A B D U L L A A L S A Y Y A R I

Contribution of Shria'a To English Common Law and International

Law

The idea that certain rights are inalienable was found in early

Islamic law

Islamic law maintains that the ruler has no right to take away from his subjects certain rights which inhere in his or her person as a human being.

John Locke may have developed his ideas of inalienable right through attending lectures by Edward Pococke, a Professor of Arabic studies

Christians in Spain accustomed to Islamic rule insisted that their new masters sign agreements similar to those they had long had with their Muslim overlords. Christian reconquista of Spain

Those agreements specified that no monarch was above the law. This adherence to a rule of law to which both kings and commoners

were subject, was in fact an enduring gift of Muslim Spain to Christian Europe

Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers,

Equality Under the Law

Islamic Thinkers expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted. (Count Ostorog, a French jurist 1927)

In a way the application of Islamic law was based on secular determinants in that it focused on ensuring that an individual received justice, not that one be a good person. George Makdisi 1999, p. 1704,Weeramantry 1997, p. 134)

Caliph Umar in the 7th century declared

"Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them."

Presumption of Innocence concept

Islamic law was based on the presumption of innocence from its beginning, as declared by the Caliph Umar in the 7th century

The old European legal system consisted of trial by combat or trial by ordeal.

Boisard, l A. "On the Probable Influence of Islam on

Western Public and International Law", International Journal of Middle East Studies 1980 11(4): 429-50

Similarities Islamic Sharia and English Common law

Contract protected by the action of debt is based on Islamic Aqd

Assize of novel disseisin (recent dispossession) is based on Islamic Istihqaq,

English jury is based on Lafif" in classical Maliki jurisprudence (Lafif was also made up of 12 members of the local community)

Trust & Agency institutions in English common law are bases on Islamic Waqf and Hawala (every Waqf required a waqif (founder), mutawillis (trustees), qadi (judge) and beneficiaries)Gaudiosi, Monica M. (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 , Hudson, A. (2003), Equity and

Trusts (3rd ed.), Cavendish Publishing)

Similarities Islamic Sharia and English Common law

Reviewing and basing judgments on previous legal decision by judges is based on Islamic Qiyas

Inns of Court" system in England are based on Islamic Madrasas

Modern limited partnership law is based on Islamic Qirad and Mudaraba(Jairus Banaji (2007), "Islam, the Mediterranean and the rise of capitalism", Historical Materialism)

Islamic law also introduced the concept of an agent or lawyer (wakil). Early English common law, used lawyers to prosecute;the accused were left to handle their defense themselves.

Similarities Islamic Sharia and English Common Law

The English Law f contact

Recession (Iqalah)

"impossibility of performance (istihalah al-tanfidh)

Act of God (Afat Samawiyah)

Islamic Sharia and English Common Law

Islamic concept of Istihsan might be equivalent to:

The concept of equity in English law

The concept of "reasoned distinction of precedent" in American law,

John Makdisi writes:[36]

Other Legal Terms

Ratio decidendi is a legal term for the rationale used by a court to justify its judgment (illah)

Public policy (Istislah and Maslaha),

The concept of Ombudsmen

The concept of Ombudsmen was derived from the concept of Qadi al-Qadat

This influenced the Swedish King, Charles XII (1713) back from self-exile in Turkey to creat the Office of Supreme Ombudsman, which soon became the Chancellor of Justice

Introduction to the Law of Nations

8 centuries before Hugo Grotius wrote the first European treatise on the Law of Nations , a treatise on international law (Siyar) was written by Muhammad Al-Shaybani (d. 804) school)

Al-Shaybani dealt with both public international law as well as private international law. (including the treatment of diplomats, hostages, refugees and prisoners of war; the right of asylum; conduct on the battlefield; protection of women, children and non-combatant civilians; contracts across the lines of battle; the use of poisonous weapons; and devastation of enemy territory

The Geneva Convention & Islamic Herirage

Muhammad Al-Shaybani formulated .

The code by which war is conducted and how its participants are treated (jus in bello). These tenets were eventually codified in the Geneva Convention.

The factors that warranted war (jus ad bellum)

Major Contributions to International Admiralty Law

Muslim sailors being "paid a fixed wage in advance with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify a known fee for a known duration

Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the high seas, and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo.

Islamic law also "departed from Justinians Digest and the Nomos Rhodion Nautikos in condemning slave jettison

How it came about that the English law was influenced by Sharia law (1)

Through the crusaders. Soldiers from England joined in the Crusade war against Moslems. This war lasted for more than 200 years. Many Islamic and Arab influences were transfer to Europe with soldiers gong back home. These influences involved many areas including cuisines, dress, the use of silk, architecture designs etc. Some scholars that these influxes included law and legal systems. I think this is unlikely because: There were also large number of soldiers taking part in the Crusade

wars from France and yet we do not see much Sharia influences in the French law

The Islamic Sunni School of thought. Dominant in Palestine and Syria at the time was the Shafai school and not Maliki Sunni school. As we shall see later, many of the legal influences in English common law derived from the Maliki Sunni sand not Shafai school of thought.

How it came about that the English law was influenced by Sharia law (2)

Through the Normans. This is a more likely scenario. The Normans invaded and took over Sickly from the Arabs after an Arab rule of over 500 years. The Norman kind who did thisKing--, realized immediately who advanced Arabs were in science; literature law and government that he made good use of this by keeping prominent Arabs and translating many of the Arabic books.

How it came about that the English law was influenced by Sharia law (3)

The Normans later invaded and took over England. They brought with them all that they have learnt from the Arabs including their legal system. Furthermore-and that is important -the Sunni school of thought followed in Sicily was the Maliki school

Through Spain.

Through the influence of the dominance of the Ottoman Empire on large parts of Europe. This is less likely because:

Again the Ottomans followed the Shafai school of thought

If it were the reason, you would expect its effect to be on the legal systems in Eastern Europe and Austria rather than England