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The Islamic Origins of the Common Law

The Islamic Origins of the Common Law



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Published by: islampolicy on Sep 02, 2010
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THE ISLAMIC ORIGINS OF THE COMMON LAW – John MakdisiPublished in North Carolina Law Review in June, 1999IntroductionThe origins of the common law are shrouded in mystery. Created over seven centuries agoduring the reign of King Henry II of England,
to this day we do not know how some of itsmost distinctive [*1638] institutions arose. For example, where did we get the idea thatcontract transfers property ownership by words and not by delivery or that possession is aform of property ownership? Even more importantly, where did we get the idea that everyperson 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.
Yet, as we shallsee, the legal institutions of the common law fit within a structural and functional patternthat 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 singlepreexisting legal tradition rather than a patchwork of influences from multiple legal systemsoverlaid on a Roman fabric. The only problem is that no one preexisting legal tradition hasyet been found to fit the picture.This Article looks beyond the borders of Europe and proposes that the origins of thecommon law may be found in Islamic law. The first three Parts examine institutions thathelped to create the common law in the twelfth century by introducing revolutionaryconcepts that were totally out of character with existing European legal institutions. For thefirst time in English history, (1) contract law permitted the transfer of property ownershipon the sole basis of offer and acceptance through the action of debt;
(2) property lawprotected possession as a form of property ownership through the assize of noveldisseisin;
and (3) the royal courts instituted a rational procedure for settling disputesthrough trial by jury.
This Article explores the origins of these three institutions by tracingtheir unique [*1639] characteristics to three analogous institutions in Islamic law. Theroyal English contract protected by the action of debt is identified with the Islamic[su'c']aqd, the English assize of novel disseisin is identified with the Islamic istihqaq, andthe English jury is identified with the Islamic lafif.Part IV examines the major characteristics of the legal systems known as Islamic law,common law, and civil law and demonstrates the remarkable resemblance between the firsttwo in function and structure and their dissimilarity with the civil law.
Part V traces a pathfrom the Maliki
school of Islamic law in North Africa and Sicily to the Norman law of Sicilyand from there to the Norman law of England to demonstrate the social, political, andgeographical connections that made transplants from Islam possible.
The conclusions of this Article shatter some widely held theories on the origins of thecommon law, but they should not come as a complete surprise. Other writers have alreadysuggested an Islamic influence on the common law. In 1955, Henry Cattan noted that theEnglish trust closely resembled and probably derived from the earlier Islamic institution of waqf.
revealed many parallel institutions in Islamic and western legaleducation,
including most [*1640] notably the scholastic method,
the license toteach,
and the law schools known as Inns of Court in England and madrasas inIslam.
Abraham Udovitch pointed out that the European commenda probably originatedfrom Islam.
Yet none of these scholars have suggested that the common law as an
integrated whole was a product of Islam. Given the evidence outlined below, this conclusioncan no longer be avoided as a plausible theory.I. Contract in the Action of DebtTo understand the nature of contract law as practiced in the English royal courts
in thetwelfth century, we start with the first classical textbook on English law, commonly knownby the name of its purported author, Glanvill.
After studying Glanvill directly, we willexamine interpretations of his text from a Roman perspective, [*1641] followed by a newinterpretation from an Islamic perspective.A. Glanvill's Definition of ContractThe earliest writ regularly issued by the English royal courts to recover contract debts wasthe writ of debt in the twelfth century.
It permitted the buyer and the seller each toenforce the obligation of the other party in a sale of goods.
Contracts for the sale of goods were not unusual at this time in non-royal courts, but the writ of debt in the royalcourts introduced a new concept of obligation by which the contracting parties werebound.
The old concept of obligation, as seen in Anglo-Saxon contracts, was that of apromise marked by some formality such as a handshake.
After making the promise, theseller had an obligation, undergirded by the morality of keeping a promise, to deliver whatstill remained his own property to the buyer.
The new concept of obligation, embodied inthe action of debt, was a grant effectuated by the agreement of the parties.
After makingthe agreement, the seller had an obligation, based on the transfer of ownership that hadalready taken place upon agreement, to deliver the buyer's property to the buyer.
To understand the nature of this new type of contractual obligation protected by the actionin debt, we turn to its earliest definition provided by Glanvill
in the late 1180s:The cause of a debt may also be purchase or sale, as when anyone sells some thing of histo another; for then the price [*1642] is owed to the seller and the thing purchased isowed to the buyer. A purchase and sale is effectively complete when the contracting partieshave agreed on the price, provided that this is followed by delivery of the thing purchasedand sold, or by payment of the whole or part of the price, or at least by the giving andreceipt of earnest.
Most of this statement is clear. A complete sale was effectuated by contractual agreementon the price. In other words, the contract of purchase and sale, which was a binding set of mutual obligations, was completed by agreement. This contract, in turn, was the cause of adebt whereby the thing purchased was owed to the buyer by the seller and the price wasowed to the seller by the buyer. There are two parts of Glanvill's statement, however, thatare not clear. What does it mean to say that something was "owed" in an action in debt?And what does it mean to say "provided that this is followed by delivery"?To say that something was "owed" in the action of debt was to say that something was"owned." In the writ of debt the plaintiff complained that the defendant "ei iniustedeforciat."
The word "deforciat," which translates directly as "deforces," was used in thesense that the debtor was withholding the creditor's own property.
Therefore, the debt"owed" by a contracting party was the obligation to pay the other party what was already
owned by that other party. The seller's goods became the buyer's goods as soon as thecontract obligation arose; at that point, the seller held the buyer's own property.The buyer's ownership of the object of sale subsequent to the completion of the contract,but prior to delivery, was confirmed by what happened upon death of one of the parties tothe contract protected by the action of debt. Liability to pay the debt or to collect the debtpassed to the heir upon the death of the debtor or the creditor.
If the object of the debthad not been something already owned by the buyer/creditor, there would have been aproblem with the suit by the heir, because the obligation would have been a mere right of action, and a man could not inherit a mere right of action.
[*1643] Therefore, the debtin the form of the object of sale was something owed by the seller as a nonowner to thebuyer as an owner. In other words, the purchase and sale, complete upon agreement by theparties, created a new legal relationship between the parties. The mere agreement of theparties immediately transferred the ownership of the object of sale from the seller to thebuyer who could claim it in an action of debt as his own property.The second ambiguity in Glanvill's passage arises from the meaning of the conditional words"provided that." Glanvill stated that agreement completed the purchase and sale "providedthat this is followed by delivery of the thing purchased and sold, or by payment of the wholeor part of the price, or at least by the giving and receipt of earnest."
The interpretation of this condition depends on whether it is a condition precedent or a condition subsequent.A condition precedent is something that must happen before a legal effect can take place,whereas a condition subsequent is something that will take away a legal effect if ithappens.
For example, if A gives B a deed for a certain piece of property and the deedstates that "it is on condition that B build a road to the property within a year," the legaleffect, which is the transfer of the property, takes place only after the road is built when thecondition is precedent. When the condition is subsequent, the transfer of the property takesplace immediately, but it may be lost a year later if the road has not been built.To determine whether a condition is precedent or subsequent, one may look to the meaningof the condition. For example, in modern-day American contract law, conditions precedentmay be found in the example of an insurance company that promises to pay for damagescaused if a fire occurs and if the insured files proof of loss with the insurer within sixty daysafter the loss.
These two conditions are precedent to the insurance company's paymentfor damages because, logically, the company would not pay before it has proof of thefire.
On the other hand, if a provision states that the insurance company's obligation topay is discharged if the insured [*1644] fails to sue within one year of the filing of a proof of loss, the meaning of this condition makes it subsequent because the failure to sue withinthe time specified works a "discharge" to a duty that has already arisen.
One may look not only to the meaning but also to the language of the condition todetermine whether it is precedent or subsequent.
Gray, a reputed scholar who wroteon estates and future interests in the common law of property, stated:Whether a remainder is vested or contingent depends upon the language employed. If theconditional element is incorporated into the description of, or into the gift to, the remainder-man, then the remainder is contingent; but if, after words giving a vested interest, a clauseis added divesting it, the remainder is vested.
Cornelius Moynihan has supplied examples to illustrate this distinction. He gives as anexample of a contingent remainder (a remainder subject to a condition precedent): "A

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