The Common Law and the Law of Islam
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 Code ((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)), 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 Law ((North Carolina Law Review, June 1999, v77, i5, pp. 1635-1739)).
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
The BBC article obviously borrowed from the NC Law Review, even if it didn’t cite it. There are tremendous opportunities for legal research here, and more evidence isn’t available simply because the effort hasn’t been made.
It’s also unfortunate that most of the source documents don’t have adequate care and protection, or are inadvertently damaged by contemporary events.
Emon’s work has been interesting, but I’ve also noted L. Ali Khan of Washbrun University and the Islamic Law Blog. The problem with so many other legal scholars is that they usually don’t have enough formal background in this legal system, or engage too frequently in polemics.
As for the Rowan Williams debate, I’ve said in some of my previous talks that don’t fear Islamic law, it’s already here – we call it the common law (in reference to the jury system). There are also many aspects popularly associated with Shari’ah law in the modern world that are not really Shari’ah per se, but part of Ta’zir Laws. The former creates a constitutional basis, and the latter is primarily formed through judicial discretion or public policy. Neither are really a concern or relevant from conflicts of law perspective domestically, because Shari’ah itself largely recognizes the legal supremacy of other systems for minority populations.
You’re also right about the complexities involved because there really isn’t one form of Islamic law. Historically there were many jurisprudential schools, but these are now generally consolidated into four Sunni schools and the Ithnashari’ah (Twelvers) Shi’a school (but there are many other forms of Shi’a as well). Each of these do have an enormous amount of precedent, which is largely largely binding (taqlid), but can be used for analogous problems in new situations (qiyas). The Ottomans, British and French all tried to codify Shari’ah, but this was of limited relevance given geographic and situational needs. The enormous flexibility afforded in Shari’ah is also one of the major challenges of understanding exactly what it is. Makdisi has another excellent paper on some of the challenges outsiders face in understanding the internal intricacies.
Of considerable debate these days is the use of departing from precedent given contemporary challenges (ijtihad), but there are problems of finding a judicial body with qualification and standing that could claim binding consensus (ijma’). All of these issues will invariably increase in importance in the future, as they are at the core of many political stability issues around the world. There is a paper here somewhere when I get time to actually put it together.
I should have also mentioned Noah Feldman of Harvard Law. He’s an interesting character, of an Orthodox Jewish background, and actually made the effort to develop a working basis in the subject matter.
What’s refreshing about his analysis is that he is far more objective and much less pejorative that than other commentators on the subject. He has a new book this year that I have yet to read, and regularly contributes to the New York Times.
There is an excellent interview with him here that addresses many of the issues raised above. My assessment is that his analysis is remarkably accurate. I only really take issue with the term “Islamist” because of its rather imprecise use and inability to accurately encapsulate all those labeled as such by others.