BIO: Mohammad H. Fadel is Associate Professor at the Faculty of Law, which he joined in January 2006. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago. Professor Fadel was admitted to the Bar of New York in 2000 and practiced law with the firm of Sullivan & Cromwell LLP in New York, New York, where he worked on a wide variety of corporate finance transactions and securities-related regulatory investigations. Professor Fadel also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court of Appeals for the 4th Circuit and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. Professor Fadel has published numerous articles in Islamic legal history and Islam and liberalism.
ABSTRACT: The Sunni response to the crisis of post-prophetic authority was the concept of the caliphate. In contrast to the Shi’a concept of divine election (nass), Sunni theologians maintained that succession to positions of public leadership of the community was a matter of the community’s choice (ikhtiyar). Yet, this was not an unbounded choice: through the rules set out in the theological and juridical discussions on the caliphate, Sunni scholars made clear that the community’s choice was to be guided by certain rules, standards and procedures. Dogmatic works of theology, and even juridical works such as al-Ahkam al-Sultaniyya of al-Mawardi, however, were interested more in the notion of how a legitimate post-Prophetic order is established rather than the details of how, once it comes into existence, its ongoing legitimacy, or the legitimacy of its actions, is to be measured. To find an answer to this question, this paper argues that Sunni jurists adopted a theory of public life that assumed public officials obtained their authority exclusively as agents of the Muslim public. Accordingly, the representational ideal of agency provided the moral basis for determining the legitimacy — or lack thereof — of the actions of public officials. The existence of this ideal is documented not in an explicit discussion of the nature of public offices in the fashion of political philosophy, but as befits jurists, manifests itself interstitially in the operation of numerous rules and doctrines in various chapters (abwab), jurisdictional and substantive, of the jurists’ positive law (fiqh). This paper outlines the source of the representational ideal of public offices, beginning with Sunni juridical discussions of the contract of the caliphate, and its operation as the crucial enabling and limiting principle on the powers of public officials through various examples from positive law.