Monday, June 16, 2008

Is Sharia the Basis for English Common Law?

Update: Since I first posted this, one of our readers has amended the Wikipedia article cited here. How’s that for fast?


Readers of a certain age will remember the heyday of the USSR, when Soviet propagandists repeatedly claimed that the world’s most important inventions could be credited to Russia. The steam engine, safety pins, baseball, Roberts’ Rules of Order — you name it; the Russians invented it.

In one of the many parallels between Islam and Communism, it seems that Muslims have a tendency to do the same thing, to claim as their own inventions and cultural innovations that have nothing to do with Islam.

The latest bizarre assertion to be brought to my attention is that English Common Law is derived at least in part from Islamic law. A reader sent us this email yesterday:

The Magna CartaAs a long-time reader of the Gates of Vienna weblog, I was hoping you might be able to help me. The reason I ask is because it was recently brought to my attention that it’s being suggested in some places that English Common Law is actually derived in great part from Islamic religious laws, supposedly through transmission by the Normans and Crusaders.

I don’t know if this has ever been addressed on the weblog, but the discovery of yet another claim of the West supposedly owing something to Islam was disturbing, particularly given the importance of English Common Law in contemporary Western culture, and so I was wondering if you might be able to point me in the direction of any contradictory information, if you have any available and if you’re in the habit of doing that sort of thing.

I immediately forwarded the message to several contacts who might have some expertise in this field. Not all of them have responded, but so far no one has ever heard of such an idea.

The source for the information is Wikipedia, and we all know how reliable that is. Fjordman had this to say:

I have never heard this claim before in my life, and I highly doubt it. It sounds like yet another case where Muslims steal other people’s cultural heritage and take credit for their inventions. I use Wikipedia, too, but you should always use it with caution. Always. It is not a credible academic source.

El Inglés added his opinion:

Certainly the most natural response would be to file it away with all the other ridiculous claims of Muslim ‘inventions’: democracy, feminism, science, maths, the internet, the microwave, etc. My personal favorite to date is the ‘discovery’ that the Amerindians were all Muslims. Next they’ll be claiming to have invented sushi.

Here’s the section of the article in question:
- - - - - - - - -
Influence of medieval Islamic law

Main article: Sharia

Several fundamental common law instutitions [sic] may have been adapted from similar legal instututions [sic] in Islamic law and jurisprudence, and introduced to England after the Norman conquest of England by the Normans, who conquered and inherited the Islamic legal administration of the Emirate of Sicily, and also by Crusaders during the Crusades. In particular, 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.”[14] The English trust and agency institutions in common law were possible [sic] adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades.[16][17] It is worth noting, however, that transferring property to another for the “use” of another developed largely in response to the requirements of feudal inheritance law. Trust law, in particular, is a creature of equity which derived from the parallel jurisdiction of the Lord Chancellor to decide matters independently to the Royal Courts.

Other English legal institutions such as “the scholastic method, the license to teach,” the “law schools known as Inns of Court in England and Madrasas in Islam” and the “European commenda” (Islamic Qirad) may have also originated from Islamic law.[14] The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems.[18] These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for “the common law as an integrated whole”.[14] [emphasis added]

The phrases I have bolded show two trends:

1. Weasel words — “may”, “possible”, “similar”, “some scholars”, etc. These remove the requirement that any relationship between the sharia and English Common Law be proven.
2. The passive voice — “is identified”. By whom? Who did the identifying?

Perhaps the external sources cited for the section will shed some light on the subject. The relevant ones are listed below. Refer to the Wikipedia article for hotlinks to some of the publications:

[14] Makdisi, John A. (June 1999), “The Islamic Origins of the Common Law”, North Carolina Law Review 77 (5): 1635-1739
[16] Gaudiosi, Monica M. (April 1988), “The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College”, University of Pennsylvania Law Review 136 (4): 1231-1261
[17] Badr, Gamal Moursi (Spring, 1978), “Islamic Law: Its Relation to Other Legal Systems”, The American Journal of Comparative Law 26 (2 — Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24-25, 1977): 187-198 [196-8]
[18] El-Gamal, Mahmoud A. (2006), Islamic Finance: Law, Economics, and Practice, Cambridge University Press, p. 16, ISBN 0521864143

I have neither the time nor the expertise to follow up on these leads, so I invite any of our readers who come from a legal background or possess some expertise on medieval English jurisprudence to weigh in with their opinions.

My amateur opinion is that this is part of an ongoing Islamic disinformation campaign aimed at undermining the basis for the public institutions of the West. This particular example will come in handy in the next decade or so as a justification for the gradual imposition of sharia law in Britain. After all, if it’s part of a venerable English tradition, who could possibly object?

A request: please don’t use the comment thread on this post simply for making complaints about how bad Islam is. We all already know that, but this is a serious scholarly question, and I’d be interested in reading some serious scholarly opinions on the topic.

21 comments:

the doctor said...

B.B., I could not let that stand so I have added the true influences to English Common Law at the end of the section . I hope that it meets with your approval .

inescio said...

Assalamu aleykum I just wanted to express my sincere appreciation about what you are doing at this blog-site propagating correct and authentic Islam. May Allah reward all of you immensely.

Muslims Contribution To Science
Astronomy
Every heavenly body moves in an orbit assigned to it by God and never digresses, making the universe an orderly cosmos whose life and existence, diminution and expansion, are totally determined by the Creator." [Qur'an 30:22]
Geography
Muslim scholars paid great attention to geography. In fact, the Muslims' great concern for geography originated with their religion. The Qur'an encourages people to travel throughout the earth to see God's signs and patterns everywhere. Islam also requires each Muslim to have at least enough knowledge of geography to know the direction of the Qiblah (the position of the Ka'bah in Makkah) in order to pray five times a day.
Humanity
Seeking knowledge is obligatory in Islam for every Muslim, man and woman. The main sources of Islam, the Qur'an and the Sunnah (Prophet Muhammad's traditions), encourage Muslims to seek knowledge and be scholars, since this is the best way for people to know Allah (God), to appreciate His wondrous creations and be thankful for them. Muslims were therefore eager to seek knowledge, both religious and secular, and within a few years of Muhammad's mission, a great civilization sprang up and flourished.
Mathematics
"We (Allah) will show you (mankind) Our signs/patterns in the horizons/universe and in yourselves until you are convinced that the revelation is the truth." [Qur'an, 14:53]
Medicine
Prophet Muhammad himself urged people to "take medicines for your diseases", as people at that time were reluctant to do so. He also said: "God created no illness, but established for it a cure, except for old age. When the antidote is applied, the patient will recover with the permission of God." The first hospital was built in Baghdad in 706 AC. The Muslims also used camel caravans as mobile hospitals, which moved from place to place.
- - - - -
Muslims made great advances in many different fields, such as geography, physics, chemistry, mathematics, medicine, pharmacology, architecture, linguistics and astronomy. Algebra and the Arabic numerals were introduced to the world by Muslim scholars. The astrolabe, the quadrant, and other navigational devices and maps were developed by Muslim scholars and played an important role in world progress, most notably in Europe's age of exploration.
Indeed, Islamic universities: Al-Zaytunah in Tunis, and Al-Azhar in Cairo go back more than 1,000 years and are the oldest existing universities in the world - they were the models for the first European universities, such as Bologna, Heidelberg, and the Sorbonne. Even the familiar academic cap and gown originated at Al-Azhar University.
As we muslims humble ourselves, rid ourselves of our egoism and submit totally to Allah, and to Him exclusively, in faith and in action, we will surely feel peace in our hearts. Establishing peace in our hearts will bring about peace in our external conduct as well.
"...if you try to count the blessings of Allah , you will fail...."
[Surat Ibrahim: 14 : 34]

Moko said...

Assalamu aleykum I just wanted to express my sincere appreciation about what you are doing at this blog-site propagating correct and authentic Islam. May Allah reward all of you immensely... ---

obvious and fail troll is obvious and fail.

FluffResponse said...

can we assume that this is deception?

http://en.wikipedia.org/wiki/Scientific_method

Moko said...

oh and... TL:DR.

Epic Fail.

FluffResponse said...

oh, it's a long article. my question concerned the stuff about "Ibn al-Haytham (Alhacen, 965–1039), a pioneer of scientific method."

babs said...

None of this makes any difference to me... Maybe Islam was the root of English Common Law... It doesn't matter anymore.

Islam missed the train about 600 years ago and has been overtaken by the West's Christianity and reasonable law doctrine. If Islam actually was the root of English law, my hat is off to the ancients but, it really has nothing to do with the fight in which we currently engage.

In short, so what?

Fjordman said...

Ibn al-Haytham was the best scientist ever born in the Islamic world. Whether he "invented" the scientific method I'm not so sure, but he deserves respect as a scientist, yes.

The Average Joe said...

"Astronomy
Every heavenly body moves in an orbit assigned to it by God and never digresses, making the universe an orderly cosmos whose life and existence, diminution and expansion, are totally determined by the Creator." [Qur'an 30:22]

Then how does Islam explain the recorded collision of galaxies, asteroids and other chaotic events in the Universe? Is Allah a six year old with a billiard cue?

"...if you try to count the blessings of Allah , you will fail...."
[Surat Ibrahim: 14 : 34]

If you try to count the lies of Islam you will give up in disgust.

Vågner said...

I'd like to see anyone find some reliable sources of western history, perhaps historical documents from around the period of the crusade suggesting that islamic law infact had any impact on the development of english common law.

History lesson No. 1 - SECONDARY SOURCES ARE NOT VALID WITHOUT PRIMARY SOURCES TO BACK THEM UP.

Zenster said...

Is anyone else reminded of Star Trek's Ensign Pavel Andreyevich Chekov and the routine gags about his beloved Mother Russia? As in how:

Scotch whisky was invented by a little old lady in Leningrad.

The Garden of Eden was located just outside of Moscow.

Cinderella was a Russian tale.


Islam's constant revisionism comes across like the boasts of some insecure, wannabe, no-talent, overstuffed schoolyard bully that always, just always has to trump everyone else's achievements, no matter how asinine he makes himself look.

At first, it is just pathetic, but after a while it begins to take on the symptomology of a pathological liar, which is precisely what Islam happens to be.

The reality of this is that such wholesale revisionism is just a minor facet of Islam's endemic and debilitating cognitive dissonance. It is exhibited in Islam's near-congenital propensity for swallowing camels whole and choking on gnats. No claim is too outrageous, no lie too bold, no atrocity too egregious that Muslims cannot cheerfully inflict them upon unbelievers.

Conversely, no statement, even of the most factual sort, cannot be twisted into a grievous insult against all Muslims. No action, however unintentional or trivial, cannot be exaggerated into an unforgivable offense. No retribution, regardless of how well deserved it might be, cannot be deemed wholly unjustified. Thus, even as Islam routinely victimizes all and sundry it plays the pluperfect victim itself.

That Muslims continue to be so perpetually aggrieved is a surefire indicator of just how supremely maladjusted they truly are. Islam's delusions of adequacy, even as it remains sub-par in every single respect, betray its megalomania and obsession with imposing by force what it cannot possibly persuade any reasonable person to accept voluntarily.

Again, I say that should Islam foolishly claim to have invented nuclear weapons—and you just know that’s going to happen someday soon—they should be given a most vivid demonstration of the power conferred by true invention and ownership of such technology.

This crap has gone on far too long to be tolerated any further.

Saharians said...

Remember, Islam conquered and absorbed the Byzantine Empire (Eastern Roman Empire), so any scientific and philosophical achievements claimed by modern-day Muslims actually came from the Byzantines. Will today's Muslims admit that they owe an enormous debt to the Byzantines? I doubt it. Islamic civilisation, especially the Ottoman Empire, is actually a pale imitation of the Byzantines. Islam is a Christian heresy.

Queen said...

Is anyone else reminded of Star Trek's Ensign Pavel Andreyevich Chekov and the routine gags about his beloved Mother Russia? Or the father in "My Big Fat Greek Wedding" who kept insisting that every single word on the planet had a Greek root.

Common law is philosophically opposed to sharia so it simply couldn't have a sharia root. Consider: Common law is based on trial by jury and separation of judge, prosectutor and jury. In Islam courts, the judge functions as judge, prosecutor, and jury all rolled into one. Could these two systems be at all related? no of course not. Common law is based on individual rights; Islamic law is based on collective rights according to one's gender and religion. (Consider the laws of qisas and diyah, the "blood price" laws that affix the blood price according to gender and religion.) Common law is based on precedent; Islamic law is based on code, like Napoleonic law. They're just trying to steal someone else's cultural heritage, like they always do.

RW said...

There was also the nazi ideology.
Nazis used to claim that all important scientific inventions were made by aryan germans/nordics.

the same sort of stuff

ZZMike said...

Here's a fascinating article by a Muslim scholar (often, but not always, a contradiction):

Separation of Powers, Judicial Review, other Western notions and the Shari'a

The key points:

"Whenever I attend a conference on Islamic law at which a large number of Muslims are present, ..., there is unfailingly a fair contingent of Muslims who endeavor to point out that a certain number of Western notions that Muslim nations actually struggle with come from the shari'a. Generally speaking the claims seem rather spurious, or at least subject to question.
.......
... that's different from "we've always had these things, before the West had them we had them, and they took lots of them from us." That's just in large numbers of cases entirely completely wrong.

He gives credit to Makdisi:

"I am excluding the serious scholarship of such highly respected, and deservedly highly respected, individuals such as John Makdisi, who has made a career out of demonstrating links between the common law and classical Islamic law, or attempts to create a modern code from classical sources."

I think we can consult our mathematical btrethren, who will assure us that "correlation is not causation".

AMDG said...

I am no expert, but I understand that Common law is a formalization of the traditional uses of the Germanic nations and is completely opossed to the concept of a definitive law given by a third person and written for eternity.

Fjordman, there are many scientific methods: Deductive, inductive, hypothetical-deductive, etc.

The Deductive method ws formalised by Aristotle and masterly applied by Euclid.

Mxxxsine said...

Since no one seems to be interested in this question - maybe the best we can do is this:
http://www.historycooperative.org/journals/lhr/17.3/macnair.html

The material makes it apparent just how tenuous the claim of Islamic influence must be.

If anything, it appears that the Hanbali practice would have arisen out of post-Roman parochial practice accross Europe, dealing with land-disputes. The descriptions of the Islamic jury in fact bear a striking resemblance to precisely such institutions.

So far from being something Islam originated, and then magically -Aladin carpet-ride- transported to England - it appears it may have been a practice that Islam borrowed for some time from Europe, but never developed in the direction England would eventually take it.

Julie Faiz said...

If you read the conclusion of "Makdisi, John A. (June 1999), “The Islamic Origins of the Common Law”," this is what he says at the end:

“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.”

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.

Julie Faiz said...

English Common Law and Islam: A Sicilian Connection
by Manlio Lima

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.


About the Author: Manlio Lima has written on law, history and other topics for various Italian magazines.

http://www.bestofsicily.com/mag/art283.htm

El Ǽmer said...

After the Afghanistan war and the arrest of many in an unprecedented situations, it was requested from the Office of the U.S. Attorney to consider international laws governing the treatment of captured prisoners of war. They were astonished to find out that before the approval of "The Geneva Conventions" eleven centuries ago, Muhammad Ibn Hassan al-Shaibani wrote two books in Arabic with deeper morals and the bigger impact than the "Geneva Conventions". The books were "The Book of Alsaiyer AlKabeer" and "The Book of Alsaiyer AlSageer". Al Shaibani was one of the students of Imam Ibn Hanifa. He explained in his books about "the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; behavior in the field of battle; the protection of women, children and non-fighter civilians; the use of poisonous weapons and destroying the enemy." Interestingly, AlShaibani showed and discussed when war was justified and fair.



Muslim scholars had sayings which are precise and can be scrutinized in the maritime law, including the entitlement of the Sea and its dues in advance. The separation between coastal shipping and navigation on the high seas. They also decided that the ship owners are officials in-charge of the goods except in cases of piracy on the high seas.

Another thing.
The concept of "rights of non-accessible to confiscation" or - if you like - "natural rights" that should be enjoyed by everyone, or thanks to anyone is an important concept in Western thought. But, its origins have not begun there, but in the era of Enlightenment, when thinkers and philosophers united to oppose the idea and the concept of "divine right of kings ".

There was one of the people who has adopted the concept of "rights of non-accessible to confiscation". He was John Locke, who summed up the natural rights in the 3 things "life","freedom" and "property". I’ll come back to this later.

The outcome of this idea is of ​​"social contract" that governs the relationship between the ruler and the ruled and the rights of both parties and their duties. Eventually, these concepts evolved to the system of republics instead monarchies. The concept of "rights of non-accessible to confiscation" grew to embody the "Universal Declaration of Human Rights". In the "Declaration of Independence of the United States," it added the right in "pursue to achieve happiness".

I say these words to arrive at the fact that Muslims believe in equal rights and examples of this are many, not least the story of Omar Bin Al Khattab (may Allah bless his soul), in which he said, "When did you enslave people who were born free". Islamic law confirms that the governor has no right
"to deprive the rights of nationals inherent to them’’.

http://www.dialoguewithdiversity.com/index.php?option=com_content&view=article&id=12046%3Ais-there-a-relationship-between-islamic-jurisprudence-and-english-law&catid=59%3Aopinion

goethechosemercy said...

The CONQUEROR always claims that he is coming to help.
Then the magic Arabs came . . . and we all became civilized! Isn't that wonderful?