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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(*) 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).
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.
