The Primitive Muslim Arabs had been roughly shaken out of their archaic traditional way of life before they administered to themselves the additional shock of a sudden change of social environment by bursting out of the deserts and oases of Arabia into the fields and cities of the Roman and Sasanian empires. A long-continuing radiation of Syriac and Hellenic cultural influences into Arabia had produced a cumulative social effect which had declared itself dramatically in the personal career of the Prophet Muhammad; and his achievements had been so astonishing and his personality so potent that his oracles and acts, as recorded in the Qur’ān and the Traditions, were unquestioningly accepted by his followers as the source of law for regulating, not only the life of the Muslim community itself, but the relations between the Muslim conquerors and their at first many times more numerous non-Muslim subjects. The speed and sweep of the Muslim conquests – which brought half of what remained of the Roman Empire and the whole of the Sasanian Empire under the rule of Muhammad’s successors within less than twenty years of the Prophet’s death – conspired with the irrationality of the accepted basis of the Muslim empire-builders’ new-laid law to create a problem which was hardly more awkward for the non-Muslim population of the Caliphate than it was for their Muslim masters; for, even when the Qur’ān was eked out by the Traditions, the task of wringing out of these unpromising materials an oecumenical law for a sophisticated society was as preposterous as the demands for welling water in the wilderness that the Children of Israel were said to have addressed to Moses. [Footnote: Exod. xvii. 1-7.]
For a jurist in search of legal pabulum for sustaining social life, the Qur’ān was indeed stony ground. The chapters dating from the non-political Meccan period of Muhammad’s mission, before the Hijrah, offered far less matter for the practical jurist than he would find in the New Testament; for this literary legacy of the politically disinterested first phase of the Prophet’s career contained little beyond a patently sincere and monotonously reiterated declaration of the unity of God and denunciation of the moral and intellectual error of polytheism and idolatry. The chapters afterwards delivered at Medina might look, at first sight, more promising; for at the Hijrah Muhammad achieved in his own lifetime a position that was not attained by any follower of Jesus till the fourth century of the Christian Era; he became the head of a state, and his utterances during this Medinese period were mainly concerned with public business. Yet it would be at least as difficult to elicit a comprehensive system of law for a sophisticated society from the Medinese surahs [chapters of the Qur’ān], unsupplemented, as it would be to perform the same juristic conjuring trick with the Epistles of Saint Paul. Like the apostle-missionary, the apostle-podestà found that the flurry of improvising provisional solutions, ad hoc, for a ceaseless succession of emergencies, serious or trivial, [footnote] left him no breathing-space for attempting to sort out these stray sibylline leaves into anything like a comprehensive or systematic code. Yet, even if Muhammad had succeeded, where Paul had failed, in performing this superhuman labour, the result would have been of less practical use to the Arabian prophet’s successors than a Pauline code would have been to the Christian Roman Emperors; for the private business of religious congregations in important cities of the Roman Empire in Paul’s day actually had more in common with the public business of the Roman Empire in the fourth century of the Christian Era than had the public business of the agricultural, non-commercial, oasis-state of Medina under Muhammad’s rule during the years A.D. 622-32 with the public business of the universal state, embracing all but a fraction of the Syriac World, of which Muhammad’s thirty-third successor Mu’tamid found himself master upon his accession in A.D. 870.
The other footnote I showed there reads:
For these characteristics of Muhammad’s personal legislation in the Medinese surahs, see Margoliouth, D. S.: The Early Development of Mohammedanism (London 1914, Williams & Norgate), pp. 5 and 12. “It has been noticed that the word which we ordinarily render ‘reveal’, and which literally means ‘send down’, is properly applied to royal rescripts; the suppliant ‘raises’ a petition and the sovereign ‘sends down’ the reply. The faithful at Medinah used to await fresh revelations each day somewhat as we in these days are on the look out for the morning paper.”
The time-lag between a hypothetical Pauline code and its adoption by Christian emperors would have been of the same order as the gap between Muhammad’s rule in Medina and the reign of Mu’tamid: I think that reign is mentioned because it happened to begin exactly three hundred years after Muhammad’s birth.
Going back to the main text:
In these compelling circumstances the men of action who built the Arab Caliphate let theory take its chance and resorted to self-help. In a legal no-man’s-land where the oracles of the Qur’ān were dumb and where even the beaten track (Sunnah) [Sunnah literally means track] of concordant Tradition faded out, they found their way through by the aid of common sense, analogy, consensus, and custom. [Footnote: “It is likely that [Muhammad] [brackets in original] meant current practice to continue except where his legislation had abrogated it” (Margoliouth, op. cit., p. 66). To begin with, the custom which counted for most was that of the Arabian oasis-dwellers and Nomads […]. The custom which eventually prevailed was that of the Arab empire-builders’ converted subjects.]
Early Moslem jurists improvised answers to questions to which the Qur’ān and Tradition had no answers. He quotes from the Encyclopaedia of Islam.
“In the oldest period of the development of Islam the authorities entrusted with the administration of justice and the conduct of the religious life had in most cases to fall back on the exercise of their own ra’y (common-sense personal judgment) owing to the scarcity of legislative material in the Qur’ān and the dearth of ancient precedents. This was regarded as a matter of course by everyone. … Corresponding to this recognition of ra’y as an approved source of law are the instructions ascribed to the Prophet and the early Caliphs, which they gave to the officials sent to administer justice in the conquered provinces. … In the digests which were developed from these simple origins we find deduction from decisions in allied cases expressly mentioned, i.e. the application of analogy (qiyās) as a methodical adjustment of equity (ra’y). …
“We have – there is evidence for it at a very early period – a kind of popular element adopted among the constitutive sources for the deduction of laws: the conception of consensus (ijmā), i.e. the general usage of the community which has been established by agreement in the larger circles of believers independent of the written, traditional or inferred law. …
“It was quite natural, from the changed conditions after the conquests, that the formation of the law, not only in its special provisions, but particularly in the point of view they adopted in their method of deductive operation as laid down in fiqh (Islamic jurisprudence), was greatly influenced by what the authorities on the development of law in Syria and Mesopotamia were able to learn of Roman Law, sometimes of the special laws for the particular provinces. It was obvious that a quite uncultured people, coming from a land in a primitive stage of social development into countries with an ancient civilization where they established themselves as rulers, would adopt from among their new surroundings as much of the customary law of the conquered lands as could be fitted in with the conditions created by the conquest and be compatible with the demands of new religious ideas. … The comparative study of one chapter of private law has yielded the most conclusive proofs of the thorough-going adoption of Roman Law by the jurists of Islam. [Footnote: Schmidt, F. F.: Die Occupatio im Islamischen Recht, reprinted from Der Islam, i (Strassburg 1910).] …
Occupatio was a Roman legal term referring to the acquisition of previously unowned land by occupying it with the intention of keeping it. The word is feminine in a German context as it is in Latin.
Roman Law, however, does not exhaust the sources drawn upon in the development of Muslim Law. The receptive character that marks the formation and development of Islam also found expression, naturally first of all in matters of ritual, in borrowings from Jewish Law. According to [von] [square brackets in original] Kremer, [footnote] even many of the provisions of Roman Law that have been adopted by Islam only found a place in fiqh through the intermediary of the Jews.” [Footnote: Goldziher, I., in the Encyclopaedia of Islam, vol. ii (London 1927, Luzac). s.v. Fikh, quoted with the permission of the publishers.]
The Kremer footnote, which seems to be as much Toynbee as Goldziher, reads:
Kremer, A. von: Culturgeschichte des Orients (Vienna 1875-7, Braumüller, 2 vols.), vol. i, p. 535; English translation by Khuda Bukhsh, S.: The Orient under the Caliphs (Calcutta 1920, University Press), chap. viii, “The Origin and Development of Muslim Law”, Section 6, “The Sources of Muslim Law”.
The influence of local Medinese Jewish jurisprudence on the early school of Islamic jurisprudence at Medina is emphasized by Margoliouth, op. cit., p. 74: “There is no evidence that Roman Law penetrated into this primitive city.”
Today, we see Sharia adapting itself (but Islamic scholars would say not compromising itself) in an extremely sophisticated way to the demands of, say, modern banking – and being advocated for adoption by Western societies in a very raw form, with no aid at all being sought from “common sense, analogy, consensus, and [previous] custom”.
A Study of History, Vol VII, OUP, 1954