The Islamic Origins of English Common Law: a Sicilian connection
The origins of English Common Law have been contested and revised numerous times by legal scholars. No unanimous account exists for the genesis of the system we still use today, but many theories have been proposed. Some romantically inclined speculators have ascribed the source of our judicial canon to a native sense of justice, but this is hardly an adequate explanation. It is an arrangement that has worked for over eight centuries and is likely to live on. A more compelling and convincing argument is that common law is rooted in Islam via the medieval Kingdom of Sicily. It would explain the many striking similarities in Islamic custom and English common law.
In the 12th century, two Norman kingdoms flourished in Europe – The Angevin Empire and the Kingdom of Sicily. Sicily was a multicultural and multilingual place formerly possessed by Arab rulers and mostly populated by Latin and Greek Christians alongside Muslim settlers. With borders stretching from the boot of Italy to the littoral lands of Africa, it soon became a distinct confluence of disparate cultures, connecting northern and western provinces to southern and eastern realms. In 1061, after two hundred years of Arab rule, an itinerant Norman knight named Roger Bosso invaded the island and created a state. It was a sanctuary of social dynamism and a bastion of religious tolerance, exerting enormous thalassocratic powers which poured out from the straits of Messina to the sacred shores of the Holy Land. Like other Norman conquerors, Roger cleverly absorbed the old codes and practices of his new colony to maximise the value and effectiveness of his domain. These included modes of taxation, courtly etiquette, styles of administration and judicial processes. The medley of Muslim and Christian civil servants, notaries and jurors established an efficient process which was bound to be exported because of the impressive wealth and influence Sicily enjoyed.
In England, overcoming incompetence and opponents became the modus operandi of the young and energetic King Henry II. From ancestral conflicts and opportune marriages, he amassed an empire that ranged from Hadrian’s Wall to the Pyrenees; an imperial presence not seen in Europe since the death of Charlemagne. His tenacious approach to engaging adversaries became legendary and to add to his many military and diplomatic accomplishments he occasionally controlled more French territory than the French King himself. But, by most accounts, he was more than a mere belligerent baron with too much land, he was an active and innovative ruler with a restless mind for reform and an invested interest in the legal and social systems that determine peaceful cohabitation. Indeed, reform was desperately needed. Many brutal Viking and pagan edicts were still in use during Henry’s reign. The exchange and ownership of property was a persistent problem and trial by ordeal was still common practice. Some scholars believe his zeal to establish a monarchy which would civilise and sanctify his people might have driven him to plagiarise the Sicilian style of government.
There were few impediments to Henry gaining detailed knowledge of the Sicilian courts. Journeys from Canterbury to Rome took approximately seven weeks and continual trade traffic had coursed between Normandy and Sicily long before Roger and Henry adorned their thrones. Many Englishmen found prominent positions in Sicily, like Roger II’s chancellor Robert of Selby or Peter of Blois who tutored the Sicilian princes and was a friend to Henry. But the crucial link between the two monarchies was a man named Thomas Browne. Brown was a protégé of Robert of Selby who after working in Sicily for almost twenty years returned to England and assumed the role of special adviser to the King. His experience working in the financial bureau of the Sicilian government became invaluable. Within eight years of Browne’s return to England, Henry decreed the Assize of Clarendon which oversaw the establishment of trials by jury. This was followed by the Assize of Northampton which made all possession of property subject to and guaranteed by Royal law, thereby protecting property from violent acquisition. Reforms such as these and the right not to testify to incriminate oneself, the consistent equality of the application of law and its treatment of defendants before being proven guilty, are extremely similar or identical to Islamic custom.
Ideas are exchanged as easily as objects. The uninterrupted flow of goods and people between the Norman kingdoms must have conveyed some intellectual property. Perhaps the most romantic explanations are right: we simply applied our brilliant and naturally just brains and hay presto, common law came about. Or, maybe Merlin, like an English Moses, carved out the core tenets of trial, jury, property and justice and allowed primaeval hearsay to spread his conclusive words on the matter. The efficiency and consistency of the common law system, however, suggest it was tried and tested for centuries and its similarities to Islamic custom require explanation. Henry II was not averse to foreign ideas so long as they improved his prospects, and he would have enjoyed being unburdened by the superstitions that kept his enemies weak. If some document was discovered confirming this theory, would it change our perception of British history or our relationship with the rest of the world?
It is always good for a nation to remember it is only a product of global events rather than the exclusive author of them.