Articles

1. Political Patronage and Judicial Appointments in India by Khagesh Gautam, at 653–723;

The issue of judicial appointments in the higher judiciary (i.e. the Supreme Court of India and the State High Courts) has been in the news recently. The new government, carrying forward the efforts of previous governments, introduced the 99th Constitutional Amendment amending the Judges Appointment Clause (article 124) of the Indian Constitution and introduced three new articles in the Indian Constitution providing for a National Judicial Appointments Commission (NJAC) for appointing judges to the higher judiciary. Along with this amendment, the National Judicial Appointments Commission Act, 2014 was enacted. Thus the previous system, also known as the Collegium System of appointments, whereby the Indian President had to give primacy to the opinion of the Chief Justice of India in matters of judicial appointments in higher judiciary was replaced with the new NJAC system of appointments. This new constitutional amendment and the NJAC Act were immediately challenged before the Supreme Court of India as unconstitutional and void as violating the principle of independence of judiciary, which is a part of the basic structure of the Indian Constitution. In the Fourth Judges Appointment Case, decided on October 16, 2015, the Supreme Court of India by a majority of 4 judges to 1, declared the 99th Amendment as violative of the basic structure. The majority of 4 judges also held that in the absence of the 99th Amendment, the NJAC Act automatically became unconstitutional and void. The lone dissenting judge did not express any opinion on the constitutionality of the NJAC Act since the majority had already found it unconstitutional.
    This article engages with the Patronage Rationale provided in the Fourth Judges Appointments Case. The Patronage Rationale holds that any system of judicial appointments in India that envisages active participation of the executive branch of the government would result in judicial appointments being made by the politicians (who dominate the executive branch) to patronize whatever constituents the politicians wish to patronize. Judicial appointments being made on the basis of purely political considerations designed to further political interests would seriously jeopardize the independence of the judiciary in India. Although in the Fourth Judges Appointment Case five opinions were delivered by the judges spanning over 800 printed pages (including case notes) of the law reports, not much time was spent expounding the Patronage Rationale. This article engages with the Patronage Rationale and provides comparative and historical evidence to support the same. This article argues that the Supreme Court correctly struck down the 99th Amendment (and consequently the NJAC Act) as unconstitutional. Evidence from the drafting era, other historical evidence as well as comparative evidence very strongly suggests that under Indian conditions giving the executive branch an active role to play in judicial appointments is bound to hijack the process in order for it to be used to practice political patronage. The individual character of any one Minister or politician notwithstanding, any active participation of the executive branch will eventually result in the system being hijacked thus seriously jeopardizing the independence of Indian Judiciary and that is something that cannot be afforded under Indian conditions.

2. Teaching Comparative Contract Law through the CISG by Edgardo Muñoz López, at 725–57;

The author submits that the 1980 United Nations Convention on the International Sale of Goods (the “CISG”) serves as an effective tool to teach and learn comparative contract law. This work attempts to contribute to the scholarship and teaching of comparative contract law by unveiling the CISG as a material that may successfully set the students’ learning process into motion. The author demonstrates how students can discover knowledge about foreign legal systems by decomposing the content and design of the CISG with the professor’s help. The author offers some guidelines on how to use the CISG to overcome the apparent difficult questions of comparative contract law and suggests some starting point exercises to teach comparative contract law through the CISG.

Keywords: Teaching Law, Comparative law, Contract Law, CISG.

Review Article
3. Mapping Law & Development by Liliana Rodriguez, at 761-895;

This paper presents an overview of the emergence and evolution of the concept and field of Law and Development (L&D). The concept of L&D covers a variety of aspects. These aspects acquire different meanings depending on different criteria and approaches, depends on the geographical context, depends on the scope and meaning that is given to the concept of “development,” and depends on whether a disciplinary or interdisciplinary approach is followed. The discussion is also including the role of ideology and politics in the distinct currents within L&D. The paper does not present the development of L&D as a historical sequence of stages or waves, but rather emphasizes simultaneity, cross-fertilization and dialogue, convergence and divergence, and hidden connections between approaches. It recognizes that there is no unique or ‘best’ way to map and classify the various approaches to L&D and their respective abundant literature. There is no unique criterion neither to establish the scope and borders of this field. Fuzziness and overlap between categories and areas are unavoidable. The paper opted for a fundamental distinction between approaches on the basis of their scope, and taking the law as point of departure, as follows: national perspectives (the economics-oriented/institutionalist approach versus the anthropology- and sociology-oriented approach), international perspectives (public international law perspective and the Third World Approaches to International Law), the transnational approach, comparative L&D, and finally, approaches based on transnational thematic areas (human rights, sustainable development, and transitional/restorative justice and post-conflict law). From this mapping exercise, the author draws conclusions of two types: conclusions related to the object and scope of L&D, and conclusions related to the functioning of L&D as a community of scholars and practitioners.

Keywords: Legal theories, rule of law, law and society, international development, law and ideology.

Note
4. Evolution of the Sexuality Law in Cuba by Norka Garcia, at  899-931.