Social Revolution and Law Discourses: With Special Reference to the History of the Common Law

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Ayus A. Mohaimin

Abstract




Theda Skocpol (1979) observed that social revolutions have been rare but momentous occurrences in modern world history; from France in the 1790s to Vietnam in mid-20th century.1 Beyond that, we had various revolutions motivated by religious uprising which shaped many countries, starting from the Middle-East to Europe to Asia and rest of the world, and past mid-20th century we too have seen social revolution emerging in different patterns. Among others, the “Arab Spring”,


Fifty years ago, nonmarital cohabitation was rare. In late 20th century, social revolution affected the relationship between men and women cohabiting, without the need of formal marriage; and between each individual gender too, resulting in the LGBT reforms. This kind of social revolution is more common today, in the 21st century, than some rare occurrences in the yesteryears.


The cause of social revolution does not confine itself to political unrest, religious uprising, economic problem, human sexual preferences, but it is wide ranged even to cyber space innovations which have been revolutionary and have brought about changes to the society and the legal system at large.




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A. MOHAIMIN, Ayus. Social Revolution and Law Discourses: With Special Reference to the History of the Common Law. International Conference on Law and Social Sciences and Education, [S.l.], v. 1, n. 1, p. iv, dec. 2019. Available at: <https://eproceeding.undiksha.ac.id/index.php/ICLSSE/article/view/1905>. Date accessed: 30 oct. 2020.
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* Professor Dr. Abdul Mohaimin Noordin Ayus was invited as a Keynote Speaker on the assigned topic on “Social Revolution and Legal Discourses” at the International Conference on Law and Social Sciences and Education (ICLSSE) 2019, organized by Fakultas Hukum dan Ilmu Sosial, Universitas Pendidikan Ganesha, Kementerian Riset, Teknologi, dan Pendidikan Tinggi, Indonesia. This paper is narrowly confined to “Social Revolution and Legal Discourses: With Special Reference to the History of the Common Law”. See also the writer’s paper “Islamic Law in the Era of Globalisation”, presented at The 2017 International Conference on Globalization of Law and Local Wisdom (ICGLOW 2017), organized by Doctoral Degree of Law Studies 2016, Faculty of Law, Universitas Sebelas Maret
14 & 15 October 2017.
The writer would like to express his utmost gratitude to Prof. Dr. Nehaluddin Ahmad, Professors of Law at Universiti
Islam Sultan Sharif Ali (UNISSA), Negara Brunei Darussalam, for sharing his valuable academic advice, views and
ideas. 1
where group of protests that ultimately resulted in regime changes in countries such as
Tunisia, Egypt and Libya.

(UNS) Surakarta – Indonesia, on
Skocpol, T. (1979). States and social revolutions: A comparative analysis of France, Russia, and China. Cambridge:
Cambridge University Press, p. 3.
2 Barkun, M. (1971). Law and Social Revolution: Millenarianism and the Legal System. Law & Society Review, 6(1), 113-141. doi:10.2307/3052915, p. 113.
3 (Accessed 1-10-2019.) Citing inter alia Mass Protests in the Islamic Revolution, 1977–79. in A. Roberts & T. G. Ash (eds.). Civil Resistance and Power Politics: The Experience of Non-violent Action from Gandhi to the Present. Oxford & New York: Oxford University Press, pp. 162–178; Cooper, A. S. (2011). The Oil Kings: How the U.S., Iran, and Saudi Arabia Changed the Balance
Abrahamian, E. (2009).
of Power in the Middle East. New York: Simon & Schuster.
5 Now styled as Civil Law Act 1956.
6 Now styled as Application of Law Act (Cap. 2).
7 Perintah Kanun Hukuman Jenayah Syariah, 2013. See Abdul Mohaimin Noordin Ayus. (2019). Penyatuan Syariah
dan Undang-Undang: Ke Arah Penyempurnaan Negara Zikir. Vol 2. No 1. Al-Rā’iq Journal, (June Issue 2019). Bandar Seri Begawan: UNISSA Press, pp. 1-47 (Available at: ; “Memperkasakan Undang-undang Jenayah Syarak: Analisis Perundangan Perbandingan antara Brunei dan Malaysia”, published as Seminar Paper Proceedings (ISBN 99917-1-921-0), Seminar Isu-isu Kontemporari Dalam Syariah dan Undang-undang, organised by Faculty of Shariah and Law, UNISSA, May 2011; Abdul Mohaimin bin Noordin Ayus. (2018). Syariah Penal Code Order, 2013 of Negara Brunei Darussalam: Its Implementation and Challenges. International Conference of ASEAN Prespective and Policy (ICAP), [S.l.], v. 1, n. 1, p. 199-213, Oct. 2018. Available at:
8 1 Tucker's Com. p. 23; 1 Bl. Con. Introd. sec. 3 (85); Hale's History C. L., p. 66.
9 Pomeroy, J. N. Introduction to Municipal Law, 10-15, 27-29, 36-40, 268-313, 344-355; Stearns, J. M. The Germs
and Developments of the Laws of England: Embracing the Anglo-Saxon Laws Extant: From the Sixth Century to
A.D. 1066. (Trans. Under the Royal Record Commission of William IV.: with the Introduction of the Common Law
by Norman Judges After the Conquest, and its Earliest Proferts in Magna Charta). New York: Banks, p. 353-4. 10
al-Qanūn
fi al-Tibb was translated as “Canon of Medicine”, an
.
11 Origin of the Common Law of England. (1896). The Virginia Law Register, Vol. 2, No. 1 (May, 1896), Virginia Law Review, p. 67; < https://www.jstor.org/stable/i245823> (Accessed 1-10-2019).
Guterbock. C. (1866). Bracton and His Relation To The Roman Law: A Contribution to The History Of The Roman
Law In The Middle Ages. (Trans. By Brinton Coxe). Philadelphia: J. B. Lippincott & Co. The word “canon” could
have derived from the Arabic word “Qanūn” or generally, meaning a “code”. Avicenna’s work on medicine,
encyclopedia of medi
12 Wickersham, G. W. (1914). Judge Sharswood. University of Pennsylvania Law Review and American Law Register, Vol. 62, No. 8 (Jun. 1914), pp. 615-620. (Accessed 17-10-2019). 13 (Accessed 16-10-2019).
14 Germanic branch of the Indo-European language family.
15 Lefroy, A.H.F. (1917). The Anglo-Saxon Period of English Law. The Yale Law Journal, Vol. 26. No. 4 (Feb. 1917). The Yale Law Journal Company Inc., p. 291. (Accessed 15-10-2019). “
16 Lefroy, A.H.F. (1917). The Anglo-Saxon Period of English Law II. The Yale Law Journal, Vol. 26. No. 5 (Mar. 1917). The Yale Law Journal Company Inc., pp. 388-394. (Accessed 15-10- 2019).
Teutonic” refers to the Germanic people or ethnolinguistic Indo-European group of people identified by the use of
Germanic languages.

17 Under the English feudal system, the king was the only absolute “owner” of land. All nobles, knights and other tenants, termed vassals, merely "held" land from the king, who was thus at the top of the "feudal pyramid". When feudal land grants were of indefinite or indeterminate duration, such grants were deemed freehold, while fixed term and non-hereditable grants were deemed non-freehold. However, even freehold fiefs were not unconditionally heritable—before inheriting, the heir had to pay a suitable feudal relief. Below the king in the feudal pyramid was a tenant-in-chief (generally in the form of a baron or knight) who was a vassal of the king, and holding from him in turn was a mesne tenant (generally a knight, sometimes a baron, including tenants-in-chief in their capacity as holders of other fiefs) who held when sub-enfeoffed by the tenant-in-chief. Below the mesne tenant further mesne tenants could hold from each other in series. The obligations and corresponding rights between lord and vassal concerning the fief form the basis of the feudal relationship. Before a lord could grant land (a fief) to a tenant, he had to make that person a vassal. This was done at a formal and symbolic ceremony called a commendation ceremony composed of the two-part act of homage and oath of fealty. During homage, the lord and vassal entered a contract in which the vassal 18 (Accessed 18-10-2019).
Norman Conquest was the military conquest of England by William, duke of Normandy, on
October 14, 1066, primarily effected by his decisive victory at the Battle of Hastings and resulting
ultimately in profound political, administrative, and social changes in the British Isles.
19 Ibid. “Canon law” refers to

body of laws made within certain Christian churches (Roman Catholic, Eastern
Orthodox, independent churches of Eastern Christianity, and the Anglican Communion) by lawful ecclesiastical authority for the government both of the whole church and parts thereof and of the behaviour and actions of individuals. In a wider sense the term includes precepts of divine law, natural or positive, incorporated in
the canonical collections and codes. (
Accessed 18-10-2019).) (See 20 Hogue A. R. (1985). Origins of the Common Law. Indianapolis: Liberty Fund, pp. 6-7.
21 Makdisi, J. A. (1999). The Islamic Origins of the Common Law. North Carolina Law Review. Vol. 77. No. 5, Chapel Hill: University of North Carolina School of Law, pp. 1635-1739.
22 King Henry II of England (1133-1189) was a reformer of both the law and finance. He greatly improved the administration of justice was perhaps England’s greatest medieval king. Henry II set up courts throughout England and began the practice of allowing magistrates/judges to decide legal cases on behalf of the Crown. During his reign the first legal textbook was written, which formed the basis of today’s common law. His reforms were largely encapsulated in the Assizes (courts which formerly sat at intervals; but since 1972 the civil jurisdiction has been transferred to the High Court and the criminal jurisdiction to the Crown Court), which gave quick and clear verdicts, and later established criminal justice procedures, courts and prison. (see Powell, V. (Ed.). (2005). The Legal Companion. London: Think Publishing, p. 137.) It is interesting to note the Sicilian connection to the legal development in England during the reign of Henry II. Roger II of Sicily was invested with royal title in 1130. During his reign as the king of Sicily, he issued some laws which were later included in the so-called “Assizes of Ariano” (c. 1140). Roger II created the offices of chancellor and magister capellanus (master of his chapel). These offices were entrusted to two foreigners, the Englishmen Robert of Selby and Thomas Brown (Thomas Le Brun). After Roger II’s death Thomas Brown returned to England and was made a financial expert under King Henry II (1154-1189). This has been one of the obvious link between English common law and Islamic legal system in Sicily. (see Houben, H. (2002). Roger II of Sicily: A Ruler between East and West. (Trans. By Graham A. Loud & Diane Milburn). Cambridge: Cambridge University Press, pp. 48, 52 & 108.)
establishment of the Assize of
of the Common Law. p. 24
Hogue A. R. (1985) observed: “Here the intent [of the Hogue A. R. (1985). Origins
In English law, the assize of novel disseisin (recent dispossession) was an action to recover lands of which the
plaintiff had been disseised, or dispossessed. It was one of the so-called “petty (possessory) assizes” established
by Henry II in the wake of the Assize of Clarendon of 1166.
Novel Disseisin] was to supply speedy remedy for the dispossessed freeholder: “The
king himself will protect by royal writ and inquests of neighbours every seisin of a free tenement.” The principle
underlying this remedy may have been derived from the actio spolii of the canon law.” (
).162
An exclusive or peculiar privilege; prior and indefeasible right; fundamental and essential possession; used
generally of an official and hereditary right which may be asserted without question, and for the exercise of which
there is no responsibility or accountability as to the fact and the manner of its exercise.
(Accessed 19-10-2019). Literally ا ْس ِت ْحقاق (istiḥqāq) in Arabic means merit, entitlement, eligibility, claim. (Accessed 19-10-2019).
25 Makdisi, J. A. (1999). The Islamic Origins of the Common Law, p. 1681. Van Caenegem maintained that the jury with all its basic characteristics was created in the second half of the twelfth century, primarily from a blending of Norman and Anglo-Saxon institutions. (Van Caenegem. R. C. (1972). Royal Writs in England From the Conquest to Glanvill: Studies in the Early History of the Common Law. Vol. 77. London: Publications of the Selden Society, 403. Van Caenegem's explanation of the origins of the jury is well conceived if one stays within the confines of western legal history.
26 There are four sunni schools of law in Islam: Hanafi, Shafi’i, Maliki, and Hanbali. See John Makdisi, Islamic Law Bibliography, 78 L. LIBR. J. 103, 104-05 (1986). These schools developed in the 8th and 9th centuries, with the Maliki school spreading primarily over North and West Africa.
27 Makdisi, J. A. (1999). The Islamic Origins of the Common Law, pp. 1638-1640. References made to various works of scholars, inter alia, Cattan, H. (1955). The Law of Waqf, in Law in The Middle East: Origin and Development of Islamic Law. (Majid Khadduri & Herbert J. Liebesny eds.). Vol. 1. Washington D.C.: The Middle East Institute. 203, pp. 213-215. Ann Van Wynen Thomas. (1949). Note on the Origin of Uses and Trusts-Waqfs, (1949) 3 Sw. L.J. 162, p. 166. Monica M. Gaudiosi. (1988). Comment, The Influence of the Islamic Law of Waqf on the Development of the Trust in England: The Case of Merton College, (1988)136 U. Pa. L. Rev.1231, pp.1248-55. George Makdisi. (1976). Interaction Between Islam and the West. (1976) 44 Revue Des Etudes Islamiques 287, p. 289; George Makdisi. (1985). The Guilds of Law in Medieval Legal History: An Inquiry into the Origins of the Inns of Court, (1985-86) 34 Clev. St. L. Rev. 3, pp. 3-4, 9, 16-17. George Makdisi. (1974). The Scholastic Method in Medieval Education: An Inquiry into Its Origins in Law and Theology. (1974) 49 Speculum 640, p. 648. George Makdisi. (1990). The Rise of Humanism in Classical Islam and the Christian West: With Special Reference to Scholasticism. Edinburgh: Edinburgh University Press, pp. 26-29. Baker, J. H. (1986). The Legal Profession and The Common Law: Historical Essays. London & Roncerverte: The Hambeldon Press, pp. 8-13 (discussed the methods of teaching by lecture and disputation in the English Inns of Court and lamented the obscure origins of this institution.). Udovitch, A. L. (1970). Partnership and Profit in Medieval Islam. Princeton: Princeton University Press, pp. 171-172. (The commenda is a commercial arrangement in which investors entrust an agent with capital or merchandise, which the agent trades. The agent returns to the investors the principal along with a previously arranged share of the profits. While the agent is entitled to the remaining profits, the agent bears no liability for losses resulting from the venture. In Arabic is sharīkah tajāriah ).or currently known also as Tijarah شراكة تجارية
28   Meri, J.W. & Bacharach, J.L. (2006). Medieval Islamic Civilization. Taylor and Francis. p. 25, cited in (Accessed 18-09-2017).
29 Ibid., Citing Derewenda, Z.S. (2007), “On wine, chirality and crystallography”, Acta Crystallographica A, 64: 246–258 [247], and Warren, J. (2005). “War and the Cultural Heritage of Iraq: a sadly mismanaged affair”, Third World Quarterly, Volume 26, Issue 4 & 5, p. 815-830.
30 Avicenna (Ibn Sina) (c. 980—1037), < http://www.iep.utm.edu/avicenna/> (Accessed 8-09-2017).
31 and (Accessed 18-09-2017).
32 An ancient test of guilt or innocence by putting the accused person to severe pain; whereby if he survived the ‘ordeal’ it would be taken as a divine proof that he was innocent.
33 The practice of putting a person beyond the protection of the law.
34 Orders requiring a person to appear before a court.
35 (Accessed 19-09-2017).