The “coil” between the islands of Sicily and Britain.. “The jurors” from the heritage of Maliki jurisprudence to America’s courts

The trial of Hollywood stars Johnny Depp and Amber Heard has sparked debate about the origins of the idea of ​​a "jury" in the Anglo-Saxon legal system in America and many of the British Crown states, including Canada, Australia and other countries.

The jury in the case took 3 days to reach a decision after 6 weeks of pleadings and testimonies, and the committee submitted its decision to the court, which convicted the actress of defaming her ex-husband.

A jury is a trial system by consulting lay citizens by making them part of the justice system;

By representing them in indictment or trial or both, and "jurors" - as representatives of the people - have played a role in the justice system since the independence of the United States, where the accused is referred to a representative group chosen according to simple requirements from the city's residents, and is supposed to represent the public conscience and vote - after consideration. For the details of the case - without resorting to the legal articles that judges resort to.

The jury system did not come into force in the Western world until the time of the Crusades, when the idea was borrowed from an earlier model of the “coil testimony” that goes back to the legal system of classical Islamic Maliki jurisprudence, which developed between the eighth and eleventh centuries CE in North Africa and Islamic Sicily.

According to American Professor John Makdisi, a specialist in comparative law and ethics who has studied cultural links between Islam and the West, the idea of ​​a confederation is clearly embodied in Islamic jurisprudence, "and no other institution in any legal discipline so far studied shares all these characteristics with the English jury."

And the Normans seized the island of Sicily (present-day southern Italy), which lived through centuries of Arab rule by the Aghlabids, then the Fatimids, and the Bani Kalb dynasty, then the control of the Zirids and the "Sicilian strife" that the Normans exploited to conquer the island and its capital Palermo in the second half of the eleventh century. Coexistence of the different religious communities on the island that included Latin Christians (Roman Catholic), Greek-speaking Christians (Eastern Orthodox), and Muslims.

This coexistence resulted in economic, cultural and linguistic exchange, and religious communities had their own administration and litigation systems, including Muslims, making the island of "coexistence" a fertile environment for the inspiration of the English legal system after the Normans also took over England in the second part of the eleventh century.

And the Norman men of the north (whose origins go back to a population mixture of Franks, Gauls and Vikings) benefited from the flourishing systems of law, administration, and organization of transactions in Islamic Sicily, and also added to this the experience of friction with the Muslim Arabs in the north of the Levant when they established the Crusader Principality of Antioch and knew their king Frederick II - who spoke Al-Arabiya and his court with Arab intellectuals - the civilization of the Arab Muslims, the East and the Maghreb closely.

'The Scroll' and Sicilian inspiration

In his 1999 study The Islamic Origins of the Common Law, John Makdisi compared the confederation system used in the Maliki jurisprudence of ancient Sicily and the jury in modern Anglo-Saxon laws, noting the similarity between these two institutions.

In his study Makdissi, author of numerous publications on a comparison of American and Islamic property law, notes that researchers who have searched for the origins of English "common law" have suggested that it is the product of many different influences, the most important of which is the civil law tradition of Roman law and canon law, however, as he shows in his work The legal institutions of common law fit a structural and functional pattern unique among Western legal systems and certainly different from that of civil (Roman) law.

The consistency of this pattern strongly indicates the dominant influence of a single pre-existing legal tradition rather than a mixture of influences from multiple legal systems superimposed on a Roman tapestry. The only problem is that no pre-existing legal tradition has been found to fit this conception, so a study extends beyond The borders of Europe suggest that the origins of common law can be found in Islamic law.

Piazza Bellini in Palermo, Sicily, with two medieval churches (Getty Images)

Part Five of Maqdisi's research traces the Maliki system of jurisprudence in Islamic law in North Africa and Sicily to Norman law in Sicily and from there to Norman law in England to show the social, political, and geographical connections that made English quotation from Islam possible.

Makdisi, a professor of law at American universities, including Cleveland Marshall, and the dean of law schools at the Universities of Tulsa and St. Thomas, indicated that disputes were settled in Islamic law between ordinary parties before going to the courthouse before the judge;

The plaintiff would initiate a complaint (essay), and the defendant was obligated to provide an answer (answer) to it, as in the "popular confession" of English law.

Makdisi continues, explaining that the follow-up to litigation procedures was not just a matter of agreement by the parties, as is the case in popular recognition of English law.

It was not a question of a privilege granted by the sovereign authority. Rather, the Islamic judge had a divine duty to administer justice in all cases before him, according to the principle of the right to trial. But do litigants have the right to be tried before a jury-based judiciary?

Makdisi answers, "The primary method of proof in Islamic law was testimony through the use of witnesses, and when the plaintiff or defendant presented the appropriate witnesses, the judge had to use them as a means to prove the case and the rights of the parties, but Imam Malik, the founder of one of the schools of Sharia in Islam, insisted on That the judge has no power to make any decision without the authority of witnesses.

Makdisi continues, "If it can be shown that these witnesses possess the essential characteristics of a jury in the English criminal system, then the Muslim claimant has not only the right to a trial but the right to a jury trial."

Makdisi says that the Hanafi school considered every Muslim to be fair unless his personality was attacked, but because of the difficulty of proving identity and sometimes finding witnesses, and in order to protect the justice system from the lack of available evidence, the community system developed.

In addition to the certificate of the scroll, the Anglo-American legal system has also benefited from the system (trust) or the Islamic endowment, as well as the provisions of entitlement (possession by presumption), limited partnership and speculation, and the systems of contracts transferring property and others, and researchers say that the radical differences between English law and its European counterpart are due in one of its aspects to the two influences. Norman-inspired Sicilian Arabic-Malik, including some uses of qiyas and istihsan in Islamic jurisprudence

The Maliki jurists expanded on explaining the conditions of witnesses and set rules for the testimony of non-justice and applied special clear conditions according to which the judge may rule in the “marriage testimony” and it means the testimony of a number of people, who are mostly 12 people who fulfill the condition of “evidence”, and the testimony of a crowd was known in Morocco in the middle of the ninth century Hijri and became part of the Moroccan legal code, and accept the testimony of the crowd in many specific facts.

Interior of Sicilia's Ziza Castle, an Arab-Norman castle in Palermo, southern Italy (Getty Images)

Sicilian Arabic

The Italian island of Sicily in the Mediterranean became the incubator of a flourishing Arab culture, which continued even after the Normans took control of it in 1072 AD.

In 1061 AD, Sicily was still an Arabian peninsula, but it was fragmented into five divided principalities. In addition, the conflict between the princes, and the competition between the Arabs and the Berbers on the island in southern Italy, resulted in the Norman king Roger I being able to subjugate most of the island to his rule. By 1072, the Sicilian capital, Palermo, was under complete Roman control.

But the decline of the Arab political star from Sicily did not miss the Arab culture from the Mediterranean island, and the Arab presence remained strong in it under the rule of the Norman kings in this period, and the court of the Norman kings remained throughout the 12th century full of many Arab poets, scholars and craftsmen, who also assumed high administrative positions, According to a previous report by Al Jazeera Net.

After the death of Roger I in 110 AD, he was succeeded by his son Roger II, whose court was teeming with Arab intellectuals. The Sicilian king refused to participate in the Crusades despite the Pope's insistence. The use of the Arabic language became widespread in his financial management and his grandiose celebrations, in literary and poetic councils, and even in palace inscriptions. He is considered an academic specialist in literature. Al-Arabi and Middle Eastern Studies at Cambridge University Nathaniel Miller argues that this was not merely a continuation of Islamic remnants of Sicily, but a conscious imitation of bureaucratic recording and notation practices borrowed from the Fatimid state in Egypt at the time.