The Origins of Common Law - Assignment Example

Common Law- Origins It has long been accepted among members of the legal community that the concept known as common law, was a derivative of the British legal system, which was said to have its roots in Roman law. There is little debate that the British system was adopted by most of the countries which it colonized, and for more than 300 years common law has continued to prevail and evolve in most of those jurisdictions. However, in the last ten years, there have been challenges as to the origin of the common law concept having its origins in Roman law. According to Makdisi (1999),1there are very strong correlates which suggests that Islamic law has had a profound influence in impacting the common law system. The scholarly work and conviction of Makdisi is shared by Jamila Hussain and Lawrence Rosen (2001),2 who also put forth the notion that numerous English common law institutions may have either been adopted or are derivitives of Islamic law. That these laws were introduced into England by the Normans, who inherited the Islamic legal administration of the Emirate of Silicy. During the Norman invasion of England, Henry II who is credited with introducing the common law system into England,was said to have had blood relations with the Arabs. Additionally, according to Devichand (2008),3 during this period, there was an Englishman in the employ of the Silician government, who subsequently returned to England, and became employed by Henry II. Irrespective of these ties, suggested connections, and time lines, even in the case of Qaid Brun, there are no documents on record of the period which can establish the actual adoption of Islamic legal principles in the formulation of English common law. On the other hand, though the route and transmitter may be in doubt, there are glaring similarities in certain aspects of Islamic law, which can be found in Early British and contemporary common law, which has prompted scholars like Makdisi to assert that at the very least, there are certain Islamic influences which are dominant on the formulation of common law.4 Another critical point which is made by Makdisi in defending his thesis was his presentation of an Islamic canon of justice, and even after it has received centuries of Anglican interpretations, the reasonableness of its Islamic origins still prevails as a hallmark in the common law system even to this very day; California –Common Law Statutes In accordance with the state constitution, the legislative and executive branches have approved the California Statutes, and they have been fashioned into 29 codes. Some of the California statutes were not very carefully written, as a consequence this has led to a large body of regulations, these entities have been simplified and customarily labeled as the code of regulations. The absence of meticulous word structuring and form, has produced a number of irregularities in California statutory law; there is no consistency in classification, as some acts have assumed the designation of acts, while some have been classified as laws, and the difference between the two entities are not clearly discernable.. Case Law Common law systems are built around court decisions, which are eventually considered as law and carries the same weight of law as do statutes. The state of California, in accordance with the common law, the California courts have put together a substantial body of cases, which have been adjudicated by the state supreme court and the California courts of appeals. Albeit California’s system has its legal basis in common law, it has uniquely codified their laws in a manner similar to those of civil law jurisdictions.When it took on the task of structuring its laws, they had two primary objectives; to change the Spanish codes, and to structure their laws parallel to other western states.In so doing the state of California retained the concept of community property, which has its beginning in civil law. The California courts have adopted certain aspects of the codes, which were compatible with the precepts of common law, these precepts are versatile enough to adhere to judicial progression, just as if they were judge made discretionary law. A primary example can be found in the case of Li v Yellow Cab,5 where both vehicle operators were found to have been operating their vehicles in a negligent manner. The law in California at the time of the case would have precluded Li from receiving any recovery. However, the California Supreme Court elected to revisit the state’s tort law regarding the subject.The court stated, Everyone is responsible, not only for the results of his willful acts,6 but also for any injury occasioned to another by his want of ordinary care or skill in the management of his property or person. Except so far as the latter has, willfully or by want of ordinary care , brought the injury upon himself. The extent of liability in such cases is identified by the Title on Compensatory Relief. There are variances in civil law jurisdictions, where binding judicial decisions are afforded less weight,and a judges discreation has a broad scope of statute interpretation.This is further highlighted in the legal reasoning binding the holding of the court; The item which made the difference in the court’s reasoning was its reference to section 1714 of the Civil Code,7 in the posture of reasonableness, the court offered the note that it was not the intent of the legislature to retard the continued development of common law, as the ( legislature) was merely making clear, the law as it was at the time,and it is a very common practice for judges to exercise dicreation regarding various statutes, to enable the evolution of common law.8 It is important and even critical that the law continues to evolve, and be pertinent to the experiences of the present. Holmes (1897),9 had very definite views on the law, and if it is reliant Parameters of Islamic Law It is important to make clear the parameters which surround Islamic Law, due to its unique and isolated existence, in the minds eye of a majority of the world’s populace; Sharia,10 which is pronounced sa’ ri:a, has the meaning of, way or path to the water source. Islam, is currently the most widely used religious law.In Islam, religion is their way of life, and Sharia is the body of Islamic religious law, which establishes the legal framework around which those adhering to the system must structure their lives around the principles of jurisprudence. The scope of Sharia in the lives of muslims is of a comprehensive nature; including politics, economics, banking, business, contracts, family, sexuality, hygiene, and social issues. Promises-Islamic Law In order for a contract to be breached, it must have a foundation in a promise which is legally enforceable. When a contract is capable of being enforced by court action their promises have created obligations which can be enforced by the state at the behest any individual who might feel they have an entitlement for performance. A lawsuit filed on the premise of a breach is also of contract, is not as straight forward, nor is it as simple as many might think. It is far more than one person making a promise and not following through. To know what is enforceable, is to be cognizant of what is not. While this is the reasonableness which is appropriate in California common law, we find that reasonableness is a fabric which is weaved heavily throughout the legal system, and this applies in Islamic law as well. Aqd is the Arabic word for contract, and there are two qualifications for promises in Islamic law; the Wa’d (unilateral promises) and Muwada (bilateral promise).11 In the attempt to decipher as much reasonableness from wa’d promises, there are four schools of thought.12 The first school is that one does not have an obligation to satisfy a unilateral promise, but it is an honorable gesture.This school of thought is embodied by some Maliki scholars, and Iman Al-Shafai, and Iman Abu Hanifah. The second school of thought which is embodied by some Maliki scholars, is that the person making the promise is legally obliged to carry out the promise. The third school which is promoted by some Maliki scholars, is that the binding nature of the promise is in effect, if and when the person making the promise has incurred either a loss or has spent some money to affect the promise. The fourth school of thought which is espoused by the Islamic Figh-Academy, is that fulfilling a promise is contingent upon four points; (1) The promise should be one-sided; (2) The individual making the promise must have incurred a loss or expense in an attempt at satisfying the promise; and (3) the actual sale should be completed.13 A bilatateral promise or in Islamic law, a Muwaada consists of two persons who are undertaking two unilateral promises concerning the same subject. Lets say Muhammad promises to purchase Abduls residence for $225,000 in the next 3 months. On the same note, Abdul agress to sell his home to Muhammad for $225,000 in the next 3 months. There is a problem which is inherent of two bilateral promises which prompts most Islamic jurists to be suspect of its Wa’d. hold that when embracing the Muwaada principle, it is feasible to give just and due consideration to its precepts, if and when it does not run counter to other previously stipulated regulations. The details of this bilateral promise would not hold water under California Common Law,14 because for any real estate transaction to obtain the status of enforceability, it must be accompanied by a written purchase agreement. The purchase offer or contract must conform to state as well as local laws, and all of the key elements ( price,and all stipulated or agreed terms must be stated), for this reason, in California, sales contracts are the special domain of real estate agents, not lawyers. Contracts In Islamic Law the term for contracts is known as Aqd, of which there are two types,15 which are parallel in nature to those which are found in common law. When it comes to subject matter and /or object, the lines are drawn between Islamic law and California common law; The subject matter in Islamic law, must be consistent with Islamic teachings. In other words, contracts which involve items which are considered to be taboo, as it relates to Islam will not be considered. There are subjects within Islam which have no value, these include wine, pork and the military, and it is not valid to establish a contract on the basis of these items. The other item which must be present in the establishment of Islamic contracts is the existence of the item.A contract can not be formed if an item does not exist.This would perhaps apply to a house which is yet to be constructed. There are only two possible exceptions to the Islamic law, existence rule, they are salam and istisna.16 Salam deals with the sale where a seller promises to supply some specific goods to a buyer, at a specificed future date, and the deal must be consummated on the spot by the buyer, who will make a specified advance cash payment.While the payment for this transaction will be made in advance, the delivery of the goods will be delivered at a later date. The term used to t the sale is referred to as "Muslam ilaih", the cash advance is called "ra's-ul-mal", and the purchased commodity is termed as "muslam fih".17The persistence of salam may be subject to strict conditions. Istisna is the second type of exception which is tolerated within the principle of existence. The sale of the item is transacted before the item comes into existence. This transaction has to do with placing an order with a manufacturer to produce a specific item which the purchaser desires.This contract establishes a moral obligation on the manufacturer, however, either one of the two parties to this contract, may rescind the order by giving notice, but it must happen before the manufacturing commences, otherwise there can be no cancellation. The next component presence which is essential in Islamic contracts is ownership.The seller can not bind items which have been consigned, or borrowed, it must be in the sole ownership of the seller. The final contractural component is deliverability. The item to be sold must under all circumstances be clearly and specifically stated.The seller must be able to physically deliver the goods. California Separate legal personality to its owners Every company which seeks to establish a corporate personality within the state of California receives the classification of a Domestic stock corporation, and must file a statement with the Secretary of State. If a domestic corporation in California wishes to conduct business in another state, they will be required to make application in the desired market as a foreign corporation.Whenever there are allegations of wrong doing which are filed against a corporate entity, there is no bright line rule,18 which exist in the state of California, so any allegation of a transgression of the rules are adjudicated on the basis of California common law.A California domestic stock corporation is much more vulnerable than say a corporation which is registered in Nevada, due to California’s liberal application of the laws concerning veil piercing, the owner(s) of a corporation operating in California would be subject to different potential for the corporation's veil to be pierced if the corporation was to be sued, depending on whether the corporation was a California domestic corporation or was a Nevada foreign corporation operating in California.It is important to note that in the state of California given its liberal common law interpretation, that one single infraction can result in a piercing of a corporate veil if and when a court might find an issue compelling; as in,the drowning of a child in a public swimming pool, the California Supreme Court held, 19 The equitable owners of a corporation, for example, are personally liable... when they provide inadequate capitalization and actively participate in the conduct of corporate affairs. An agreement which is established between two or more persons to engage in some type of work in order to realize a profit is known in Islam as the Sharika. A single partner customarily provides the capital and the others involved in the company are afforded the responsibility of working with it. The profit distribution is agreed and stipulated in the contract. The distribution of loss is determined by the amount of the investment of each partner.If a partner made an invest of 30%, then an equal amount would be his contribution in any debt determination.In Islam law, there is no limited liability. If the Islamic company is relegated to going into court, all of the partners are liable. The character of the corporation takes all personal elements away from the company, and if a company goes bankrupt, the owners will only lose the amount which they originally invested, the debtors can not receive any amount exceeding the capital investment. Read More