Arabic Thought and Its Place in HistoryO'Leary, De Lacy
ReligionIslamic
Arabic Thought and Its Place in History
O'Leary, De Lacy
Philosophy, Arab
In the case of civil law matters were rather different. The civil
law is necessarily based on the social and economic structure of
the community, and in the acquired provinces this was so different
from that prevailing in Arabia that it was necessarily forced on the
attention of the Arabs. Moreover, in primitive Islam, the line was not
clearly drawn between the canon law and the civil law. Inheritance,
the taking of pledges, and such like matters, were to the Arabs
subject to the direction and sanction of the law of God as revealed
by his Prophet. Thus, for example, Sura 4, one of the later Madinian
revelations, contains a statement of the law relating to guardianship,
inheritance, marriage, and kindred topics, according to the social
conditions prevailing at Madina. But in the Greek and Persian dominions
the conquering Arab had to deal with more complex conditions for which
the revealed law made no provision, although what it did contain so
far touched the subject that it could not be treated regardless of
revelation. It seemed impossible to disregard the revealed precepts and
substitute an alien legislation, although this has been done in the
modern Ottoman Empire, but not without many and grave protests; in the
first century it would have been intolerable, for every disaffected
faction would have used it to break up the Muslim state which was
only held together by the prestige of the Prophetical tradition. We
may well suppose that the `Umayyads would have had no reluctance to
try the experiment, but it was too dangerous. The only alternative
was to expand the sacred law so as to include new requirements, and
in the `Umayyad period this was done by the addition of a vast number
of fictitious traditions professing to relate what the Prophet had
said and done in conditions in which he had never been placed. In
describing these traditions as “fictitious,” it is not necessarily
implied that they were fraudulent, although many were so, showing an
obvious motive in increasing the privileges and rights of the dominant
faction or asserting the tribal pre-eminence of the Quraysh, etc.
But more often they are “fictitious” in the sense of legal fictions
rightly correcting the actual law in the interests of equity. When
entirely new conditions arose, the question would be asked, “How would
the Prophet have acted in this case?” The early companions of the
Prophet, educated in the same environment as he had been educated,
and confident that their outlook was essentially the same as his,
had no hesitation in stating what he would have done or said, and
their statement was almost certainly correct: but they worded their
evidence, or it was afterwards worded for them, as a statement of
what the Prophet actually had done or said. And, later again, in a
subsequent generation, when new problems arose, no difficulty was felt
in accepting the supposition that the Prophet would have admitted the
reasonable and just solution which the Roman jurists proposed.
Public-domain text, read in full here on John Shaqi.
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