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The Islamic Origins of the Common Law By John A. Makdisi
This Article develops a thesis on the origins of the common law that was first explored in my article entitled "An Inquiry into Islamic Influences During the Formative Period of the Common Law," in ISLAMIC LAW AND JURISPRUDENCE (Nicholas Heer ed., 1990). The thesis in its present form 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. John A. Makdisi, 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. ABSTRACT 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.
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. INTRODUCTION 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. The first three Parts examine institutions that helped to create the common law in the twelfth century by introducing revolutionary concepts that were totally out of character with existing European legal institutions. For the first time in English history, (1) Contract law permitted the transfer of property ownership on the sole basis offer and acceptance through the action of debt;3 (2) Property law protected possession as a form of property ownership through the assize of novel disseisin4; and (3) The royal courts instituted a rational procedure for settling disputes through trial by jury.5 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. 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 first two in function and structure and their dissimilarity with the civil law.6 Part V Traces a path from the Maliki school of Islamic law in North Africa and Sicily to the Norman law of Sicily and from there to the Norman law of England to demonstrate the social, political, and geographical connections that made transplants from Islam possible.7,8 The conclusions of this Article shatter some widely held theories on the origins of the common law, but they should not come as a complete surprise. Other writers have already suggested an Islamic influence on the common law. In 1955, Henry Cattan noted that the English trust closely resembled and probably derived from the earlier Islamic institution of Waqf.9 George Makdisi revealed many parallel institutions in Islamic and western legal education10, including most notably the scholastic method11, the license to teach12, and the law schools known as Inns of Court in England and Madrasas in Islam.13 Abraham Udovitch pointed out that the European commenda probably originated from Islam.14 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 conclusion can no longer be avoided as a plausible theory. .... NOTES 1. See, e.g., HAROLD I. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 457 (1983) (affirming that "Henry II created the English common law by legislation establishing judicial remedies in the royal courts"); PAUL BRAND, ‘Multis Vigiliis Excogitatam et Inventam’: Henry II and the Creation of the English Common Law, in THE MAKING OF THE COMMON LAW 77,78 (1992) (stating that Henry II "has most claim to be regarded as the founder of the English Common Law"); CHARLES HOMER HASKINS, THE RENAISSANCE OF THE TWELFTH CENTURY 220 (1927) (remarking that "[t]he age of Henry II is an epoch of the first importance in the history of the common law");
Select CHARTERS AND OTHER ILLUSTRATIONS OF ENGLISH CONSTITUTIONAL HISTORY FROM THE EARLIEST TIMES TO THE REIGN OF EDWARD THE FIRST 22 (William Stubbs ed., 9th ed. 1913) (asserting that "[t]he reign of Henry II initiates the rule of law"); R.C. VAN CAENEGEM, ROYAL WRITS IN ENGLAND FROM THE CONQUEST TO GLANVILL: STUDIES IN THE EARLY HISTORY OF THE COMMON LAW 403(1972) (observing that in the twelfth century "the firm foundations were laid for the imposing edifice of the English common law, one of the great achievements of human legal thought"). 2. See HAROLD J. BERMAN & WILLIAM R. GREINER, THE NATURE AND FUNCTIONS OF LAW 25.2, at 572, 578-79 (4th ed. 1980) (stating that "[i]n England the impact of both Roman and Canon law was felt quite strongly in the creation of the English legal system under Henry II and in its subsequent development in the 13th century"). The idea of Roman law influences is strongly supported by the extent to which Bracton borrowed from Justinian's Corpus Juris Civilis. See Samuel E. Thorne, Translator's Introduction to BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND, at xxxiixxxviii (George E. Woodbine ed. & Samuel E. Thorne trans., Harvard Univ. Press 1968) (n.d.) [hereinafter BRACTON]. 3. See infra notes 15-107 and accompanying text. 4. See infra notes 108-205 and accompanying text. 5. See infra notes 206-341 and accompanying text. 6. See infra notes 342-539 and accompanying text. 7. There are four Sunni (Orthodox) schools of law in Islam: Hanafi, Shaffi, Maliki, and Hanbali. See John Makdisi, Islamic Law Bibliography, 78 L. LIBR. J. 103, 104-05 (1986). These schools developed in the eighth and ninth centuries, with the Maliki school spreading primarily over North and West Africa. See KL at 105. While differences appeared among the schools in terms of legal methodology and principles of law, these differences were slight relative to their similarities. See JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 60, 67 (1964).
Nevertheless, serious research in Islamic law requires the study of legal methodology and principles within the context of each school as an integral unit possessing its own terminology and spirit. See CHAIK CHEHATA, ETUDES DE DROIT MUSULMAN 46 (1971). 8. See infra notes 540-618 and accompanying text. 9. See Henry Cattan, The Law of Waqf, in 1 LAW IN THE MIDDLE EAST: ORIGIN AND DEVELOPMENT OF ISLAMIC LAW 203, 213-15 (Majid Khadduri & Herbert I. Liebesny eds., 1955). For an earlier discussion of the influence of the Waqf on the creation of the English Trust, see Ann Van Wynen Thomas, Note on the Origin of Uses and Trusts Waqfs, 3 Sw. L. J. 162, 166 (1949). For a specific discussion of the influence of the Islamic Waqf on the creation of Merton College in thirteenth-century England, see Monica M. Gaudiosi, Comment, The Influence of the Islamic Law of Waqf on the Development of the Trust in England The Case of Merton College, 136 U. PA. L. REV. 1231, 1248-55 (1988). See generally O. PESLE, LA THEORIE ET LA PRATIQUE DES HABOUS DM15 LE RITE MALEKITE (1941) (providing an overview of the law of waqfs); William F. Fratcher, The Islamic Waqf, 36 MO. L. REV. 153 (1971) (tracing the history of waqfs from 634 A.D. to the middle of the twentieth century). 10. See, e.g., George Makdisi, Interaction Between Islam and the West, 44 REVUE DES ETUDES ISLAMIQUES 287, 289 (1976); George Makdisi, The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court, 34 CLEV. ST. L. REV. 3, 16 (1985-86) [hereinafter Makdisi, Origins of the Inns of Court]. 11. See George Makdisi, The Scholastic Method in Medieval Education: An Inquiry into Its Origins in Law and Theology, 49 SPECULUM 640,648 (1974). 12. See GEORGE MAKDISI, THE RISE OF HUMANISM IN CLASSICAL ISLAM AND THE CHRISTIAN WEST: WITH SPECIAL REFERENCE TO SCHOLASTICISM 26-29 (1990).
13. See Makdisi, Origins of the Inns of Court, supra note 10, at 3-4, 9, 16-17. In 1986, when George Makdisi's article on the origins of the Inns of Court was being published, J. H. Baker published a work in which he discussed the methods of teaching by lecture and disputation in the English Inns of Court and lamented the obscure origins of this institution. See J. H. BAKER, THE LEGAL PROFESSION AND THE COMMON LAW: HISTORICAL ESSAYS 8-13 (1986). 14. See ABRAHAM L. UDOVITCH, PARTNERSHIP AND PROFIT IN MEDIEVAL ISLAM 17172 & 171 n.4 (1970). The commenda is a commercial arrangement in which investors entrust an agent with capital or merchandise, which the agent trades. See id. at 170. The agent returns to the investors the principal along with a previously-arranged share of the profits. See frL. While the agent is entitled to the remaining profits, the agent bears no liability for losses resulting from the venture. See id. Hein-On-Line: North Carolina Law Review North Carolina Law Review - WebSite
*** English Common Law and Islam: A Sicilian Connection By Manlio Lima
Is it possible that certain principles of early English common law are rooted in Islamic ("shari'a") law, introduced into Norman England through contact with the multicultural kingdoms of Sicily and Jerusalem? That is the thesis suggested over the last decade by several scholars, most
notably John Makdisi in the United States and Omar Faruk in the United Kingdom. While there exists no absolute "concrete" proof of a direct connection, circumstantial historical evidence supports the possibility of an exchange of legal ideas. In the beginning there was civil law --legal codes such as the Ten Commandments. The Romans, in particular, developed highly sophisticated codes of law which were inherited, at the fall of the Western Empire, by the Byzantines and (as canon law) by the Church. Common law arrived on the scene to address some of the complexities not directly encompassed by civil law, and while the origins of common law ("case law") are largely obscured by the mists of time it seems that the tribal law of the Romans' adversaries (among them such "Barbarians" as the Celts, Goths, Huns and Vandals) was influential to some degree. Civil law was established by legislation, common law by the precedent of a decision in an earlier but similar case by a fellow judge. Well into the era of the their conquests of England (from the Anglo Saxons) and Sicily (from the Fatimid Arabs) in the 1060s, the Normans still employed "trial by ordeal" to settle disputes. This holdover from their Viking forebears subjected a suspected criminal to a physical test, his survival of (for example) attempted drowning by full immersion in water "proving" a favorable decision by God. For personal disputes, "trial by combat" pitted one man against another in a mortal struggle to decide personal claims over property --be it land, a horse or even a woman. In such circumstances, from which our word "trial" comes, only the physically strong or martially able could claim legal remedy, while females were excluded altogether. A better system was needed, and simply adapting the Church's legal codes to wider society seemed inadequate. King Henry II of England (ruled 1154-1189), generally viewed as a reformer, stood at the vanguard of juridical innovation. He had numerous contacts with the Kingdom of Sicily. His son, Richard Lionheart, passed through Messina several times en route to or from Palestine during the Crusades, and his daughter, Joan Plantagenet, wed King William II of Sicily in 1177. During their exile from England, several of Thomas Becket's kin received hospitality in Sicily, where the cathedral of Marsala is dedicated to "Saint Thomas of Canterbury" and where, in the cathedral of Monreale (overlooking Palermo), a mosaic icon is the first holy image of the archbishop killed by a handful of Henry's knights. Such connections were nothing new; a few of the knights who fought at the Battle of Messina in 1061 also fought at the Battle of Hastings five years later. But during the twelfth century, with contiguous Plantagenet territories extending from England into southern France (the latter was the dowry of Henry's wife Eleanor), and the Siculo-Norman kingdom extending almost as far north as Rome, contacts were more frequent than ever. Typical was the case of the man known to Sicily's Arabs as "Qaid Brun" (born Thomas le Brun in England and known to English historians as 'Thomas Brown'), who was the principal treasurer to King Roger II of Sicily and who, shortly after the Sicilian monarch's death in 1154, returned to England right around the time that Henry ascended the throne, and was retained by the newlycrowned English king to reform the royal exchequer. There he introduced Arabic numerals but
this numeration system was not readily embraced at the English court except by Brun. In the event, he is one of the most likely persons to have influenced Henry intellectually in matters of administration, particularly as regarded life in that other Norman kingdom. It was an Englishman, Robert Selby, whe served for some years as King Roger's effective viceroy in mainland Italy, in places like Salerno. A number of English-born clerics were prominent in Norman Sicily. Richard Palmer, to cite just one of many examples, was bishop of Syracuse and then archbishop of Agrigento. While we usually think of such clerics coming to Sicily from England, Simon of Apulia, a friend of Henry II, went from Sicily to England, where he became dean of York and then bishop of Exeter. The Crusader connection, meanwhile, probably involves the Knights Templar, who had numerous preceptories in England and great influence at court. They are known to have introduced the basic form of certain financial contracts into western Europe through their system of banking and accounts. The Templars, and to a lesser extent the Hospitallers, are believed to have fraternized with their Muslim foes on occasion. Apart from the orders of chivalry, many feudal knights and barons of England went on crusade, and those who returned doubtless brought back at least a few foreign ideas. For context, we should remember that the Sicilian and English kings of the twelfth century were constantly contesting papal power in their realms. Henry's conflicts with Becket were but a single example of this. His Sicilian counterparts, as "apostolic legates," could actually nominate bishops. True, the demography of Norman Sicily, with its domination by Orthodox Christians, Muslims and a number of Jews, differed greatly from that of England, whose population was predominantly Catholic, but the guiding principle that pope could not dictate to sovereign was desired by the crowned monarchs of both kingdoms. In sunny Sicily the principal legal code (civil law) of the time was what is now known as the Assizes of Ariano, promulgated by Roger II in 1140. Advanced for its time, it derived its principles not only from Norman-French, but also from Muslim and Byzantine (especially Justinian) legal ideas. The Assizes governed virtually every aspect of life. Over in cloudy England, Henry's Constitutions of Clarendon, decreed in 1164, were probably influenced somewhat by the Assizes of Ariano but in great measure they concerned the power of the crown in its relations with the Roman Church. Common law is another matter. Before considering it, however, let's think about why certain legal ideas, including some Islamic ones, did not survive in Italy beyond the latter decades of the thirteenth century. Religious equality was good while it lasted, but by the end of the twelfth century the trend was toward conversion of both Muslims and Orthodox (Byzantine Christians) to Roman Catholicism. As early as 1161 some Norman barons openly rebelled against what they viewed as overindulgence of certain courtiers and subjects, and the revolt bore the crude mark of racism toward Arabs and "Greeks" (Orthodox). By 1200, under Swabian rule, Sicily may have been predominantly Catholic. Not long after the death of Frederick II in 1250, there were few Muslims; most had converted and a few had left Italy. (Later, in 1493 most of the Jews of Spanish Sicily
were coercibly converted to Catholicism and a few left for Africa or northern Italy.) The tendency toward statutory law, as opposed to common (case) law, exists in Italy to this day. Today common law is more likely to be applied, to varying degrees, in formerly British lands such as the United States and India, as well as Australia and Canada, while it has largely vanished from Hong Kong. When they conquered Bal'harm (Palermo) in 1071, the Normans established that Muslim, Jew and Christian ("Byzantine" Orthodox at that time) would each be judged by his own law, and the Assizes of Ariano reflected this to a great degree. For the Arabs this meant the Maliki School of law of northern Africa, where a jury of several men could sometimes substitute for the personal testimony of a few witnesses. But the eventual disappearance of Sicily's Muslim-Arab population as an identifiable group spelled the end of the historical continuity of their legal traditions in Sicily, once part of the Fatimids' empire. Another factor should be mentioned. Many Sicilian legal records of the Arab and Norman periods were written on paper, which the Arabs introduced into Europe through Sicily, and most of those fragile documents have not survived centuries of humidity. Parchment and vellum records, written on cured animal skin, are more permanent. In England, in contrast to Sicily, it seems that certain principles of Islamic law formed the basis of early common law as envisaged by Henry II. Because subsequent British legal ideas have been built upon these, at least a thread of the original (Muslim) principles survives. It is beyond the scope of this article to consider specific legal principles in detail but let's at least mention at a few hypothesized to have come into English common law from the Muslim world. 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. Other English institutions possibly influenced by Islamic law include the Inns of Court and perpetual endowment. A considerable improvement over trial by ordeal.
The Common Law and the Law of Islam By Simon Chester
This post is a minor riff on a sentence in Omar’s comment on the Lords’ decision on whether the European Convention on Human Rights can accommodate the child custody presumptions in Sharia law. Omar reminded us that Islamic legal scholars have been arguing about precedent and employing analogies long before the English common law. Which led to a breathless DaVinci Code ((Complete with references to the Knights Templar and tantalizing links between Merton College and Sicily in the age of Islam – for which see Chapter 27 in the late Tim Reuter’s New Cambridge Medieval History)), style BBC Magazine article last month on Is English law related to Muslim law?. Curiously enough the Beeb piece didn’t refer to a very stimulating and provocative piece by the former Dean of the Loyola Law School, John Makdisi entitled The Islamic Origins of the Common Law ((North Carolina Law Review, June 1999, v77, i5, pp. 1635-1739)). It’s a complex thesis which argues that at the time when the common law was slowly developing the action of debt, the assize of novel disseisin, and trial by jury, during the time of Henry II, Islamic law had three analogous institutions, and that there were enough links to Sicily to make the borrowing plausible. Makisi concludes: The Islamic legal system was far superior to the primitive legal system of England before the birth of the common law. It was natural for the more primitive system to look to the more sophisticated one as it developed three institutions that played a major role in creating the common law. The action of debt, the assize of novel disseisin, and trial by jury introduced mechanisms for a more rational, sophisticated legal process that existed only in Islamic law at that time. Furthermore, the study of the characteristics of the function and structure of Islamic law demonstrates its remarkable kinship with the common law in contrast to the civil law. Finally, one cannot forget the opportunity for the transplant of these mechanisms from Islam through Sicily to Norman England in the twelfth century. There are more subtleties in the history of Islamic Law than may appear when we view the issue through the prism of Twenty-First Century cultural politics: see Lord Chief Justice Phillips, the Archbishop of Canterbury and Marion Boyd. Doubtless others will post further links, but a good start can be seen at Anver M. Emon’s Conceiving Islamic Law in a Pluralist Society: History, Politics and Multicultural Jurisprudence
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