legal force in India, or even what doctrines have at any time had 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.
On the Oxus and further East the old Turan the Sunnite sect was sufficiently strong to defy the efforts of the Shiite sovereigns of Persia to eradicate it. Accordingly, we find the authorities excerpted in the "Futawa Alumgeeree" consist almost exclusively of two classes; they are either the immediate disciples of Hanifa at Kufah and Bagdad, or the jurists of Samarkand and Bokhara.
In like manner a knowledge of Mahometan jurisprudence as embodied in the "Futawa 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.
Among the most valuable, if not indeed the most valuable of the compilations from which we may obtain a knowledge of Mahometan jurisprudence, is the "Futawa Alumgeeree," mentioned in Mr. Baillie's title-page. Its value is not confined to the purposes of those who would make themselves acquainted with Mahometan jurisprudence in the peculiar form it assumed in India.
The Shiite views of jurisprudence, as of theology, prevailed 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 antagonistic relations to Iran or Persia.
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 appended 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.
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 "responsa prudentum," and a few legal treatises, whereas Justinian's digest combined with those excerpts from judicial decisions, prætorian edicts, &c.
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.
For these reasons, it could be wished that Mr. Baillie, or some other equally accomplished laborer in that field, would set himself to do for the "Futawa Alumgeeree" what Heineccius and other modern civilians have done for the law-books of Justinian present the European public with an elegant and exact abstract of its contents. Several weeks passed away.
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