ASSIGNMENT: OPINION WRITING ON THE ISLAMIC ORIGINS OF THE

COMMON LAW BY JOHN A. MAKDISI

Course Title: Malaysian Legal System

Course Code: LAW 1020 (Section 4)
Lecturers Name: Dr. Muhamad Hassan Ahmad
Name: Aimi Safiah binti Azemi
Matric No.: 1620944
 Common law is the part of English law that is derived from custom and judicial
precedent rather than statutes. The genesis of common law is in England during the Middle Ages
and from there, it was widely spread to the colonies of the British Empire. Originally, common
law was created by King Henry II of England in the 12 th century that resulted in the profound and
extensive changes in the English legal system. The law became known as common throughout
the nation for the kings judges followed each others decisions in order to create a unified
common law throughout England. Historians have further suggested and supported the fact that
common law was established through several influences, particularly Roman law and canon law.
There are several similarities shared between common law and Islamic law. Recent
studies were done by Ismail Barreh, a blogger for Muslim Link: Ottawas Online Newspaper,
had looked at the possibility that certain principles of English common law are rooted in Islamic
law through the contact with the multicultural kingdoms of Sicily and Jerusalem. John A.
Maksidi studied and had found the striking similarities between the two legal institutions. He
argues that these shifts must have made their way into Norman England through contact with the
multicultural kingdoms of Sicily, which was at the time under the influence of Islam. The
similarities can be found in the action of debt, the assize of novel disseisin or dispossession and
the trial by jury.
First is the law of contract. To recover debts, the writ of debt was the earliest writ issued
by the English royal courts. It allows the buyer and the seller to impose the obligation of the
other party in the contract of sale. In simpler words, the parties are all bound to each other. The
buyer has the obligation to purchase the product with the agreed price to the seller. The seller has
the obligation to give the product with the agreed price to the buyer. Only then, the transfer of
ownership will happen. Glanvill explained further on the law of contract, A purchase and sale is
effectively complete when the contracting parties have agreed on the price, provided that this is
followed by delivery of the thing purchased and sold, or by payment of the whole or part of the
price, or at least by the giving and receipt of earnest. For the transfer of ownership to be
completed, the delivery of the subject matter must occur.
The law of contract in Islamic law or aqd in the Arabic term, it is defined as an
expression of the matching between a positive proposal made by one of the contractors and the
acceptance of the other contractor in a way which has an impact on the subject of the contract.
There are few requirements need to be fulfilled in order for the contract of sale to happen and to
be valid. First, the parties must be legally competent to enter a contract. Second, the offer and
acceptance must be expressed verbally except in a few particular conditions. Third, the subject
matter must be something that is accordance to Islam. Fourth, the legal capacity. In simpler
words, the right to acquire legal rights and benefits and to facilitate the imposition of the
obligations of the parties. The capability to transact in Islamic law is measured by several
aspects, maturity, puberty, prudence and intelligence. If all the requirements are fulfilled, the
transaction can occur without any problem. The similarities between the Islamic law and English
law are that both based on commutative justice. This is because the preservation of equality
between the contracting parties is the most important thing.
Additionally, religion and law are two things that need to be distinguished though, at
times, they might be overlapped. Religion is concerned with the morality of the inner intentions
of a person before he or she is about to do an action. Meanwhile, a law is more concerned with
the aftermath of the actions of a person and it might transgress between individuals rights and
another individuals rights. All in all, if we instilled good moral behaviours and ethics, we would
create less trouble.
Next is the assize of novel disseisin or dispossession. In simpler words, to recover
property that has been disseised or dispossessed. The English common law has roots dated back
to the 12th century, which means it has been created and gradually improved over a very long
period of time. According to Abdul Karim Aldohni, in his book entitled The Legal and
Regulatory Aspects of Islamic Banking: A Comparative Look at the United Kingdom and
Malaysia, the nature of the common law raises the question of its historical nature about the
influence of other different contemporary or previous legal systems and would beg another
question, whether the Islamic banking is the first real connection between the Islamic and the
English legal systems. It has been argued that Islamic law did have an influence on the English
common law a long time ago.
One of the King Henry II accomplishments was the assize of the novel disseisin. This
was to protect the protected title to land by providing a quick means of establishing rightful
possession. To achieve his aim, he altered the traditional legal procedures. John A. Maksidi
argued that the English assize may originally be from the Islamic law. There is a huge difference
between the Roman assize and the English assize in terms of legal foundation. This eliminates
the possibility of Roman law as the main source for the English assize in terms of the scope of
the possessor protection. In English assize, the possessor is not protected by against the
repossession by the owner. Meanwhile, in Roman assize, a simple possession could be the proof
of ownership.
In Islamic perspective, the protection of ownership is a norm. In fact, Islam truly
emphasizes the protection of ownership as it is a way to not transgress or intrude another
persons property. When a person intends to enter a contract, the legality of the subject matter
matters. It can be decided by the aspect of the ownership. The term istihqaq means to restore
the owner of the property from the non-owning possessor. This contract can be construed as null
and void for the non-owning possessor and this action will be brought upon a Qadi or a judge.
Therefore, to say that Roman law has influenced the English law can be clearly eliminated. This
is because Islamic law and English law absolutely give special importance to repossession of
ownership. The non-owning possessor who takes anothers property by force or usurper can
never be the real owner.
The final point to prove that there is a connection between common law and Islamic law
is the procedural trial by jury. Before the establishment of twelve juries in the English law,
primitive methods were used to determine innocent and guilty on the basis of divine signs by fire
and water. These methods equally popular among the Normans and the Anglo-Saxons. However,
these methods proved to be dangerous as it costs the life and the condition of people and soon,
the methods were abolished and replaced with procedure trial by jury. The fundamental
characteristics of a jury are the jury is a body of twelve sworn people drawn from the
neighbourhood, who must give an answer, unanimously, about a matter that they have personally
seen or heard, binding on the judge, to settle the truth concerning the facts in a case, between
ordinary people, submitted to a jury upon judicial writ and obtained as of right by the plaintiff.
The concept of Latif in Islam is almost the same as the English law. The jurists are twelve
jurists drawn from the neighbourhood and sworn to tell the truth, who were bound to give a
unanimous verdict about matters they had personally seen or heard and others. However, the
jurists are the witnesses for a case. In other words, a case relies upon the twelve witnesses in
order to proceed a trial. In this case, Roman law has the same concept of witness to Islamic law
as there has to be more than one witness for a claim to be valid and truthful. Also, the witness
needs to be honourable in his or her character. Nevertheless, in Hanafi school, every Muslim is
considered to be honourable that is until his or her character is tainted. The importance of
obtaining the truth in Islam must be that the truthfulness required intellectual maturity, the ability
to perceive and the absence of prejudice and any qualities that would corrupt the truth. The
structure of Latif is similar to the jury in England in every detail except for the judicial writ
directing the jury to be summoned and directing the bailiff to hear its recognition. John A.
Maksidi stated that there is no other institution in any other legal system to this day shares the
same characteristics with the English jury.
In conclusion, I believe when John A. Maksidi concludes that, The Islamic legal system
was far superior to the primitive legal system of England before the birth of the common law. It
was natural for the more primitive system to look to the more sophisticated one as it developed
three institutions that played a major role in creating the common law. The action of debt, the
assize of novel disseisin, and trial by jury introduced mechanisms for a more rational,
sophisticated legal process that existed only in Islamic law at that time. Furthermore, the study of
the characteristics of the function and structure of Islamic law demonstrates its remarkable
kinship with the common law in contrast to the civil law. Finally, one cannot forget the
opportunity for the transplant of these mechanisms from Islam through Sicily to Norman
England in the twelfth century.
Therefore, in some way, common law