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Volume II Issue 4 (October 2015)

1. Born into Bondage: Enforcing Human Rights of India’s Manual Scavengers by Varun Aery of The University of California Davis School of Law, at 719-42;

Abstract. Throughout India, manual scavengers are responsible for collecting and disposing of human filth from dry latrines. Scavengers are subject to gross violations of human dignity, extreme health risks, and social discrimination that ensure a cycle of poverty extending for generations. Manual scavenging is not a form of employment; it is a form of bondage that oppresses Dalit women disproportionately. Despite enacting domestic statutes to prohibit manual scavenging, India’s constituent governments have directly undermined national efforts to combat this practice. This article identifies and analyzes India’s specific treaty obligations to not only eradicate this practice; it also identifies means of holding government officials accountable for perpetuating this human rights violation.

Keywords: Human Rights, Labor Rights, Foreign Law, International Legal Obligation, Cultural Relativism.  

2. The Customary Practice of Gerawee in Afghanistan: A Case For Transitioning to Real Equity-Based Finance by Haroun Rahimi of Herat University Law and Political Science Faculty, Afghanistan, at 743-74;

Abstract. The customary practice of Gerawee, in principle, refers to a specific form of synthetic loan.  It is a pledge-lease transaction that enables owners of immovable properties to obtain financing based on the market value of those properties in exchange for either paying regular payments in form of rent or transferring the right to lease those properties to a financer. The practice has been developed to help debtors and creditors avoid the prohibition of interest bearing loans under Shari’ah. Despite the efforts of some Muslim jurists to justify the practice under Shari’ah, it is widely criticized. In particular, Afghan muftis generally consider the practice of Gerawee “un-Islamic,” and under Afghan civil code, the practice has no formal standing.  Nonetheless, it has been used, and unfortunately, has created problems such as fraud, and ineffective legal protection for financiers. 
This article recommends that Afghans adopt a modified Islamic finance product known as the “Musharakah Mutanaqisah Partnership (MMP).” The MMP is a joint-ownership arrangement created by a sales contract, which was developed in Muslim countries to solve the housing problem. The modified MMP (MMMP), as prescribed in this paper, can deliver the expectations of the parties, and address the legal and Shari’ah-related objections by transforming the practice from debt-based finance to equity-based finance under which the parties share the risk. This solution eliminates the main causes of criticism of an MMP, which are the lack of a bona fide sale contract and risk sharing.
 
Keywords: Gerawee, Musharakah Mutanaqisah Partnership, Islamic Mortgage, Customary Financing, Prohibition of Riba, Afghanistan Civil Code. 


Abstract. This article provides a comparative analysis of sustainable building policy and lawmaking in the United States, Germany, and the Netherlands. It is important to examine and analyze the approaches utilized by three developed countries advanced in the area of sustainable building initiatives, as the world’s environmental degradation is largely attributed to the building industry. The purpose of this comparative analysis is to review the country characteristics alongside the approaches taken to advance sustainable building practices to identify components other nations may use to commence or improve their contribution to the built environment. First, a review of frequently used terms will be offered to orient the reader with sustainable building industry terminology. Next, the sustainable building initiatives of the United States is presented in four parts: (1) the role of the federal government, (2) the role of the state and local government, (3) the role of private entities, and (4) preemption. A review of the sustainable building initiatives of two member states of the European Union (EU) will include Germany and the Netherlands. A comparative analysis of the sustainable building processes of the United States, Germany, and the Netherlands will be discussed collectively. Finally, the author will offer insight with regard to the challenges encountered by the countries discussed as well as possible solutions to achieving increased sustainable building practices.

Keywords: Greenhouse Effect, Construction Law, Comparative Environmental Law, Comparative Energy Law, Sustainable Development. 

4. The Problematic Right to an Abortion from a Natural Law Perspective by L. Darnell Weeden of Thurgood Marshall Law School, at 803-45;

The right of privacy has expanded significantly since it was effectively utilized fifty years ago to invalidate the conviction of individuals for violating Connecticut’s birth control law in Griswold. Nevertheless, the right to privacy continues to create controversy in the twenty first century as an unacceptable legal theory or as a constitutional right among some respected legal scholars because the term privacy does not appear in the United States Constitution. Specifically, the regulation of abortion rights based on a right to privacy is an ongoing and intense topic of public interest because recent abortion regulations are viewed by one commentator as placing an undue burden on a woman’s right to an abortion. As a response, the issue to be addressed here is whether a vague right to privacy denies a state an opportunity to regulate an abortion in order to protect the post conception right of an innocent life as well as a woman’s health. In doing so, it criticizes the Ninth Amendment approach to a right to privacy and of the various and conflicting levels of scrutiny applied to abortion laws. Therefore, it concludes that the right to privacy is vague and that a Fourth Amendment approach might have produced a narrower, but more coherent doctrine of privacy rights.

Keywords: Right of Privacy, Constitutional Law, Legal Reasoning, Supreme Court, Women's Rights.

5. Law, Fugitive Capital and Karl Polanyi's The Great Transformation by Walter J. Kendall III of the John Marshall Law School, at 847-65;

Abstract. The basic ideas of Karl Polanyi, a sometimes forgotten thinker, are that the  autonomous, self-regulating market is neither natural nor central to society. Rather that social, political, and cultural institutions shape, and should shape, how the economy works. The market is seen as a means to the Good; not as an end in itself. Rather than Adam Smith's truck, barter, and exchange, Polanyi sees as the ordering principles of society reciprocity, redistribution, and householding.
This essay is themed around Law as both a central cause and consequence of society; of its political, economic and cultural practices and values. It presents an understanding of the link between law and law reform, and Polanyi's concepts of embeddedness and double-movement. Law is a moral idea reflecting the ideals of its society, and an instrument of order, a social glue. It is embedded in the economy and embeds the economy in society at the same time.

Keywords: Law and Economics, Legal Philosophy, Liberalism, Law and Society, Legal Reform.