Legal Research

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 Code¹, 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 Law².

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

1. 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
2. North Carolina Law Review, June 1999, v77, i5, pp. 1635-1739

Full post as published by Slaw.ca on October 27, 2008 (boomark / email).