Sharia Law - Parallels With Western Legal Systems

Parallels With Western Legal Systems

English legal institutions such as "the scholastic method, the license to teach", the "law schools known as Inns of Court in England and Madrasas in Islam” and the "European commenda" (Islamic Qirad) may have also originated from Islamic law. The methodology of legal precedent and reasoning by analogy (Qiyas) are also similar in both the Islamic and common law systems. These similarities and influences have led some scholars to suggest that Islamic law may have laid the foundations for "the common law as an integrated whole".

One of the institutions developed by classical Islamic jurists that influenced civil law was the Hawala, an early informal value transfer system, which is mentioned in texts of Islamic jurisprudence as early as the 8th century. Hawala itself later influenced the development of the Aval in French civil law and the Avallo in Italian law. The "European commenda" limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.

Islamic law also made "major contributions" to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways. These included Muslim sailors being "paid a fixed wage "in advance" with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify "a known fee for a known duration", in contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture's profit, with shares allotted by rank, only after a voyage's successful conclusion." Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the "high seas", and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian's Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also a precursor to the European commenda limited partnership. The "Islamic influence on the development of an international law of the sea" can thus be discerned alongside that of the Roman influence.

The origins of the Ijazah dates back to the ijazat attadris wa 'l-ifttd ("license to teach and issue legal opinions") in the medieval Islamic legal education system, which was equivalent to the Doctor of Laws qualification and was developed during the 9th century after the formation of the Madh'hab legal schools. To obtain a doctorate, a student "had to study in a guild school of law, usually four years for the basic undergraduate course" and ten or more years for a post-graduate course. The "doctorate was obtained after an oral examination to determine the originality of the candidate's theses", and to test the student's "ability to defend them against all objections, in disputations set up for the purpose," which were scholarly exercises practiced throughout the student's "career as a graduate student of law." After students completed their post-graduate education, they were awarded doctorates giving them the status of faqih (meaning "master of law"), mufti (meaning "professor of legal opinions") and mudarris (meaning "teacher"), which were later translated into Latin as magister, professor and doctor respectively.

Sharia classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives. Thus, sharia has no native tradition of corporate law. This, combined with egalitarian rules of inheritance for male descendants (compare with primogeniture), hindered the concentration of wealth and the development of larger and more sophisticated enterprises, according to Timur Kuran of American Duke University, located in Durham, North Carolina. Prohibitions on interest, or "riba" also disadvantaged Muslims vis-à-vis non-Muslim minorities in accessing banks and insurance when these services were first introduced by Westerners. Interest prohibitions, also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting. Such factors, according to Kuran, have played a significant role in retarding economic development in the Middle East.