Mohammad Fadel
University of Toronto, Faculty of Law, Faculty Member
- I write largely on Islam and liberalism. My papers are generally available through my University of Toronto Faculty ... moreI 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.
I invite comments, especially critical ones.edit
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... 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...
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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... 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.
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One of the longest chapters of the Muwatta', Malik includes in this chapter numerous reports about the earliest Muslim community concerning their performance of the Pilgrimage, one of the five pillars of Islam, and Malik's views... more
One of the longest chapters of the Muwatta', Malik includes in this chapter numerous reports about the earliest Muslim community concerning their performance of the Pilgrimage, one of the five pillars of Islam, and Malik's views on a number of rules that govern its performance.
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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,... 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...
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),... 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.”
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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... 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 ...
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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... 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....
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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... 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...
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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... 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 ...
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One of the aims of Professor Esposito’s scholarship has been to emphasize the pluralistic nature of Islamic thought. The North American Muslim community presents a vivid example of Islam’s pluralism, with almost all major trends in global... more
One of the aims of Professor Esposito’s scholarship has been to emphasize the pluralistic nature of Islamic thought. The North American Muslim community presents a vivid example of Islam’s pluralism, with almost all major trends in global Islam represented. Ironically, the very pluralism of North American Islam undermines North American Muslims’ ability to speak collectively in the public square regarding the place of Islam in democratic life. The fragmentation of the Muslim public sphere effectively cedes control over the discourse about Islam to much better funded and better organized groups with a long history of anti-Muslim sentiments, especially Evangelical Christianity, for whom Islam and Muslims are demonic actors who must be defeated in order to usher in universal salvation. Until Muslims create institutions of sufficient scale to allow them to speak with one voice on matters of public concern, it is unlikely that scholarly endeavors alone can succeed in dispelling Islamopho...
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The thirteen papers included in this volume emerged out of the Third International Conference on Islamic Legal Studies, held at Harvard Law School in May 2000, on the topic of madhhab or Islamic 'school of law'. The... more
The thirteen papers included in this volume emerged out of the Third International Conference on Islamic Legal Studies, held at Harvard Law School in May 2000, on the topic of madhhab or Islamic 'school of law'. The papers cover a variety of topics related to the concept of the ...
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Malik treats a host of issues that arise in connection with judicial rulings in this lengthy chapter of the Muwatta, beginning with the ethical duties of parties who participate in litigation, judges, witnesses, and litigants. The chapter... more
Malik treats a host of issues that arise in connection with judicial rulings in this lengthy chapter of the Muwatta, beginning with the ethical duties of parties who participate in litigation, judges, witnesses, and litigants. The chapter deals with both general questions arising out of the law of evidence, and specific rules of evidence that apply in particular areas of the law.
An article in the series on the aftermath of Egypt’s February 2011 Revolution and the possibilities for legal and constitutional reform.
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Rawls’ conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, such as revealed religions. Accordingly, a commitment to public reason seems to exclude adoption of Islamic legal... more
Rawls’ conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, such as revealed religions. Accordingly, a commitment to public reason seems to exclude adoption of Islamic legal doctrines as legitimate rules of decision. While that is true as a matter of ideal theory, the relationship of public reason to Islamic law in non-ideal theory is more complex. Islamic law is either directly incorporated in the legal systems of numerous Muslim and non-Muslim jurisdictions throughout the world, or its rules arise incidentally in various cases even where Islamic law is not formally part of the legal order. This chapter argues that the idea of public reason can meaningfully guide public reason minded judges when they are tasked with applying Islamic law in a fashion that vindicates the ideals of public reason. Public reason, I argues, requires judges to steer a middle course among possible extremes when an issue of Islamic law arises: t...
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Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between... more
Professor 'Abdallahi Na'im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na'im's solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even one hundred years ago. More importantly, revealed religions such as Judaism, Christianity and Islam provide their adherents with their own conceptions of justice that sometimes do conflict with the results of secular lawmaking. I argue that instead of seeking a further separation of religion from the state, on the grounds that the former is irrelev...
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This chapter provides the reader with an introduction to basic questions of Islamic international law as they were developed and refined in the first six hundred years of Muslim history (7th-12th centuries CE/1st – 6th centuries AH). It... more
This chapter provides the reader with an introduction to basic questions of Islamic international law as they were developed and refined in the first six hundred years of Muslim history (7th-12th centuries CE/1st – 6th centuries AH). It focuses on the contributions of the Iraqi and Hejazi jurists (later, the Hanafis and the Malikis). The chapter provides an overview of fundamental categories of Islamic international law, such as the state of nature, sovereignty, and the relationship of legal rights to the existence of a polity capable of protecting rights. It discusses the rules of armed conflict, the role of peace agreements in securing rights extraterritorially, the status of conquered territories and the people and property in such territories, questions related to immigration and captivity, prisoner exchange, and contracting and repudiating peace. As a broad survey, it should be of interest to both specialists in Islamic law and historians of international law, as well as histor...
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The recent decision of the Canadian Supreme Court in BCE Inc. v. 1976 Debenture holders, 2008 SCC 69, created further uncertainty in the Canadian corporate law of directors’ fiduciary duties, especially with respect to one of the most... more
The recent decision of the Canadian Supreme Court in BCE Inc. v. 1976 Debenture holders, 2008 SCC 69, created further uncertainty in the Canadian corporate law of directors’ fiduciary duties, especially with respect to one of the most basic issues of corporate law: how to reconcile the competing interests of shareholders and non-shareholder corporate stakeholders such as bondholders. One substantial cause of this confusion is Canadian courts’ tendency to be too deferential to American principles of corporate law, at least some of which are in deep tension with the structure of Canadian corporate law. As a result of the outcome in BCE, Canadian law, despite the fact that the Canadian Business Corporation Act (CBCA) offers more explicit protections to creditors than U.S. corporate law, has ironically become more formalist in its approach to creditors’ rights than U.S. law. The first part of this article discusses the Court’s contractual analysis of the bondholders’ rights. The second ...
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The "conventional wisdom" in the study of Islamic legal history goes something like this: for approximately the first two centuries following the death of the Prophet Muhammad, the nascent Islamic community had yet to develop a... more
The "conventional wisdom" in the study of Islamic legal history goes something like this: for approximately the first two centuries following the death of the Prophet Muhammad, the nascent Islamic community had yet to develop a self-consciously Islamic jurisprudence that was conceptually distinct from the customs of the early Arab Muslims themselves. 1 This formative period of Islamic jurisprudence was characterized by direct appeals to informal practical reason, i.e., ra'y, as well as to custom. The latter was generically termed sunnah. What this proto-Islamic jurisprudence lacked in self-conscious theoretization and universality, however, it made up for in flexibility, adaptability and pragmatism. The arrival of al-Shafi'I in the last quarter of the second Hijri' century, however, put this all to an end: Unlike the members of the "ancient schools" of law whose concerns were relatively parochial, al-Shafi'f attempted a great synthesis, to wed the...
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This chapter surveys the views and arguments of various premodern scholars of uṣūl al-fiqh on the ethical dilemma facing muqallids as a result of the ethical pluralism generated by uṣūl al- fiqh' 's individualist ethical paradigm.... more
This chapter surveys the views and arguments of various premodern scholars of uṣūl al-fiqh on the ethical dilemma facing muqallids as a result of the ethical pluralism generated by uṣūl al- fiqh' 's individualist ethical paradigm. It begins with a general discussion of the epistemological context in which taqlīd is operative and its relationship to moral obligation. The chapter explains the different views expressed on the question of how the ethical obligation of an individual is to be determined in a context of moral controversy. It then argues that the pre-modern solutions to this problem, because of their focus on epistemology, are highly unsatisfactory. On the account of taqlīd the chapter proposes, the muqallid that plays a central role in maintaining the integrity of Islamic law by monitoring would-be mujtahids to ensure that they conform to Islamic ethical ideals. Keywords: taqlīd ; uṣūl al-fiqh ; ethical pluralism; Islamic ethical ideals; muqallids
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In the post-9/11 era and with increasing tension between the Islamic and thenon-Islamic worlds due to al-Qa’ida’s purported global jihad, Labeeb Bsoul’sstudy of the Islamic law of international treaties is certainly a timely... more
In the post-9/11 era and with increasing tension between the Islamic and thenon-Islamic worlds due to al-Qa’ida’s purported global jihad, Labeeb Bsoul’sstudy of the Islamic law of international treaties is certainly a timely contributionto an important topic. While this work represents a fairly comprehensiveresource for researchers in this area insofar as it gathers the opinions ofnumerous pre-modern (and some modern) scholars of Islamic law on variousissues related to war and peace between Islamic and non-Muslim states,it is, unfortunately, no more than a simple compilation of their views.Indeed, the author provides no meaningful historical framework by which one could trace doctrinal development or tie these doctrines to a wider historicalor philosophical tradition of international law. Those looking foranswers regarding the possibilities for mutual co-existence between Muslimand non-Muslim states on the basis of mutual equality will be severelydisappointed ...
Kecia Ali has already acquired a reputation as one of the most important English-language scholars of Islam and gender of her generation. Her latest book will do nothing to detract from that reputation, and may well solidify her asthe... more
Kecia Ali has already acquired a reputation as one of the most important English-language scholars of Islam and gender of her generation. Her latest book will do nothing to detract from that reputation, and may well solidify her asthe leading scholar of her generation of Islam and gender in the United States.While the title suggests that its contents exhibit a parallel concernwith slavery and marriage, the work is really devoted to showing how theformally separate legal institutions of marriage and slave holding shapedand were shaped by each institution ‒ with their respective doctrines attimes converging, and while at other times, the doctrines diverged. Thebook consists of an introduction, five substantial chapters, and a conclusion.The chapters cover the formation of a marriage and its similarities toand distinctions from concubinage, the only other legal relationship thatmade sexual relations licit. The second chapter treats the interdependencyof claims within marriage, while po...
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This is the Arabic translation of the paper I gave at the Center for Islamic Legislation and Ethics in Doha in June 2014 on the ethics of finance in light of Maqasid al-Sharia.
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This paper explores the ethical principles that inform Islamic law in connection with finance. It was originally presented at a workshop at the Center for Islamic Legislation and Ethics, Hamad bin Khalifa University, Doha, Qatar, June... more
This paper explores the ethical principles that inform Islamic law in connection with finance. It was originally presented at a workshop at the Center for Islamic Legislation and Ethics, Hamad bin Khalifa University, Doha, Qatar, June 2014. The workshop was convened in part to elicit Islamic responses to the great financial crisis and to explore the extent to which the contemporary practice of Islamic Finance is sufficiently reflective of Islamic ethical values and sufficiently distinct from conventional finance to insulate it from the risks that conventional finance poses to the world economy. My paper shows that Islamic law's approach to the problem cannot be reduced to a one-size fits all solution, but that it provides numerous tools for both public and private finance, and that Muslim jurists and policymakers, should take these historical tools, and develop them in accordance with the the overarching principles of Islamic finance, which are taken to be both the efficient transfer of savings to borrowers, and the need to insure fair distribution of resources, to develop appropriate private law and public law tools for the regulation of finance in the modern world in a manner consistent with Islamic values.
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IBN Hajar al-CAsqalani (773-852/1372-1449)1 was an Egyptian who lived in the late Mamlik period. Although he wrote in many different fields, he earned his scholarly reputation for his works on Prophetic tradition. Perhaps his most famous... more
IBN Hajar al-CAsqalani (773-852/1372-1449)1 was an Egyptian who lived in the late Mamlik period. Although he wrote in many different fields, he earned his scholarly reputation for his works on Prophetic tradition. Perhaps his most famous work is his commentary upon Sahih al-...