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English Common Law and Islam: A Sicilian Connection
by Manlio Lima

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Canterbury - in the shadow of Islamic law?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.

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 Monreale (overlooking 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 than ever.

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.

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© 2008 Manlio Lima