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Mohammad Fadel

University of Toronto, Faculty of Law, Faculty Member

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I write largely on Islam and liberalism. My papers are generally available through my University of Toronto Faculty of Law webpage at http://www.law.utoronto.ca/faculty-staff/full-time-faculty/mohammad-fadel/publications.

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Università degli Studi di Bari

University of Cambridge

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The American University Of Sharjah

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Georg-August-Universität Göttingen

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Papers by Mohammad Fadel

Maṣlaḥa as “Flourishing” and Its Place in Sunnī Political Thought

Journal of Islamic Ethics

Modern Muslim reformers have made regular appeals to maṣlaḥa (well-being) and maqāṣid al-sharīʿa ... more Modern Muslim reformers have made regular appeals to maṣlaḥa (well-being) and maqāṣid al-sharīʿa (the purposiveness of the law) in justifying numerous reform proposals. These arguments have proven to be controversial, not only among traditional Muslim scholars, but also western scholars of Islam who argue that these concepts were always marginal to the enterprise of Islamic law, and that the ubiquity with which arguments are now made in the name of maṣlaḥa and maqāṣid al-sharīʿa are little more than utilitarianism. This article distinguishes between the controversial position of maṣlaḥa and maqāṣid al-sharīʿa in theology (kalām) and theoretical jurisprudence (uṣūl al-fiqh) and its ubiquity in substantive law (fiqh) to argue that jurists took for granted the purposiveness of the law in their immanent practices of formulating detailed rules. I argue that this reflects the political or social dimension of the law, and it applies a fortiori to the rules governing political office. I arg...

Shariʿa, Justice and Legal Order. By Rudolph Peters

Journal of Islamic Studies

Fiduciary Principles in Classical Islamic Law Systems

The Oxford Handbook of Fiduciary Law

This chapter provides an overview of Islamic fiduciary law, from its origins in Quranic legislati... more This chapter provides an overview of Islamic fiduciary law, from its origins in Quranic legislation regulating the paradigmatic case of the orphan, to its expansion in the foundational period of Islamic law at the hands of the earliest Muslim jurists to contractual relationships of agency and partnerships, the creation of trust property, and the actions of public officials. It concludes with a description of how fiduciary duties came to be understood as a more formal relationship that exists whenever one person exercises effective control over another and therefore is bound to use that power for the benefit of the person or persons under his authority across a wide variety of domains. The chapter provides a survey of both the duties of fiduciaries in Islamic law, and the remedies available to beneficiaries when fiduciaries violated breached those duties.

Islamic Law and the Challenge of Modernity

American Journal of Islam and Society, 2007

Book 20 of the Muwatta -- The Book of Pilgrimage (Ḥajj)

Philosophy of Religion eJournal, 2019

One of the longest chapters of the Muwatta', Malik includes in this chapter numerous reports ... more

Jews, Christians, and the Abode of Islam

Journal of Church and State, 2014

Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS

Yearbook of Islamic and Middle Eastern Law Online, 2018

Faculty of Law 1. Islamic International Law and Contemporary World Order The place of Islamic law... more Faculty of Law 1. Islamic International Law and Contemporary World Order The place of Islamic law in general law, and Islamic international law in particular, in relation to the contemporary global order remains controversial. Not only do numerous Muslim states expressly incorporate Islamic law as part of their domestic legal order, 1 or even claim that it forms the basis of their legal order, 2 even non-Muslim states with significant numbers of Muslim minorities recognize aspects of Islamic law as part of their domestic positive law. 3 Even in European states and North America, where Islamic law is not part of the public legal order, Islamic law often becomes embroiled in the legal system through principles of private international law or private commercial or family law arbitration. 4 The continued persistence of Islamic law as part of the established public law systems of numerous jurisdictions, and in the private law of liberal democracies, of course, is not without its critics, with regularly accusations leveled against Islamic law for perpetuating human rights abuses, particularly, against women and religious minorities. 5 Relatively less attention, however, has been given to Islamic international law. In scholarly circles, studies have largely focused on the earliest, expansionary phase of the caliphate in which the basic principles of classical Islamic international law were first articulated, receiving their systematic treatment in the works of Muḥammad b. al-Ḥasan al-Shaybānī, and 20 th century developments which appear to revise radically classical Islamic conceptions of world order. 6 This literature largely assumes that classical Islamic international law assumed that the Islamic state would expand until it ruled all of humanity, at which point the need for Islamic international law would come to an end. 7 On the other hand, secondary scholarship on modern Muslim conceptions of Islamic international law assume either that Islamic conceptions of international order have largely become irrelevant for Muslim states, either 1 Most Muslim-majority states continue to base their family law on Islamic law, even if non-Islamic law has displaced Islamic law in all other areas. 2 This would include states as disparate in outlook and temperament as the Arab Republic of Egypt, the Kingdom of Saudi Arabia, and the Islamic Republic of Iran, each of which, by its constitution, claims to follow an Islamic legal order. 3 Such non-Muslim states include, among others, such unlikely candidates as Israel, India and Singapore.

The Rule of Law in the Middle East and the Islamic World

American Journal of Islam and Society, 2001

This work grew out of a series of lectures that were delivered over atwo-year period between 1996... more This work grew out of a series of lectures that were delivered over atwo-year period between 1996 and 1998 at the Centre of Islamic andMiddle Eastern Law (CIMEL) at the School of Oriental and AfricanStudies (SOAS), University of London, on the genera] subject of the rule oflaw in the Middle East and Islamic countries. Subsequently, materials wereadded dealing particularly with issues relating to human rights law. Thecontributors to this work are a combination of legal academics, human rights activists, lawyers and judges, who hale from various countries in theArab world, Iran, the United States, Great Britain and Germany.There are a total of fourteen separate chapters, of varying length andquality. The book is not lengthy - including notes and authors’ biographies,it is 180 pages long. The average length of each chapter is between ten andfifteen pages. Despite the diversity of countries surveyed, all the essays areconcerned with generic questions regarding the rule of law, whether i...

Trump's Muslim Ban and its Constitutional Limits

The dramatic executive orders of the newly inaugurated President of the United States, Donald Tru... more The dramatic executive orders of the newly inaugurated President of the United States, Donald Trump, including, most infamously, his executive order excluding Syrian refugees from entry into the United States, and popularly known as the "Muslim ban," has raised not only hackles among many outside observers, but also questions about the legality of these orders. The short answer is that some of the matters set out in his executive orders, including those affecting refugees, are almost certainly legal, while other aspects of those orders raise significant issues under the United States constitution. It is of course beyond the scope of this short post to discuss the legality of each and every detail of Trump's various orders, and accordingly, I will only provide a description of the broad constitutional and statutory issues that these order raise. The first question is whether the United States executive has any inherent law-making authority under the United States constitution. Here, the question is clearly yes, most obviously in the field of foreign relations. The Supreme Court, in American Insurance Association v. Garamendi, 537 US 1100 (2003), affirmed the proposition that under the United States constitution, the conduct of foreign affairs is a matter for the national government, exercised largely, even if not exclusively through, the executive branch. Accordingly, "in foreign affairs the President has a degree of independent authority to act [without the permission of Congress]." The heretofore unresolved question of US constitutional law is whether substantive constitutional values that limit the domestic power of the federal government also apply to limit its power in its conduct of foreign relations. United States courts have, over the years, given conflicting answers to this question. The most prominent case asserting that the US executive is free to conduct foreign relations without any constitutional constraints is the Curtiss-Wright case, 299 US 304 (1936). In that decision, the Supreme Court articulated a theory of executive power in the conduct of foreign relations that identified the source of that power in the sovereignty of the United States. Accordingly, the constitution does not create the power to conduct foreign relations; rather, all it does is vest that power, which pre-existed the constitution, in the executive branch of the government, which is represented exclusively by the president. Because this power is pre-constitutional, the constitutional limitations that apply to the domestic actions of the federal government are not relevant to its conduct of international relations.

Sovereignty, Territoriality and Islamic Private International Law

SSRN Electronic Journal, 2021

Scholars in recent years have shown interest in challenging the historical origins of internation... more Scholars in recent years have shown interest in challenging the historical origins of international law and its normative claims to universality. In this paper, I challenge prevailing conceptions of Islamic international law (al-siyar), first set out in English-language scholarship by Majid Khadduri, as primarily an ad hoc response to the failed aspiration of a universal Muslim commonwealth. I show that Islamic international law, in its classical phase (8th – 13th centuries), as first formulated by Iraqi, and later, Central Asian, scholars (who later came to be known as Ḥanafīs), understood all legal order as being rooted in sovereignty and territoriality, with common religion a secondary concern. This theory of legal order arose out of an understanding of political order as emerging from a natural and universal condition of war that is incidental to the individual’s natural sovereignty. I trace the genealogy of this conception in the founding moment of the Muslim commonwealth and describe its manifestation in classical Ḥanafī solutions to a series of cases in “private international law.”

The Islamic Secular

American Journal of Islam and Society, 2017

Professor Sherman Jackson’s essay “The Islamic Secular” challenges the popularconception within t... more Professor Sherman Jackson’s essay “The Islamic Secular” challenges the popularconception within the Muslim community that norms are either “Islamic”or “un-Islamic.” Insofar as popular Muslim consciousness accords legitimacyonly to the “Islamic” and grants only grudging, if any, legitimacy to the “non-Islamic,” this intervention is welcome and profoundly needed. But his ambitionhere goes beyond correcting misconceptions within the community itself:It is also an intervention in debates about the secular, secularization, and religionin western academic discourses. In the brief space allotted to me to respondto this very rich and important essay, I will limit myself to the argumentshe directs toward the terms mentioned above and his argument that the “Islamic”secular presents a different phenomenon ...

Political Legitimacy, Democracy and Islamic Law: The Place of Self‐Government in Islamic Political Thought

Journal of Islamic Ethics, 2018

Contemporary Political Islam, or Islamism, is commonly defined as a movement that seeks to apply ... more Contemporary Political Islam, or Islamism, is commonly defined as a movement that seeks to apply the Sharīʿa as the basic law of Muslim states. This suggests that political legitimacy in Islamic thought can be reduced to the conformity of a polity’s actions to a pre-determined body of rules that are supplied by revelation, as supplemented by the interpretations of jurists. Such a demand is reasonably understood to be non-democratic because it includes no room for self-government by making it either redundant, if it produces results that are in conformity with the norms of the Sharīʿa, or contradictory to self-government, if the results of self-government differ from revealed norms. I argue instead that Islamic constitutional theory and political thought provide explicit grounds for self-government based on a conception of the state that is grounded in the ideals of agency and fiduciary duties rather than conformity with the pre-determined substantive norms of revelation simpliciter....

Sharia Compliant: A User’s Guide to Hacking Islamic Law by RumeeAhmed (Stanford, CA: Stanford University Press, 2018), xv + 247 pp

Modern Theology, 2019

Islamic Law Reform: Between Reinterpretation and Democracy

Yearbook of Islamic and Middle Eastern Law Online, 2017

Conventional accounts of modern Islamic history begin with the Muslim encounter with the European... more Conventional accounts of modern Islamic history begin with the Muslim encounter with the European imperialist. It is easy to understand why the Napoleonic invasion of Egypt might be chosen as a convenient line of demarcation marking the beginning of a new system of governance in the traditional Arab heartlands of Islam. It did, after all, serve as a catalyst for a radical and ambitious attempt to reshape the political, administrative and legal, infrastructure of the Ottoman Empire in what ultimately proved to be a failed attempt to stave off European domination, a project that came to be known as al-tanẓīmāt. On the other hand, it also imposes risks of obscuring long-term developments in the governance-including the role of law-in the Arab provinces of the Ottoman Empire causing us to believe that the post-Napoleonic legal and administrative reforms of the Tanzimat were without precedent in Islamic legal norms. Mid-twentieth century Islamic law scholars generally held positive views of the Tanzimat, and Islamic legal reform, derived from the widely-shared perception that blind adherence to Islamic traditions and law, posed insurmountable obstacles to the ability of Muslim societies to enter the modern era. Writers of that era almost universally believed that Islamic law, as a religious law, was essentially immutable and therefore unable to adapt to the radically new circumstances of modernity; accordingly, reforms such as the Tanzimat were absolutely necessary for the progress of Muslim societies.1 Scholars such as Joseph Schacht took for granted that the Tanzimat-era legal and administrative reforms, and the 20th century legal reforms enforced by successor states to the Ottomans were not Islamic in any meaningful sense, but that did not detract from the necessity of those reforms. Schacht hoped that future generations of Muslim jurists could creatively assimilate what was essentially non-Islamic law under a yet to be developed modern conception of Islamic law, * Canada Research Chair for the Law and Economics of Islamic Law and Associate Professor of Law University of Toronto Faculty of Law. This chapter was presented as the Coulson Memorial Lecture at the School of Oriental and African Studies on

Is There a Future for an Arab Human Rights Mechanism? Not without Democracy

Netherlands Quarterly of Human Rights, 2014

Th ree years have now passed since the beginning of the Arab Spring, and what began with much opt... more Th ree years have now passed since the beginning of the Arab Spring, and what began with much optimism now calls for a pause to reassess its accomplishments, its failures, and its future, and particularly, whether it will have succeeded in improving the environment for the general spread and acceptance of a political culture grounded in human rights. One possible mechanism for the development of such a culture would be for Arab States to agree upon the implementation of a common human rights convention along the lines of those adopted by other regions. Examples of regional human rights agreements that have successfully promoted a human rights culture are not in short supply, the European Convention on Human Rights and the American Convention on Human Rights, being two examples of such regional mechanisms. And indeed, the Arab world has already agreed to an Arab Charter on Human Rights that went into eff ect in 2004 aft er seven members of the League of Arab States ratifi ed the Charter.

Islamic Law in ActionAuthority, Discretion, and Everyday Experiences in Mamluk Egypt

Domestic Violence and the Islamic Tradition

The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence

International Journal of Constitutional Law, 2018

Introduction to the English Translation of the Muwatta' of Imam Malik b. Anas, Recension of Yahya b. Yahya al-Laythi (Royal Moroccan Edition, 2013)

AARN: Islam (Sub-Topic), 2019

The Muwatta' of Malik b. Anas (d. 795 CE) is the first written treatise of Islamic law. This ... more The Muwatta' of Malik b. Anas (d. 795 CE) is the first written treatise of Islamic law. This is the introduction to the forthcoming translation of this foundational work of Islamic law. It represents the apogee of Islamic law in its earliest phase -- when Islamic law was still associated with particular regions and before Islam became a cosmopolitan religion. The legal doctrines set forth in the Muwatta' would form the basis of what would later be known as the Maliki school of law, one of four surviving Sunni schools of law. It came to dominate the legal culture of Muslim Spain (Andalusia), North Africa, Sub-Saharan Africa and much of Egypt. This introduction gives the reader an overview of the contents of the book, an introduction to the historiographical controversies surrounding the work, and an interpretation of the work's principal jurisprudential theories. The translation should be of interest to historians of law, early historians of Islam, historians of Late Anti...

Reinterpreting the Guardian's Role in the Islamic Contract of Marriage: The Case of the Maliki School

This Essay takes a critical look at a doctrine that is often cited - by Muslims and non-Muslims a... more This Essay takes a critical look at a doctrine that is often cited - by Muslims and non-Muslims alike - as indicative of Islamic law's systematic gender discrimination in favor of men and against women: the legal requirement that a Muslim woman, prior to her marriage, must gain the permission of her father, or another male relative. This is in contrast to a Muslim male, who, it is said, may marry without the permission of his father, or any other relative. This essay will not attempt a detailed analysis of all the rules regarding the role of the guardian in the marriage contract. Instead, it attempts to provide a broad overview of the competing interpretations that have been given to the guardian's role in one school of Islamic law, the Maliki school. Based on a close reading of the relevant Maliki doctrines, one can make the following conclusions. First, there is no basis to conclude that under Maliki doctrine female autonomy with respect to marriage is subordinated to the ...

Maṣlaḥa as “Flourishing” and Its Place in Sunnī Political Thought

Journal of Islamic Ethics

Modern Muslim reformers have made regular appeals to maṣlaḥa (well-being) and maqāṣid al-sharīʿa ... more Modern Muslim reformers have made regular appeals to maṣlaḥa (well-being) and maqāṣid al-sharīʿa (the purposiveness of the law) in justifying numerous reform proposals. These arguments have proven to be controversial, not only among traditional Muslim scholars, but also western scholars of Islam who argue that these concepts were always marginal to the enterprise of Islamic law, and that the ubiquity with which arguments are now made in the name of maṣlaḥa and maqāṣid al-sharīʿa are little more than utilitarianism. This article distinguishes between the controversial position of maṣlaḥa and maqāṣid al-sharīʿa in theology (kalām) and theoretical jurisprudence (uṣūl al-fiqh) and its ubiquity in substantive law (fiqh) to argue that jurists took for granted the purposiveness of the law in their immanent practices of formulating detailed rules. I argue that this reflects the political or social dimension of the law, and it applies a fortiori to the rules governing political office. I arg...

Shariʿa, Justice and Legal Order. By Rudolph Peters

Journal of Islamic Studies

Fiduciary Principles in Classical Islamic Law Systems

The Oxford Handbook of Fiduciary Law

This chapter provides an overview of Islamic fiduciary law, from its origins in Quranic legislati... more This chapter provides an overview of Islamic fiduciary law, from its origins in Quranic legislation regulating the paradigmatic case of the orphan, to its expansion in the foundational period of Islamic law at the hands of the earliest Muslim jurists to contractual relationships of agency and partnerships, the creation of trust property, and the actions of public officials. It concludes with a description of how fiduciary duties came to be understood as a more formal relationship that exists whenever one person exercises effective control over another and therefore is bound to use that power for the benefit of the person or persons under his authority across a wide variety of domains. The chapter provides a survey of both the duties of fiduciaries in Islamic law, and the remedies available to beneficiaries when fiduciaries violated breached those duties.

Islamic Law and the Challenge of Modernity

American Journal of Islam and Society, 2007

Book 20 of the Muwatta -- The Book of Pilgrimage (Ḥajj)

Philosophy of Religion eJournal, 2019

One of the longest chapters of the Muwatta', Malik includes in this chapter numerous reports ... more

Jews, Christians, and the Abode of Islam

Journal of Church and State, 2014

Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS

Yearbook of Islamic and Middle Eastern Law Online, 2018

Faculty of Law 1. Islamic International Law and Contemporary World Order The place of Islamic law... more Faculty of Law 1. Islamic International Law and Contemporary World Order The place of Islamic law in general law, and Islamic international law in particular, in relation to the contemporary global order remains controversial. Not only do numerous Muslim states expressly incorporate Islamic law as part of their domestic legal order, 1 or even claim that it forms the basis of their legal order, 2 even non-Muslim states with significant numbers of Muslim minorities recognize aspects of Islamic law as part of their domestic positive law. 3 Even in European states and North America, where Islamic law is not part of the public legal order, Islamic law often becomes embroiled in the legal system through principles of private international law or private commercial or family law arbitration. 4 The continued persistence of Islamic law as part of the established public law systems of numerous jurisdictions, and in the private law of liberal democracies, of course, is not without its critics, with regularly accusations leveled against Islamic law for perpetuating human rights abuses, particularly, against women and religious minorities. 5 Relatively less attention, however, has been given to Islamic international law. In scholarly circles, studies have largely focused on the earliest, expansionary phase of the caliphate in which the basic principles of classical Islamic international law were first articulated, receiving their systematic treatment in the works of Muḥammad b. al-Ḥasan al-Shaybānī, and 20 th century developments which appear to revise radically classical Islamic conceptions of world order. 6 This literature largely assumes that classical Islamic international law assumed that the Islamic state would expand until it ruled all of humanity, at which point the need for Islamic international law would come to an end. 7 On the other hand, secondary scholarship on modern Muslim conceptions of Islamic international law assume either that Islamic conceptions of international order have largely become irrelevant for Muslim states, either 1 Most Muslim-majority states continue to base their family law on Islamic law, even if non-Islamic law has displaced Islamic law in all other areas. 2 This would include states as disparate in outlook and temperament as the Arab Republic of Egypt, the Kingdom of Saudi Arabia, and the Islamic Republic of Iran, each of which, by its constitution, claims to follow an Islamic legal order. 3 Such non-Muslim states include, among others, such unlikely candidates as Israel, India and Singapore.

The Rule of Law in the Middle East and the Islamic World

American Journal of Islam and Society, 2001

This work grew out of a series of lectures that were delivered over atwo-year period between 1996... more This work grew out of a series of lectures that were delivered over atwo-year period between 1996 and 1998 at the Centre of Islamic andMiddle Eastern Law (CIMEL) at the School of Oriental and AfricanStudies (SOAS), University of London, on the genera] subject of the rule oflaw in the Middle East and Islamic countries. Subsequently, materials wereadded dealing particularly with issues relating to human rights law. Thecontributors to this work are a combination of legal academics, human rights activists, lawyers and judges, who hale from various countries in theArab world, Iran, the United States, Great Britain and Germany.There are a total of fourteen separate chapters, of varying length andquality. The book is not lengthy - including notes and authors’ biographies,it is 180 pages long. The average length of each chapter is between ten andfifteen pages. Despite the diversity of countries surveyed, all the essays areconcerned with generic questions regarding the rule of law, whether i...

Trump's Muslim Ban and its Constitutional Limits

The dramatic executive orders of the newly inaugurated President of the United States, Donald Tru... more The dramatic executive orders of the newly inaugurated President of the United States, Donald Trump, including, most infamously, his executive order excluding Syrian refugees from entry into the United States, and popularly known as the "Muslim ban," has raised not only hackles among many outside observers, but also questions about the legality of these orders. The short answer is that some of the matters set out in his executive orders, including those affecting refugees, are almost certainly legal, while other aspects of those orders raise significant issues under the United States constitution. It is of course beyond the scope of this short post to discuss the legality of each and every detail of Trump's various orders, and accordingly, I will only provide a description of the broad constitutional and statutory issues that these order raise. The first question is whether the United States executive has any inherent law-making authority under the United States constitution. Here, the question is clearly yes, most obviously in the field of foreign relations. The Supreme Court, in American Insurance Association v. Garamendi, 537 US 1100 (2003), affirmed the proposition that under the United States constitution, the conduct of foreign affairs is a matter for the national government, exercised largely, even if not exclusively through, the executive branch. Accordingly, "in foreign affairs the President has a degree of independent authority to act [without the permission of Congress]." The heretofore unresolved question of US constitutional law is whether substantive constitutional values that limit the domestic power of the federal government also apply to limit its power in its conduct of foreign relations. United States courts have, over the years, given conflicting answers to this question. The most prominent case asserting that the US executive is free to conduct foreign relations without any constitutional constraints is the Curtiss-Wright case, 299 US 304 (1936). In that decision, the Supreme Court articulated a theory of executive power in the conduct of foreign relations that identified the source of that power in the sovereignty of the United States. Accordingly, the constitution does not create the power to conduct foreign relations; rather, all it does is vest that power, which pre-existed the constitution, in the executive branch of the government, which is represented exclusively by the president. Because this power is pre-constitutional, the constitutional limitations that apply to the domestic actions of the federal government are not relevant to its conduct of international relations.

Sovereignty, Territoriality and Islamic Private International Law

SSRN Electronic Journal, 2021

Scholars in recent years have shown interest in challenging the historical origins of internation... more Scholars in recent years have shown interest in challenging the historical origins of international law and its normative claims to universality. In this paper, I challenge prevailing conceptions of Islamic international law (al-siyar), first set out in English-language scholarship by Majid Khadduri, as primarily an ad hoc response to the failed aspiration of a universal Muslim commonwealth. I show that Islamic international law, in its classical phase (8th – 13th centuries), as first formulated by Iraqi, and later, Central Asian, scholars (who later came to be known as Ḥanafīs), understood all legal order as being rooted in sovereignty and territoriality, with common religion a secondary concern. This theory of legal order arose out of an understanding of political order as emerging from a natural and universal condition of war that is incidental to the individual’s natural sovereignty. I trace the genealogy of this conception in the founding moment of the Muslim commonwealth and describe its manifestation in classical Ḥanafī solutions to a series of cases in “private international law.”

The Islamic Secular

American Journal of Islam and Society, 2017

Professor Sherman Jackson’s essay “The Islamic Secular” challenges the popularconception within t... more Professor Sherman Jackson’s essay “The Islamic Secular” challenges the popularconception within the Muslim community that norms are either “Islamic”or “un-Islamic.” Insofar as popular Muslim consciousness accords legitimacyonly to the “Islamic” and grants only grudging, if any, legitimacy to the “non-Islamic,” this intervention is welcome and profoundly needed. But his ambitionhere goes beyond correcting misconceptions within the community itself:It is also an intervention in debates about the secular, secularization, and religionin western academic discourses. In the brief space allotted to me to respondto this very rich and important essay, I will limit myself to the argumentshe directs toward the terms mentioned above and his argument that the “Islamic”secular presents a different phenomenon ...

Political Legitimacy, Democracy and Islamic Law: The Place of Self‐Government in Islamic Political Thought

Journal of Islamic Ethics, 2018

Contemporary Political Islam, or Islamism, is commonly defined as a movement that seeks to apply ... more Contemporary Political Islam, or Islamism, is commonly defined as a movement that seeks to apply the Sharīʿa as the basic law of Muslim states. This suggests that political legitimacy in Islamic thought can be reduced to the conformity of a polity’s actions to a pre-determined body of rules that are supplied by revelation, as supplemented by the interpretations of jurists. Such a demand is reasonably understood to be non-democratic because it includes no room for self-government by making it either redundant, if it produces results that are in conformity with the norms of the Sharīʿa, or contradictory to self-government, if the results of self-government differ from revealed norms. I argue instead that Islamic constitutional theory and political thought provide explicit grounds for self-government based on a conception of the state that is grounded in the ideals of agency and fiduciary duties rather than conformity with the pre-determined substantive norms of revelation simpliciter....

Sharia Compliant: A User’s Guide to Hacking Islamic Law by RumeeAhmed (Stanford, CA: Stanford University Press, 2018), xv + 247 pp

Modern Theology, 2019

Islamic Law Reform: Between Reinterpretation and Democracy

Yearbook of Islamic and Middle Eastern Law Online, 2017

Conventional accounts of modern Islamic history begin with the Muslim encounter with the European... more Conventional accounts of modern Islamic history begin with the Muslim encounter with the European imperialist. It is easy to understand why the Napoleonic invasion of Egypt might be chosen as a convenient line of demarcation marking the beginning of a new system of governance in the traditional Arab heartlands of Islam. It did, after all, serve as a catalyst for a radical and ambitious attempt to reshape the political, administrative and legal, infrastructure of the Ottoman Empire in what ultimately proved to be a failed attempt to stave off European domination, a project that came to be known as al-tanẓīmāt. On the other hand, it also imposes risks of obscuring long-term developments in the governance-including the role of law-in the Arab provinces of the Ottoman Empire causing us to believe that the post-Napoleonic legal and administrative reforms of the Tanzimat were without precedent in Islamic legal norms. Mid-twentieth century Islamic law scholars generally held positive views of the Tanzimat, and Islamic legal reform, derived from the widely-shared perception that blind adherence to Islamic traditions and law, posed insurmountable obstacles to the ability of Muslim societies to enter the modern era. Writers of that era almost universally believed that Islamic law, as a religious law, was essentially immutable and therefore unable to adapt to the radically new circumstances of modernity; accordingly, reforms such as the Tanzimat were absolutely necessary for the progress of Muslim societies.1 Scholars such as Joseph Schacht took for granted that the Tanzimat-era legal and administrative reforms, and the 20th century legal reforms enforced by successor states to the Ottomans were not Islamic in any meaningful sense, but that did not detract from the necessity of those reforms. Schacht hoped that future generations of Muslim jurists could creatively assimilate what was essentially non-Islamic law under a yet to be developed modern conception of Islamic law, * Canada Research Chair for the Law and Economics of Islamic Law and Associate Professor of Law University of Toronto Faculty of Law. This chapter was presented as the Coulson Memorial Lecture at the School of Oriental and African Studies on

Is There a Future for an Arab Human Rights Mechanism? Not without Democracy

Netherlands Quarterly of Human Rights, 2014

Th ree years have now passed since the beginning of the Arab Spring, and what began with much opt... more Th ree years have now passed since the beginning of the Arab Spring, and what began with much optimism now calls for a pause to reassess its accomplishments, its failures, and its future, and particularly, whether it will have succeeded in improving the environment for the general spread and acceptance of a political culture grounded in human rights. One possible mechanism for the development of such a culture would be for Arab States to agree upon the implementation of a common human rights convention along the lines of those adopted by other regions. Examples of regional human rights agreements that have successfully promoted a human rights culture are not in short supply, the European Convention on Human Rights and the American Convention on Human Rights, being two examples of such regional mechanisms. And indeed, the Arab world has already agreed to an Arab Charter on Human Rights that went into eff ect in 2004 aft er seven members of the League of Arab States ratifi ed the Charter.

Islamic Law in ActionAuthority, Discretion, and Everyday Experiences in Mamluk Egypt

Domestic Violence and the Islamic Tradition

The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence

International Journal of Constitutional Law, 2018

Introduction to the English Translation of the Muwatta' of Imam Malik b. Anas, Recension of Yahya b. Yahya al-Laythi (Royal Moroccan Edition, 2013)

AARN: Islam (Sub-Topic), 2019

The Muwatta' of Malik b. Anas (d. 795 CE) is the first written treatise of Islamic law. This ... more The Muwatta' of Malik b. Anas (d. 795 CE) is the first written treatise of Islamic law. This is the introduction to the forthcoming translation of this foundational work of Islamic law. It represents the apogee of Islamic law in its earliest phase -- when Islamic law was still associated with particular regions and before Islam became a cosmopolitan religion. The legal doctrines set forth in the Muwatta' would form the basis of what would later be known as the Maliki school of law, one of four surviving Sunni schools of law. It came to dominate the legal culture of Muslim Spain (Andalusia), North Africa, Sub-Saharan Africa and much of Egypt. This introduction gives the reader an overview of the contents of the book, an introduction to the historiographical controversies surrounding the work, and an interpretation of the work's principal jurisprudential theories. The translation should be of interest to historians of law, early historians of Islam, historians of Late Anti...

Reinterpreting the Guardian's Role in the Islamic Contract of Marriage: The Case of the Maliki School

This Essay takes a critical look at a doctrine that is often cited - by Muslims and non-Muslims a... more This Essay takes a critical look at a doctrine that is often cited - by Muslims and non-Muslims alike - as indicative of Islamic law's systematic gender discrimination in favor of men and against women: the legal requirement that a Muslim woman, prior to her marriage, must gain the permission of her father, or another male relative. This is in contrast to a Muslim male, who, it is said, may marry without the permission of his father, or any other relative. This essay will not attempt a detailed analysis of all the rules regarding the role of the guardian in the marriage contract. Instead, it attempts to provide a broad overview of the competing interpretations that have been given to the guardian's role in one school of Islamic law, the Maliki school. Based on a close reading of the relevant Maliki doctrines, one can make the following conclusions. First, there is no basis to conclude that under Maliki doctrine female autonomy with respect to marriage is subordinated to the ...