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VOLUME IV ISSUE 3 (JULY 2017)

Articles

1. Shattering Chains When the Sovereign Will Not Responsibility to Protect and the Use of Military Intervention to Stop Slavery by Ethan A. Dazelle
of University of Massachusetts School of Law, at 427-73

As an emerging international norm that recognizes genocide as sufficient ground for circumventing the fundamental principle of sovereignty, which generally forbids humanitarian intervention, the Responsibility to Protect (R2P) should and does allow for the legal use of military intervention by the international community whenever a sovereign State and practicing, tolerating, or failing to eliminate slavery that is publicly and openly practiced. Intervention under these terms against a legally-institutionalized form of slavery is not only fully compatible with the present obligations of U.N. member States, including the permanent members of the U.N. Security Council, but demanded under the U.N. Charter Article 1, the Slavery Convention of 1926, the Universal Declaration of Human Rights, and other sources of humanitarian obligation. Thus, R2P necessitates a response that fully resolves the manifest failure of the sovereign. Such a response would be a multilateral, Security Council-authorized operation centered on reacting in force to free slaves and to dismantle the infrastructure of that extraordinarily peculiar institution, followed immediately by reconstructing the territory, and preventing further crimes against humanity.

Keywords: Humanitarian Intervention, Use of Force, Human Rights, Law of War, Global Governance.

2. Use of Parliamentary Debates for Statutory Interpretation in England and India: A Comparative Jurisprudential Critique
by Ajay Kr. Sharma of Faculty of Law, National Law University, Jodhpur—India, at 475-517

This article demonstrates the utility of the Pepper v Hart rule in statutory construction. It critiques dominant judicial and extra-judicial views in England, which support the traditional “exclusionary rule” and are critical of the Pepper rule, after delineating the conceptual principles relating to the interpretation of statutes. It deconstructs and simplifies complex narratives in the dialectical debate centering on this issue, and indulges in a comparative case law analysis, with the scrutiny of judicial reasoning, regarding the judicially evolved rules by the highest courts in the U.K. and in India on permissibility and usage of Parliamentary Debates for statutory interpretation over the years. This article not only visualizes the contribution and application of the Pepper v Hart rule in the correct perspective for both the jurisdictions but also, by a critical analysis of salient Indian Supreme Court judgments, after the reception of the Pepper rule in India, advocates for a consistent approach with its proper application.

Keywords: Legal Reasoning, Legal Interpretation, Comparative Law, Constitutional Law, Common Law, Jurisprudential Reception.

3. Reflections on the Rule of law upon Listening to President Xi by John Prince of Wenzhou-Kean University, at 519-59

In recent years, the Chinese government has made significant rhetorical commitment to the rule of law. Many skeptical observers, however, doubt not only the current commitment but whether such notions as “rule of law” even could take root in China’s intellectual soil. A primary cause of this skepticism is a widespread perception that the long-dominant Confucian tradition rejected such an idea in favor of “rule by virtue.” The position in this paper is that such skepticism misunderstands both the nature of the Chinese Confucian tradition’s position on law and what the concept of the rule of law actually entails. Clarifying a more effective understanding of the nature of law, what this article calls the“narrative”jurisprudential model, and comparing that model to the Chinese tradition, shows that there is potential for a rule of law understanding to take root in China. Of course, potentiality is not actuality. It will take time and struggle to bring a rule of law regime into full bloom in China, but there is a sufficient basis in Chinese intellectual history to provide some traditional support for such a regime.

Keywords: Legal Philosophy, Comparative Law, Legal Tradition, Eastern Philosophy, Confucianism.

4. Development in Law and Practice Two Autonomous Domains? by Irene I. Hadiprayitno of Leiden University, at 561-93

This article aims to bring into discussion the potential, and yet overlooked the normative contribution of the internationally declared right to development to address “development hazards” in domestic realities. Of particular interest is the examination of the distinctive principles of resource control, participation and distribution of benefits and their use as tools to combat negative impacts of a development project. For this purpose, the concept of “development hazards” is defined and explored in order to establish an analytical framework for the implementation of the right to development in national development process. Using insights from the case of agricultural modernization in Merauke, Papua, realizing the right to development in practice would mean to understand the dilemmas concerning development process, as much as issues of power and agency that enable as essential in efforts to protect human dignity in development processes.

Keywords: Law and development, Indonesia, agricultural law, law and anthropology, human dignity, human rights law.

Review Article 
5. When is a “Slight Violation Pardonable”?: An Inquiry to a Legal Maxim in Islamic Law, by Omar Aloudah of King Faisal University, at 597-645;

In Islamic financial transactions, there appears that a “slight violation is pardonable” as one can easily find in a range of Islamic financial transactions, such as agency (wakala), lease (ijara) and partnership (sharika), which are crucial to the practices of Islamic banks and other financial institutions that invest their capital according to Islamic law (Shari’ah). In that regard, this article explores the vision of Shari’ah in dealing with transactions involving slight violations due to unauthorized actions of one of the contracting parties. Specifically, this article defines the meaning and binding authority of the above maxim alongside the criteria of judging an action as “slight.” In the course of the discussion, juristic cases will be demonstrated before presenting their relevant legal rulings. The germane views of the four schools of Islamic law (Hanafi, Maliki, Shafi’i, and Hanbali) will be consulted. Analysis and interpretation of related Islamic texts will be completed. Views of the leading contemporary jurisprudential Islamic councils will be presented, pertinent criticisms and discussions, if any, will be exposed, and reference to the preponderant view will be included. To that end, the article focuses on the foundations for issuing Islamic rulings with regard to pertinent, yet debatable situations and incidents in order to study some applications connected to the legal maxim in question, which constitutes the working principle for some Islamic banks, and the extent of their compatibility with Islamic law. Furthermore, it investigates the legal ruling of approaching and investing in institutions that do not comply with the rules and principles of Islamic law, for instance, dealing in usury (riba) on a small scale.

Keywords: Islamic Law, Financial and Banking Law, Comparative Law, Private Law, Law and Religion.

Book Review 

Redefining the Right to Food: State Food Crime by Rhoda E. Howard-Hassmann (Cambridge University Press, 2016), reviewed by Pranoto Iskandar of the Institute for Migrant Rights, at 647-49.