Common Law
editProfessor John Makdisi was the first to trace the origins of English common law to institutions in the Muslim world. For the first time in English history we find the simultaneous introduction of several concepts that already existed in the Muslim world which aligns on the historical timeline with Latin translations of the 12th century, particularly during the reign of Henry II of England.[1] Contract law permitted the transfer of property ownership solely on offer and acceptance protected by the action of debt mirrored the Islamic aqd,[2] property law protected possession as a form of property ownership mirrors istihqaq, and the English trial by jury mirrors the lafif. In the aqd, ownership in the property of goods passed at the time of agreement, even before the physical transfer of goods. This resulted in the English quid pro quo (lit. "something for something") where the conveyance of property from the seller was in anticipated exchange for the price, mirroring the aqd system. The istihqaq in Maliki jurisprudence was used for recovering land upon usurpation based on proofs and evidence with presumption of ownership for the dispossessed until proven otherwise. This appeared in the English assize but never in the Roman law. In the lafif, 12 members of the community swore to tell the truth and reach a unanimous verdict. In the 12th century, King Henry II similarly instituted a jury system of 12 free men charged to uncover the facts of the case. The Maliki school of Islamic Jurisprudence was predominant in North Africa and Sicily, exhibiting such legal maxims.[3][1] Makdisi outlines over a dozen other similarities between English common law and Islamic law, including res judicata, individualism, law above the state, the role of the judge, innocence until proven guilty, and oral testimony.[1] The Normans conquered England, parts of modern-day Tunisia, and the Emirate of Sicily, incorporating Muslim soldiers into their ranks and introducing Maliki jurisprudence into Norman Law of Sicily and Norman Law of England. Roger II of Sicily incorporated many Islamic elements into his government, including bureacracy and financial bodies, staffed largely by Muslims. King Henry II's exchequer, Thomas Brown, formerly lived in Sicily from 1137-1154 CE and worked under the diwan, the financial department of the Sicilian government and likely introduced King Henry II to the state apparatus and legal system of Sicily.[4][5][6][7][1]
- ^ a b c d Makdisi, John (1 June 1999). "The Islamic Origins of the Common Law". North Carolina Law Review. 77 (5): 1635. Retrieved 25 May 2020.
- ^ "Aqd - Oxford Islamic Studies Online". www.oxfordislamicstudies.com.
- ^ Metcalfe, Dr Alexander; Metcalfe, Alex (2014). Muslims and Christians in Norman Sicily: Arabic-Speakers and the End of Islam. Routledge. p. 38. ISBN 978-1-317-82925-6. Retrieved 25 May 2020.
- ^ Warren, W. L. (1977). Henry II. University of California Press. p. 313. ISBN 978-0-520-03494-5. Retrieved 25 May 2020.
- ^ Dictionar of National Biography: Teach - Tollet. 1898. p. 173. Retrieved 25 May 2020.
- ^ Al-Rodhan, Nayef R. F. (2012). The Role of the Arab-Islamic World in the Rise of the West: Implications for Contemporary Trans-Cultural Relations. Palgrave Macmillan. p. 73. ISBN 978-0-230-39320-2. Retrieved 25 May 2020.
- ^ Johns, Jeremy (2002). Arabic Administration in Norman Sicily: The Royal Diwan. Cambridge University Press. p. 82. ISBN 978-1-139-44019-6. Retrieved 25 May 2020.