Dialogue

The Dialogue of Civilisations:

Medieval Social Thought, Latin-European Renaissance, and Islamic Influences

S. M. Ghazanfar

PDF

Dr. Ghazanfar is a long-time resident of the U.S.A, born in pre-partitioned India, migrated to Pakistan in 1947 and moved to the USA as a student in 1958; having served as Professor and Chair, Department of Economics, University of Idaho, Moscow, Idaho 83843 (USA), he is presently professor-emeritus (retired, 2002).

www.webpages.uidaho.edu~ghazi

Mediterranean ~ Islam & the Rise of Capitalism

Al-Andalus ` Andalusia

www.yale.edu

books.google.com



Excerpt

Pioneers ~ The Phoenicians

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Mediterranean ~ Bginnings

Business History, April 2000 v42 i2 p17

Multinational Enterprise in Ancient Phoenicia

Karl James Moore and David Charles Lewis

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International trade began to develop in the Near East around 3500 BC. By the second millennium BC the city-states of Sumer, Assyria and Babylon lay at the centre of a network of trade in copper, tin, silver, foodstuffs and textiles that stretched from Egypt and Crete to the Indus River Valley and Afghanistan. ...

State-supported but family-owned and managed firms headquartered in the Old Assyrian capital of Ashur opened subsidiary trading and manufacturing offices in Babylon, Syria, other parts of northern Iraq, and, most importantly, the city of Kanesh in Cappadocia, from which a number of smaller offices in Anatolia (modern Turkey) were managed. Similar multinational firms, on a smaller scale, were found in Babylonia under Hammurabi and, later, the Kassite kings who set up subsidiary trading offices on Bahrain in the Arabian Gulf.

Virtually all of the second-millennium and even early first-millennium BC business cultures of the ancient Near East were mixed economies. Private landholdings, markets and private, usually family-owned, firms operated in close harmony with royal and temple enterprises. Phoenicia was no exception. ...

In ancient Phoenicia private commerce and the temple-state were partners whose functions and roles overlapped and interlocked. A pyramid structure with the Prince of Ugarit, Byblos, or Tyre and the high priest of the city's patron deity at the top, followed by the bureaucracy led by the vizier and his harbourmaster, then the landed nobles and the major merchant-princes, known as mkrm, and their firms, followed by the lesser firms or bidaluma, craft guilds, peasants, serfs and slaves. Private and public executive roles were never sharply defined. Commerce in the city-states was dominated by an assembly of private and royal merchant princes. In Phoenicia, as in Babylonia, and even modern Britain, merchants could enter the aristocracy and aristocrats could take up commerce. ...

At its peak, Phoenician businessmen directed intercontinental enterprises trading in silver from Spain, tin from Britain, ivory from Africa, copper from Cyprus, iron from Syria, and textiles and manufactured goods from all over the Mediterranean. Their investments reached from the Atlantic to the Assyrian Empire. ...

Having established their own lucrative firms by the year 1000 BC, the merchants of Tyre rapidly began to outdistance all other Phoenician traders. Placed on an offshore island with a well-protected harbour, Tyre was naturally endowed for long-distance maritime trade. ...

In the period between 1000 and 500 BC, the merchants of Tyre achieved dominance in, if not control over, international trade in the Near East, the Mediterranean, and, for a time, even the Indian Ocean and its tributaries ...

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The climactic Intercontinental-Multinational Phase, 840-538 BC, of Tyrian trade and investment expansion began on the heels of Jehu's revolt and culminated in the period of the Neo-Assyrian Empire in the eighth and seventh centuries BC. Phoenician investment not only flowed into Assyria and Babylonia but even reached across the central and western Mediterranean to North Africa and the Atlantic coast of Spain. The rise of Assyria was the major catalyst of the new Phoenician strategy.

In the days of Itobaal, the armies of Ashurnasirpal II and Shalmaneser III marched westward across the Euphrates, exacting tribute from terrified Phoenician rulers. The Assyrian presence became much more immediate after 733 BC when the armies of Tiglath-Pileser III, Shalmaneser V, Sargon II and Sennacherib conquered Syria and Israel. Assyrian influence over Phoenicia reached its peak under Esarhaddon (680-69 BC). Mainland Phoenicia was divided into three Assyrian provinces called Simya, Sidon and Ushu, and many of the inhabitants were deported. Tyre kept her independence, but only under the harsh terms of a vassal treaty dictated by Esarhaddon to the Tyrian Prince Ba'alu. ...

Assyria's efforts to monopolise Tyre's trade with the rest of Asia, ironically, permitted Phoenician commerce to seduce even the might of Nineveh. Assyria's landlocked kings left their western trade in the hands of the people who knew and managed it best, be they settlers or deportees. A firm run by the Sidonian Hanunu became chief supplier of the Empire's dyed fabrics; Oubasti, exiled to Nineveh by Sennacherib as a youth, became the city's chief porter. The eastern network of merchants, organised in the time of Itobaal, in Cilicia, Aleppo, Carchemish and now even Nineveh and Babylon continued to ship goods to and from points west, leaving them in the hands of Phoenician companies, their partners and subsidiaries.

The Tyre-Nineveh partnership followed a commercial pattern established centuries before, when Babylonian and Ugaritic merchants joined hands to finance large-scale trade between Mesopotamia and the West. Bulk shipments of metals, textiles, foodstuffs and processed goods, including purple dye, plied up and down the Euphrates and crossed Syrian mountains and plains, paid for in silver and textiles by consortia of Canaanite, Babylonian and Assyrian merchants. Babylonian and Assyrian firms and their employees formed price-fixing partnerships to purchase Phoenician goods and distribute them to their subcontractors.

Temples of Ashur, Marduk and Melkart provided capital, direction and storage facilities. In the eighth and seventh centuries BC, Babylonia was now a vassal of Assyrian kings using the Euphratean trading system for their own ends. Tyre became Assyria's source not only of huge quantities of dyed garments but also silver and iron. Lacking the iron deposits needed to equip their vast armies or the silver to finance them, the kings of Nineveh turned to their Tyrian vassals and clients to supply them, much as Germany in the Second World War turned to Sweden for iron ore and Switzerland for hard currency.

Assyrian control of Near Eastern markets and resources encouraged Tyre's merchants to embark upon an ambitious new strategy. Becoming Nineveh's supplier and banker preserved Tyre's independence while guaranteeing it a vast market on the Assyrian-held mainland. The potential profits from selling precious metals, raw materials and finished goods to the Assyrian Empire in bulk were sufficient to justify creation of the first intercontinental multinational enterprises. The advanced stage of Tyrian commerce and its relationship with Assyria offered Tyrian firms just the right combination of advantages, described in Dunning's eclectic paradigm, to make multinational investment on a larger scale than ever before expedient and profitable.

Tyre's firms possessed ownership-specific advantages in the form of the finest merchant marine in the world, the skills of its sailors, smiths, financiers and a powerful, well-organised network of shipping and trading companies, supported by both the crown and supervised by a multi national temple hierarchy. The location-specific variables were also favourable for the creation of a sea-based empire: being headquartered on an almost impregnable island with direct access to the ports, trade routes and resources of three continents were ideal for any firms interested in overseas investment.

Most importantly, the ability of Tyre's business establishment to invest abroad on a large scale in the form of managed hierarchies and partnerships provided internalisation advantages over Greeks, Egyptians or any other potential competitors. Unlike these others, Tyre's business establishment, directed by the Melkart hierarchy, would possess sufficient capital to minimise risk and circumvent market failure through its state-supported merchant fleets. ...

Led by Tyre, the city-states of ancient Phoenicia became the greatest seafaring traders of ancient times.

Mediterranean ~ Middle Ages

The Mediterranean Tradition in Economic Thought

Louis Baeck

It is a matter of academic routine to consider economic thought as having exclusively Anglo-American origins. However, many of the civilizations that flourished in the Mediterranean basin long before the rise of the Atlantic economies bequeathed a rich legacy of economic thinking. It was a tradition deeply embedded in politics, ethics, and religion; it was, in fact, more sweeping and complete than that of the West.

The Mediterranean Tradition in Economic Thought surveys the development of this tradition over four millennia. It considers the economic context of the scriptures of the Mesopotamian civilizations, Pharaonic Egypt and the Biblical peoples and the contributions of the Greeks and Romans and their influence on Islamic civilization and on the Medieval scholastics.

The flowering of the school of Salamanca as recently as the seventeenth century demonstrates how long-lived the tradition was, and throughout the author demonstrates how these ideas continue to survive and resurface, citing the renewed interest in the ethical dimension of economics, the revival of interest in the history of Islamic thought, and the re-emergence of Slavophile doctrine in contemporary Russia.

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Filling Schumpeter's "Great Gap"

Medieval Islamic Economic Thought:

Filling the "Great Gap" in European Economics

Ghazanfar, S.M. (editor)




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More Information

This book is a collection of papers on the origins of economic thought discovered in the writings of some prominent Islamic scholars, during the five centuries prior to the Latin Scholastics, who include St. Thomas Aquinas.

This period of time was labeled by Joseph Schumpeter as representing the ''great gap'' in economic history.

Unfortunately, this ''gap'' is well embedded in most relevant literature.

However, during this period the Islamic civilisation was one of the most fertile grounds for intellectual developments in various disciplines, including economics, and this book attempts to fill that blind-spot in the history of economic thought.

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Joseph A. Schumpeter: Historian of Economics

Perspectives on the History of Economic Thought

Edited by: Lawrence Moss

Part II:

The 'Great Gap' Thesis Revisited

6.

The Inaccuracy of the Schumpeterian Great Gap Thesis:

Economic Thought in Medieval Iran (Persia),

Hamid Hosseini

7.

Ibn Khaldun's Political and Economic Realism,

Louis Baeck

8.

Maimonides on Property:

Its Accumulation and Its Distribution,

Nelson P. Lande

9.

Al-Maqrizi's Book of Aiding the Nation by Investigating the Depression of 1403-6.

Translation and Commentary by Mark Tomass

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Wiki ; Joseph Schumpeter

Islamic Law and the Common Law

Cleveland State Law Review; Wntr 1985; Vol. 34, Issue 1

(Conference on Comparative Links Between Islamic Law and the Common Law, Cleveland-Marshall College of Law, March 1-2, 1985)

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The guilds of law in medieval legal history: an inquiry into the origins of the Inns of Court.

(reprinted with revisions from I Zeitschrift fur Geschichte der Arabisch-Islamischen Wissenschaftern 233, 1984)

-- George Makdisi.

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English common law and Islamic law in the Middle East and South Asia: religious influences and secularization.

-- Herbert Liebesny.

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Shuf'ah: origins and modern doctrine.

-- Farhat J. Ziadeh.

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Islamic law and the crime of theft: an introduction.

-- David F. Forte.

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The problem of offer and acceptance: a study of implied-in-fact contracts in Islamic law and the common law.

-- Aron Zysow.

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The logic of legal reasoning in religious and non-religious cultures: the case of Islamic law and the common law.

-- Wael B. Hallaq.

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Formal rationality in Islamic law and the common law.

-- John Makdisi.

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Cross-cultural interaction between Islamic law and other legal systems; Islamic family law and Anglo-American public policy.

-- David Pearl.

www.law.csuohio.edu

Islamic Origins of the Common Law

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

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.

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.

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Hein-On-Line: North Carolina Law Review

North Carolina Law Review - WebSite

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(*) 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.

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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 xxxii-xxxviii (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).

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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 171-72 & 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.

Islamo-Christian Civilization

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Dr. Richard W. Bulliet

Ch. 2 : What Went On?

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All *asterisks* are *links* ~ enjoy!