John Makdisi on the Intercultural Origins of the Common Law
Intercultural Human Rights Law Review, Forthcoming (Vol. 14)
Posted: 31 Oct 2019
Date Written: 2019
For over twenty years, John Makdisi argued that the English common law originated and evolved in part by adapting Islamic law institutions. Comparing early common law institutions like the action of debt, assize of novel disseisin, and jury with Islamic law institutions like the ‘caqd, istihqaq, and lafif, Makdisi persuasively demonstrated how the former were created following an intercultural exchange mediated by the Norman conquest and administration of Sicily in the eleventh and twelfth centuries. Despite the influence of Makdisi’s arguments beyond legal scholarship, property law casebook authors have generally elided these provocative yet persuasive arguments in favor of the conventional claim that the English common law derives from Roman, Norman, and canon law institutions. This is unfortunate, especially in a time of rampant anti-Muslim sentiment. Asking students to consider how intercultural exchange generated the common law can counter the regnant “clash of cultures” ideology and engender their sense of agency as officers of the court who bear responsibility for evolving U.S. law in the twenty-first century to protect the republic, its legal institutions, and its racially diverse peoples.
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