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 Posted: Wed Sep 24, 2008 3:58 pm Post subject: Is English law related to Muslim law? |
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Is English law related to Muslim law?
Old Bailey
One of the mainstays of English justice
By Mukul Devichand
In London's historic "Inns of Court", barristers practise law in the
shadow of the distinctive medieval Temple Church. But does English law
really owe a debt to Muslim law?
For some scholars, a historical connection to Islam is a "missing
link" that explains why English common law is so different from
classical Roman legal systems that hold sway across much of the rest
of Europe.
It's a controversial idea. Common law has inspired legal systems
across the world. What's more, calls for the UK to accommodate Islamic
Sharia law have caused public outcry.
The first port of call when looking for an eastern link in the common
law is London's Inns of Court.
"You are now leaving London, and entering Jerusalem," says Robin
Griffith-Jones, the Master of the Temple Church, as he walks around
its spectacular rotunda.
The church stands in the heart of the legal district and was built by
the Knights Templar, the fierce order of monks-turned-warriors who
fought Muslim armies in the Crusades.
London's historic legal district, with its professional class of
independent lawyers, has parallels with the way medieval Islamic law
was organised.
In Sunni Islam there were four great schools of legal theory, which
were often housed in "madrassas" around mosques. Scholars debated each
other on obscure points of law, in much the same way as English
barristers do.
There is a theory that the Templars modelled the Inns of Court on
Muslim ideas. But Mr Griffith-Jones suggests it is pretty unlikely the
Templars imported the madrassa system to England. They were suppressed
after 1314 - yet lawyers only started congregating in the Inns of
Court after the 1360s.
Perpetual endowment
This doesn't necessarily rule out the Templars' role altogether.
Medieval Muslim centres of learning were governed under a special
legal device called the "waqf" under which trustees guaranteed their
independence.
In an oak-panelled room in Oxford, historian Dr Paul Brand explains
the significance of the 1264 statute that Walter De Merton used to
establish Merton College. He was a businessman with connections to the
Knights Templar.
The original 1264 document that established Merton has parallels with
the waqf because it is a "perpetual endowment" - a system where
trustees keep the college running through the ages. It's been used as
a template across the Western world.
Dr Brand says many branches of Western learning, from mathematics to
philosophy, owe a debt of gratitude to Islamic influence.
Advanced Arabic texts were translated into European languages in the
Middle Ages. But there's no record of Islamic legal texts being among
those influencing English lawyers.
And Dr Brand pointed out the Knights Templar were, after all,
crusaders. They wanted to fight Muslims, not to learn from them, and
they were rarely close enough to observe their institutions at work.
But the fact remains that England in the Middle Ages had very distinct
legal principles, like jury trial and the notion that "possession is
nine tenths of the law". And there was one other place in Europe that
had similar legal principles on the books in the 12th Century.
Jury trial
From the end of the 9th to the middle of the 11th Century, Sicily had
Muslim rulers. Many Sicilians were Muslims and followed the Maliki
school of legal thought in Sunni Islam.
Maliki law has certain provisions which resemble English legal
principles, such as jury trial and land possession. Sicily represented
a gateway into western Europe for Islamic ideas but it's unclear how
these ideas are meant to have travelled to England.
Norman barons first invaded Sicily in 1061 - five years before William
the Conqueror invaded England. The Norman leaders in Sicily went on to
develop close cultural affinities with the Arabs, and these Normans
were blood relations of Henry II, the English king credited with
founding the common law.
But does that mean medieval England somehow adopted Muslim legal
ideas?
Merton College
Merton College was founded on principles similar to Islamic law
There is no definitive proof, because very few documents survive from
the period. All we have is the stories of people like Thomas Brown -
an Englishman who was part of the Sicilian government, where he was
known in Arabic as "Qaid Brun".
He later returned to England and worked for the king during the period
when common law came into being.
There is proof he brought Islamic knowledge back to England,
especially in mathematics. But no particular proof he brought legal
concepts.
There are clear parallels between Islamic legal history and English
law, but unless new historical evidence comes to light, the link
remains unproven.
Below is a selection of your comments.
I thought British law and juries came from Saxon law, while
continental law came from Napoleonic law, which derived from Roman
law. That's why they are so different.
Martin, Plymouth UK
There must be some degree of compatibility between British and Islamic
civil law, otherwise British companies doing business in Islamic
countries would not be able to sign contracts based on the local laws.
The banning of any element of gambling in financial dealings, looks
like an area where we in the West might possibly have something to
learn from Islamic finance. Also, large numbers of Westerners visiting
and living in Islamic countries submit themselves voluntarily to
Islamic law every year, so it can't be totally incompatible with "our
way of life".
Paul , Crawley, UK
Even if we did take some ideas from Islamic schools of thought, Sharia
law as it stands today is absolutely not compatible with the laws of
any EU country.
Franchesca Mullin, Belfast, Northern Ireland
Strangely the article neglects the (surely?) most obvious possible
line of influence. That is the huge influence of the Arabic
philosophers (like Averroes, Al Farabi, Avicenna) on the dominant
Medieval thinkers in the western tradition, like Aquinas. They even
were the ones to provide Aquinas and co. with their access to
Aristotle. Legal theory and jurisprudence was a big area of medieval
academic interest. So, I'd have thought this would be the obvious
route.
Eudemus, West Yorkshire
A real thought provoking article. If we go into more detail, I am sure
we can find more closeness, like our "welfare system" was introduced
only after detail study of welfare system used by Muslim's second
caliph - Umar. Like it or not, its history.
Daniel, Manchester
The middle east in the dark ages was a multi-layered melting pot of
cultures, fresh ideas, laws and design. I think it's inevitable that
during differing periods of occupation by opposing armies it is
inevitable that some echoes of previous regimes remained either
through the practical obstacles of obliterating all trace of their
predecessors or just simply because something actually sounded like a
good idea so remained. I think Dr Brand is a touch short sighted to
think "they wanted to fight Muslims, not to learn from them". A good
idea is a good idea after all and social order is a pre-requisite of
any prolonged occupation. Sharia Law is something evolved from those
ages in a different direction to our own. I know many liberal Muslims
who laugh at it in the same way as I laugh when I see American
Evangelicals healing the sick on prime time while sitting on a million
bucks.
Keatzey, Turkey
It is true that many "Advanced Arabic texts were translated into
European languages in the Middle Ages." However, as Bernard Lewis
argues in his history of the Middle East, most of these translations
were carried out by Christians rather than Muslims.
Dan, Oxford
My guess is that most similarities would come from both systems
drawing from Judaic law.
Daniel, Guildford
Possibly more relevant was that the Normans were descended from Danish
Vikings that conquered both Normandy and Sicily. Viking legal custom
involved the choice for a trial by community elders, useful when
settling feuds or inheritance disputes. Sicily had been Islamic, many
Muslims remained and Sicily continued using Islamic law; this included
the right to be judged by a group from the community. The Vikings
would have been used to the concept of group judgment and not found
this strange. It's also argued the idea of juries was emerging in
Saxon Britain prior to the Norman invasion, a Danish influence, from
Canute onwards, may again have played a part.
Tim Dennell, UK
It is a fact that Islamic history and civilisation lead to centuries
of advanced knowledge in so many different spheres; mathematics,
physics, chemistry, astronomy to name but a few. The Arabs pursued and
encouraged knowledge as ordained to by the principles of their faith.
Europe did indeed learn much from their knowledge and it is a shame
most people are ignorant of the richness and depth of Islamic
learning.
James Kingsley, Cambridge |
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