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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
King Henry II of England (ruled 1154-1189), generally viewed as a reformer,
stood at the vanguard of juridical innovation. He had numerous contacts
with the Kingdom of Sicily. His son, Richard Lionheart, passed through Messina
several times en route to or from Palestine during the Crusades, and his
daughter, Joan Plantagenet, wed King
William II of Sicily in 1177. During their exile from England, several
of Thomas Becket's kin received hospitality in Sicily, where the cathedral
of Marsala is dedicated
to "Saint Thomas of Canterbury" and where, in the cathedral of
Palermo), a mosaic icon is the first holy image of the archbishop killed
by a handful of Henry's knights.
Such connections were nothing new; a few of the knights who fought
at the Battle of Messina in 1061 also fought at the Battle of Hastings five
years later. But during the twelfth century, with contiguous Plantagenet
territories extending from England into southern France (the latter was
the dowry of Henry's wife Eleanor), and the Siculo-Norman
kingdom extending almost as far north as Rome, contacts were more frequent
Typical was the case of the man known to Sicily's Arabs
as "Qaid Brun" (born Thomas le Brun in England and known to English historians as 'Thomas Brown'), who
was the principal treasurer to King Roger II of
Sicily and who, shortly after the Sicilian monarch's death in 1154, returned
to England right around the time that Henry ascended the throne, and was
retained by the newly-crowned English king to reform the royal exchequer. There he
introduced Arabic numerals but this numeration
system was not readily embraced at the English court except by Brun. In the event, he is
one of the most likely persons to have influenced Henry intellectually in matters of administration,
particularly as regarded life in that other Norman kingdom.
It was an Englishman, Robert Selby, whe served for some years as King Roger's effective viceroy in mainland Italy,
in places like Salerno. A number of English-born clerics were prominent
in Norman Sicily. Richard Palmer, to cite just one of many examples, was bishop of Syracuse and then archbishop of Agrigento.
While we usually think of such clerics coming to Sicily from England, Simon of Apulia,
a friend of Henry II, went from Sicily to England, where he became dean of York and then bishop of Exeter.
The Crusader connection, meanwhile, probably involves the Knights Templar,
who had numerous preceptories in England and great influence at court. They
are known to have introduced the basic form of certain financial contracts
into western Europe through their system of banking and accounts.
The Templars, and to a lesser extent the Hospitallers, are believed to have fraternized
with their Muslim foes on occasion. Apart
from the orders of chivalry, many feudal knights and barons of England went
on crusade, and those who returned doubtless brought back at least a few foreign ideas.
For context, we should remember that the Sicilian and English kings of
the twelfth century were constantly contesting papal power in their realms.
Henry's conflicts with Becket were but a single example of this. His Sicilian
counterparts, as "apostolic legates," could actually nominate
bishops. True, the demography of Norman Sicily, with its domination by Orthodox
Christians, Muslims and a number of Jews, differed greatly from that of
England, whose population was predominantly Catholic, but the guiding principle
that pope could not dictate to sovereign was desired by the crowned monarchs
of both kingdoms.
In sunny Sicily the principal legal code (civil law) of the time was
what is now known as the Assizes of Ariano, promulgated by Roger II in 1140.
Advanced for its time, it derived its principles not only from Norman-French,
but also from Muslim and Byzantine (especially Justinian) legal ideas. The
Assizes governed virtually every aspect of life. Over in cloudy England,
Henry's Constitutions of Clarendon, decreed in 1164, were probably influenced
somewhat by the Assizes of Ariano but in great measure they concerned the
power of the crown in its relations with the Roman Church. Common law is
another matter. Before considering it, however, let's think about why certain
legal ideas, including some Islamic ones, did not survive in Italy beyond
the latter decades of the thirteenth century.
Religious equality was good while it lasted, but by the end of the twelfth
century the trend was toward conversion of both Muslims and Orthodox (Byzantine
Christians) to Roman Catholicism. As early as 1161 some Norman barons openly
rebelled against what they viewed as overindulgence of certain courtiers
and subjects, and the revolt bore the crude mark of racism toward Arabs
and "Greeks" (Orthodox). By 1200, under Swabian
rule, Sicily may have been predominantly Catholic. Not long after the death
of Frederick II in 1250, there were few Muslims;
most had converted and a few had left Italy. (Later, in 1493 most of the
Jews of Spanish Sicily were coercibly converted
to Catholicism and a few left for Africa or northern Italy.) The tendency
toward statutory law, as opposed to common (case) law, exists in Italy to
this day. Today common law is more likely to be applied, to varying degrees,
in formerly British lands such as the United States and India, as well as
Australia and Canada, while it has largely vanished from Hong Kong.
When they conquered Bal'harm (Palermo) in 1071, the Normans established
that Muslim, Jew and Christian ("Byzantine" Orthodox at that time)
would each be judged by his own law, and the Assizes of Ariano reflected
this to a great degree. For the Arabs this meant the Maliki School of law of northern Africa, where a
jury of several men could sometimes substitute for the personal testimony of a few witnesses.
But the eventual disappearance of Sicily's Muslim-Arab population
as an identifiable group spelled the end of the historical continuity of their legal
traditions in Sicily, once part of the Fatimids' empire.
Another factor should be mentioned. Many Sicilian legal records of the
Arab and Norman periods were written on paper,
which the Arabs introduced into Europe through Sicily, and most of those
fragile documents have not survived centuries of humidity. Parchment and
vellum records, written on cured animal skin, are more permanent.
In England, in contrast to Sicily, it seems that certain principles of
Islamic law formed the basis of early common law as envisaged by Henry II.
Because subsequent British legal ideas have been built upon these, at least
a thread of the original (Muslim) principles survives. It is beyond the
scope of this article to consider specific legal principles in detail but
let's at least mention at a few hypothesized to have come into English common
law from the Muslim world. Briefly, they are: the right not to testify to
incriminate oneself; the outlaw of use of hearsay as evidence in trials;
every person's right to trial by jury; the weight of a spoken or written
contract as right to possession or transfer of property (rather than actual
physical possession as sole proof of title to land, a horse, etc.); the
possession of property constituting a form of ownership; the equality and
consistency of laws in their application throughout a country; Ranulf Glanville's
medieval definition of a valid contract based on agreement and consideration.
Other English institutions possibly influenced by Islamic law include the Inns of
Court and perpetual endowment.
A considerable improvement over trial by ordeal.
About the Author: Manlio Lima has
written on law, history and other topics for various Italian magazines.