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:
As 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.
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.” The English trust and agency institutions in common law were possible [sic] adapted from the Islamic Waqf and Hawala institutions respectively during the Crusades. 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. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. 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”. [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:
|||Makdisi, John A. (June 1999), “The Islamic Origins of the Common Law”, North Carolina Law Review 77 (5): 1635-1739|
|||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|
|||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]|
|||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.