English Common Law and Islam: A Sicilian Connection

[Abu-Salman]

While it is now common to attack Shariah Law, is it not ironic that those denigring it should be so grateful to it for replacing such horrible legal traditions as those of ancient Celts, Vikings or even the Roman's (tempered later by biblical prescriptions)?

 

Could those branding any Divine Law (including those of the old or new testament) have lived, even briefly, under one of those old pagan

legal system (including the recently dismantled Hindu one that mandated the burning alive of surviving widows/widowers etc)?

 

 

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English Common Law and Islam: A Sicilian Connection

by Manlio Lima

 

 

 

Is it possible that certain principles of early English common law are rooted in Islamic ("shari'a") law, introduced into Norman England through contact with the multicultural kingdoms of Sicily and Jerusalem? That is the thesis suggested over the last decade by several scholars, most notably John Makdisi in the United States and Omar Faruk in the United Kingdom. While there exists no absolute "concrete" proof of a direct connection, circumstantial historical evidence supports the possibility of an exchange of legal ideas.

 

In the beginning there was civil law --legal codes such as the Ten Commandments. The Romans, in particular, developed highly sophisticated codes of law which were inherited, at the fall of the Western Empire, by the Byzantines and (as canon law) by the Church. Common law arrived on the scene to address some of the complexities not directly encompassed by civil law, and while the origins of common law ("case law") are largely obscured by the mists of time it seems that the tribal law of the Romans' adversaries (among them such "Barbarians" as the Celts, Goths, Huns and Vandals) was influential to some degree. Civil law was established by legislation, common law by the precedent of a decision in an earlier but similar case by a fellow judge.

 

Well into the era of the their conquests of England (from the Anglo Saxons) and Sicily (from the Fatimid Arabs) in the 1060s, the Normans still employed "trial by ordeal" to settle disputes. This holdover from their Viking forebears subjected a suspected criminal to a physical test, his survival of (for example) attempted drowning by full immersion in water "proving" a favorable decision by God. For personal disputes, "trial by combat" pitted one man against another in a mortal struggle to decide personal claims over property --be it land, a horse or even a woman. In such circumstances, from which our word "trial" comes, only the physically strong or martially able could claim legal remedy, while females were excluded altogether. A better system was needed, and simply adapting the Church's legal codes to wider society seemed inadequate.

 

 

 

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