The Islamic Origins of Common Law

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North Carolina Law Review


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.

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