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Where did Islamic law come from?

Introduction
Sharia, by virtue of its character as the expression of Gods will, and by the common
acceptance of its prescriptions and their implications on the part of all Muslims, supplies the
authority, sanctions, and moral basis for the unity and constitution of the umma as a political
entity.
1
Legal issues or arrangements are the elements of a system of religious and ethical
rules.
2
Thus, Islamic law is the fundamental part of Islamic ideas and the foremost symbol of
Islamic lifestyle. Islamic law includes inner duality of legal issues and religious rituals and
external diversity of juridical, moral, and religious rules due to the fact that it covers all
aspects of human existence, including the afterlife.
3

The fundamental issue in the history of Islamic law is relevant to the origin of Islamic
law. Hence, the classic Orientalises assume that in the duration of the prophets time, there
was no particular foundation in order to monitor religious rules and Muslims behaviour with
the influence of the absence of sophisticated cities, empires or legal systems. During the first
century the extension of territories that emerged from the conquest of other empires created
complete institutions that included new converts who comprised of educated non-Arabs. This
resulted in the integration of legal elements and administration institutions of Roman law,
Sassanian law, Talmudic law, and the canon law of the Eastern churches.
4
Schacht says that:
In this way concepts and maxims originating from Roman and Byzantine law, from the
Canon law of Eastern Churches, from Talmudic and Rabbinic law, and from Sassanian
law, infiltrated into the nascent religious law of Islam during its period of incubation, to
appear in the doctrines of the second century A.H.
5

Another argument in the origin of Islamic law emphasises that the core element of
Islamic law relies on the divine revelation of the Quran and the guidelines of the Prophet. The
main source is Gods word because the Prophets actions are accepted as a role model by God

1
Joseph Schacht, Pre-Islamic Background and Early Development of Jurisprudence, ed. Majid
Khadduri and Herbert J. Liebesny, vol. I of Law in the Middle East (Virginia: The William Byrd Press,
1955), 4.
2
Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 1.
3
Mawil I. Dien, Islamic Law: From Historical Foundations to Contemporary Practice (Edinburgh:
EUP, 2004), 35.
4
Schacht, Pre-Islamic Background, 35, 36.
5
Ignaz Goldziher, Introduction to Islamic Theology and Law, trs. Andras and Ruth Hamori (New
Jersey, 1982), 40.
though Prophets lifetime so the implementation of practical legislation revealed as an answer
to direct questions of Muslims.
6
Although encountering with new cultures and systems needed
the reformation of many Arabic practices, the main essence of nomadic way maintained an
example from Islamic lifestyle. Moreover, even if Jewish law and Canon law are two other
indicators of a sacred law, because they are historically and geographically close to the
Islamic region, even though they are quite different from each other.
This essay will argue that Islamic law came from where through emphasising the idea
of classical Orientalises assumptions and counter arguments. The classic Orientalises claim
that even if Islamic law is generated by Islam, its basic sources or materials belonged to the
non-Islamic tradition as an outcome of a complex historical process. On the other hand,
Muslim scholars provide that even if the principles of Islamic law seems to have derived its
origin from foreign sources, the main foundation of Islamic law depends on sacred sources
comprised of Quran and sunna. This essay categorises these conjectures according to their
location, origin and indications.
Islamic Sources
The Islamic concept creates the idea of umma, the community of all Muslims and the
leader of umma is nobody except God, Allah. The combination of the umma follows His
revealed orders comprised of law so God is the only legislator.
7
Hence, God has provided
practical instructions for religious rituals and mundane events for different branches of
civilization and states created in order to maintain and enforce the law not the other way.
Thus, Islamic law is based on unqualified submission to the will of God and the true path in
guiding the Muslim through all matters of life.
During the first century of Islam, the special legal institutions were established by
Islamic society that shows many different aspects from previous society. For example, the
method of arbitration and traditional law of pre-Islamic Arab societies were shifted and
perfected by the Quran, the Prophet, and caliphs. Thus, the administrative and legislative
branches of the Islamic state were managed or created together by authorities depending on
the sacred sources.

6
Dien, Islamic Law, 3.
7
Schacht, Pre-Islamic Background, 3.
Ancient Arab Custom
The influence of the geopolitical position and tribal system made the Arab peninsula
familiar with other religions and cultures since the pre-Islamic period. When Prophet
Muhammad migrated to Medina with a new religion, he was initially interested in the creed,
morality and the purity of daily events. With time, the needs of upward Muslim society for
religious principles resulted in the development of the notion of umma with a new legislative
branch that was different from other monotheistic laws.
8
During the existence process the
normative custom of pre-Islamic Arab communities reformulated themselves within Islam
because they were prevailed the old conservatism. When the Prophet or the umma
encountered new issues or problems, they approached it with new principles of Islam.
However, old institutions and established rules of Arabic society largely maintained their
position within the Islamic law by adopting the main functions of rules into sharia. Schacht
explains that some principles of pre-Islamic legal practices were clearly protected under Islam
as a normal situation.
9
Even if these legal institutions and implementations were embedded in
Islamic law, they preserved their own distinctive features within Islamic law such as ancient
Arab system of arbitration and rights of retaliation. The responsibilities of Islamic qd, who
are delegates of the governor, were derived from the Arab arbitrator. Hallaq accepts this idea
by adding ritual deeds such as prayer and fasting, the pre-Islamic customary laws of barter
and exchange of agricultural products.
10
The term wjib is also derived from an Arabic
custom which addresses to an obligatory actions or responsibilities.
11
It is important to say
that rules or customs were accepted or rejected by Prophet or the companions of the Prophet
by regarding to sacred sources before the integration process. The enhancement of womens
rights, regulations of inheritance or reformation of marriage rules can be given as an example
of this notion.
12

The adoption process resulted in the emergence of tradition or acceptance of the
concept of tradition as a sunna as one of the core elements of Islamic law. The concept of
sunna existed before Islam and it was related to the management of individuals and collective
behaviour of nations. With the revelation, common norms of Arabic society were accepted
under the authority of the Prophet by careful evaluation. During the first decades of Islam, the

8
Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press,
2005), 20-22.
9
Schacht, An Introduction, 20.
10
Hallaq, The Origins and Evolution, 25.
11
Dien, Islamic Law, 96.
12
N. J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964), 14-16.
term started to use as a reference of Prophets biography and his practices. Even if these
words and actions were called traditions specifically by Iraqi scholars, this concept of the
sunna was not approved by scholars of Medine. This step was taken in Iraq, perhaps in
Basra, where not later than in the very first years of the second century of the hijra, the sunna,
the practice of the local community and the doctrine of its scholars, were called sunna of the
prophet.
13
However, the authority of Prophets sunna as a model behaviour of Muslim life
obtained its unique status within the Islamic law that had quite distinct from pre-Islamic
concept of sunna.
14
After the systematization or transformation process of the Prophets sunna
approximately at the beginning of third/ninth century, it was applied as the second main
source of Islamic law both religious rituals and legal issues after the Quran.
15

Jewish and Christian Religions
Reality of religions generally stanchions the familiar bases such as believing in God,
worship for Him, following the principle of moral values and accepting religious doctrines
revealed books, piety, fasting, almsgiving, and pilgrimage.
16
Nevertheless, when the purposes
of religion were changed by believers, a new prophet was sent by God in order to reorganize
collapsed societies by giving credence to the original principles of religion. The Prophet
Muhammad was revealed with the responsibility of rearrangement when the deterioration of
Arab community peaked. The Prophet Muhammad prohibited the unlawful actions and
permitted the lawful practices with the reference of the original message of God.
17
The idea of
saints or ascetic practices in Jews and Christians tenets can be noticed in the doctrines of
Islam.
18
For example, the stoning to death because of forbidden intercourse and the
implementing of retaliation and blood-money kept at by depending on Jewish legal system.
19

One verse in the Quran says: Do not eat of anything over which the name of God has not
been uttered, for it is a sin.
20
The prohibition of consuming animal slaughtered without
recitation of God shows similarities with the Jewish doctrines of obligatory.
21
However,
taking into consideration about the huge gap between the law system of Christian community

13
Schacht, Pre-Islamic Background, 45.
14
Hallaq, The Origins and Evolution, 102.
15
Hallaq, The Origins and Evolution, 49.
16
Goldziher, Introduction to Islamic, 14, 15.
17
Anwar A. Qadri, Islamic Jurisprudence in the Modern World (Delhi: Taj Company, 1986), 11, 12.
18
Goldziher, Introduction to Islamic, 9.
19
Schacht, An Introduction, 16.
20
Quran, 6/121
21
Goldziher, Introduction to Islamic, 57.
and Muslim society promotes that Islam has to create the foundations of law itself because
Christian law depended on a pre-existing basis of the Roman law.
22

Greek Roman and Byzantine Empire
After the conquest of Byzantine, some educated non-Arab people within the
Hellenistic culture or Roman Empire began converting to Islam with the influence of
separation. These educated believers brought their previous notions, comprising of legal
principles and frames, into their new religion.
23
Therefore, some parts of their administrative
organizations were adopted into Islamic law because of the parallelism of general structures.
Regarding of this conformity, Goldziher emphasises that Islamic law illustrates undisputable
reality of the effect of Roman law both in its methodology and in its specific conditions.
24

Moreover, the Umayyad caliphs contribution of translation and commentaries services
played an important role in learning Greek philosophy. The translation activities made viable
the legacy and culture of ancient Greeks. Even if the mainstream Islam rejected some idea of
philosophers, the vacuum of Greek philosophical notions into popular Muslim culture
continued.
25
Hence, Islamic law demonstrated parallel structures with classical Roman and the
Byzantine Empire laws system after the Islamisation process. For instance, the concept of
consensus of the scholars within the early period of Islamic law was offered by Roman law
systems. The concept of inspector of the market with restricted civil and criminal
jurisdiction was derived from the Byzantine Empire.
26

Ancient Near Eastern Law and Sassanian Empire
The Sassanid Empire was conquered completely by Arabs and they were accepted as
the largest ethnic group in the caliphate that had huge culture and government institutions.
With the influence of imperial administration, their thoughts began to resurface within Islamic
law. The organisation and management method of Islamic cities illustrates the integration of a
Persian political plan or concept.
27
Similarly, the Muslims took over from Sassanian
administration the office of the clerk of the court who became an assistant of the qd; this

22
C. G. Weeramantry, Islamic Jurisprudence an International Perspective (Hampshire: Macmillan
Press LTD, 1988), 30.
23
Schacht, An Introduction, 20.
24
Goldziher, Introduction to Islamic, 44.
25
Patricia Crone, Gods Rule Government and Islamic Law (New York: Columbia University Press,
2004), 165-168.
26
Schacht, Pre-Islamic Background, 38.
27
Goldziher, Introduction to Islamic, 4.
was well known to the ancient authors.
28
Moreover, the hierarchical concepts of contracts or
commercial procedures were probably derived from Near Eastern law systems because Arabs
encountered these juridical elements with assistance of commercial activities during the pre-
Islamic period.
29

Conclusion
During the early period of the establishment of Islamic law, concepts and maxims
originating from Roman and Byzantine law, from the Canon law of the Eastern Churches,
from Talmudic and Rabbinic law, and from Sassanian law entered the religious law of Islam
unobtrusively and appeared in the doctrines of the second century.
30
However these
presumptions were proven to be false by careful chronological analysis because the historical
background of Schachts arguments is refuted.
31
Schacht argues that elements of conquered
societies were integrated because the cultures of the peninsula of Arab found in nomadic
regions did not have sophisticated legal systems. However, chronological evidences refute the
historical approaches and assumption of classical Orientalises because they argue that the
Arab society was more sedentary than tribal and there was no obligatory link between tribal
nomads and a primitive lifestyle. Arabic society indeed had its own law systems that are
divided into sedentary and nomadic life by depending on customary laws.
32
There was
interplay between interpretation of doctrines and local principles that influenced the
development of Islamic law by integrating or rejecting new societys institutions. Hence, the
adoption or similarities between Islamic law and foreign legal elements can be considered as a
characteristic of changeability in Islamic law and umma through time. All in all, the
mainstream principle among believers is that God is the only lawgiver and his commands
have ultimate control on all aspects of life. The Quran and sunna as the legislative documents
are applied or interpreted for the general provisions of the divine revelation in order to
provide solutions, upon encountering new issues. These non-Islamic materials were initially
tested or Islamised by religious rules and authorities before the integration into Islamic law.



28
Schacht, An Introduction, 25.
29
Schacht, An Introduction, 22.
30
Schacht, An Introduction, 21.
31
Hallaq, The Origins and Evolution, 4.
32
Hallaq, The Origins and Evolution, 16-18.
Bibliography

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