Orthodox Islamic sources

The relationship between pre-Islamic and Islamic legal traditions is not a topic that concerns only modern or Western scholars. Pre-modern Muslim scholars debated the possibility that Muhammad obeyed a pre-Islamic legal tradition prior to beginning the Islamic movement.

Rather than exploring the diverse variety of pre-Islamic legal traditions, orthodox Is­lamic literature primarily dealt with divine pre-Islamic laws. Many Islamic texts identify three categories of these laws: those that were upheld, modified, or mentioned.⁵⁹ First, Islamic scriptural sources upheld some pre-Islamic laws either explicitly or implicitly. For instance, monotheism, paying charity, and fasting were recognized as pre-Islamic practices that were upheld by Islamic law.⁶⁰ Second, Islamic scriptural sources modified some pre- Islamic laws. For example, Qur'an 16:115 modifies Jewish dietary laws by prohibiting fewer categories of foods.⁶¹ Jurists generally agreed about pre-Islamic practices that were upheld or modified in Islamic scriptural sources; these two categories of pre-Islamic laws were accepted as part of Islamic law.

Some Muslim jurisprudents explored the question of the potential legal value of pre- Islamic laws that were not explicitly rejected or accepted in Islamic scriptural sources.⁶³ Some medieval Islamic jurisprudential texts addressed this topic in a section on ‘legal sources subject to disagreement’ or ‘preceding divine laws’. To be precise, Muslim jurists who dealt with this topic debated the precedential value of pre-Islamic divine laws, primarily those that were mentioned in the Qur’an or tradition-reports. (As previously noted, these pre-Islamic divine laws were considered to be authentic or verified, as compared to pre-Islamic divine laws recorded in non-Islamic texts.) Among orthodox Islamic legal schools, there is a diver­sity of opinions on the precedential weight of these laws.⁶⁴ Hanafis, Malikis, and the majority of Shafi'is held that non-abrogated pre-Islamic laws mentioned in Islamic scriptures are legal sources for Muslims.⁶⁵ By comparison, there are conflicting opinions within the Hanbali school.⁶⁶ That orthodox Muslim jurists considered both the validity and the obligation of pre-Islamic divine laws is evidence of one of the techniques of Islamic legal recycling.

Along with these explicit discussions of pre-Islamic divine laws, one might add the less systematically studied category of ‘rejected pre-Islamic laws’. Islamic literature documents several pre-Islamic customary practices that were deemed illegitimate and nullified by the Prophet or late antique Muslim community.⁶⁷ Late antique Islamic law explicitly rejected female infanticide, idolatry, usury, and sexual relationships leading to uncertain paternity.

An additional way in which Islamic law recycled pre-Islamic legal traditions is through narratives in tradition-reports. Specifically, some Muslim traditionists who had converted from Judaism or who were familiar with Jewish texts reported biblical and rabbinic narratives and scriptural hermeneutics in what came to be identified as ‘Israelite stories’ (isra 'Tliyyat).^6S Initially, these stories were integrated in Islamic hermeneutics with little comment; but, over time, some Muslim scholars would reject these reports because of their content or perceived ‘foreignness’.⁶⁹ No systematic study has examined how Israelite stories informed Islamic legal doctrines; moreover, it is not possible to determine to what extent Islamic law adapted Jewish law through Israelite narratives. Nonetheless, complementing the explicit juristic discussion of pre-Islamic divine laws, some orthodox Islamic sources convey information about more subtle processes of Islamic legal recycling.