A fundamental constituent of Islamic belief is that Allah the Almighty is the Sole Creator and Lawgiver and that the final divine message to guide humankind was delivered to the noble Prophet Muhammad (peace and blessings be upon him) who conveyed it and perfectly applied its teachings. Therefore, the divine Word codified in the Qur’an and exemplified in the guiding traditions and practices of the Prophet (peace and blessings be upon him) have always been believed by Muslims to be the ultimate source of light leading them along their path in this life.
Taking pride in this divine blessing, they have looked down on all other forms of positive laws and common practices in comparison to the divine guidance they possess. Thus, the claim that Muslim jurists in the formative period of Islamic legislation borrowed from Roman law is simply a blatant lie.
According to Dr. Salah Al-Sawy, he states:
Saying that Islamic law was derived from Roman law is an accusation unprecedented in the odiousness and impertinence of those whose insolence has overcome them. We can sum up the refutation of this misconception in the following points, referring the inquirer thereafter to further resource material that will elaborate on this subject:
a) The source of both legislations is different, since the source of Islamic law is Divine Revelation, while the primary source of Roman law is Western customs and traditions. Roman thinkers then canonized these customs and traditions and recorded them in their books of law. These Roman laws were a continuation of the previous way of life in Rome; no transformation was made in their lives, social systems or political thought. Islamic law, or Sharia, on the other hand, had a tremendous effect on the lives of the Muslims, for it changed their beliefs, thoughts, conceptions and social structure. What the greater Islamic community, or Ummah, has inherited from the sayings of the Muslim scholars of jurisprudence is no more than interpretations and informed independent judgments, which could never aspire to the status of legislation which was Divinely revealed. Furthermore, we see that Romans jurists, thinkers and legislators had a greater effect in developing the law and changing it over the course of time. In Roman law, there are rules that have no trace in Islamic jurisprudence, such as Patria Potestas (the nearly absolute legal powers held by the male head of a family over his descendants), complete domination/control of the husband over the wife, Adoption (the system of adoption), and a man’s complete control/guardianship over all the women of his household. There are also systems, rules and laws in Islamic jurisprudence for which there is no basis in Roman law, such as Waqf (perpetual endowment), Shuf`ah, or the right of preemption (preference of purchase due to joint ownership or adjoining property), the establishment of relation through breastfeeding and the prohibition of marriage between such relatives, as well as the fact that the institution of marriage was monogamous for the Romans, but polygynous for Muslims. In the system of inheritance, the woman inherits like the man in [late] Roman law, whereas in the Islamic system, she has a different status, which may be less than the man, may be equal to him, or may even exceed his share, according to her circumstances. In addition, the woman holds the right to divorce in [late] Roman law, while in Islam, divorce is solely the right of the husband.
b) The allegation that Roman law crept into Islamic Sharia by means of weak hadiths is a false claim which evinces blatant ignorance of Islam and its Sharia. Weak hadiths are not used as evidence and Muslims scholars know the authentic from the inauthentic. Goldziher has alleged that all the hadiths are the invention of Imam al-Bukhari, but this allegation is false, for Imam al-Bukhari was well-known for his close investigation of the authenticity of Hadith and for his careful selection of the authentic over the inauthentic. This is seen in his book, Al-Jami` al-Sahih, and this book is the most reliable book after the Book of Allah– the Qur’an.
c) The allegation that Muslim scholars of jurisprudence borrowed their Islamic laws from Roman law by way of Arabic translations of Roman law or via Muslims who knew Roman law is a false claim because it is not based on reality, fact or evidence. Even most Orientalist legal scholars confirm this point; that there were no translations of Roman law in the languages of the East – Arabic or otherwise – because Islamic legal scholars used to consider it beneath them to borrow, consult or quote from legal systems of human invention when they had with them the Book of Allah – the Noble Qur’an. On the contrary, most of the countries which accepted Islam changed their legal systems, customs and traditions to be in concordance with Islamic law. Many jurists and scholars of Islamic law emerged from among them, especially since the Muslims knew that it was prohibited for them to rely upon the likes of these man-made legal systems when they had with them the Book of Allah and the Sunnah of His Messenger (peace and blessings be upon him).
In view of this explanation, it is clear that Islamic law, or Sharia, is still, and will remain, the law that is appropriate and applicable in every place and every time. What we have mentioned above should clarify the absurdity of this claim and the ignorance or ill intentions of its authors.