Investigating the claims made by John Makdisi about the roots of English common law, this article concludes that since the nature of protection under Section 6 of the Indian Specific Relief Act, 1963 is proprietary and not tortious, Makdisi’s claims about the Islamic roots of assize stand validated.
Authors
Nizamuddin Ahmad Siddiqui, Assistant Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India; Crescent School of Law, BS Abdur Rahman Crescent Institute of Science and Technology, India.
Abu Zar Ali, West Bengal National University of Juridical Sciences, Kolkata, West Bengal, India.
Summary
This article investigates the claims made by John Makdisi over a period of two decades about the roots of English common law. Makdisi argues that the roots of English assize seem to lie in the Islamic istihqaq instead of the Roman interdict unde vi. We critically analyse this claim against the legislative history and the jurisprudence of Section 6 of the Indian Specific Relief Act, 1963, both of which are directly inspired from the assize.
The claims are tested by: 1) comparing the development of ‘possessory rights’ in Indian law against the root definition of the English assize; and 2) by assessing the nature of ‘protection’ accorded to the ‘possession’ of the immovable property as originally devised by the assize.
This article concluded that since the nature of protection under Section 6 is proprietary (protecting possession itself) and not tortious (arising from breach of peace), Makdisi’s claims about the Islamic roots of assize stand validated. This makes comparative engagement with Islamic law relevant to the study of both common law and the common-law inspired legal systems around the world.
Published in: Manchester Journal of Transnational Islamic Law and Practice
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