On 13 February 2013, Professor Mohammad Fadel presented his research on Islamic public law at the Constitutional Transitions Colloquium. Fadel is Associate Professor at the University of Toronto’s Faculty of Law, and Canada Research Chair for the Law and Economics of Islamic Law. A video recording of his presentation is available here.
Fadel’s article challenges scholars who argue that pre-modern Sunni Islamic law lacked any meaningful conception of public law, the body of law governing the relationship between a state and its citizens. Fadel argues that a careful review of the works of pre-modern Islamic jurists demonstrates that public law clearly exists in Islamic law, and that it turns on the idea of a principal-agent relationship between public officials and the Muslim community.
Fadel’s research argues not only that pre-modern Islamic law acknowledges a body of public law, but that the principles advanced in these texts and encompassed in its principal-agent relationship bear striking similarities to those of modern democratic constitutionalism.
Pre-modern Islamic jurists asserted that the acts of public officials must be limited to public interests, because those public officials act in the capacity of agents of the Muslim community. These jurists also addressed the concept of sovereign immunity, arguing that public officials who exceeded the scope of their duties were liable for those actions. Lastly, some jurists endorsed a requirement of public rationality in official decision-making. In Fadel’s view, a careful re-examination of Islamic legal texts could create common ground between Islamist and secular parties in Egypt and Tunisia as they negotiate over new constitutions and laws.
The next session of the Constitutional Transitions Colloquium, on 27 February, will feature Professor Kristen Stilt of Northwestern University.