Contribution of Shria'a To English

Common Law and International

Law
ABDULLA AL SAYYARI

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. Furthermoreand 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