Collected by Zia H Shah MD, Chief Editor of the Muslim Times
We can read John Makdisi’s magnum opus by ordering the North Carlina Law Review article from a Library or by ordering his books from Amazon:
Makdisi, John A. (June 1999), “The Islamic Origins of the Common Law”, North Carolina Law Review 77 (5): 1635–1739.
Professor John A. Makdisi concludes in his article in North Carolina Law Review, in June 1999:
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.
This is work in progress and I will keep adding samples here and additional information in line with his ideas in the post and in the comment section.
Professor of Law
B.A., Harvard College
Professor Makdisi has written extensively on American and Islamic property law. His books include INSIDE PROPERTY LAW: WHAT MATTERS AND WHY (Aspen 2009 with Daniel B. Bogart); INTRODUCTION TO THE STUDY OF LAW (3d ed. LexisNexis 2009 with Michael Makdisi); ESTATES IN LAND AND FUTURE INTERESTS (5th ed. Aspen Publishers 2008 with Daniel B. Bogart); FLORIDA PROPERTY LAW: II. CONVEYANCING AND GOVERNMENTAL CONTROLS (Carolina Academic Press 2007); FLORIDA PROPERTY LAW: I. POSSESSION, ESTATES, AND TENANCY (Carolina Academic Press 2006); and ISLAMIC PROPERTY LAW: CASES AND MATERIALS FOR COMPARATIVE ANALYSIS WITH THE COMMON LAW (Carolina Academic Press 2005). Among several articles, his article on The Islamic Origins of the Common Law, 77 N. CAR. L. REV. 1635 (1999), offers a new theory for connections between Islam and the West. From 1981-1991, Professor Makdisi was a faculty member at Cleveland-Marshall College of Law, where he also served as Associate Dean from 1988-91. He served as Dean of the University of Tulsa College of Law from 1991-1994, returned to faculty from 1994-96, and then became Dean at Loyola University New Orleans School of Law from 1996-1999. From 1999-2003, Professor Makdisi served as Dean of St. Thomas University School of Law in Miami, Florida, as well as Interim Vice President for Academic Affairs in 2000-2001. In 2003, he returned to faculty where he is now a Professor of Law and teaches Property, Remedies, and Natural Law.
The beginning of his North Carolina Law Review article
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. 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. 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 of offer and acceptance through the action of debt; (2) property law protected possession as a form of property ownership through the assize of novel disseisin; and (3) the royal courts instituted a rational procedure for settling disputes through trial by jury. 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 caqd, the English assize of novel disseisin is identified with the Islamic istihqaq, and the English jury is identified with the Islamic lafif.
Other legal scholars such as Monica Gaudiosi, Gamal Moursi Badr and A. Hudson have argued that the English trust and agency institutions in common law, which were introduced by Crusaders, may have been adapted from the Islamic Waqf and Hawala institutions they came across in the Middle East. Dr. Paul Brand also notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar. Brand also points out, however, that the Knights Templar were primarily concerned with fighting the Muslims rather than learning from them, making it less likely that they had knowledge of Muslim legal institutions.
Several legal institutions in civil law were also adapted from similar institutions in Islamic law and jurisprudence during the Middle Ages. For example, the Islamic Hawala institution influenced the development of the Avallo in Italian civil law and the Aval in French civil law. The commenda limited partnership used in European civil law was also adapted from the Qirad and Mudaraba in Islamic law. The civil law conception of res judicata and the transfer of debt, which was not permissible under Roman law but is practiced in modern civil law, may also have origins in Islamic law. The concept of an agency was also an “institution unknown to Roman law”, where it was not possible for an individual to “conclude a binding contract on behalf of another as his agent.”
Islamic law also introduced “two fundamental principles to the West, on which were to later stand the future structure of law: equity and good faith”, which was a precursor to the concept of pacta sunt servanda in civil law and international law. Another influence of Islamic law on the civil law tradition was the presumption of innocence, which was introduced to Europe by Louis IX of France soon after he returned from Palestine during the Crusades. Islamic law was based on the presumption of innocence from its beginning, as declared by the caliph Umar in the 7th century.
There is evidence that early Islamic international law influenced the development of European international law, through various routes such as the Crusades, Norman conquest of the Emirate of Sicily, and Reconquista of al-Andalus. In particular, the Spanish jurist Francisco de Vitoria, and his successor Grotius, may have been influenced by Islamic international law through earlier Islamic-influenced writings such as the 1263 work Siete Partidas of Alfonso X, which was regarded as a “monument of legal science” in Europe at the time and was influenced by the Islamic legal treatise Villiyet written in Islamic Spain.
A number of Islamic legal concepts on human rights were also adopted in European legal systems, including concepts such as the charitable trust, trusteeship of property, human dignity, dignity of labour, condemnation of antisocial behavior, presumption of innocence, caring, women’s rights, privacy, juristic personality, individual freedom, equality before the law, non-retroactivity, limited sovereignty, tolerance. Many of these concepts were adopted in medieval Europe through contacts with Islamic Spain and the Emirate of Sicily, and through the Crusades and the Latin translations of the 12th century. After Sultan al-Kamil defeated the Franks during the Crusades, Oliverus Scholasticus praised the Islamic laws of war, commenting on how al-Kamil supplied the defeated Frankish army with food:
“Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons and daughters, brothers and sisters, had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.”