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77 N.C. L. Rev. 1635 (1998-1999)
Islamic Origins of the Common Law, The

handle is hein.journals/nclr77 and id is 1651 raw text is: THE ISLAMIC ORIGINS OF THE COMMON LAW JOHN A. MAKDISI* Henry II created the common law in the twelfth century, which resulted in revolutionary changes in the English legal system, chief among which were the action of debt, the assize of novel disseisin, and trial by jury. The sources of these three institutions have long been ascribed to influences from other legal systems such as Roman law. Professor Makdisi has uncovered new evidence which suggests that these institutions may trace their origins directly to Islamic legal institutions. The evidence lies in the unique identity of characteristics of these three institutions with those of their Islamic counterparts, the similarity of function and structure between Islamic and common law, and the historic opportunity for transplants from Islam through Sicily. INTRODUCTION ..................................................................................... 1637 I. CONTRACT IN THE AcTiON OF DEBT ...................................... 1640 A. Glanvill's Definition of Contract ....................................... 1641 B. Glanvill Interpreted in an Incomplete Historical C ontext .................................................................................. 1645 C. The Islam ic cA qd ................................................................. 1650 H. PROPERTY IN THE ASSIZE OF NOVEL DISSEISN ................... 1658 A. A Speedy Remedy for Loss of Ownership ........................ 1658 B. The Islamic Istihqaq ............................................................ 1665 C. Prescription Versus Limitation .......................................... 1669 1. English Law .................................................................... 1671 a. Defendant Had No Title ......................................... 1671 * Dean and Professor of Law, Loyola University New Orleans School of Law. B.A., Harvard College, 1971; J.D., University of Pennsylvania Law School, 1974; S.J.D., Harvard Law School, 1985. This Article develops a thesis on the origins of the common law that was first explored in my article entitled An Inquiry into Islamic Influences During the Formative Period of the Common Law, in ISLAMIC LAW AND JURISPRUDENCE 135 (Nicholas Heer ed., 1990). The thesis in its present form was the topic of lectures at Duke University (Feb. 19, 1997), Loyola University New Orleans (Apr. 4, 1997), and the American Oriental Society (Apr. 6, 1998). It is dedicated to my father, George, whose work and encouragement inspired me on this venture, and to my wife, Junicka, whose love and support carried me through its storms.

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