Texts of Islam

Development of Muslim Theology: Part II. Development of Jurisprudence: Chapter I

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This is a scholarly historical study of the origins and development of Islamic jurisprudence (fiqh), written in the tradition of comparative legal history and clearly influenced by Sir Henry Maine's approach to ancient law. The author argues that Muslim law emerged from a specific historical confluence in 7th-century al-Madina: pre-Islamic Arab customary practice, Jewish legal tradition already present in the city, and above all the ad hoc legislative decisions of Muhammad himself, who functioned as an absolute ruler issuing rulings on demand rather than constructing any systematic code. A central claim is that Muhammad "lived from hand to mouth" as a lawyer — responding to immediate disputes with opportunistic rulings, some backed by Quranic revelation, leaving behind deliberate contradictions that later jurists would spend generations resolving. After Muhammad's death, the author traces how four sources of law consolidated — the Quran, the Prophet's reported decisions (traditions/hadith), the customary law of al-Madina, and equity — and how the authority of fabricated or embellished prophetic traditions gradually crowded out equity as the legal corpus expanded. A distinctive and striking claim is that Muslim law is uniquely total in scope, encompassing ritual, civil, criminal, and moral conduct without distinction — illustrated by the anecdote of a jurist who refused to eat watermelon because no prophetic precedent sanctioned a method of doing so. The text is aimed at a Western audience deciding whether to engage seriously with Islamic legal history, and consistently orients unfamiliar concepts against Roman law and European legal development as reference points.

Development of Muslim Theology: Part II. Development of Jurisprudence: Chapter I

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