Forthcoming Articles

Juristic Applications of the Islamic Legal Maxim "Slight Violation is Pardonable" in Agency, Lease, and Partnership in Islamic Law by Omar Aloudah of the University of King Faisal, Saudi Arabia

E-mail: oaloudah@umail.iu.edu
 
This paper discusses the applications of the Islamic legal maxim "slight violation is pardoned” that are carried out by a range of Islamic financial transactions, such as agency (wakala), lease (ijara) and partnership (sharika), which are crucial to Islamic banks and other financial institutions that invest their capital according to Islamic law (Shari'ah). In particular, it explores the vision of the Shari'ah in dealing with transactions involving slight violations due to unauthorized actions of one of the contracting parties, for instance, uncertainty (gharar), slight defect, slight ignorance (jahala yasira), or simple gifts and donations from a partner or member of the Board of Directors of a corporation, without prior permission. The paper defines the meaning and binding authority of the above maxim alongside the criteria of judging an action as "slight". In the course of discussion, juristic cases will be discussed before presenting their relevant legal rulings, germane views of the four schools of Islamic law (Hanafi, Maliki, Shafi'i and Hanbali) will be consulted, an 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. The paper focuses on the foundations for issuing Islamic rulings with regard to pertinent, yet debatable situations and incidents. It explores 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. 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. Thus, the study of legal maxims is important in order to synthesize their scattered applications in such a way as to save Muslim jurists from being required to commit the branches and particles of the maxims to memory. Juristic maxims help to develop and polish the juristic skills of researchers, particularly in assessing and judging recent incidents and other contemporary concerns (nawazil). More importantly, it also helps to apprehend the purposes, intricacies, and general objectives of Islamic law in its true spirit and substance. 

Keywords: Legal Maxims, Islamic Law, Comparative Private Law, Civil Law, Islamic Financial Law.

The Ethical Bases of Human Rights by Scott FitzGibbon of Boston College Law School

E-mail: fitzgisc@yahoo.com

The purpose of this essay is to depict the ethical bases of human rights. Understanding this matter is exigent in the modern era, when Western thought has turned away from the exclusive positivism and conventionalism of earlier centuries and has welcomed a massive influx of supranational rights, presented as founded on suprapositive ethics. More and more rights are being proposed, and many divergent theories are propounded as to their bases. 
In light of the above, the basic question must be: what goods are worthy of important protection (of any sort, individual, social or legal)? A primary purpose of this essay is to propose an answer to that question. This essay claims that the most important goods relate to the nature of the person. A general statement of the thesis is this: if you could not be fully a person without something—your life, for example, or  your mind—that thing is a part of fundamental good. If you could not be fully a person without doing something—thinking, for example—that activity would seem to be a part of fundamental good. Perhaps we could add:  if you would be drastically different if deprived of something (your memory, for example) or prevented from ever again engaging in some project (remembering things, for example), you deserve protection from being permanently deprived of that thing or permanently thwarted in performing that project.
Plainly, this thesis opens out into an inquiry as to the especially important attributes and projects of a person. This essay pursues that inquiry. Reason, reasoning, and knowledge are proposed as central. This  brings the discussion into close touch with the classic tradition of ethical anthropology.
A further question about human-rights ethics must be: what characteristics make a good suitable for human rights protection, as opposed to respect and protection of some other sort. Several criteria are proposed in this essay. 

Keywords: Jurisprudence, Legal Theory, International Law, Human Rights, Law and Ethics.

Shattering Chains When the Sovereign Will Not: Responsibility to Protect and the Use of Military Intervention to Stop Slavery by Ethan A Dazelle, University of Massachusetts School of Law

E-mail: edazelle@umassd.edu

The Responsibility to Protect (R2P) is an emerging international norm that recognizes genocide as sufficient ground for circumventing the fundamental principle of sovereignty that generally forbids humanitarian intervention.
This paper argues that under R2P, a sovereign state practicing, tolerating, or failing to eliminate slavery that is publicly and openly practiced, should and does allow for the legal use of military intervention by the international community. As recommended by the International Commission on Intervention and State Sovereignty (ICISS), just cause proven by absolute evidence, the same legal standard for military humanitarian intervention in cases of genocide, should serve as the basis for intervention. Intervention under these terms against a legally-institutionalized form of slavery is not only fully compatible with the present obligations of UN member states, including the permanent members of the UN Security Council, but demanded under the UN Charter Article 1, the Slavery Convention of 1926, the Universal Declaration of Human Rights, and other sources of obligation.
R2P necessitates a response that fully resolves the manifest failure of the sovereign. Such a response would be a multilateral, Security Council-authorized response 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 crimes against humanity.

Keywords: International Law, Use of Force, Self-Defence, State Sovereignty, Law of War.  

Reflections on the Rule of Law Upon Listening to President Xi by John R. Prince III of Wenzhou-Kean University

E-mail: joprince@kean.edu

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.

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

E-mail: aksharma@nlujodhpur.ac.in

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 years. This article not only visualizes the contribution and application of Pepper v Hart rule in correct perspective for both the jurisdictions but also, by a critical analysis of salient Indian Supreme Court judgments, after the reception of Pepper rule in India, advocates for a consistent approach with its proper application.

Keywords: Legal reasoning, comparative law, constitutional law, common law, jurisprudential reception.

What Effect would the Use of British Constitutional Principles have on the European Court of Human Rights’ Application of Article 103 of the UN Charter? by Casper Holloway of Independent Scholar

E-mail: casperhol@aol.com

This paper is descriptive, comparative and normative. It describes the principles used in the international legal system and those under the British constitution, compares the two, and uses British constitutional principles as a normative standard against which the international legal order can be judged, criticised and improved. Thus, it explains that whilst improved legal principles can improve human rights protection, there is scope for learning from the UK constitution on how to improve the protection of human rights through political principles. This increases the political accountability of the United Nations Security Council by ensuring that they are held responsible for any injustice that arises from a United Nations Security Council resolution that interferes with international human rights law. The principal advantage of this comparative analysis is that British Constitutional principles are capable of providing a normative standard. The benefit of this is that it provides a standard against which the international legal order and, specifically, the European Court of Human Rights and the United Nations Security Council can be judged. It enables us to measure the level of human rights protection provided by these institutions relative to that which is provided in the UK, and to determine which is greater. It reveals the extent to which the use of British constitutional principles could provide a higher level of protection of human rights. The first objective of this paper is to establish how British constitutional principles would affect how the European Court of Human Rights interprets and balances state obligations under the UN Charter with those arising under international human rights law. The second objective is to establish how British constitutional principles could provide political accountability for the United Nations Security Council. 

Keywords: Regionalism, constitutional law, institutional reform, human rights, security law.

Mapping Law and Development by Liliana Lizarazo Rodriguez of University of Antwerp, Belgium

E-mail: lilianalizarazo@skynet.be

This paper presents an overview of the emergence and evolution of the concept and field of Law and Development (L&D). The author starts thereby from the observation that the concept of L&D covers a variety of aspects, acquires 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 author is also aware of the role of ideology and politics in the distinct currents within L&D. The author does not present the development of L&D as a historical sequence of stages or waves, but emphasizes rather simultaneity, cross-fertilization and dialogue, convergence and divergence, and hidden connections between approaches. The author recognizes that there is no unique or "best" way to map and classify the various approaches of L&D and their respective abundant literatures. There is no unique criterion neither to establish the scope and borders of this field. Fuzziness and overlap between categories and areas is unavoidable. The author opted for an initial 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. 

Development in Law and in Practice: Two Autonomous Domains? by Irene I. Hadiprayitno of Leiden University

E-mail: irehadi@gmail.com

This article aims to bring into discussion the potential, and yet overlooked 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 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 modernisation in Merauke, Papua, realising 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.

Political Patronage and Judicial Appointments in India: A Comment on the Fourth Judges Appointments (NJAC) Case by Khagesh Gautam of Jindal Global Law School, O.P. Jindal Global University, Sonipat, India

E-mail: kgautam@jgu.edu.in

The issue of judicial appointments in the higher judiciary (i.e. the Supreme Court of India and the State High Courts) has been in 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 absence of the 99th Amendment, the NJAC Act automatically became unconstitutional and void. The lone dissenting judge didn’t 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 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 independence of Indian Judiciary and that is something that cannot be afforded under Indian conditions.

Keywords: Judicial Independence, Constitutional Reform, Comparative Law, Constitutionalism, Separation of Powers.