 Thank you for coming, everyone. My name is Mosheud Badirin, professor of law at the Sua School of Law here, and I'm currently the director of Center of Islamic and Middle Eastern Law, CIMEL, that is host of tonight's event. On behalf of CIMEL and the Sua School of Law, I'm pleased to welcome everyone of us to our 2015 Coulson Memorial Lecture tonight. The Coulson Memorial Lecture was initiated by CIMEL and the Sua School of Law in memory of Professor Noel James Coulson, who was one of the leading experts of Islamic law of his time. He was chair of the Oriental Laws at the School of Oriental and African Studies here until his death in 1986. This memorial lecture is in recognition of his contribution to Islamic law and his academic excellence. I will later, I mean, before we start, call on my colleague Ian Edge, two new Professor Coulson personally, well, to come and say a few words about him. Now before introducing the distinguished speaker tonight, I will do three things. First, I'm going to read out some housekeeping rules to us, which I will read out in a little bit. And then I will say a few words about our center, CIMEL, and then I will invite Ian to say a few words about Professor Coulson. The housekeeping rules. The first one is on fire evacuation. In the case of fire, you will hear an insistent alarm. Please leave the lecture theater from the fire exits on either sides. The fire assembly point is in Russell Square, or far end of Mallet Street. Two, mobile phones. Please kindly turn mobile phones off and a reminder that no filming is allowed for this event. At the end of the lecture, we have question and answer session. If you want to ask a question, you are required to just raise your hand and Steve Watts will come to you with a microphone. The male and female toilets are outside at the end of the fire on the right. There will be light refreshments at the end of the lecture in the fire. Everyone is welcome to join us. There's also information about disruptions, which I'm required to read out one. If an audience member is being disruptive, the owners will be on the chair to acknowledge the disruption and ask the person to desist. If this does not work, then they will be warned to desist and ask to leave the room. So those are the housekeeping rules. Now, I will say a little bit about our center. The center of Islamic and Middle Eastern law was established in 1990 at the Soha School of Law here in recognition of the growing importance of law in both its Islamic and Middle Eastern dimension then. The importance of both Islamic law and Middle Eastern law has escalated further since then. With the distinguished crop of experts that we have in both Islamic and Middle Eastern law at the Soha School of Law, Simele operates as a scholarly bridge for research and practice at the crossroad of Islam, the Middle East, and the West in our current increasingly small and interdependent world. The center is home for the yearbook of Islamic and Middle Eastern law, which is currently a leading publication on Islamic and Middle Eastern law. The center also attracts distinguished academics, researchers, and students from different parts of the world. Our members also provide expert advice to governments, policymakers, and other institutions and organizations on issues relating to Islamic law and the laws of the countries of the Middle East. Before I come back to introduce our distinguished speaker for tonight and the topic of his lecture, I will invite my colleague, Ian Edge, to come and say a few words about Professor Coulson and his contribution to Islamic law. Ian. Thank you, Mashud. I'd like to say a few words this evening about the man that this lecture remembers and commemorates as one of the few remaining members of the law department in Sohas who actually knew him and indeed was mentored by him. Professor Noel Coulson was the third holder of the chair of Oriental Laws at Sohas. And died suddenly in 1986 at the tragically young age of 58, having spent the whole of his academic career at Sohas of 32 years. In those days, which were pre-Edward Said and Orientalism, there was no notion of pejorativeness attached to the idea of a chair of Oriental Laws, but it's noticeable that there were no followers to such a chair after him and that now we have chairs of Middle East studies, Middle East laws and Islamic laws. In a short obituary I wrote of him for the bulletin of Sohas at the time that he died in 1986. I said that he was a tall figure of great presence and formidable energy. And he was indeed a giant, both physically and academically. When I started in Sohas in the 1980s, there were four great professors teaching in their respective fields. Professors Allot, Coulson, Diret and Reed. And three of them were all at least two meters in height. We were indeed a department of giants. And Noel was the tallest of the three. But he was a gentle giant. He would, in his teaching, coax the quietest student to participate. And as a teacher, he had a touch of genius. But he was also a giant academically. He helped to create and continue the tradition of Islamic law teaching and research that has kept Sohas at the forefront. Of Islamic law scholarship in recent times. When he was working, there were very few people that were working or interested in the field. But there has been, since his death, an exponential growth. A large amount of it fueled upon and based upon the research that he and his predecessors did and which have been added to in remarkable ways by the people in the department that followed him. He was part of a Sohas tradition of research that has stressed the modern over the classical, historical, the practical over the theoretical. The Sohas tradition, if there is one, and if I could call it that, I might label Islamic law as living law tradition. And it was started by the first holder of Oriental Laws here, Professor Vasific Gerald, who was interested in the Indian subcontinent and wrote books about the application of Islamic law in the Indian subcontinent and taught generations of Indian civil servants and judges about Islamic law in its practical sense. He was followed by another giant in the field and prolific author, Professor Norman Anderson, the second holder of a chair of Oriental Laws. And the shift then was to the Middle East proper because that was where Norman had spent most of his days researching, particularly in Egypt. But he was concerned with and interested in the way in which Islamic law was being treated and reformed and modernized to apply as a practical tradition in the modern Middle East. And two of his books have stood the test still of time and are still quoted. Law reform in the Muslim world and Islamic law in the modern world. Both indicators of what I would call the Islamic law as living law tradition that we harbor at Sohas. And the tradition was continued by Coulson. He started his studies in language and Arabic and Persian at Oxford under Joseph Schacht, the prime classicalist and historian. But moved from Joseph Schacht to work with Norman Anderson at Sohas and was henceforth only interested in the tradition of modernism. His first article, in fact, was entitled, Doctrine and Practice in Islamic Law. His second state and the individual in Islamic law, presaging some of the arguments I suspect that are going to be heard this evening for more distinguished speaker. His first book was entitled, A History of Islamic Law. This doesn't contradict the thesis of a tradition of modernism because, in fact, the main part of the book is concerned with reforms of Islamic law throughout the world in the 20th century. It was published in 1964 by Edinburgh University Press and has never been out of print since, which must say something about it. When I began studying Arabic at Sohas with Noel, he presented me with a book and said, tell me what the book's title is and who the author is. I picked out the title, Tariqa Sharia, but I was having difficulty working out who the author was. Noon Jeem Kaaf Lam Seen. And I couldn't work out how it fitted into Arabic. But, of course, it was his own book. And the author was none other than N.J. Coulson. He was delighted that the book had been translated into Arabic, albeit in a pirated edition in Egypt. A few years later, he was even more delighted. He gave me a book in Chinese, and I'm glad to say he didn't ask me to translate the title of that, but told me that, again, it was his history of Islamic law translated into Chinese. And he said, as a result of it, he would become the most read author in the world on Islamic law. What peaved him most was the fact that they were both pirate copies and he would receive no royalties for any of them. His second book was Conflict Intentions in Islamic Jurisprudence, which was written from lectures he gave in Chicago. And, again, the themes of reform were heavily present, notwithstanding the title. And ideas of political reform and reinterpretation, again, themes to be touched on this evening, were present in those lectures. But practicality needs textbooks of Islamic law. And the next two books that he produced were such textbooks, Succession in the Muslim Family in 1971 and Commercial Law in the Gulf States in 1984. The succession book was magisterial in its scope, bringing together classical and modern law in a wonderful disquisition on what succession was. And succession, according to the Islamic hadith, is half the law and holds a very important place and role in a consideration of Islamic law. In commercial law in the Gulf States, he broke new ground. He was one of the first people to look at classical texts of commercial law and consider how they could apply in modern Islamic states in the Gulf. And had he but for his sad demise, I'm sure that that is one area where we would have seen many more interesting and important works from his pen. The tradition of Islamic law as living law continues, I'm glad to say, at Soas, built upon the work of these three people, and particularly those of Noel Coulson. The tradition continues in the work of Lyn Welchman, Van Emensky, Masud Badrin, Martin Lau, amongst others. And long may it do so. It goes from strength to strength. The Coulson Lectures aren't an annual occasion. They take place whenever we have a distinguished visiting speaker. And we've had a number of distinguished speakers in the past who, again, have dealt with this tradition of living law. Norman Anderson himself gave the first lecture, Islamic law today. William Ballantine, Professor Bill Ballantine, gave the next back to the Sharia about the impetus to return to Sharia classical texts but apply them in modern ways in the Gulf. Professor Barry Hooker, old light on new law, looked at modern Islamic law in Southeast Asia. Professor Ahmad El-Kashiri looked at new approaches to commercial law. Dr. Hussain El-Bahana, the future of commercial law. Judge David Pearl, the application of Islamic law in English courts. And Professor Abdelahi and Naeem on Islamic law and the state. So it's with great delight that the present speaker is here to give the Coulson Lecture this evening because it fits so well into both the tradition that Noel continued and that which has been strengthened in the department since his death. And with that, I call on Professor Baderin to introduce the speaker. Thank you. Thank you very much, Ian. Before I introduce our distinguished speaker today, I just need to acknowledge our colleagues in the center. The Center for Islamic and Middle Eastern Law doesn't operate in the abstract. It's people who make it work. And I want to start by acknowledging the presence of the members of the center. Starting with Ian Edge himself, when he was talking about those who were keeping on the tradition, he left out himself. He is a very strong member of the center. We also have Dr. Nimero Soutani, who is a member of the center. Professor Martin Lau, Professor Lynn Welshman, and Dr. Samia Bano, and my humble self. So you see that the center is quite very vibrant. I mean, PhD students who are working in this area, please feel free to be part of the center. Now, for this year's Coulson Memorial Lecture, we are highly honored to have Professor Muhammad Fadel from the University of Toronto. Professor Muhammad Fadel is the Canada Research Chair for the Law and Economics of Islamic Law, and is an associate professor at the Faculty of Law University of Toronto, which he joined in January 2006. He wrote his PhD dissertation on legal process in medieval Islamic law while at the University of Chicago. He was admitted to the bar of New York in 2000 and practiced law with the firm of Sullivan and Cromwell in New York, where he worked on a wide variety of corporate finance transactions, commercial lending transactions, and securities-related regulatory investigations. Professor Fadel also served as the law clerk to the Honorable Paul V. Nimea of the United States Court of Appeals for the Fourth Circuit, and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. He has published numerous articles in Islamic legal history and Islam and liberalism. His current research interests revolve around Islamic political theology. Today, Professor Fadel will be delivering his lecture on Islamic reform, democracy, or reinterpretation. In this lecture, he plans to explore the path of democratic politics as a vehicle for Muslim reform by arguing that Muslim jurists, contrary to the prevailing wisdom of scholarship, did, in fact, authorize positive law subject to certain conditionalities. Now, it's a very important question whether Islamic law is really law or not. The paper will explore the theory of positive legislation and its implications for Muslim democracy and social and political reform in the Muslim world. I'm highly honored to call on Professor Mohamed Fadel to give his lecture. Thank you very much, Meshu. Thank you very much. So asked for inviting me. It's really a privilege and honor for me to be here speaking to you on the occasion of the Coles Memorial Lecture at SOAS. As a student, of course, I first encountered Professor Coleson's writing when I was a young undergraduate student at the University of Virginia. This must have been 30 years ago. Obviously, I would have never expected that time that I would be honored enough to give a lecture in his name. But I think before I started, I'd like to say a little bit about his legacy in my own work, given the occasion. And I think in many ways, one could say that almost everything that I've done as a scholar has been one way or another motivated by the concerns that Professor Coleson identified in his writings on Islamic law. I think Professor Coleson was always very concerned about the problems of how do you adapt a normative system to the practical needs of life, right? And he always viewed this as a pressing concern for any legal system and was very concerned about how this could, this dialectic could work out in Muslim societies. That's something that I think has motivated my work from the beginning of my time as a graduate student, even though it was largely historical studies. He's always, his scholarship was always very concerned about the risks of despotism and absolutism and law as a vehicle for that. And again, I think also that much of my work has been motivated by the same concerns of the risks that law can deteriorate into a function, into a system that justifies absolutist and despotic rule. While I think many of the things that I have to say will come off as maybe distinct from the answers that Professor Coleson gave, I wanna make clear that when I think one of the greatest accomplishments a scholar can have is to leave a strong enough legacy that it motivates others to respond to him and develop his ideas. And if we could all only be so lucky in our careers as scholars to have future generations think our work is significant enough to deserve a response. And with that, I will begin my lecture. So conventional accounts of modern Islamic history, modern Islamic legal history begin with the Muslim encounter with the European imperialist. There's no doubt that the Napoleonic invasion of Egypt serves 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 ultimately legal infrastructure of the empire and what ultimately proved to be a failed attempt to stave off European domination, a project that came to be known as a tumbly mat. Mid-20th century Islamic law scholars generally had a positive law of the tumbly mat derived from a widely shared perception that blind adherence to Islamic traditions, including Islamic law, had posed insurmountable obstacles to the ability of Muslim societies to enter the modern era. Writers of that previous 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 tumbly mat were absolutely necessary for the progress of Muslim societies. Scholars such as Joseph Schach took it for granted that the tumbly mat era legal and administrative reforms as well as the 20th century legal reforms pushed through by successor states to the Ottomans were not Islamic, but that did not detract from the necessity of those reforms. Indeed, Schach seemed to hold out some hope 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, much in the same way that Schach claimed that early Muslim jurists Islamized non-Islamic law in the first 150 years of Islamic history. More recent Islamic law scholars such as Wa al-Hallaq and Noah Feldman also expressed skepticism of the Islamic bona fides of the legal reforms in the 19th and 20th centuries. Unlike previous generations of scholars, however, they are sharply critical of the effects of those reforms. For both Hallaq and Feldman, the displacement of traditional law finding methods of the ulama in favor of centralized legislation, along with their replacement with state bureaucrats as the administrators of the law, represented catastrophic developments, not only for the integrity of Islamic laws of jurisprudential system, but for the possibility of non-terranical government. For these scholars, the substitution of positive law for the traditional sharia led inevitably to the rise of tyrannies in the post-Ottoman Arab successor states with all effective power vested in all powerful executives, whether called monarchies or presidents, whether called kings or presidents. Now, regardless of the substantive disagreements between older generations and newer generations on the merits of the Talimat, both of them appear to share common assumption regarding what counts as an Islamic rule in contrast to a non-Islamic rule. If a rule can be found in the historical doctrines of Islamic law, i.e. the Madaheb, or if it can be derived using the reasoning techniques developed by theoretical jurisprudence, usul al-fiq, then it counts as Islamic. A rule that originates in the will of the state by contrast is secular and therefore non-Islamic and of dubious legitimacy. Indeed, it remains the dogma that there is no conceptual rule for human legislation in Islamic jurisprudence. Accordingly, historical instances of decrees and statutes in pre-modern history are considered deviations from the requirements of ideal Islamic legal theory. Concessions to bitter reality, not a principled recognition of the legitimacy of non-divine law. The notion that a Muslim polity makes and applies rules that are Islamic, but the product of human political deliberation rather than interpretation of revelation strikes most Islamic law scholars as facially absurd. Accordingly, what Muslims need, according to this interpretation of Muslim legal modernity, is a new hermeneutic, a new usul al-fiq that would be capable of generating modern Islamic norms by introducing new methods of scriptural interpretation. The division in the eyes of modern scholars of Islamic law between normative jurisprudence and raw political power, in turn produced two contradictory conceptions of legality in the historical Muslim world. The rules of fiqh, which were developed by the jurists through the rational interpretation of revelation on the one hand, and the rules of siyasa, which were articulated by political authorities in reliance on their irresistible political power and pragmatic considerations of necessity on the other. According to most scholars of Islamic law, only the first body of rules is properly Islamic. The second, by contrast, is secular, perhaps even despotic, and exists outside the normative bounds of proper Islamic law. The rules of siyasa, according to many scholars, including Professor Colton himself, represent the failure of the rule of law and the inevitable concession of an unrealistically utopian conception of law to the immoral demands of power, and not a workable moral synthesis between revealed and secular lawmaking. Siyasa, therefore, represents a jurisprudential embarrassment to Islamic law. While the jurists produced a sophisticated science of theoretical jurisprudence that grounded their activity and justified it from the perspective of divine law, no equivalent effort seems to have been undertaken for siyasa. And accordingly, it appears as though it is simply a product of necessity, and thus is indicative not only of a Shmidian state of exception outside the ordinary principles of legality, but that such a state of exception was an enduring feature of early modern Muslim societies, if not even of earlier periods of Muslim society. Nevertheless, Tanthi met error writers in the Arab world, such as Rafa Araha Tahtawi, Khaira Deena Tunisi and Rashid Rida, wrote about positive law, Qanun, with no sense of embarrassment or that it undermined Islamic conceptions of political legitimacy. Their works on political and moral reform, such as Tahtawi's At-Takhlis and his Al-Murshid al-Amin, at Tunisi's Taqweem al-Masalik and Rida's al-Khilafa, all assumed the necessity and legitimacy of rules derived from practical reason without recourse to the principles of Asr al-Fiq. In the case of Tahtawi, for example, he calls on the ruler, which he calls Mutawalli al-Ahkam, to adopt rational rules, which from a Sharia perspective fell into any of the ethical categories of Islam other than the Haram. So long as the rules he formulated were appropriate to achieve the goal of Tamadun, progress and satisfied certain formal requirements, including importantly, equality and non-arbitrariness in application. At-Tunisi also assumed that rules developed through practical reason and not interpretation were part of the Sharia on the grounds that the principles of the Sharia could not be effective without their proper specification in accordance with the demands of practical reason that vary by time and place. It was on those grounds that he criticized the jurists of his day for preferring the study of classical texts with little practical relevance of contemporary Muslim societies rather than engaging themselves in formulating rules that would effectively govern their contemporary societies. Rida, too, vehemently criticized those jurists who denied a legitimate role for positive law and Islamic jurisprudence as being ignorant of the fact that Islamic law, according to him, insofar as it regulated secular life, did so for the purpose of seeking the wellbeing of human beings in this world, not to impose on them a particular manner of living or of organizing their societies. In other words, he criticized Muslim jurists and theologians who opposed reforms with conflating rules of secular life with those of ritual observance. Now, neither Tahtawi nor Tansuri, Tunisie, explained why rank-and-file Muslims should follow the rational rules that they advise rulers to adopt. Rida also does not dwell on this problem, but he does make the curious comment that all rules in an Islamic polity are either provided by revelation or the considered view of the community, Ra'yul-Ummah, without fully explaining why he considered the latter to provide a moral basis for obligation. While neither Tahtawi nor Tunisie explicitly make equivalent claims, i.e. deference to the opinions of the Ummah, they also, in their own way, endorse the conception of popular participation in governance. Tahtawi, by recognizing the importance of the popular internalization of law as a condition for its effectiveness, which can only be achieved when the people themselves have genuinely and voluntarily committed to upholding its provisions, and Tunisie is concerned that sufficient numbers of the population are properly motivated to defend the law from invasion by public officials. Now, the question I wish to take up in this, which is basically a substance of the lecture is whether these ideas, the legitimacy of non-revealed law, the need for popular participation, and that legitimacy of rational rules depends on consent in one way or the other, has any roots in historical jurisprudence, or whether these ideas can only be understood as just another iteration of the classical distinction between Fiqh and Siessa. In other words, is this historical Islamic law providing moral justification for the binding character of positive law? And if so, can a properly conceived political understanding of political life provide an alternative basis for a Muslim legal modernity than the eagerly sought but undefined new mode of Osul of Fiqh? An answer to this question requires a re-examination of various rules and doctrines of historic Islamic law as articulated by Sunni jurists in an attempt to identify a cognizant body of what could be called public law and to articulate a theory that accounts for the structure of this historical body of rules. Contrary to conventional opinion, I argue that Sunni jurists did articulate a substantial body of rules that constituted a kind of public, even constitutional law. Moreover, this body of rules is not ad hoc or a hodgepodge set of historical decisions made in response to particular historical circumstances as conventional understandings of Siessa suggest, but rather is the product of a commitment to a set of normative political principles that regulates the legitimate exercise of authority positively and negatively in accordance with an understanding of positive law as the product of the determinations of an idealized agent acting on behalf of an idealized principle, the Muslim community. According to Sunni public law, from a substantive perspective, the relationship between the ruler and the ruled is simply a special case for the more generally applicable principles of fiduciary law. The fiduciary requirement that applies to public officials sharply distinguishes the rules governing their activities from the actions of natural persons who, all things being equal, are free to act in both a holy self-regarding manner at some times or to act purely out of altruism and generosity at other times. Legitimate authority is constituted through an idea of delegation of authority, beginning with a contractual delegation of authority from the Muslim community to the Caliph and from him to lesser public officials. The power delegated being fiduciary and representative simultaneously authorizes and limits the actions of public officials in accordance with the duty of an agent to his principle to use his discretion exclusively for the principle's good and not the agent's own private good. This fiduciary conception of public law in turn justifies the moral duty of obedience on the part of individuals subject to the official's jurisdiction. This standard of legitimacy, moreover, applies whether the public agent has been appointed to juray and is therefore an agent of the public by virtue of consent, act, or by conquest, in which case the law retroactively deems him to be an appointed to his position by virtue of necessity, and mutagallab or hakemid darura. This question, namely whether Muslims ought to pursue reforms in the way they read revelation or pursue reform through democratic politics is not merely academic. The question of the relationship of Islamic law to democratic politics and popular sovereignty has become deeply contentious and divisive in the Arab world and even threatens the very possibility of non-authoritarian political life. It is also leaving its mark in contemporary Muslim religious thought where Muslim publics having apparently abandoned any hope in politics are now seeking to accomplish the substantive reform of fiqh through what are often far-fetched interpretations of revelation, even though many of the substantive reforms which are rightly demanded could be accomplished politically without forwarding implausible claims about the meaning of revelation. If, as I will argue here, conflation of the rules of fiqh with an immutable set of pre-political rights represents mistaken political theory, it may or may not also be a case of poor, excuse me, if, as I will argue here, conflation of the rules of fiqh with an immutable set of pre-political rights represents mistaken political theory. It may or may not also be a case of poor interpretation, but in either case, the most felicitous route for reform is not interpretive but political, establishing properly representative states that discharge their fiduciary duties effectively provides a much firmer basis for legal reform than dubious claims about the meaning of revelation and its relationship to law. It is the task of this lecture to explain why such a political approach is well grounded in historical doctrines of Sunni law. Now, when undertaking this excavation project, essentially, I focus on rules that govern the behavior of public officials, both positively and negatively. By positive rules, I mean rules that confer upon a public official a power to act with regard to the rights of another. By negative rules, I mean rules that place limits on the power of a public official to act with regard to the rights of another. This very distinction, I mean public versus private, may itself be controversial, may itself be a controversial claim. Accordingly, I begin by analysis of the rules that establish this distinction and how each sphere is to be maintained through law. After establishing the distinctive features of the public and the private, I then will proceed to discuss the rules governing the legitimate exercise of public functions and conclude with a discussion of what this implies for the legitimacy of positive legislation and its potential to affect substantial, even radical reforms to the historical rules of Islamic law. So we begin with an inquiry into jurisdictional law, the rules that create jurisdictions, willaya, the various powers that are incident to the creation of a valid jurisdiction, the substantive norms that govern, that regulate how those powers are to be exercised and the obligations of individuals who fall under the authority of various jurisdictions to adhere to the decisions of public officials. As I will try to show, Sunni jurisdictional law rose in response to the problem of how the exercise of power over an equal can ever be justified. The answer they gave was that the power of one person over another can only be morally justified to the extent that the relationship of the ruler and the ruled reflect the moral ideal of the ruler serving as the fiduciary of the governed. In short, the moral ideal of the principle agent relationship is the fundamental structural feature of Sunni public law and therefore the principles of agency law serve both to limit the authority of public officials and authorize them to regulate affirmatively the lives of those properly subject to their jurisdiction. The egalitarian theological assumptions of Sunnis imposed a problem of political ordering. If all persons were morally equal or substantially so, insofar as each of them was in principle capable of understanding God's law and each of them would be individually accountable to God for his or her adherence to divine teachings. And none of them could claim a special knowledge of that law that was inaccessible to anyone else. Religious doctrine could not provide an obvious answer to the question of who should assume leadership. Indeed, the 12th century Muslim theologian, Al-Azib Nabd-Salam succinctly articulates the political consequences of Sunni theology by stating that, quote, no human is more worthy of obedience than any other, unquote, and that it is only God who is entitled to an unqualified duty of obedience. Obedience is only consistent with human equality to the extent that God has authorized that obedience. Now, one of the divinely authorized exceptions to the principle of non-obedience is the obligation to pay public officials according to Al-Azib Nabd-Salam, whom he calls the imams, the judges, and governors. Now, even as he affirms that obedience to political authorities is an exception to the independence principle, he calls into question that very principle by, at the same time, saying that no such duty is owed to, quote, the ignorant kings and princes until the subject of the command, i.e., you and me, can ascertain that the command is permitted by revelation, unquote. By this qualification, Nabd-Salam effectively introduces into the moral calculus the difference between power and authority. It is only legitimate imams, judges, and rulers who are morally entitled to obedience. Illegitimate rulers, by contrast, possessed power but lacked authority, and accordingly no moral duty of a political obedience existed with respect to them. If a moral duty of obedience rose in such cases, it is only because the subject has ascertained independently that the command may be followed without the risk of disobeying God. Illegitimate rulers, then, may be obeyed, provided their commands can be determined to be lawful ex-post. As a matter of principle, however, sinful commands can never produce a moral duty of obedience, as that would amount to a contradiction of divine sovereignty. What he doesn't answer, however, is what provides a person with legitimate authority and distinguishes him from a mere possessor of naked power. The answer to this, of course, is the Sunni theory of the caliphate. Modern scholarship has typically dismissed the Sunni writings on the caliphate as little more than post hoc justification of the political status quo, an expression of utopian dreams disconnected from political realities, or an abject surrender to the arbitrary power of military forces that came to dominate Muslim polities with the long and gradual decline of that basid caliphate. This reading of pre-modern Sunni writing on the caliphate is partially a misrecognition of the function of Sunni apologetics on the caliphate, particularly in the context of intramuslim theological polemics. As one Sunni theologian put it, the caliphate is properly a legal topic, not a theological one. The second reason for the quick dismissal of Sunni writings on the caliphate is what can only be termed as an anachronistic bias in favor of formal democracy. Patricia Kronow, for example, noted with some disappointment the failure of Sunnis to establish representative institutions that could have checked the arbitrary power of government despite what she thought that this would have been a remarkably easy thing to have done in light of pre-modern doctrines. Modern scholarship therefore is largely focused on what is absent from Sunni discussions of the caliphate rather than attempting to understand the salient political principles that were actually affirmed. Now, we have to bear in mind that Sunni jurists were lawyers and not political philosophers. And so therefore in order to draw out what their political theory was, one has to, what I call, look, read their rules in an attempt to draw out the imminent principles of the thought as evidenced by the substantive rules that they affirmed. Now, this means that when we read a text like Al-Hakama Sultanaia, we have to be very careful not to lose sight of the forest for the trees because it's full of really mind-numbing detail, right? And so it's very easy to get lost in this detail and miss the big picture. And I would say that the first and most important of the big picture items that we need to identify is the contractual foundation of the state. Now, this feature is well recognized by most scholars, but instead of attempting to understand the consequences of this idea for the moral and legal regulation of the polity, scholarship has instead focused on the empirical question, on an empirical question, such as whether his contractual account of the state is a satisfactory historical account of the Muslim state in its various stages of development, or in the alternative, they have decried the failure of Muslims to operationalize this potentially democratic idea by specifying institutional modalities to make the contract of governance effective. But here I'm not concerned with empirical objections to Mawarati. I seek only to determine the extent to which the idea of contract animates Sunni law's approach to the problem of governance generally. And to the extent possible, determine what the content, the ideal content of that contract is. Now, it is indisputable that from Mawarati contract is the exclusive means by which authority can come into existence. Not only is the initial act of the selection of a ruler called the contract, i.e. calls it the contract of the caliphate, or the MMM, Aqtul Khilafa, or Aqtul Imamah, all subsequent appointments of public officials are also described as contracts, Aqtul Tauliyah. Like any contract is entered into by two parties, the contract of the caliphate can take two forms. In the first case, the contract takes place between electors known as Ahlul Halil Aqt, and the successful candidate for the caliphate being the second party. In the second case, the contract takes place between the incumbent caliph and the person designated as a successor, Wali Ulaid. In both cases, the party selecting the caliph, whether the electors in the first or the incumbent in the caliph in the second, in both cases, they were obliged to select a candidate in light of a laundry list of qualifications that include various moral, martial, and personal virtues, as well as a kind of knowledge of religious law and charismatic dissent from the prophet's tribe. The party selecting the caliph, or the incumbent, designating his own successor, is permitted to select a lesser qualified, although a lesser qualified candidate, even if a better candidate is available on the assumption that the one selected is minimally qualified, right? The party selecting the caliph can't prefer one quality, i.e., for example, a martial valour to privacy or learning, if it is a time of external or internal threat to the state or vice versa in time of peace. Neither the electors nor the caliph, however, are free to ignore the qualifications of the candidates and simply select the candidate based on personal preference. The fact that the electors and the caliph are restricted to choosing among legally satisfactory candidates arises from the fact that neither of them, when they exercise the power selection, are acting in a personal capacity. Instead, they are acting in a representational one on behalf of the entire Muslim community. Mawaddi makes expressed reference to this representational aspect of their function and his rule discussing how rulers are deposed. Or excuse me, how successors are deposed. So he says the following, the Imam who was appointed a successor may not dismiss a successor in the absence of legal cause, even though he may dismiss his other appointees at will. He may dismiss them at will because he appointed them in furtherance of his own rights, i.e., ministers and stuff like that. While he appointed his successor in furtherance of the right of the Muslims, accordingly, he lacks the power to dismiss him, just as the electors may not dismiss the Caliph to whom they have pledged loyalty in the absence of legal cause. So the idea here is that the Muslim community is the actual party in interest to the contract. And this idea is reinforced in other rules of Mawaddi's ahkem. One, another example is the continuing validity of the appointments of judges and governors, despite the death or removal of the Caliph who appointed them. Because judges and governors are appointed to further the interests of the Muslim community rather than the personal interests of the Caliph, their appointments continue despite their death, despite the death of the Caliph who appointed them. Now, leaving aside the philosophical problem of how to define the Muslim community and whether it is distinct from actual empirical Muslims alive at any one time, as a practical matter, and Mawaddi was of the view along with practically all other Muslims, Sunni and non-Sunni, that formation of a state and loyal adherence to it was an obligation that bound all Muslims. It was, of course, a collective obligation, not a personal one, faradayin, to participate in the formation of the Caliphate. But according to Mawaddi, one could not escape the subsequent obligation of obedience by claiming that I did not participate in the contract. Indeed, Mawaddi's language, everyone in the community is obliged, a la kafat al-Omma, is clear that every Muslim is under an obligation to perform the contract once it is performed. Those who refuse to recognize the chaos authorities are rebels, ahl al-Baghih, and may be legitimately subdued by arm, by force of arms, to compel them to obedience. The mandatory nature of the contract of the Caliphate therefore plays a crucial role in constituting the caliph and the public order he represents as possessing exclusive authority over the public sphere. This right of the caliph and by extension the Muslim community to compel obedience is implicit from Mawaddi's description of the operative provisions of the contract of the caliphate, which according to Mawaddi, entails a delegation from the entirety of the community of the administration of public affairs to the caliph. A responsibility which is entrusted to him in his capacity as the community's exclusive agent over his public affairs. Again, quote, my translation, everyone in the community is obliged to delegate administration of common affairs to him without any interference in his jurisdiction or opposition so that he can perform that which has been entrusted to him with respect to attaining the general welfare and establishing the orderly administration of public institutions. The obligatory nature of the contract confirms both its necessity and its fiduciary character. Accordingly, it's not surprising that the jurist interpreted his powers as being interpreted the powers of the caliph such that they could only be exercised for the good of the community, which as mentioned previously is the legal party and interest in the contract. The notion that the contract exists exclusively for the benefit of the community is implicit in the operative verbs Mawadati chooses to describe the grant of authority of the caliph. He uses the verb wukila, the passive voice for the verb used to appoint an agent, rather than for example, molika, the passive voice for the verb used to express the idea of transferring dominion over something, to express the nature of the relationship between the caliph and the Muslim community. Unsurprisingly, therefore, he understands obedience as arising out of a relationship of reciprocity. Quote, when the Imam discharges the rights of the community, which we have previously described, he is entitled to their obedience and sucker, unquote. The contract of the caliphate, therefore, establishes a public order that is distinct from a private order. The public order comes into existence via delegation of authority from the community, the caliph. The caliph or the Imam then further delegates powers to various public office holders, all of whom are acting in one way or another as fiduciaries for the Muslim community. Individual persons making up the Muslim community when they delegate their powers to the caliph simultaneously renounce any competence they might have over managing public life, at least insofar as they are private individuals and are not properly appointed by the caliph to exercise some public power. Respect for the public order is obligatory and those who refuse to recognize it may be legitimately fought to compel their obedience under the applicable laws of rebellion. A fortiori lesser officials, such as governors, judges, and tax collectors provided their acting lawfully are entitled to compel individuals to obey their commands. Mawadati's description of the rules regarding the selection of the caliph in the terms governing his appointment might usefully be analyzed to the concept of ideal theory. Mawadati's akham, however, also includes provisions of non-ideal theory, i.e. what happens when the public sphere is taken over in part or in whole, forcibly by usurpation. His theories regarding how the law should deal with usurpers has generally met with unsympathetic commentary from modern authors. Nevertheless, I will attempt to rehabilitate at least partially Mawadati's treatment of the mutahallib by tying his analysis of non-ideal theory to the ideals informing his ideal doctrine of the caliphate. The salient feature in his treatment of usurpers, whether the usurpation is taking place at the level of the caliph or the governor, is the refusal to take a categorical position, whether in favor of the usurper or against him. Instead, his reaction is provisional and it's equivocal and rooted in prudence. To the extent that the usurper is willing to rule in accordance with law, then his actions become legitimate, even if the usurpation, until such time as the caliph offers recognition of the de facto ruler, is not. Only when there is a complete and open break by the usurper with the legitimate public order does a categorical rupture take place. The crucial point, however, is that the willingness to tolerate and potentially rehabilitate usurpers is not on account of deference to the usurper, but rather to further the interests of the law and the interests of the people which it protects. Accordingly, the usurper obtains recognition only to the extent that he acts as though he were legitimately selected or appointed. Mawadati's treatment of the usurper and his provisional willingness to rehabilitate him certainly paves the way for the legitimacy of the ruler by necessity, Hakime Darura, as he would later be called. However, it also ensures that the usurper can only function as a ruler to the extent that exposed he observes the rule of law, including the fiduciary ideal that regulates his relationship to those whom he governs. Mawadati's conception of the caliphate therefore provides a template for legality that entails the creation of a public sphere through the idea of a contract of delegation from an abstract idea of a Muslim community to its public agent. The relationship created by this contract is a fiduciary, one in pursuant to that idea, the caliph and all public officials stand in the fiduciary relationship with those whom they rule. This ideal entails both the power to act on behalf of the governed, but at the same time subjects their power to important limitations, specifically that they must act in accordance with law and exercise their discretion for the benefit of the public. This idea of government standing in a fiduciary relationship also responds to the theopolitical premise of the moral equality of human beings. Their equality means that none of them are entitled to the obedience of their fellows. Obedience to an order that is constituted by law and seeks their own good, however, rather than the private good of the office holder is not obedience to another person, but rather compliance with the moral ideal that binds equally all humans. Now I wish to trace how this conception of public order left important traces in the substantive rules of Sunni jurisprudence with respect to the exercise of authority of lesser public officials, the standards governing the validity of their actions, and their ability to make rules binding on the public even in circumstances where revealed law provided no mandatory norm or revealed law provided a norm that differed from that articulated by the public official. I'll begin with expressed affirmations of the representative and fiduciary character of the Caliphate and other public officials. The representative nature of the contract of the Caliphate and the assertion that the Caliph as a legal matter acts as a public agent for the Muslim community is expressly affirmed by the great sixth century Hanafi jurist Abu Bakr al-Kassani in his magnum opus Bada'a Sanna'a in the chapter of adjudication. His articulation of this proposition leaves no room for doubt that Sunni jurist viewed the Caliph as a representative of the Muslim community, that his powers are delegated from them, and that those powers are exercised for their benefit, i.e. the public and not for his own good. As Kassani distinguishes the rules governing the dismissal of a judge from those governing the dismissal of an agent of a natural principle by noting that judges are not divested of their authority when the Caliph or other appointing official dies or is removed from office. He counts for this difference by noting that the Caliph does not stand in the principle agent relationship with the judge, rather the judge's true principle is the Muslim community. It is from their authority and not the Caliph's personal authority that the judge's authority derives. Because the Muslim community does not perish, the judge's appointment continues to be valid despite the death or removal from office of the official appointed him. Indeed, Kassani states expressly that the Caliph's role in both appointing and dismissing public officials is simply that of a messenger, he calls him Rasul, acting on behalf of the community. Because in both cases, whether that of appointment or dismissal, the actual party doing the appointing and dismissing is the Muslim community. The Caliph as the messenger of the community simply expresses their will. Accordingly, his actions are effectively and in the eyes of the law, the actions of the community. Whether appointing or dismissing judges, the Caliph in each case is exercising power delegated to him from the Muslim public. He possesses the specific power of appointment and dismissal because the rational go to the public cannot be achieved unless the Caliph has such powers. The fact that the Caliph is a representative of the Muslim public, which Kassani calls Ahmed and Muslimin, also accounts for other rules of substantive law, one of which Kassani mentions in passing, the immunity of public officials from ordinary principles of tort. Thus Kassani explains in the same passage that because the Caliph is an agent of the community, quote, he is immune from liability in the same manner as other agents in contractual dealings, unquote. The general principle being that liability arises arising out of an agent's authorized activities is borne by the principle authorized to conduct and not the agent. Kassani in this passage expressly affirms two other crucial principles of what I call Sony public law. The first is that the powers the Caliph exercises as a public agent are only powers that are delegated to him from the Muslim community. And second is that such powers as have been delegated to him on behalf of the community are derivative of what is necessary and proper to achieve their rational good as a community and can only be exercised in furtherance of that good. Call this the principle of, quote, public rationality. While this principle is implicit in the conception of the ruler as agent of the ruled, other jurists then make this public rationality requirement explicit in their discussion of public officials' powers. The 13th century Egyptian Maniki jurist, Shahab-e-Din al-Qarafi expressly affirms this requirement of public rationality. Indeed, he incorporates it as a substantive limitation on the jurisdiction of public office holders. He discusses this issue in al-Furuq as follows. Regarding the difference between the administrative acts of the public officials which are given effect in the law knows which are not. The first category are those actions which were not included in their original jurisdiction. You should know that whoever exercises authority from the caliph down to the guardian of an orphan is not authorized to act except to attain a good or ward off a harm in accordance with God most high statement, quote, do not approach the property of the orphan except in the fairest manner, unquote. And because of the statement of the Prophet Muhammad, any person who has given authority over any of my community's affairs and fails to exercise that authority and good faith for their benefit is forbidden entry to paradise. Accordingly, caliphs and governors have no jurisdiction to act except in accordance with the requirements of good faith judgment. Decisions that reduce wellbeing are never in the fairest manner, but rather are their opposite. The authority confirmed by virtue of holding public office therefore is limited to acts that produce either an absolute increase in wellbeing, maslaha khalisa, or a net gain in overall wellbeing, maslaha rajah, or to acts that prevent an absolute loss of wellbeing, maslaha khalisa, or prevent a net loss in overall wellbeing, maslaha rajah. The public rationality requirement arises out of the fiduciary relationship that office holders have with respect to those who fall under their jurisdiction. Whenever a public official is called upon to exercise a power in further and so the interests of a specific person, for example, when a judge is required to act as a guardian in the marriage of an orphan girl, he's bound by the requirement of public rationality. Accordingly, while an adult woman or her natural guardian is entitled to waive the legal condition of social suitability, kafa'a, of the prospective groom, the judge is not and he must only marry her to a husband who has at least her social peer. Likewise, when a judge acts as a guardian over a minor who has the right to seek damages, dia, or retaliation, qasas against a tortfeasor, the judge is not permitted to waive the minor's claim. Even though a tort victim, in principle, is always free to waive his claims to damages or retaliation and forgive the tortfeasor outright aaf in order to seek a religious reward. Natural persons, qarafi tells us by contrast, are not subject to this requirement of rationality. When dealing with their own property, they are perfectly free to act out of a spirit of generosity and give away all of their wealth provided that in doing so, they don't become profligates, right? But the point is very clear that different standards of rationality apply to natural persons and those who are clothed with public authority, right? A higher standard applies to those with public authority. Mahwadi's theory of the caliphate noted that the very active delegation of authority over public affairs also entailed a simultaneous divesture of any power individuals might have to exercise power over public life, describing any attempt to interfere with the caliph's exercise of those delegated powers as an invasion into public decision-making. Now he used the Arabic word iftiat here. Now this concept was already a term of art in early Sunni jurisprudence. And while it is not clear whether Mahwadi used it in its technical legal sense or simply its ordinary sense, it is nevertheless the case that for Sunni jurists, private enforcement of the law was criminalized as an invasion of the public order. It was a crime iftiat itself was a crime in the pre-modern Islamic legal order. Jurists used this doctrine to enforce the exclusive jurisdiction of the state over sensitive matters, such as the enforcement of criminal law or the right of retaliation and tort law. Maliki's, for example, held that a private arbitrator who exceeded his jurisdiction by ruling in matters of criminal law was subject to criminal punishment, adab, if his decision was carried out, even if it was substantively correct. For the same reason the next of kin of a murder victim, if he took the law to his own hands and killed the murderer without a prior judicial ruling, becomes guilty of the crime of iftiat, even if he is not liable and tort for that action. So even though private persons in their capacity as private persons were not permitted to exercise public power directly, they were, however, permitted to go to court to protect their interests as members of the public from government abuse or neglect. The great Hanafi central Asian jurist as Sarekhti, who died toward the end of the 11th century, for example, authorized individual members of the public to bring suit to enjoying transfers of public property to private individuals if such a transfer could cause an injury to the public. In recognizing this claim, Sarekhti concluded that the ruler's authority over public interest was limited to vindicating their rights, not undermining them. The public, according to Cassani, could also resort to the judiciary and defense of public rights against invasion from private persons. For example, if a person builds a private structure in his own property that threatens to collapse and cause an injury, in the ordinary case between two private persons, the neighbor must first give notice to the owner of the nuisance and demand that he repair it before the owner becomes liable for any losses caused by the structure's subsequent collapse under the neighbor's property. Where the faulty structure threatens to collapse onto public property, however, any adult member of the public can serve notice on the owner on behalf of the rest of the public because in so doing, he is vindicating a right of the public. Once any member of the public gives notice to the owner, then any member of the public who is subsequently injured by the structure's collapse has standing to sue the individual private owner. Now implicit in Malachi's notion of delegation of public powers to the caliph is that individuals retain their powers over their private affairs. The Andalusian Maliki jurist, Ebubakht ibn al-Arabi, who died in the middle of the 12th century, relies on this notion to explain why the ruler may waive the criminal punishment of a highway robber who surrenders voluntarily, but why he is not authorized to waive the personal claims of the defendant's victims. The justification for this distinction, Ibn al-Arabi explains, is that the Imam's jurisdiction does not extend to the private claims of specific persons. Quote, the Imam is not an agent for specific persons in regard to their specific rights. Rather, he is their representative only with respect to their common and abstract rights, which have not been identified as belonging to any particular person. While the public has a common right in the application of the criminal law, the rights to compensation are individual to each of them and accordingly the Imam lacks authority to pursue those claims in accordance with the limited jurisdiction of his office. Tort law also provides an important context for determining the interaction between public law and private right. Public officials, including judges and officers entrusted with executing judgments could in the course of performing their tasks, violate the rights of others. For example, by criminally punishing the wrong defendant or erroneously taking or destroying property from a private person without legal cause. In the ordinary course, such actions would give rise to a right in the grief party to seek a remedy against the person who was the proximate cause of the wrong. Application of the ordinary applicable tort rule to the actions of public officials might reasonably deter individuals from serving in offices that might lead them to commit such torts with regular frequency. On the other hand, too lenient a standard would undermine the rule of law by excusing government officials willy nilly from liability for unlawful actions. In resolving this tension, Muslim jurists adopted the principles that apply to private conduct to public officials by granting public officials a presumptive right to assume the validity of governmental actions. However, this presumption would be removed in situations where the government official knew that the conduct was illegal. Their treatment of unlawful killing under the color of law provides a good illustration of the interdependence of private and public standards of liability in the legal thought of late medieval Muslim jurists. Ibn Qudamah, the 13th century Damascene Hanbali explained the remedy for unlawful killing under color of law in the following terms. Were a public official a Sultan to command a subordinate person to kill another and so he does kill that other person? If the killer knew that the deceased was not subject to a lawful death sentence, the subordinate is subject to retaliation, al-Qasas, but not the superior official, al-Amer, because he, the killer, lacks illegal excuse for his action. Accordingly, the subordinate official is subject to retaliation exactly as would be the case if the superior was not a public official. If the subordinate did not know that the deceased was subject to an unlawful death sentence, then liability attaches to the superior official. In this case, the subordinate who was commanded to carry out the unlawful order is excused because he is under an obligation of obedience to the Imam and respective acts that are not sinful. And the legal presumption is that the Imam's rulings are just. If the person commanding the killing is not acting under color of law, but is simply a member of the public, for example, and the commanded person killed the other person, he is liable for intentional killing in all cases, whether or not he has knowledge of the victim's actual innocence, because he is never under an obligation of obedience to the person who issued the command. Ordinary persons never have authority to kill, in contrast to public officials, who can't apply capital punishment in cases of apostasy, adultery, and highway robbery if the highway robbery is committed murder. An ordinary person never has authority over any of these matters. Ibn Quddamah began his analysis of the problem by asking whether the issuer of the command is acting under color of law. If so, the person carrying out the command has a presumptive defense from liability, insofar as he is entitled to assume that the orders of public officials are lawful. If he comes to know, however, that in order to kill lacks legal basis, he becomes personally responsible for the conduct, because the order, once it is known to be illegal, is stripped of its authority, even if the public official coerces the subordinate. In effect, it becomes the legal equivalent of an order to kill issued by a person who is not acting under color of law. Private persons, as Ibn Quddamah's analysis makes clear, never have authority to kill another person, whether or not their victim is substantively guilty of even the most heinous crimes known to the legal system. In the absence of coercion, moreover, the subordinate is exclusively responsible for the victim's death, not the commanding official, because the illegal nature of the command renders it illegal nullity, which means that the subordinate, from a legal perspective, becomes the sole proximate cause of the unlawful killing. Thus far I've discussed how Muslim jurists apply the jurisdictional limitations implicit in the idea of contract to create a public and private sphere, each with its own appropriate set of norms to regulate them. I now wish to discuss the extent to which Sunni jurists recognize the authority of public officials to regulate the conduct of individuals through decree or statute. Qarafi, in his work, the Ahkam fi Tamiz al-Fatawa on al-Ahkam wa tasarrofaat al-Qadi wal-Imam identified three different kinds of lawmaking activities in Islamic law. The first is the interpretive work of jurists who, relying on their specialized training, interpret the indicates of revelation and adilla sharaya to formulate general legal rules, ahkam amma, which they communicate to the public through the institution of the legal opinion, al-Fatwa. The legal opinion, even though it is formulated as a universal rule, does not communicate a binding rule, except with respect to those who choose to adhere the opinion in question. The non-binding nature of a legal opinion, combined with the fact of differences of opinion regarding the proper meaning of revelation, meant that numerous and at times contradictory Fatwa circulated simultaneously governing the same set of facts. In the event of a dispute, however, the fact of legal pluralism meant that the disputants might have a different opinion regarding the applicable legal norm. Resolution of such a dispute required the litigants to take their claims to a judge, al-Qadi or hakem, whose role in such situations was to originate a particular rule in sha'u hukmin khas, that put an end to that particular dispute. In so doing, the judge must rely on the legal opinion of a recognized authority, in other words, an opinion of one of the established schools of law, and this requirement created a link between the theoretical general law finding of the jurists and the practical particular law making of the judges. A properly constituted judicial ruling established, quote unquote, the law of the case for that dispute, and conclusively resolved the controversy between the litigants, both for secular and religious purposes, not only as between the two parties, but crucially also with respect to anyone who might hold a different conception of the law. For example, in a dispute involving a woman who contracts a marriage without the permission of her family in reliance on the Hanafi rule, and her guardian who seeks to invalidate that marriage in reliance on the Maliki rule, the judge's decision in her favor establishes conclusively the validity of her marriage as the law of the case. This decision not only forever resolved the dispute as between the two litigants, but it also foreclosed dissenting Muftis, for example, Maliki's, from continuing to give legal opinions declaring that marriage to be invalid. The judge's ruling, however, only resolved the dispute with respect to those two litigants. Subsequent disputes arising out of the same set of facts, but involving different litigants must be resolved anew by the particular judge before whom the case is brought. In other words, if an equivalent case comes up, but next time before a Maliki judge instead of a Hanafi judge, you get the exact same results, right? The exact opposite result, excuse me, the marriage is terminated, and everyone has to accept it, right? Now, in other words, the system of judge-made law which Kharafi described was capable of only making law interstitially and in the context of particular disputes. Judges' rulings lack general presidential impact. The third kind of lawmaking is called the Sarov-bil-Imama, which I translate as an administrative act. It is an exercise of the power of the Imam, the power of the public that is vested in the Caliph and delegated to various public officials. Public officials with general jurisdiction when they exercise their administrative powers interpret the empirical domain of the public good, al-Maslah al-Amma. An administrative act might be general by its terms insofar as it applied to everyone in the jurisdiction, as would be the case of a decree regarding marketplace regulations, for example. Or it might be particular insofar as it issues from a judge who exercises this power in connection with a particular legal case, for example, setting the amount of maintenance due a nursing mother from her former husband or the sentencing of a particular criminal. Administrative acts, unlike Fetwas, are binding. But unlike the particular judgments that judges, they are not conclusive and may be prospectively revised or even repealed by the very public official who issued the act or another public official who subsequently obtains jurisdiction over the case. In each of these cases, the relevant decision-makers making a determination of what is in the best interest of those under jurisdiction, al-Aslah or al-Ahsan. A judgment which may change in light of changing circumstances, which requires subsequent change in the administrative determination. Unlike a judge, the public official is not applying the legal norm of a Fetwa to the particular evidence presented in a particular dispute, but is rather formulating rules through the exercise of his practical reason, exercise for the good of the individuals falling within his jurisdiction. Qarafi, however, did not discuss the relationship of administrative powers to the general rules of law that constituted the teachings of the different schools of law, which, according to him, generally authorized individual action undertaken in conformity with their teachings. In other words, introduction of this third category of administrative acts produces a tension between the general task of rule finding based on interpretation of revelation, the domain of jurists, and rule making in the name of the public good, the domain of public officials. We've already seen how jurists developed a particular understanding that governed the validity of these administrative acts, for example, that they be consistent with the rational good of the public. What is unclear, however, is the relationship of an administrative act to the legal norms developed by the jurists, and whether administrative acts had to conform with the law of the jurists, or whether administrative acts could preempt or even displace norms articulated by the jurists in the fiqh. With respect to the first question, post-Qadhafi and jurists in the Mamluk and Ottoman eras attempted to formulate an answer by asking whether it is obligatory to obey a decree if it purports to render obligatory an act that was not obligatory as a matter of fiqh. While Islamic laws formulated by the jurists included five ethical categories of judgments, obligatory, forbidden, superrogatory, disfavored, and permitted, judges were permitted to issue judicial rulings based only on three of these categories, the obligatory, the forbidden, and the permitted. Clearly, a decree that ordered commission of a forbidden act was invalid, while a decree ordering for a performance of an obligatory act was redundant. The controversy, therefore, was whether the decree could compel a person to perform an act that was otherwise, from an ethical perspective, disfavored, permitted, or merely superrogatory. Jurists by the Ottoman era in Egypt and Syria, however, had generally concluded that all things being equal, such commands were morally binding, provided various conditions were met. In determining the validity of such commands, jurists developed what I call a subjective objective test. The first two conditions were subjective while the remaining elements were objective. First, the public official issuing the command had to have a good faith subjective belief that the command was lawful, in other words, not immoral or sinful. Second, the person to whom the command is directed from his subjective perspective must be able to comply with the command without committing a sin. Third, the command must fall, and these now begin the objective conditions. Third, the command must fall within the prescriptive jurisdiction of the official, i.e. in the case of the ruler, the decree must relate to a matter falling within the jurisdiction of the public and not the private. Fourth, the command from a substantive perspective must be rationally related to the good of the community, either absolutely or relatively. Fifth, the public official must be acting within the jurisdictional terms of his appointment. Accordingly, a judge appointed to hear family law cases in Cairo, for example, could not divorce a woman in Damascus, even if the verdict was substantively correct. Nor could he order rescission of a contract of sale in Cairo, even if as a matter of substantive law, the contract was universally recognized as unenforceable. If these conditions are satisfied, if the decree satisfies these conditions, the administrative act is valid and binding, both from a moral perspective and a prudential one. One historical example of a juristic treatment of lawmaking by government officials is found in a legal opinion issued by 15th century chef-aid jurist, a fairly prominent one, Ibn Hajar al-Haytami, in the Mamluk era, issued in response to a question concerning the Galatee of a recently promulgated price control rule. The Mufti concluded that the petitioner, who was apparently a chef-aid, was morally bound to follow a controversial price control regulation, even though the petitioner believed that such a regulation was unlawful. The Mufti reasoned that so long as the ruler had a good faith belief that the rule was permissible, and that would be easily satisfied in this case, given the fact that the Malikis allowed such regulations, and that the petitioners could comply with the rule without committing a sin, which you could because selling a commodity at less than your subjective valuation of is not sinful by any conception, then the rule bound him morally and prudentially because foregoing the exercise of a right is not equivalent to committing a sin. What is unexplained in this opinion is why compliance with the valid command is a moral obligation, Ibn Hajar uses the term Fisir, and not just a prudential one, Filjar. After all, the merchant is not bound to accept the moral reasoning of the Malikis, that this rule as an abstract matter is a permissible exercise of public power as an indisputable matter of revealed law. Nor was there a particular decision by a judge that resolved a particular dispute between this merchant and a prospective customer that would have determined judicially the validity of the price control regulation in a particular case. It seems that the answer lies in the fact that the public official, because he exercises administrative powers lawfully, is acting as an agent of the public. And as a result, his actions bind the members of the public in the same way that the authorized actions of a private agent bind the natural principle. In short, as Cassani suggested, the lawful actions of the ruler are really the actions of the community. And the petitioner as a member of that community is obliged to act in conformity with the legal decisions of the community, at least so long as compliance with such decisions does not entail sin. The same explanation must also lie behind why judicial ruling becomes the law of the case, binding not only the parties to the dispute but also requiring dissenting Muftis who could have legitimately dissented prior to the judicial ruling to affirm the judge's decision. Even as late medieval authority, such as Al-Qarafi argued for the view that the judge's decision in a particular case was morally as well as politically decisive, thereby overturning older doctrine which held that a judicial ruling could not change the underlying moral norm governing the particular dispute. There was no explanation for why individuals could be compelled to appear before a judge. And despite this element of coercion that the judge's decision had these relevant moral features. I think the answer can be found in the morality of arbitration. There it is obvious that the arbitrator's power to resolve the dispute is based on the consent of the two disputants. And it is the combination of their consent to submit to the arbitrator's decision and the substantive correctness of the norms applied by the arbitrator that makes the decision morally salient. The same principle must explain the moral salience of a judge's decision in Islamic law. It is our general consent to the jurisdiction of judges combined with their application of just norms which produces morally salient decisions. One without the other would not be enough. Both are necessary. The jurisdiction of judges, unlike that of an arbitrator, can only be deemed to be consensual if it is the case that they were appointed pursuant to some kind of consensual process when the absence of actual consent, a process which is based on an appropriate consideration of our own rational good, our deemed consent or our implicit consent. The contract of the caliphate attempts to solve this problem by providing a theory of jurisdiction that ultimately derives its authority from a universal delegation of the community to the ruler who then acts as its agent in creating the various sub-jurisdictions of the state including those of the judiciary. We can be compelled to appear before judges because of the decision to appoint them was in some kind of morally meaningful way as suggested by Cassani, our own decision because it was taken on our behalf in accordance with substantively just norms and procedurally appropriate means. From a substantive perspective, the binding decisions of judges are explained by reference to the fact that they're applying norms of divine law but also in a procedurally valid way, right? So if that's the case for judges, we can then construct an account for the binding natures of rules such as price setting, despite the fact that we are religionally entitled to dispute the merits of such a rule from a hermeneutical perspective. Here the answer is that the Administrative Agent Act represents a legitimate, excuse me, the answer is that the Administrative Act, i.e. the decree represents a, I'm getting lost in my words. Here the answer is that the Administrative Act represents a legitimate exercise of the public will. It is legitimate procedurally because it issues from a properly authorized agent and it is legitimate substantively because it does not command the violation of a mandatory norm of divine law. It is rational and it applies to a public matter, not a private one. Just as principles are bound by the decisions of their agents taken within the scope of their authority in private law, the principles, the quote unquote citizens are bound by the decisions of their public agents taken within the scope of, within the scope of their authority when the agents lawfully exercise that authority that has been delegated to them. Public Administrative Acts, then ought not to be understood as commands or as exercises in the interpretation of divine law backed by coercive force, but as expressions of the public's will to exercise its collective freedom in a particular way. And because it is morally obligatory to participate as a member of the public, the public is entitled to coerce those members like the Chef A. Merchant who refused to cooperate with its validly expressed will. Whether that is manifested in the appointment of a particular person as a judge or in particular decrees, regardless of an individual's subjective consent to either of those particular decisions. The mere fact that the public's will is subject to perspective revision, the salient feature of an administrative act which distinguishes it from a judicial ruling, does not mean that an individual can defy the public will prior to such time as the public expresses a change in that will. In one of Ridha's more daring jurisprudential arguments, he argued that while there was nothing objectionable in an individual Muslim adhering to traditional legal doctrines, whether substantively or hermeneutically, those traditional interpretive methods depended for their efficacy on individual ascent to their teachings. Therefore, they were incapable of producing general public law that was capable of undertaking the broad social, economic, and political reforms Muslim society required to overcome their weakness in front of European imperialism. Only positive law, legislated by a state that enjoyed legitimacy, could have stressed these broad structural problems related to the public good. He accordingly advocated for a merging of religious and political authority whereby political authorities would be involved in the interpretation of religious law by placing the public good as the paramount concern of legal hermeneutics in contrast to textual fidelity. And religious authorities would be involved in political life by monitoring political authorities to ensure that their decisions were consistent with the public good. The primary means of reform would be positive legislation for which he introduced the neologism ishtira, a cognate of sharia, to distinguish legislative activity from the historical interpretive activity of the traditional jurists. But it seems that the chief difference between his conception of modern Islamic legislation and the traditional activity of interpretation ishti had was that the former would be collective while the latter was individual. Even for Rida, it appears that the goal of what he called ishtiara was to find an appropriate conception of divine law in the circumstances and in the light of the public good, but to do so through a deliberative body. His belief was that given the proper institutional framework, decisions of such a deliberative body would be accepted as universally authoritative and thereby be an effective means to pursue the public good. While Rida's critique of traditional conceptions of law and political legitimacy were trenchant in many respects, his solution, effectively the creation of a collective body of jurists who through collective exercises of interpretation, albeit one that emphasized the public good over fidelity to real text, raises its own troubling implications. Specifically suggests that legislation, ishtira, is itself a kind of hermeneutical activity, a kind of fetwa. If that is the case, however, on what grounds is it command obedience? The extent of the claim is that it should be followed because it is either a true conception of divine law or more modestly, the best conception of divine law. It reintroduces the problem of religious despotism, which Rida had been so keen to eliminate from Muslim life, albeit in perhaps a less arbitrary form to the extent that such interpretations would be accountable to the public through democratic procedures. The notion that governmental bodies, particularly elected ones, are claiming to apply divine law, however, has caused many prominent Muslim scholars to condemn attempts to incorporate Islamic law into modern legal systems as a distortion of Islamic law, which in their view is essentially an interpretive project and cannot, by its nature, be articulated by a state. In order to protect the integrity of Islamic law as a system of rezealed law, it is therefore crucial that it be removed in its entirety from governance so that it exists outside the realm of politics and serves only as a pure aspirational ideal or as a source of individual morality. This concern that a state's claim to be applying Islamic law is metaphysically untenable and thus at bottom a misappropriation of divine prerogative. And the concern that statutory law lacks Islamic integrity because it's not a product of authentic Islamic legal reasoning are a result of the same error into which Rida fell, namely, the belief that a modern state applying Islamic law is essentially acting as a master jurist, as a much-tehid, with the difference that it has the necessary course of resources to compel compliance with its views regarding what the correct conception of divine law is. The model of lawmaking, which I identify, however, understands positive law as expressions of the public will that meets Islamic conceptions of validity and is not based on interpretations of the divine will. It offers a different understanding of lawmaking in the modern Muslim majority polity, one that places political deliberation at the center of lawmaking rather than scriptural interpretation. One example should make clear the difference. In 2000, Egypt passed a law granting women the right to divorce at will on condition that they waive any monetary claims they might have against their husbands, particularly claims to unpaid dower. The statute substantially reformed the historical doctrine of hola, or wife-initiated divorce for consideration. While all four Sunni schools recognized the validity of hola, they had required the husband's consent. In justifying the passage of this law, the Egyptian government relied on a revisionist interpretation of revelation, arguing that the most relevant prophetic precedents omit any requirement of consent to the divorce. Now I have no reason to doubt the good faith of the Egyptian legal officials who offered this interpretation of the relevant precedents. Nevertheless, the law did contravene a well-established consensus among all schools of law that the husband's consent was required. And after all, consensus itself is a source of revelation according to Sunnis. Moreover, the modest achievements of the law are the sales of reflection of the limited gains that can be had by applying an approach that depends almost entirely on reinterpretation of precedent. If lawmaking of this kind were understood to be a reflection of public will that is informed by, but not bounded by textual precedent, a much bolder approach to the reform of family law could be undertaken that is not dependent on revealed precedent. In this case, for example, and that of family law more generally, it is well-established that the parties of the contract can include conditions, regarding termination of the marriage that go beyond the due default rules provided by the FICC. The state as the legitimate and exclusive agent of the public clearly has the authority to insert mandatory conditions in the marriage contract, regulating, among other things, the terms on which marriages can be dissolved, provided that those conditions otherwise satisfy the conditions for valid legislation, which I discussed in the previous section of the talk. On the theory I advocate, the law of 2000 would be justified, not on the grounds that it is the best understanding of prophetic law, but rather that the state as the lawful agent of the public has inserted as a mandatory condition in all marriage contracts, the conditional right of the wife to a holl upon her relinquishing of all monetary claims against her husband. A proper jurisprudential understanding of legislation as a means for the expression of the public will and not discovery of divine law would also resolve the potential democratic deficit in demands that the state, that states apply Islamic law. If the role of the government is to act as an agent for a properly constituted public will, legitimacy comes from adequately representing that public will, not from the hermeneutical skill of legislators. And if the state acts as an agent for the public and occupies the position of fiduciary toward the public, it follows to the extent possible that the public itself should be regularly consulted regarding the performance of its agent. Moreover, it follows from the theory of the state that I've articulated that Islamic law does not bind the publics of contemporary Muslim states to particular historical institutions, but leaves them free to adopt any set of institutions that are more effective in representing their will as the principle to whom the government as its agent must answer. It is true that the public will in this conception is bounded by revelation and important respects. Insofar as presumably there would be substantive limits on what could constitute valid legislation. But generically, that problem is not dissimilar from the familiar paradox inherent in establishing constitutional limitations on popular sovereignty. Such a conception of Islamic lawmaking by making public deliberation rather than interpretation central to the state's legislative projects might also bridge the gap between Islamists and non-Islamists in post-authoritarian societies. Insofar as the latter fear that demands for Islamic law will exclude democratic deliberation from a political process and replace it with debates about the correct interpretation of Islamic law. By divorcing the question of positive law from interpretations of revelation and instead resting it on the legitimate expressions of public will, we make clear that collective deliberation about the good of the political community is a constitutive feature of Islamic law. And that Islamic law does not exist as some free floating set of rules outside of the political community confronting it only with the binary choice of compliance or non-compliance on a take it or leave it basis. The notion that law must serve the good of the community and that it must be a valid expression of the public will provides a solid basis for a political project that seeks to reconcile historic conceptions of Islamic legality with modern conceptions of democracy and human rights. Or at a minimum, one that is more solid than one which either resolves the problem of Islamic law and democracy and human rights either by collapsing one into the other or by excluding one or the other from the norms of the political community. Thank you. Thank you very much, Professor Falun. For that very invigorating lecture, I appreciate the fact that many of us might have questions to raise. Professor Falun has raised very, very, I mean, topical issues in his lecture. And I hope that perhaps, I mean, we will have a few questions to raise. So if you have any questions, there are questions, but you just indicate and then the microphone will come to you. One, two, three, so one, two, three, four, okay? So you have three, one, two, three, four, yes. Hi, thank you for a very interesting and engaging talk. I just wanted to pose to you the question or the contention rather that at some point, surely, doesn't there have to be an engagement with or of the harmonic process? For instance, in the case of stipulating conditions in the marital contract, because the state's jurisdiction in this respect isn't absolute, so they can't actually say marital contracts without this condition are invalid. And it's possible for private individuals to simply have a marital contract outside this framework. It's just that I feel the knob of the problem or the number of the issue isn't being addressed in that sense, and that you can't escape this engagement with the harmonic process because the state can't actually forbid if you normally exclude, and in the case of the marital contract, there are always ways to evade that, if that makes sense. Child marriage is another good example. If the state cannot simply prohibit a private individual's contracted marriage outside its jurisdiction would still be as far as the valid marriage, I hope that makes sense. Okay, well, I think what you're raising is a question of remedial law, right? And the books of Fika replete with examples of remedial law in the sense of what happens when people act in a way that contravenes the law, right? So this is a dicey question, and it's not just an Islamic law, but also the relationship of common law with statutory law, right? Where, for example, statute might prohibit a contract, right? But what happens if the contract is in fact entered into? How should courts then deal with it? You find the same kinds of problems in some of the later FIQ works. For example, the Ottomans had a regulation regulating the maximum interest rate, they call it the Muamala, right? And so Abedin has a long discussion, what happens if there's a private contract in which the parties violate this, right? And he offers a range of possible solutions. For example, you enforce the contract as written, but you punish the person, the people involved criminally, right? So the same kinds of things are available by analogy, right, to the question that you raise. So in my scheme, for example, I have no problem, it would be completely legitimate to prohibit polygamy outright, for example, as a mandatory condition of a contract. And then of course, people will engage in it, right? So then what the solution is. I mean, I think that's a complicated remedial problem. My sense of just looking at the historical FIQ is what jurors would say is, okay, you deem the consequences of the marriage legal for certain purposes, but you can still punish the people who engage in the contract for violating the public rule, right? So I don't think it's as big of a problem as you say, right? Because people violate the rules all the time. And in fact, that's one of the biggest justifications of the rules of the law is to come up with remedies to solve the problems that happen when people violate the rules, right? So like in the case of child marriage, for example, it's a very easy issue to resolve, right? Again, a guardian under traditional principles of jurisprudence can never enter into the contract of marriage for his child unless that's in the best interest of the child. So it doesn't seem to me a very difficult argument to make that in the 21st century where there's universal education or at least there's an aspiration to provide universal education to everyone, that it's never in the best interest of a child to get married. Now, what happens when it happens, right? That's called wukor, right? When actually happens, then you have problems. We can analogize. For example, jurists talk about cases where orphaned girls were married in contravention of the rules regulating those things. Well, if you catch it immediately, you dissolve it and you break it up. But if you don't catch it, okay? They say, you know, either taal, well, wuli datil awlad, right? Then you have to do post facto validation of it, right? That doesn't omit the possibility of criminal punishment, right? So jurists have actually developed lots of very flexible remedial tools that could be adopted to solve these kinds of problems. Sorry, I mean. In the case of polygamy, you cannot escape engagement with the harm-addictic process. You'd have to warrant and justify on the grounds of... No, I don't think so. If a husband puts in his own stipulation, his own contract, that he's not going to marry another woman, he's done so not by interpreting revelation, but simply saying, I will not do so, right? That requires no hermeneutical justification at all. He's just refusing to exercise a certain privilege that he has. So the same thing, if a public agent does the same kind of thing, he's not making a hermeneutical engagement. All he's saying is that it's not prohibited for me to refrain from exercising this right. That's not a reinterpretation of anything. Please, I mean, if you have any follow-up on that, perhaps maybe during the reception, you can engage with him. So second person, please. Second question. Thank you very much for that illuminating talk, Professor Fadal. I have two short questions. First, even if positive legislation is not problematic per se from the perspective of the classical Islamic legal tradition, would you agree with any aspects of Professor Halak's thesis that there are certain aspects of the nation-state's institutional arrangements that are incompatible or problematic from the perspective of the classical tradition? And should I ask my second question? Go ahead. Okay. And secondly, you noted that one limit on the ability of the sovereign to legislate was the fact that they could not compel individuals to commit a sin. But are there any other limitations on the legislative ability that we could look at as providing a realm of negative freedom for the individual from state compulsion, aside from being free to be required to commit a sin? Well, okay, I'll start with the second one. I mean, part of the talk I was articulating that there are lots of grounds. There's not just one ground, that one criteria that a statute has to meet for it to be binding. There are several, right? It has to be rational in the right sort of way, in a public way. It has to fall within the public domain, right? It has to fall within the grant of power given to the official. All those things are requirements that must be satisfied for a statute to be legitimate, right? Well, the grounding of public, it has to be substantively rational, right? Now, as anybody knows, in the course of constitutional law, the history of constitutional law, certainly in the United States, I can't speak of other jurisdictions, courts have given up basically on the idea of policing the substantive rationality of state action, except with regard to very certain, very delimited set of personal rights, right? That's why, I mean, human rights has now just been limited purely to these sort of personal negative rights against the state. I mean, I think that requires some sort of democratic accountability is really the only thing that I can answer to that, right? In theory, as long as these rules are generally applicable, they're publicly rational, they fall within the grant of power given to the official, they should be legitimate. But as I tried to conclude with, if you recognize that the relationship is ultimately one of delegation and contractual, then you have to look at the nature of the constitution, right? Not Islamic law. You have to look at the nature of the power that's been delegated to the public, not the Quran, okay? Now, going back to Professor Halak's hypothesis, we just have a very deep disagreement, okay? Very deep. And what I would say is we probably agree on the nature of the modern Arab state. I don't think anybody would disagree on the nature of the modern Arab state. My disagreement with him is that he thinks that the modern Arab state is the epitome of the state. He, I mean, in my opinion, he thinks that a state can only exist in one form and that's rapacious, right? I don't buy that. But more importantly, aside from our differences about majority, I think he ignores the actual historical evidence within Islamic law. The important point is that Islamic Muslim jurists did not conceive of the state purely as predatory. They worried about the predatory nature of the state, but they also believed that in many cases, public officials could act in a proper way and could lawfully compel obedience in many things, right? So it wasn't a black or white scenario from the perspective of Islamic law and that's what I ultimately care about here, right? So that's what I would say. So I just don't think that his depiction of the rules of Islamic law is accurate. Thank you for that very interesting lecture. You said all persons are morally equal. Well, what are the powers in public life and decision making that women were able to have? Or is it a bit like the American Declaration saying all men are equal and in fact, it means half of the human race? Well, according to their conception of equality, right? Any kind of limitation on female capacity was grounded in divine will. So all human beings were equal in their relation to God, right? Now, that doesn't mean that we have to accept their conceptions of equality, but I'm saying in principle, with respect to divine sovereignty, all human beings are equal and all human beings- What was the law of nature interpreted by men? No, but hold on, let me finish. So one significant way in which women were considered the moral equals of men, even in the Middle Ages, was that women were equally competent to be interpreters of divine law as men. So gender was not considered a prerequisite to be an interpreter of the law. Now, empirically, of course, there were a lot more men. Virtually all were men. But conceptually, or as a matter of principle, women could be much-tahed or much-tahed to the same extent as men. Number four? Yeah. Thank you. Thank you for your talk. You didn't say a lot about democracy or human rights, except in the last few sentences. So I would invite you to elaborate something about that. I mean, one of the definitions of democracy in the modern state is the separation of powers. And I'm not convinced that you've sketched out a basis for the separation of powers. Nor, indeed, for human rights, because one of the aspects of human rights is that the law must be known in advance. So there can be no punishment without law. And the law must be known in advance. And it must be for a prescribed aim, legitimate aim. It must be proportionate to that aim. And it must be as asserted by law. So it's not really possible to discuss human rights without accepting that. And obviously, I mean, the definitions of the separation of powers are many and varied, but it is something which is understood as essential to the functioning of democratic order. Well, I'm not quite sure what I said undermines the idea of a separation of powers. In the pre-modern era, or pre-Montesquieu, there was no strict conception of we have to have a legislative branch, an executive branch, and a judicial branch. I mean, where I live in Canada, there's a complete merger of the legislation and the executive. I think that's the same thing here in the UK. What I would say in pre-modern Islamic law, particularly in one of the jurists that I'm interested in, Shabedin Al-Qarafi, what you have is an epistemological separation of powers. So there's lawmaking understood as a hermeneutical activity which is defined by the epistemological domain of revelation, right? And so that generates general applicable norms but are non-coercive. And that's done through scriptural hermeneutic interpretation. Then the judiciary is distinct, again, epistemologically speaking, because the kinds of data that judicial officials use is evidenced as admissible in a courtroom. And those are eyewitness testimony, oaths, and admissions, right? Combined with the fact that they have to have a lawful delegation from a legitimate ruler, right? So the judiciary is clearly distinguished from lawmaking, right? Then in terms of what I would call, either you can call it administrative law or legislation or enforcement, right? That's again, what the Muslim jurist called Tanfidh, right? Or Tasarruf al-Imamah, right? This is in public officials, Wulat al-Umour. Now, again, if you were to look at the jurisdictional history of pre-modern Muslim states, there wasn't this what I would say doctrinaire commitment to that all judicial power must be vested in the judiciary. All executive power must be vested in the executive, right? All legislative power must be vested in the parliament. Rather, public officials often combined elements of each. But the important point was when we reviewed the legitimacy of their actions, we reviewed it subject to the doctrines that govern that exercise of that power. What do I mean by that? Again, according to Qarafi, the caliph in theory can exercise every single legal function imaginable. He could be in theory, he could be a tax collector in theory, he could be a judge in theory, he could be a mufti, all these things. But whenever he acts in those capacities, he has to act in the same way that an ordinary judge would or an ordinary tax collector would or an ordinary mufti would. Subject to all the restraints that would apply to an ordinary mufti, ordinary judge, ordinary tax collector, et cetera, right? So you don't have the doctrinaire separation of powers, but you do have what you might call a functional separation of powers based on the kinds of evidence and that are applicable and missable for legitimate decision making in each one of these spheres. Finally, with respect to human rights, I don't think the problem of, for example, the specific problem of the advanced articulation of the law for criminal punishment is a problem of principle in Islamic law. I mean, it's true that pre-modern law, you had the doctrine of tazir, right, which didn't require a specific codification of the rule in advance, but that's not really a matter of theological principle or anything, as I said. And I think this is really a crucial point to emphasize. If you accept the basic hypothesis that the structure of public law is derivative of a principle-agent relationship, then that by itself tells you that Muslim communities are free to completely revise the rules governing these institutions. So if we think, by the way, this is a matter of controversy among criminal law scholars, at least in the United States, if we think that judge-made criminal law is a bad idea, then we prohibit it, right? Although the evidence from the U.S. is not necessarily consistent with that because we've seen that statutory criminal law has been much, much more damaging to citizens than judge-made law, but in any case, that's another debate. Okay. Okay. Can I ask one final question? Yes, please. An isolation with different conditions. Concern that if you define them from the point of view of a traditional and conservative society, then you could end up with something that was traditional and conservative. I was thinking, for example, of the Brunei penal code. I'm sure the citizens of Brunei might say, well, that was an expression of public will and was for the benefit of the community, not withstanding that some of its provisions are extremely conservative. An ally to that, what about the obverse where the situation or the ideas that you're giving would result in legislation that has been accepted as a reinterpretation actually is contrary to the public will or if I'm thinking of things like certain commercial types of legislation in the goth, basic acceptance of interest in certain circumstances and not others which is effectively a reinterpretation of the meeting. Right. So what I'm saying is that there could be a downside in relation to accepting new law. There's always a downside to democracy, right? There really is. I mean, if the only thing we care about is the substantive results, then democracy is a really bad idea. I mean, Plato told us that more than 2,000 years ago, right? So I have my own defense of the idea of democracy, even if the substantive outcomes aren't good. I think democracy has to be fended consciously, knowing that its results are not going to be what are substantively ideal from, let's say, a perspective of what you or I might consider to be the morally best outcomes. But one thing I think that democratic lawmaking has going for it, and I was talking to Machute about this before the talk, is democratic societies tend to have a much higher degree of effectiveness of law and voluntary adherence to law. And what I see in the Arab world is we have several generations of top-down lawmaking, which has absolutely had very little positive benefit in actually changing their societies. Rida has a very interesting discussion about this in El-Khilafa, about the place of women in Muslim societies. And he says that, yeah, I take the point that we have lots of traditions in our countries that are bad, right? But the solution to them is not through an authoritarian government that rules despotically through force, right? I mean, because he was contrasting the various different political options. So yes, we could go the route of Ataturk and have sort of secular nationalism, but that's going to create its own kind of despotism. Or we can go the traditionalist authoritarian model, and that's going to be, in his view, the worst of all possible alternatives. But he was saying, if you go by the route that I'm offering is that we can have gradual reform over generations that people will actually accept and comply with willingly, right? And presumably, that's the price you pay for democratic legitimacy is that you go slower, but you get much broader acceptance of the changes. I mean, that's got to be the only sort of defense of democratic procedures and lawmaking if you have a strong idea of what normative law is supposed to look like, right? And so I'm sure there are lots of things that I would disagree with in Brunei, but if they are, in fact, in a democratic process, which I don't think is the case in any event, then I think you're on the route to actually sustainable reform. I mean, the United States looked very differently a hundred years ago, even 50 years ago. I grew up in Georgia, state of Georgia, nine years after the Civil Rights Act. I mean, it was just not even a decade after the Jury segregation had come to an end. And it was, when I moved there, it was still pretty much de facto segregation. But in a generation, it's really gotten better. I mean, it's surprising the extent to which it seems to me that democracies have much more effective way of changing the morality of the people than top-down coercive legislation. I mean, I could be wrong. Well, thank you very much. I mean, Professor Fadler, we really appreciate your coming. And also, I believe we really enjoyed your paper. Please, let's give Professor Fadler a round of applause. I will now with pleasure call on Dr. Nivar Sovdani to give the vote of thanks. And then we will then go to the forum for the reception. Good evening. I would like to start by thanking you all for coming to the Coulson Memorial Lecture to hear about cutting-edge research by leading scholars of Islamic immigration law. And on behalf of Simil and the School of Law, I would like to thank Professor Fadler for coming all the way from Canada to present his work. Now, I personally admire Professor Fadler's work for several reasons, and that's why my students have been reading your work. Despite the changing name of my courses, somehow your writings stay. Among these reasons are, first, I think his work is illuminating because it's grounded in both Islamic legal theory and Western political theory. Because the very focus on the Islamic law might be leading us to emphasize the idiosyncrasies of Islamic law and not seeing the connections and the dominant themes that cross cultures and even eras. So his work, I think, is a constant reminder of these similar concerns that animated Jewish and political theories in both Islamic world and Western world. And for me, this has the effect of demystifying Islamic law. And I think this is important, and in that project broadly conceived, I'm a fellow traveler. Secondly, unlike what seems to me the dominant focus on private Islamic law, his work focuses on Islamic public law and all Islamic constitutional theory. Because I think the very focus on private law, which is also the effect of institutional realities, seems to reproduce the view that there is a sharp distinction between the two spheres, the public and the private, and that Islamic theorists had nothing to say about public and political authority and the limits of political authority. Or that Islamic law is all moral and about virtue and pious behavior as opposed to political. Professor Fadler's work, I think, is a major corrective for this kind of over emphasis. In this lecture specifically, which I had the pleasure of reading a longer draft of, I found four points that Professor Fadler discussed of a major importance first. The lecture presents a different model than the one we heard in the previous Coulson lecture last year by Professor Hallaq. Unlike Professor Hallaq, Professor Fadler rejects the notion that there is an incommensurable gap between Islamic law and modernity. And unlike Hallaq and unlike Abdul-Ilahi Naim, which also delivered the Coulson lecture at some point, he does not see a theoretical impossibility in incorporating Islamic legal norms into the state's positive law. And I personally find Professor Fadler's arguments much more compelling and much more grounded in the materials. He neither falls into the trap of idealizing legal Islamic legality, nor does he posit a false and simplifying binaries. Secondly, the question of the legitimate political authority, that is, what are the conditions under which the exercise of coercive power is morally justified? And we learned from this lecture that for many of the theorists that Professor Fadler discussed, from the legitimacy of political authority, it follows that there's a general duty to comply with, on the part of the citizenry, or the subordinate officials. But this duty is checked by substantive judgments. So the notion of legitimacy means that there is both an authorization to exercise power, but also a limitation on that power. Thirdly, for this conception of legitimacy and for the correct conception of Islamic law, we cannot divorce the law or the textual from siyasa. But we need a correct understanding of siyasa and of the role of the political community as the one authorizing the ruler to act on its behalf for its well-being and on rational grounds. In other words, it's a contextualist conception. It's a contract-based conception of legitimacy between the government and the ruler. Fourthly, if we do, then we need to not shy away from implicating the state in reforming Islamic legal regulations of social and economic affairs. That is regulation in the private sphere as well. Nor do we need to engage in sophistry or tweaking ancient texts to suit our current needs. For these and the other points you made, we are all grateful. So thank you again for a great lecture and discussion. And before I wish you all a good night, I would invite you to come again tomorrow after 3 p.m. to listen to Professor Fadel again on the first panel of Law, Politics, and Consummaking in the Arab Spring. And you will see then the other half of his work that was not totally evident in this lecture. So please join me in thanking Professor Fadel. Have a good night.