Page:Arabic Thought and Its Place in History.djvu/84

 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. Thus it finally came to pass that a considerable portion of the Roman civil law was embodied in the traditions of Islam (cf. Santillana: Code civil et commerciel tunisien. Tunis, 1899, etc.) It is not to be supposed that Arab governors and judges studied the Roman code, they simply accepted its provisions as they found them in force in Syria and Egypt, and thus learned its general principles from the usage of the civil courts already existing. In many places material is found in the traditions which can be traced to Zoroastrian, Jewish, and even Buddhist sources,