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English law comes from Shari'ah- George Makdisi

English law comes from Shari'ah- George Makdisi

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Published by haqq92
“The Islamic Origins of the Common Law”, North Carolina Law Review 77 (5): 1635–1739

What are some of the English law principles thought to come from Islamic (Shar'iah law)?
"Makdisi also argued that English legal institutions such as “the scholastic method, the license to teach,” the “law schools known as Inns of Court” in England (which he asserts are parallel to Madrasas in Islam) and the “European commenda” (parallel to Islamic Qirad) may have also originated from Islamic law..."
Other principles?
"Briefly, they are: the right not to testify to incriminate oneself; the outlaw of use of hearsay as evidence in trials; every person's right to trial by jury; the weight of a spoken or written contract as right to possession or transfer of property (rather than actual physical possession as sole proof of title to land, a horse, etc.); the possession of property constituting a form of ownership; the equality and consistency of laws in their application throughout a country; Ranulf Glanville's medieval definition of a valid contract based on agreement and consideration."
“The Islamic Origins of the Common Law”, North Carolina Law Review 77 (5): 1635–1739

What are some of the English law principles thought to come from Islamic (Shar'iah law)?
"Makdisi also argued that English legal institutions such as “the scholastic method, the license to teach,” the “law schools known as Inns of Court” in England (which he asserts are parallel to Madrasas in Islam) and the “European commenda” (parallel to Islamic Qirad) may have also originated from Islamic law..."
Other principles?
"Briefly, they are: the right not to testify to incriminate oneself; the outlaw of use of hearsay as evidence in trials; every person's right to trial by jury; the weight of a spoken or written contract as right to possession or transfer of property (rather than actual physical possession as sole proof of title to land, a horse, etc.); the possession of property constituting a form of ownership; the equality and consistency of laws in their application throughout a country; Ranulf Glanville's medieval definition of a valid contract based on agreement and consideration."

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Published by: haqq92 on Dec 04, 2012
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Citation: 77 N.C. L. Rev. 1635 1998-1999Content downloaded/printed fromHeinOnline (http://heinonline.org)Tue Dec 4 14:21:20 2012-- Your use of this HeinOnline PDF indicates your acceptanceof HeinOnline's Terms and Conditions of the licenseagreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated fromuncorrected OCR text.-- To obtain permission to use this article beyond the scopeof your HeinOnline license, please use:https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0029-2524
 
THE
ISLAMIC
ORIGINS
OF
THE
COMMON
LAW
JOHN
A.
MAKDISI*
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
institutionshave
long
been
ascribed
to
influences
from
other
legal systems
such as
Roman
law.
Professor Makdisi
has
uncovered
new evidencewhichsuggests
that
these
institutions may
trace
their
origins
directly
to
Islamic
legal
institutions.
The evidence
lies
in
the
unique
identity
of
characteristics
of
these
three
institutions
withthose
of
their Islamic counterparts,
the
similarity
of
function
and
structure
between
Islamic
and
common
law,
and
the
historicopportunity
or
transplants
rom
Islam through
Sicily.
INTRODUCTION
.....................................................................................
1637
I.
CONTRACT
IN
THE
AcTiON
OF
DEBT
......................................
1640
A.
Glanvill's
Definition
of
Contract
......................................
1641
B.
Glanvill
Interpreted
n
an
Incomplete
HistoricalC
ontext
.................................................................................
1645
C.
The
Islam
c
cA
qd
.................................................................
1650
H.
PROPERTY
IN
THE
ASSIZE
OF
NOVEL
DISSEISN
...................
1658
A.
A
Speedy
Remedy
for
Loss
of
Ownership
.......................
1658
B.
The
Islamic
Istihqaq
............................................................
1665
C. Prescription
Versus
Limitation
.........................................
1669
1.
English Law
....................................................................
1671
a.
DefendantHad
No
Title
.........................................
1671
*
Dean
and Professor
of
Law, Loyola
University
New
Orleans
School
of
Law.
B.A.,Harvard
College,
1971;
J.D.,
University
of
Pennsylvania Law
School,
1974;
S.J.D.,
Harvard
Law
School,
1985.
This
Article
developsa thesis on
the
origins
of the
common
law
that
was
first
explored
in
my
article
entitled
An
Inquiry
intoIslamic
Influences
During
the
Formative
Period
of
the
CommonLaw, in
ISLAMIC
LAW
ANDJURISPRUDENCE
135
(Nicholas
Heer
ed.,
1990).
The
thesis in
its
presentform
was
the
topic
of lectures
at Duke
University
(Feb.
19,
1997),
Loyola University
New
Orleans
(Apr.
4,
1997),
and
the
American
Oriental
Society
(Apr.
6,
1998).
It
is
dedicated
to
my
father,
George,
whose
work
and
encouragement
inspired me
on
this
venture,
and
to
my
wife,
Junicka,
whose love and
support
carried
me
through
its
storms.
HeinOnline -- 77 N.C. L. Rev. 1635 1998-1999
 
NORTH
CAROLINA
LAW
REVIEW
b.
Defendant Had
Color
of
Title
...............................
1672c.
Defendant Had
Title
...............................................
1673
2. Islamic
Law
....................................................................
1674
a.
Defendant
Had
No
Title
........................................
1674
b.
DefendantHad
Color
of Title
...............................
1674c.
Defendant Had
Title
...............................................
1675
III.
PROCEDURE
IN
TRIAL
BY
JURY
...............................................
1676
A.
Methods
of
Proof
Before
the
Creation
of
the
Jury
..........
1676
B.
The
English
Jury
.................................................................
1679
1.
The Jury
Is
a
Body of
Twelve Sworn
People
Drawnfrom
the
Neighborhood
................................................
1681
2.
Who Must
Give
an
Answer
..........................................
1682
3.
Unanimously
..................................................................
1682
4.
About
a
Matter
that
They Have Personally
Seen
or
H
ard
.........................................
682
5.
Binding on
the
Judge
....................................................
1683
6.
To Settle
the
Truth
Concerning
Facts in
a
Case
........
1683
7.
Between Ordinary People
............................................
16848.
Submitted
to
a
Jury
upon
a
Judicial
Writ
...................
1684
9.
Obtained
as
of Right
by
the
Plaintiff
..........................
1684
C. The
Royal
Inquest
and
the
Popular
Recognition
.............
1685
D.
The
Islamic
Lafif
.................................................................
1687
1.
Case
Between Ordinary
People,
Obtained
as
of
Right
by
the
Plaintiff
....................................................
1687
2.
Witnesses
Form
a
Body of
Twelve
People
from
the
Neighborhood
................................................................
1688
3.
Witnesses
Sworn
toTell
the Truth
About
a
MatterThey
Had
Seen
or Heard
.............................................
1690
4.
Witnesses
Must
Give
an
Answer
.................................
1691
5.
Testimony Binding
on
the
Judge
.................................
1691
6.
Unanimous
Verdict
.......................................................
16937.
Case
Submittedto
a
Jury
upon
a Judicial
Writ
..........
1694
IV.
A
COMPARATIVE
STUDY
OF
LEGAL
SYSTEMS
......................
1696
A.
Differences
Between the
Common
and
Civil
Law
...........
1696
1.
Function:
Activist
v.
Reactive
.....................................
1696
2.
Structure:
Hierarchical
vs.
Coordinate
......................
1700
B.'
The
Function
of
IslamicLaw
.............................................
1703
1.
Individual
Self-Definition
............................................
1703
2.
Justice,
Not
Morality
.....................................................
1704
3.
Law
Above
the
State
....................................................
1704
4.
Individualism
.................................................................
17065.
Freedom
of
Contract
.....................................................
1706
1636
[Vol.
77
HeinOnline -- 77 N.C. L. Rev. 1636 1998-1999

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