This calumny adopted by Goldziher and those who followed him is void from several aspects:
The first aspect: (Goldziher) and his student have alleged that the Islamic concept of the Sunnah is a term modified from the old Arabic views, and pre-Islamic heritage; he means that Islam retained some of the matters familiar to the Arabs, anterior to it, following their regulation for them, which is what the Orientalists always mention. Then this is (Gustave Le Bon), who says in his book (The Civilization of the Arabs): (Such like Mohammed, who knew how to select from ancient Arab systems what seemed the most appropriate, then supported it with his religious influence, but the law of Mohammed did not abolish all the customs it substituted) (1).
Goldziher always hits this string in all his Islamic studies: he makes everything Islamic amenable: either to internal factors, such as the jurisprudence of the pre-Islamic people and their customs, or to external factors, such as Judaism, Christianity and Greek mythology.
These customs or traditions, which are retained by Islam, are quite specific. They do not amount to one tenth of the Islamic legislations. Nevertheless, Islam only retained them on one condition, which is that they neither contravene legal evidence, nor one of its fundamental rules.
Dr Zaki Ad-Din Shaaban says: (This is why we find that the wise legislator endorses many of the matters that are familiar to the Arabs before Islam, following their regulation for them, such as selling, mortgaging, leasing, borrowing, oaths, marriage, considering parity between spouses, the imposition of blood money on the killer’s relatives, basis of inheritance and the guardianship in marriage through family-relations, and does not rule out from them but the inappropriate and harmful that are unsuitable, such as usury, gambling, burying female infants alive and denial of women's inheritance) (2).
Dr. Sassi Al Haj presented some of the provisions, which had existed within the Arabs previously, and Islam retained or revoked, then said: (These are examples concerning worship and transactions found in pre-Islam, and Islam approved some of them and revoked some others. From this endorsement, orientalists reckoned that the Prophet drew his information, news and provisions, representing his commands and prohibitions, from these customary laws, which he found in his milieu. He was influenced by them, and incorporated them into his book, which he authored, and into his practices and statements, which he aired to his Companions, and became a major part of his legislations.
We do not deny the existence of such provisions and laws, resulting from the customs of the pagans in Islamic legislation. It would not harm the Prophet to maintain the suitable laws, whether regulated acts of worship or transactions, as long as these provisions fit with the philosophy of Islamic law, in order to achieve its purposes for which it was revealed. We cannot conclude from their retention the influence of the Prophet by them, considering that they are matters he drew from his environment, and not revealed by Allah to him in His impervious book. If the matter had been otherwise, he would have maintained all the other pagan laws and customs, and not have prohibited some of them and permitted some others. But, legislation always takes into account the interests of people and subjects, in the interests of whom they have been initiated. The suitable provisions remain, and the inappropriate ones are abolished, due to their conflict with the interest of the community.
Islam retained many of the pagan customs and legislations, because: they are suitable for application. They are not the subject of criticism from the community. They fulfil the interests of those for whom these provisions were initiated. When it abolished the inappropriate ones among them, it took into consideration these divine teachings, which brought the Mohammedan message to eliminate exploitation, corruption and injustice in its diverse forms and colours. It refined Hajj rituals by abolishing the circumambulation of the nude, removed the idols and cultivated marriage. It retained the correct system, which is harmonious with human nature, and abolished the inappropriate among it, that leads to the mix up in lineages and sow hatred and enmity between the members of the society and the divorce system, and initiated legislation that safeguards women's right to alimony and custody.
All these legislations, whether acts of worship or transactions, were initiated to organize the Muslim community, which seeks to achieve equality and love among the members of the human society as a whole. We cannot just accept, through them, the suspicions of the orientalists; that maintaining and approving them means they form the sources of the Holy Quran, and the Islamic legislations emanating from the other sources of legislation) (3).
The approach of effect and influence pursued by the orientalists in Islamic studies, does not lead to valid scientific results. There is nothing wrong with the effect and influence, in terms of realism and methodology, but their use in an arbitrary form leads to stripping Islam of its sound principles and foundations, and this is what is rebuffed, scientifically and objectively.
(1) The Civilization of the Arabs, p. 382.
(2) Principles of Jurisprudence, p. 193.
(3) Criticism of the orientalistic discourse (1/275-276).