The Islamic Origin of British Common Law

[S.A.M.]

Henry II created the common law in the twelfth century, which resulted in revolutionary changes in the English legal system, chief among which were the action of debt, the assize of novel disseisin, and trial by jury.

The sources of these three institutions have long been ascribed to influences from other legal systems such as Roman law.

Professor Makdisi has uncovered new evidence which suggests that these institutions may trace their origins directly to Islamic legal institutions.

This Article explores the origins of these three institutions by tracing their unique characteristics to three analogous institutions in Islamic law.

The royal English contract protected by the action of debt is identified with the Islamic 'Aqd, the English assize of novel disseisin is identified with the Islamic Istihqaq, and the English jury is identified with the Islamic Lafif.

The evidence lies in the unique identity of characteristics of these three institutions with those of their Islamic counterparts, the similarity of function and structure between Islamic and common law, and the historic opportunity for transplants from Islam through Sicily.

The origins of the common law are shrouded in mystery. Created over seven centuries ago during the reign of King Henry II of England; to this day we do not know how some of its most distinctive institutions arose.1

For example, where did we get the idea that contract transfers property ownership by words and not by delivery or that possession is a form of property ownership? Even more importantly, where did we get the idea that every person is entitled to trial by jury?

Historians have suggested that the common law is a product of many different influences, the most important being the civil law tradition of Roman and canon law.2

Yet, as we shall see, the legal institutions of the common law fit within a structural and functional pattern that is unique among western legal systems and certainly different from that of the civil law. The coherence of this pattern strongly suggests the dominating influence of a single preexisting legal tradition rather than a patchwork of influences from multiple legal systems overlaid on a Roman fabric. The only problem is that no one preexisting legal tradition has yet been found to fit the picture.

This Article looks beyond the borders of Europe and proposes that the origins of the common law may be found in Islamic Law.

References:North Carolina Law Review, June 1999, v77, i5, pp. 1635-1739
The Islamic Origins of the Common Law
By John A. Makdisi

Comments?

 

[draqon]

Al-Andalus city Toledo was flooded by Henry's men (scholars) to translate the scientific works...so why not

 

[(Q)]

"Islamic law differs from the common law in some important respects. In the Islamic judiciary system, there are no lawyers (i.e., advocates for the plaintiff or defendant), nor is there a jury. Trials are conducted by the judge, and the plaintiff and defendant represent themselves. They may call witnesses or produce evidence as needed. The decision is up to the judge alone, though he may consult other jurists, experts, and so on."

http://science.jrank.org/pages/7816/Law-Islamic.html

 

[Igor Trip]

So in which Islamic countries can you find Jury trials?

http://en.wikipedia.org/wiki/Henry_II_of_England#Legal_reform

"Henry II's reign saw the establishment of Royal Magistrate courts. This allowed court officials to adjudicate on dispute with authority to the crown. This reduced the workload on Royal courts proper and allowed justice to be delivered with greater efficiency.

Henry also worked to make the legal system fairer. Trial by ordeal and Trial by combat were still common, even in the 12th century these methods were outdated. By the Assize of Clarendon, in 1166, Trial by Jury became the standard. Trial by Combat was still legal in England until 1819, but Henry's support of juries was a great contribution to the country's social history. The Assize of Northampton, in 1176, cemented the earlier agreements at Clarendon."

 

[(Q)]

Islam is also accredited to the cleaver, the noose and the prosthetic limb.

 

[S.A.M.]

"Islamic law differs from the common law in some important respects. In the Islamic judiciary system, there are no lawyers (i.e., advocates for the plaintiff or defendant), nor is there a jury. Trials are conducted by the judge, and the plaintiff and defendant represent themselves. They may call witnesses or produce evidence as needed. The decision is up to the judge alone, though he may consult other jurists, experts, and so on."

http://science.jrank.org/pages/7816/Law-Islamic.html

What was the system in England before the trial system?

 

[Sock puppet path]

If you research most germanic peoples had some semblance of trial by jury in the form of Tings in scandinavia.

The legal traditions of the Danes were also different. It was they who evolved the 12-man jury system. This was soon borrowed by the English, who exported it to the rest of the world, and now claim to have invented it.

from here

 

[GeoffP]

References:North Carolina Law Review, June 1999, v77, i5, pp. 1635-1739
The Islamic Origins of the Common Law
By John A. Makdisi

Comments?

Crap?

I think the jury business says enough. What is this unobjective need to credit islam with everything? Surely now - and despite our prior differences - Sam is not succumbing to this nonsense.

 

[GeoffP]

To further answer Makisdi's half-hearted questions: contract law was established in England by assize and originates from William the Conqueror's Domesday survey. It was a simple outgrowth of need, and I've yet to see it described otherwise. Were the locals perhaps just too ignorant to provide for their own legal interests?

 

[S.A.M.]

If you research most germanic peoples had some semblance of trial by jury in the form of Tings in scandinavia.


from here

960s? Where did they get it from?

 

[(Q)]

Crap?

I think the jury business says enough. What is this unobjective need to credit islam with everything? Surely now - and despite our prior differences - Sam is not succumbing to this nonsense.

Oh, yes she is, has, and will continue to.

 

[S.A.M.]

Why is everything a federal case? Sheesh, can't you guys discuss anything without whining?

I thought it was an interesting article, it was not written by me, btw.

 

[(Q)]

Why is everything a federal case? Sheesh, can't you guys discuss anything without whining?

Bullshit! Who are you or anyone else to keep subscribing the same bullshit that Islam is accredited to anything other than the oppression, racism and bigotry it's well known for?

I thought it was an interesting article, it was not written by me, btw.

It's complete bullshit, and you should know that. You keep spreading the same Islamic propaganda since you arrived here. Please cease and desist. Enough is enough.

 

[S.A.M.]

Guess not.

 

[Sock puppet path]

960s? Where did they get it from?

They had it when the romans first bumped into them way back when. The celtic and the germanic peoples were more egalitarian and democratic than the romans.

 

[S.A.M.]

They had it when the romans first bumped into them way back when. The celtic and the germanic peoples were more egalitarian and democratic than the romans.

Thats interesting. Do you know of a good reference?

 

[GeoffP]

I'm puzzled by Sam's unstated position that the silly Euros weren't able to think of anything on their own.

 

[iceaura]

I had always heard jury trial descended from the Danelaw of the Vikings - also found to the north.

In the Danelaw, IIRC, the jury (of twelve) was also responsible for investigation of fact.

 

[S.A.M.]

I had always heard jury trial descended from the Danelaw of the Vikings - also found to the north.

In the Danelaw, IIRC, the jury (of twelve) was also responsible for investigation of fact.

Isn't Danelaw from the 9th century?

Weren't the Vikings pirates who reached Baghdad?

There is archaeological evidence (coins) that the Vikings reached the city of Baghdad, the center of the Islamic Empire and their considerable intellectual endeavors.[citation needed] In 921, Ibn Fadlan was sent as emissary on behalf of the Caliph of Baghdad to the iltäbär (vassal-king under the Khazars) of the Volga Bulgaria, Almış. The Bolgar King had petitioned to the Caliph to establish relations. He had asked to have someone come to teach him Arabic and the Qu'ran and pledge allegiance to Hanafi rite of the Sunni Muslims.

 

[iceaura]

Isn't Danelaw from the 9th century?

Weren't the Vikings pirates who reached Baghdad?

They didn't reach Baghdad as pirates, one would assume.

The Vikings traded, as well as raiding. And there was more than one kind of Viking, as they're called now.

Perhaps they did introduce elements of their age-old legal traditions to parts of the Islamic world, but it's hard to see what they could have been.