A Common Law?

Law in Action - Sharia and England: a common law? - BBC Radio 4 - 23 September 2008 - 28 mins 56 secs

In his recent book, England: An Elegy, the philosopher Roger Scruton described a fundamental characteristic of the English common law: it treats law as something to be discovered rather than made; it views justice as an independent reality that the courts attempt to approach, not the application of arbitrary rules.

On the face of it, this suggests an interesting parallel with Islamic law (shari'a), which similarly tries to apply its judgements according to ideal justice. The difference, of course, is that it explicitly locates that origin of that justice in the Divine.

But could there be more to this parallel than just coincidence? Are there any historical links between the two? The answer is a tantalising, 'Maybe'. A recent programme on the BBC considers the evidence that the development of common law in the 13th century CE was related to England's contact with the Muslim world.

It's a fascinating argument, even if ultimately inconclusive.

If you have access to a library or database that holds it, you can read more about the scholarly work on this in an article by Prof. John Makdisi, 'The Islamic Origins of Common Law', North Carolina Law Review 77 (1998), p. 1635ff.

Unfortunately this programme is no longer available through BBC Podcasts, but you can still read about it through the link below.

Read 'Is English law related to Muslim law?' on BBC News