Short Description
He was an Italian Orientalist born in Tunisia and studied in Rome and earned a Ph.D. in Law. He was invited by the French Public Resident in Tunisia to study and write down Tunisian laws
David de Santillana (1845-1931)
He was an Italian Orientalist born in Tunisia and studied in Rome and earned a Ph.D. in Law. He was invited by the French Public Resident in Tunisia to study and write down Tunisian laws, thereupon he put down civil and commercial laws depending on the rules of Islamic Sharî‘ah in coordination with European laws. He was well-acquainted with the Mâliki and Shâfi‘i juristic schools.
In 1910, he was appointed a professor of the history of philosophy in Egyptian University. Then, he taught Islamic history in Rome University. His works include a translation and explanation of Mâliki rulings; Islamic Mâliki Fiqh in Comparison with Shâfi‘i Fiqh (1300 pages); Law and Society in comparison between Islamic Fiqh and European laws; Civil and Commercial Laws (1898), a voluminous composition in comprehension of Islamic rights and laws. He translated the second part of Mukhtasar Khalîl in Mâliki Fiqh by ibn Is-hâq, which contains the most common Mâliki rulings in civil and penalty rights (1919).
Allâh, the guarantor of Islamic cohesion
“The principle of unity and order which in other societies is called civitas, -polls or State, is personified in Islam by Allâh: Allâh is the name of the supreme power, acting in the common interest. Thus, the public treasury is 'the treasury of Allâh', the army is ‘the army of Allâh' and even the public functionaries are 'the employees of Allâh'. No less direct is the relation between Allâh and individual believers, for between Allâh and the believer there is no mediator; Islam has no church, priests or sacraments. What good are mediators between man and his Maker, who has known him before his birth and is 'nearer to him than his jugular vein'.”[1]
No sacerdotal religion
David de Santillana states that Islam has no authority of priesthood and no religion is close to it in this respect, not even such liberated Christian trends as Protestantism: “The most rigid Protestantism is almost a sacerdotal religion compared with this personal monotheism, which is unbending and intolerant of any interference between man and his Creator.”[2]
The only true religion
“This surrender of man to God, surrender full of humility and hope, is true faith and that is why Islam (the abandonment of one’s self to God) is the only true religion, because it is the only disposition of a religious soul in the presence of God.”[3]
A law of liberty and an act of mercy
“The Qur'anic revelation styles itself as a law of liberty, an act of mercy vouchsafed by God to mankind in order to soften the rigidity of preceding revelations. Islam is a reversion to natural law, to the primitive faith of the patriarchs (i.e. Noah or Abraham) which had been corrupted and adulterated by the Jews and Christians. The new law suppresses the austerities and numerous interdictions imposed upon the Jews by the Mosaic Law. It abolishes the macerations of Christianity and declares its willingness to comply with the weakness and frailty of man as well as the practical necessities of life.”[4]
Freedom is the basic rule
David de Santillana states that freedom is the basic rule in Islamic Sharî‘ah: “Freedom is the inborn right of every man, slavery being only an exception to the rule. Âdam and Eve were free', a proposition from which jurists have drawn various inferences:
(a) the foundling whose status is unknown is presumed to be free; (b) the freeman claimed as a slave is not bound prima facie to prove his freedom until the reverse has been legally shown against him; (c) in case of doubt, the presumption is for liberty. Liberty means the power of self-disposal. The freeman has no master but God, the supreme Lord of all human existence, to whom alone subservience is due. Hence, liberty cannot be disposed of at pleasure and even a spontaneous admission of slavery is not recognized by law as valid. In the same spirit law forbids and religion deprecates suicide.”[5]
And also equality
“And this equality was proclaimed (by Islam) at a time when it was practically unknown throughout Christian society.”[6]
And even permissibility
“L'Islam est une religion d'hommes', says Renan. Considering its spirit, therefore, we see that the tendency of Islamic law is to allow human action the widest limits and we may agree with the Muslim jurists when they teach that the fundamental rule of law is liberty. But this liberty (ibâhah) cannot be unlimited.
Man is by his very nature greedy and ungrateful, covetous of other men's goods, niggardly of his own, disposed to sloth and ungrateful for the blessings that God has bestowed upon him. Human society would not have been possible, and the individual himself would not have been able to subsist, had God allowed free scope to the appetites of every individual as well as to the injustice and violence of all.”[7]
The essential trait of Sharî‘ah
Describing the Islamic Sharî‘ah and its difference from human laws enjoined by the people on themselves, David de Santillana says: “Submission to this law is at the same time a social duty and precept of faith; whosoever violates it, not only infringes the legal order but, commits a sin.”[8]
Genuine, not adapted Sharî‘ah
“According to a current opinion, it is useless to try and find a common meeting ground for eastern and western Law. Enclosed within the rigid frame of dogma, the system of Islam cannot be reduced to our formulas. Being as it is, a religious law, it is at variance with our ideas, quite incapable of development.”[9]
The spirit rather than the letter
Clarifying the premises of Islamic Sharî‘ah which makes faith an essential idea and gives much care to public interest, he says: “The system thus allows a wide scope to the human will and attaches importance to the spirit rather than to the letter. Human will, whatever its expression, is sufficient to create a legal bond. It is but seldom that the validity or nullity of an act depends, in Muslim law, on the point of form. Contrast this with the unending formal minutiae of Germanic procedure.
The rule 'consensus souls obligate' is fundamental in the eyes of doctors of law. Having as its scope social utility, Muslim law is essentially progressive, in much the same way as our own. Being a product of language and logic, it is a science. It is not unchangeable and depending on mere tradition. The great schools of law agree on this point.”[10]
Claiming one’s right is a moral obligation
With a good understanding of the philosophy of Islamic Sharî‘ah, David de Santillana sees the great difference made by the mixing of law with morality in Islamic Sharî‘ah, saying: “The consequence of this spirit is that the exercise of a right is actually regarded as the fulfillment of a duty: for if right is good, it is not possible 'to omit it without sin'. He who claims his property from an unrightful possessor also fulfills a moral obligation: for if he kept silent, he would allow the unjust possessor to continue in his sin.”[11]
Making use of one’s right is also a moral obligation
Referring to one of the great aspects of the moral effect of Islamic Sharî‘ah, since claiming one’s right is an obligation not only because it is a private interest but also because it is right in itself, the moral aspect will guide how to claim it, David de Santillana says: “But if everybody's right is, not only his private interest, but also his moral obligation, this right has certain limits which moral law and social interest determine. Conciliation and compromise are everywhere asserted to be most laudable.
Reprisals are forbidden. Vexatious proceedings against a debtor are contrary to law, as well as the abusive exercise of a right. 'No one may make use of his right as so, causing another evident damage!' Muslim jurists have, in these matters, a more delicate feeling than we should suppose. It is forbidden, for instance, to give a power of attorney to the opponent of the party against whom it is proposed to proceed, to hire a beast of burden to a man known for his rough treatment of animals or to sell a young slave girl to a libertine who might persuade her to impiety or debauch her. Everywhere, the limit of law and its measures is traced by morality.”[12]
The high rank of Islamic Sharî‘ah
“Such is, in its essential features, the Muslim system of law. It may rightfully claim a high rank in the appreciation of experts.”[13]
The merit of Sharî‘ah
David de Santillana concludes his good research saying: “Among our positive acquisitions from Arab law, there are legal institutions such as limited partnership (qirâd) and certain technicalities of commercial law. But, even omitting these, there is no doubt that the high ethical standard of certain parts of Arab law acted favorably on the development of our modern concepts, and herein lies its enduring merit.”[14]
References:
[1] David de Santillana, Law and Society, Legacy of Islam, 286-287.
[2] Ibid. 287.
[3] Ibid. 287.
[4] Ibid. 288.
[5] Ibid. 292-293.
[6] Ibid. 304.
[7] Ibid. 289.
[8] Ibid. 288.
[9] Ibid. 303.
[10] Ibid. 305.
[11] Ibid. 308.
[12] Ibid. 308.
[13] Ibid. 309.
[14] Ibid. 310.
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