Mohammad Fadel

Bio: Mohammad Fadel is an academic researcher from University of Toronto. The author has contributed to research in topics: Islam & Sharia. The author has an hindex of 10, co-authored 41 publications receiving 481 citations. Previous affiliations of Mohammad Fadel include University of Virginia & Illinois Institute of Technology.

The Social Logic of Taqlīd and the Rise of the Mukhataṣar

Abstract: The study of the relationship between ijtihād and Taqlīd has been dominated by an approach that privileges ijtihād over Taqlīd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlīd in regulating the actions of muftīs and judges as discussed by post-6th/12th century jurists of the Mālikī school, I conclude that Taqlīd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihād was individualistic and solipsistic, Taqlīd was the result of group interpretation that provided an objective basis upon which legal decisions and legal rulings could be described as being either substantively correct or incorrect. Viewed in this light, Taqlīd was originally a desire to limit the discretionary power of legal officials, especially those at the bottom of the legal hierarchy. The desire to possess uniform rules found its logical outcome in the legal genre of the mukhtaṣar as it emerged in the 7th/13th century. The mukhtaṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaṣars is best understood as a codified Common Law.

Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought

Abstract: Pre-modern Islamic law famously discriminated against female testimony, in some cases excluding it entirely and in other cases according it half of the weight of a man's testimony. It is often assumed that this discrimination is a function of a faith-based assumption derived from Quran 2:282 which could be read to suggest that women are intellectually inferior to men. This paper shows that while such assumptions regarding the intellectual inferiority of women certainly existed among pre-modern Muslim clerics, such assumptions do not adequately explain other rules of Islamic law regulating validity of evidence, both inside and outside the courtroom, in which a norm of gender equality prevailed. Accordingly, medieval Sunni Muslim jurists developed an account of the laws of testimony that looked to the political context in which evidence was being proffered. In contexts that were not considered politically contested, such as the production and transmission of general knowledge -- whether religious or secular -- a norm of gender equality was established. In politically charged contexts, however, a discriminatory norm applied that was justified on political rather than on epistemological grounds. Indeed, the political nature of testimony led many pre-modern Muslim jurists to accept the possibility that women could also serve as judges in any dispute which would admit the testimony of a woman. The paper argues that Muslim jurists, because of the unique structural features of law as a discourse in comparison to scriptural exegesis, were better positioned to challenge theological readings of Quran 2:282 which posited the inherent intellectual inferiority of women. More generally, the approach of the paper suggests that Muslim feminists would be better off using jurisprudence as a source of authority for legal change in Muslim countries rather than making appeals to the original meaning or intent of revelation.

Two Women, One Man: Knowledge, Power, and Gender in Medieval Sunni Legal Thought

Abstract: Many Muslim feminists have argued that at the core of Islam lies a gender-neutral belief system that has been obscured by a centuries-long tradition of male-dominated interpretation. Although this gender-neutral system of belief had been almost entirely suppressed by the ruling Islamic discourses, according to Leila Ahmed, marginalized discourses such as Sufism and the antinomian Carmathians were able to preserve Islam's message of the ethical equality of men and women. Amina Wadud-Muhsin argues that the traditional verse-by-verse method of Qurʾanic exegesis, along with its domination by male practitioners, marginalized female experiences in understanding revelation. In her view, these two factors ultimately led to the suppression of the Qurʾan's message of gender equality. Fatima Mernissi, in The Veil and the Male Elite, instead argues that the religious scholars of Islam, because of their fear of subjectivity, were content with a purely empirical science of religion—a methodology that left the door wide open to the manipulation of revelation through interpretation. Unlike Ahmed, however, she recognizes that even within the dominant discourse of the Sunni scholars, not all spoke of women in the same monotonously misogynistic voice.

The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law

Abstract: The events of September 11, 2001 and the subsequent declaration of an open-ended "war on terror" have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the "Islam/Liberalism" genre, this Article proposes to use the framework set forth in John Rawls' Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam's theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law

Abstract: The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.

Sharī'a: Theory, Practice, Transformations

Abstract: In recent years, Islamic law, or Shari'a, has been appropriated as a tool of modernity in the Muslim world and in the West and has become highly politicised in consequence. Wael Hallaq's magisterial overview of Shari'a sets the record straight by examining the doctrines and practices of Islamic law within the context of its history, and by showing how it functioned within pre-modern Islamic societies as a moral imperative. In so doing, Hallaq takes the reader on an epic journey tracing the history of Islamic law from its beginnings in seventh-century Arabia, through its development and transformation under the Ottomans, and across lands as diverse as India, Africa and South-East Asia, to the present. In a remarkably fluent narrative, the author unravels the complexities of his subject to reveal a love and deep knowledge of the law which will inform, engage and challenge the reader.

Women, family, and gender in Islamic law

Abstract: 1. Introduction 2. Woman as wife and man as husband: making the marital bargain 3. Woman and man as divorced: asserting rights 4. Woman and man as legal subjects: managing and testifying 5. Woman and man in gendered space: submitting.

The Impossible State: Islam, Politics, and Modernity's Moral Predicament

Abstract: Preface and AcknowledgmentsIntroduction1. Premises2. The Modern State3. Separation of Powers: Rule of Law or Rule of the State?4. The Legal5. The Political Subject and Moral Technologies of the Self6. Beleaguering Globalization and Moral Economy7. The Central Domain of the MoralNotesGlossary of Key TermsBibliographyIndex

Islamic family law in a changing world : a global resource book

Abstract: * Introduction: Shari'a and Islamic Family Law: Transition and Transformation - Abdullahi Ahmed An-Na'im * PART I: CENTRAL ASIA AND THE CAUCASUS * 1. Social, Cultural and Historical Background * PART II EAST AND CENTRAL AFRICA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * KENYA, Republic of - TANZANIA, United Republic of * PART III HORN OF AFRICA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * ETHIOPIA, Federal Democratic Republic of - SOMALIA - SUDAN, Republic of * PART IV MIDDLE EAST * 1. Social, Cultural and Historical Background * 2. Legal Profiles * BAHRAIN, State of - IRAN, Islamic Republic of - IRAQ, Republic of - ISRAEL, State of - JORDAN, Hashemite Kingdom of - KUWAIT, State of - LEBANON, (Lebanese Republic) - OMAN, Sultanate of PALESTINE, Palestinian Territories of West Bank and Gaza Strip - QATAR, State of - SAUDI ARABIA, Kingdom of - SYRIA (Syrian Arab Republic) - UNITED ARAB EMIRATES - YEMEN, Republic of * PART V NORTH AFRICA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * ALGERIA, Democratic and Popular Republic of - EGYPT, Arab Republic of - (LIBYA) Socialist People's Libyan Arab Jamahiriya - MOROCCO, Kingdom of (and Western Sahara) - TUNISIA, Republic of * PART VI SOUTHERN AFRICA * 1. Social, Cultural and Historical Background * PART VII SOUTH ASIA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * BANGLADESH, People's Republic of - INDIA, Republic of - MALDIVES, Republic of - PAKISTAN, Islamic Republic of - SRI LANKA, Democratic Socialist Republic of * PART VIII SOUTHEAST ASIA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * BRUNEI (Negara Brunei Darussalam) - INDONESIA, Republic of - MALAYSIA - PHILIPPINES, Republic of the - SINGAPORE, Republic of * PART IX WEST AFRICA * 1. Social, Cultural and Historical Background * 2. Legal Profiles * GAMBIA, Republic of - GHANA, Republic of - NIGERIA, Federal Republic - SENEGAL, Republic of

Islam Obscured: The Rhetoric of Anthropological Representation

Abstract: Daniel Martin Varisco’s Islam Obscured: The Rhetoric of Anthropological Representation provides a very sound and well-informed literary critique of Clifford Geertz’s Islam Observed (1968), Ernest Gellner’s Muslim Society (1981), Fatima Mernissi’s Beyond the Veil (1975), and Akbar Ahmed’s Discovering Islam (1988). The author, an experienced ethnographer of Middle Eastern societies, examines the treatments and representations of Islam in these seminal texts. After presenting his topic and background in the introduction, he demonstrates how these four authors obscured, misrepresented, and elided the everyday lives of Muslims. In the epilogue, Varisco gleans some important lessons for the study of Islam from his entertaining and witty exploration of these social science texts.