Search

Many Western jurisdictions take a split approach to protecting the economically vulnerable party in private relationships. In the family sphere, many jurisdictions are reluctant to intervene in intimate partner relationships, particularly outside the marital context. This lack of legal protection often leaves the economically vulnerable partner in a precarious financial position at the end of the relationship. By contrast, legal protections for vulnerable parties are much more common in the economic sphere. This article explores this split approach to protecting the vulnerable partner in private relationships through the lens of the market/home dichotomy. It focuses on the Belgian regulation for unmarried cohabiting partners on the one hand, and for tenants, consumers, and employees on the other hand. The article concludes that the dichotomy has value as an explanatory framework for the divergent norms of cohabiting and economic relationships, but that it is most useful as a heuristic framework for challenging the ideologies that inspire the market and the family. Incorporating the viewpoint of non-traditional families only adds to that conclusion. [ABSTRACT FROM AUTHOR]

This paper investigates the role of Islamic jurisprudence in creating and sustaining forms of social dependency in the oases of Tuwāt (in present-day southern Algeria). Drawing upon a series of fatwā s collections compiled between 1750 and 1850, I examine how Saharan legal scholars reinforced the structural hegemony of local elites and ensured their control over servile and semi-servile groups, particularly the Haratin population. The materials reveal that jurisprudential techniques and arguments were instrumental in fostering practices of subordination, most notably through the defense of exploitative sharecropping arrangements. The tendency of local jurists to uphold individual property rights de facto worked in favor of descent groups claiming genealogical and cultural superiority. It significantly contributed to the maintenance of unequal relationships between individuals and social groups in a society profoundly shaped by the trans-Saharan slave trade. [ABSTRACT FROM AUTHOR]

This article examines the biographies of West African fuqahāʾ in Aḥmad Bābā al-Tinbuktī's (d. 1036/1627) ṭabaqāt works. Out of the more than seven hundred entries about the life and works of Mālikī ʿulamāʾ featured in Nayl al-ibtihāj and Kifāyat al-muḥtāj , it is peculiar that the fourteen tarājim of scholars of West African origin relate almost exclusively to those from the author's hometown, Timbuktu, in the same self-referencing parochial manner as the Timbuktu Chronicles , and refer to intellectual activities chiefly of members of the powerful Aqīt household to which the author belonged. This study contextualizes these biographies within the tenth-/sixteenth-century West African tradition of Islamic learning and Islamic jurisprudence as well as within the general historical and sociopolitical context, situating them within Timbuktu's eleventh-/seventeenth-century self-conscious historiographical tradition and the ideological beginnings of bīḍān hegemony. [ABSTRACT FROM AUTHOR]

The article offers information on reconsidering Islamic law through the perspectives from the Sahara in Africa. Topics include refocusing attention on the longer tradition of Islamic jurisprudence in Africa, challenging the influence of colonialism on the study of Islam in Africa, and reexamining the Sahara as a center rather than a periphery in the development of Islamic law.

The United Nations Convention on the Law of the Sea contains only general rules concerning the delimitation of the exclusive economic zone and the continental shelf. However, international courts and tribunals have, within their compass, elaborated the law of maritime delimitation through their jurisprudence, thereby maintaining the resilience of the Convention in a particular context of maritime delimitations. The jurisprudence is not a panacea, however. As regards the implications of maritime delimitation judgments for third States in the same region, for example, the jurisprudence has not been consistent. Lack of consistency of the jurisprudence may undermine the predictability of the law of maritime delimitation and weaken the resilience of the Convention. This article critically assesses the approach of the International Court of Justice to the presence of third States in the process of maritime delimitation, by analysing the Nicaragua v. Colombia case and the Costa Rica v. Nicaragua case, respectively. [ABSTRACT FROM AUTHOR]

This article explores how sound technologies are deployed by government agencies to produce legitimacy in the struggle over oil pipelines in British Columbia, Canada. Activists seeking to stop the Northern Gateway and Trans Mountain pipelines have mobilized noise and silence as tactics of protest and refusal. For example, one thousand demonstrators make a cacophony outside a Vancouver hotel in protest of the Northern Gateway pipeline. Communications technology, though, is deployed here by the state to compress and control. In one of the hotel's small, impregnable conference rooms, public hearings over the pipeline are taking place—only the public is not allowed inside: the proceedings are being livestreamed to a hotel two kilometers away. On unceded Coast Salish territory, the legitimacy of pipeline hearings is also contested because the continued existence of Indigenous legal orders represents a challenge to the pipelines in question. Technological mediation makes it possible to satisfy one requirement of legitimacy: democratically granted representative power. The challenge to the legal system highlighted by the continued existence of the Indigenous, though, is managed through audile techniques deployed as anthropotechnologies. The implications for a politics of sound must be considered in light of sound's mediation, which is never politically neutral. [ABSTRACT FROM AUTHOR]

"Godot is a Woman" is a play that challenges Samuel Beckett's decision to exclude women from performing "Waiting for Godot" and explores the tension between artistic freedom and copyright law. It serves as a legal educational tool, critiquing gender biases in law and copyright. The play effectively communicates legal issues to a general audience and addresses moral arguments for excluding certain groups. Overall, "Godot is a Woman" is a comedic and thought-provoking production that examines the role of copyright law in perpetuating gender discrimination. [Extracted from the article]

This article examines the roles and representations of dogs in Islam by focusing on their place in four manifestations of the Islamic tradition: the Quran, Islamic jurisprudence, Muḥammad al-Damīrī's The Great Life of Animals , and Sufism. Whereas many Muslims and non-Muslims alike believe that dogs have a low status in Islam, these four sources offer an abundance of positive material about the canine that challenges this view. They also reveal that Muslim scholars have debated much of the contentious material concerning dogs, often forming opinions in response to it that are favorable to the creature. Paying greater attention to the nuances and complexity of the discourses on dogs and their images within the Islamic tradition can help improve understanding of dogs therein and inspire dog-friendly attitudes among modern Muslims. [ABSTRACT FROM AUTHOR]

Since the U.S. Supreme Court's decision in Dobbs vs. Jackson Women's Health Organization, a growing web of state laws restricts access to abortion. Here we consider how, ethically, doctors should respond when terminating a pregnancy is clinically indicated but state law imposes restrictions on doing so. We offer a typology of cases in which the dilemma emerges and a brief sketch of the current state of legal prohibitions against providing such care. We examine the issue from the standpoints of conscience, professional ethics, and civil disobedience and conclude that it is almost always morally permissible and praiseworthy to break the law and that, in a subset of cases, it is morally obligatory to do so. We further argue that health care institutions that employ or credential physicians to provide reproductive health care have an ethical duty to provide a basic suite of practical supports for them as they work to ethically resolve the dilemmas before them. [ABSTRACT FROM AUTHOR]

The American system of rights is individualized--premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous. This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object--a reproductive vessel, merely the container for another individual rights-holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the "maternal-fetal conflict" and undermine pregnant people's rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome--undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety. [ABSTRACT FROM AUTHOR]

Montana, Alaska, and Wyoming lead the United States in a category coveted by no one: the suicide rate. Firearm ownership drives the rate to the disproportionate level it reaches year after year and the states are left with little recourse. This article argues the usefulness and constitutionality of narrowly tailored red-flag laws aimed exclusively at reducing the rate of suicide in these mountain states. The article follows Supreme Court jurisprudence leading up to New York Rifle & Pistol Association v. Bruen and offers an analysis that complies with the hyper textualist history and tradition test laid out by Scalia in District of Columbia v. Heller and McDonald v. City of Chicago. The analysis demonstrates that narrowly tailored red flag laws are a constitutional means of reducing the suicide rate in these at-risk states and references statutory and cultural avenues for the implementation of the legislation. [ABSTRACT FROM AUTHOR]

A strong case can be made that the concept of naskh, "abrogation" or "annulment", was the most potent weapon in the arsenal of Muslim polemicists seeking to convert Jews (Burton's Encyclopaedia of the Qurʾān is highly informative but deals almost exclusively with naskh in its internal Islamic contexts, e.g., hermeneutics and legal theory). Naskh did not necessarily involve any rejection of Jewish scripture or tradition as fraudulent or corrupt. It rested on the simple premise, explicitly confirmed by the Qur'an, that the deity may alter or replace His legislation over the course of time. In the first part of this paper, I will briefly review the topic, adding some texts and observations that, to the best of my knowledge, have not appeared in the academic literature (comprehensively surveyed in Adang's Muslim Writers on Judaism and the Hebrew Bible: From Ibn Rabban to Ibn Hazm, 1996; also in Adang and Schmidtke's Polemics (Muslim-Jewish) in Encyclopedia of Jews in the Islamic World, 2010). The bulk of this paper will consist of a fairly detailed summary of an unpublished tract on naskh written by Rashīd al-Dīn Faḍlullāh Hamadānī (RD) (1247–1318), himself a Jewish convert to Islam and a monumental politician, cultural broker, historian, and author. [ABSTRACT FROM AUTHOR]

The minority question has long been a hot topic in Central and Eastern Europe. Whereas most CEE countries guarantee the privileged position of the dominant nation, they also recognize the existence of national minorities and provide special rights for them. Hence there is an apparent contradiction between the values of the nation-states: unity and diversity. This article proposes that to resolve this contradiction, it is necessary to define the concept, scope and limitations of group-specific minority rights, as well as their relationship with other human rights and the nation-state. Constitutional courts are appropriate candidates for this task. However, based on our analysis of the relevant constitutional jurisprudence of five CEE countries – Croatia, Hungary, Romania, Serbia, and Slovenia – it seems that constitutional courts in the region have failed to properly conceptualize minority rights. Instead of developing appropriate tests for assessing the constitutionality of legal regulations, they have only superficially touched upon the conceptual issues of minority rights, using incidental, case-by-case arguments to justify the (un)constitutionality of the legal provisions. Therefore, this article also attempts to outline a constitutionality test that may be suitable for constitutional courts to consistently evaluate submissions that challenge the constitutionality of laws on minority rights. [ABSTRACT FROM AUTHOR]

The article focuses on Justice Sandra Day O'Connor's jurisprudential approach, particularly in the context of cases dealing with constitutional limits on punitive damages. It examines her conservative stance regarding property rights, her resistance to populist and originalist conservative visions, her support for a case-by-case approach to determining punitive damages, her commitment to constraining both federal and state power and her role in building centrist coalitions on the Supreme Court.

The article focuses on Justice Sandra Day O'Connor's lasting impact on constitutional law and the Supreme Court, particularly in light of the evolving ideological landscape of the Court. It discusses her pragmatic and compromising approach to decision-making, highlighting key contributions in areas such as abortion jurisprudence, federalism, and affirmative action.

A personal narrative is presented which explores the author's experiences and reflections on Justice O'Connor's approach to jurisprudence.

Classical logic is based on an underlying view of the world, according to which there are elementary facts and compound facts, which are logical combinations of these elementary facts. Sentences are true if they correspond to, in last instance, the elementary facts in the world. This world view has no place for rules, which exist as individuals in the world, and which create relations between the most elementary facts. As a result, classical logic is not suitable to deal with rules, and is therefore unsuitable to deal with legal reasoning. A logic that is more suitable should take into account that law is a part of social reality, in particular a part that consists of constructivist facts, and that rules play a central role in law. This article gives a superficial description of how social reality exists and of the place of law and legal rules in it. It uses this description to argue that traditional techniques to reason with and about legal rules provide a better logic for law than classical logic. These techniques can be accommodated in a logic that treats rules as logical individuals. [ABSTRACT FROM AUTHOR]

This article explores the domain of legal analysis and its methodologies, emphasising the significance of generalisation in legal systems. It discusses the process of generalisation in relation to legal concepts and the development of ideal concepts that form the foundation of law. The article examines the role of logical induction and its similarities with semantic generalisation, highlighting their importance in legal decision-making. It also critiques the formal-deductive approach in legal practice and advocates for more adaptable models, incorporating fuzzy logic, non-monotonic defeasible reasoning, and artificial intelligence. The potential application of neural networks, specifically deep learning algorithms, in legal theory is also discussed. The article discusses how neural networks encode legal knowledge in their synaptic connections, while the syllogistic model condenses legal information into axioms. The article also highlights how neural networks assimilate novel experiences and exhibit evolutionary progression, unlike the deductive model of law. Additionally, the article examines the historical and theoretical foundations of jurisprudence that align with the basic principles of neural networks. It delves into the statistical analysis of legal phenomena and theories that view legal development as an evolutionary process. The article then explores Friedrich Hayek's theory of law as an autonomous self-organising system and its compatibility with neural network models. It concludes by discussing the implications of Hayek's theory on the role of a lawyer and the precision of neural networks. [ABSTRACT FROM AUTHOR]

Objective: Dental and mucosal injuries from laryngoscopy in the peri-operative period are common medico-legal complaints. This study investigated lawsuits arising from laryngoscopy. Methods: Westlaw, a legal database containing trial records from across the USA, was retrospectively reviewed. Plaintiff and/or defendant characteristics, claimed injuries, legal outcomes and awards were extracted. Results: Of all laryngoscopy-related dental or mucosal injuries brought before a state or federal court, none (0 per cent) resulted in a defence verdict against the provider or monetary gain for the patient. Rulings in the patient's favour were observed only when laryngoscopy was found to be the proximate cause of multiple compounding complications that culminated in severe medical outcomes such as exsanguination, septic shock or cardiopulmonary arrest. Conclusion: Proper laryngoscopy technique and a robust informed-consent process that accurately sets patients' expectations reduces litigation risk. Future litigation pursuits should consider the low likelihood of malpractice allegation success at trial. [ABSTRACT FROM AUTHOR]

The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. Yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lies what we term "real-world prior art. In patent law, prior art is something that predates an invention and may render it not new. "Real-world" prior art activities involve using or selling embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the public but does not allow them to touch it. Has she put the invention into "public use," thus preventing others from obtaining a patent? Suppose Aleida keeps her invention secret but uses it to provide a commercial service. Has she put the invention into public use or placed it "on sale"? Or suppose Aleida offers her invention for sale to Charlise, who declines to purchase it. It is black-letter patent law that after one year passes, Aleida cannot patent this invention. But imagine that Bruno independently develops the same invention. Can he obtain a patent? These questions are not outlandish law school hypotheticals--they are central issues surrounding whether an invention is or is not novel. Yet litigation over these issues has resulted in conflicting outcomes and contradictory explanations, leaving lower courts and the Patent Office to flounder. In this Article, we sort through this conceptual confusion and propose both doctrinal and institutional changes to elucidate this area of law. We argue that the value of resolving these questions runs much deeper than determining the answer to particular cases. The answers to these questions depend upon--and reveal--the conceptual superstructure of patent law. They implicate patent law's most central questions: What does it mean for an invention to be new and thus patentable? What policy interests does patent law attempt to achieve, and whose interests does it aim to protect? And what are the conditions under which a party has forfeited the opportunity to obtain a patent? By addressing these issues, we endeavor to place the entire jurisprudence of patent novelty on more solid footing. [ABSTRACT FROM AUTHOR]

Scholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split. This Article investigates twelve Federal Courts of Appeals' qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants' qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of § 1983. This Article criticizes this approach, as it distorts the rule-of-law value of the Federal Rules of Civil Procedure, and it cannot be reconciled with the statutory text and the original intent of the forty-second Congress in enacting the Civil Rights Act of 1871. This new circuit split should not be understood as merely a procedural split regarding the pleading burden. Courts often take advantage of procedural law's elusive nature and use it as a veil to shield judicial activism. This circuit split is another example. Behind the veil of the pleading allocation is a clear policy agenda: anti-civil rights and unconditionally pro-law enforcement. Yet, one subtle, albeit salient, theoretical strand remains underexplored: the undertones of states' rights embedded within the contemporary qualified immunity jurisprudence. Both the Rehnquist and Roberts Courts exhibited a predilection for interpreting the objective knowledge test in a manner favorable to law enforcement, leading to a predicament the Reconstruction Congress once grappled with: the enforceability of a federal right today often hinges upon a state actor's acknowledgment of that right. Such an outcome, far from being serendipitous, resonates with the Court's overt pro-states' rights disposition on many civil rights matters. Thus, the contemporary qualified immunity jurisprudence reflects a departure from the vision of the Reconstruction Congress, which envisioned federal courts as guardians of civil rights. The prevailing sentiment of the Court suggests a reimagining of a new role for federal courts: guardians of states' rights. [ABSTRACT FROM AUTHOR]

While the famous debate between legal scholars H.L.A. Hart and Lon Fuller took place more than a generation ago, the issues involved have not lost their salience. The central question remains--What is the relation of law and morality?-which both Hart and Fuller understood as the relation of"positive law" to an idea of justice known as "natural law." This article offers a fresh perspective on the debate by explaining the implicit political assumptions and philosophical commitments of the two legal scholars, which most critics have ignored. It also attempts to uncover the missing ingredients in the debate by turning to Aristotle's insights about the relation of law to political regimes and Aquinas's analysis of the inherent connections between human law and higher law. These insights are crucial for understanding law's relation to morality, politics, and ultimate reality, and they reveal the limitations of Hart's analytical jurisprudence and Fuller's procedural jurisprudence. I conclude with some contemporary reflections on the relation of positive law to higher law in such areas as human rights advocacy and international law which re-open perennial questions about law and morality. My aim overall is to bring classical ideas into dialogue with modern problems in order to broaden the horizons of legal studies beyond analytical and procedural jurisprudence. [ABSTRACT FROM AUTHOR]

In this article, the legal status of women and children during the war is discussed in terms of Islamic jurisprudence and international conventions. In the first step, an attempt was made to define women from a legal point of view, then an attempt was made to examine the definition of a child and the general concept of a child in Islamic jurisprudence, law and teachings, and in the next step, an attempt was made to define the rights of women and their protection. and their immunity during the war has been discussed and also about the killing of women during the war and the verdict of killing them in terms of Islamic jurisprudence and international conventions and in the next discussion about the rights and protection of children during the war their immunity And the decision to kill them has been discussed by the warring parties from the perspective of Islam and international conventions, and recently about non-compliance with the laws of protection of women and children during the war and who is responsible for the implementation of these laws? And why does it not match? And women and children are always victims of armed battles, and what measures can be taken to ensure the security and peace of these two oppressed groups and what solutions are there? To support these two groups in the right way. It has been discussed and the views of Islamic jurists and international conventions have also been considered. [ABSTRACT FROM AUTHOR]

The research aims to identify the legislative directives in God’s speech to His Prophet by saying, O Prophet, through a jurisprudential interpretive study prepared by the researcher Abdulaziz Salem Ali Al-Khasrami, and to find out the sayings of the commentators and jurists in directing the command and prohibition directed to the Prophet, may God bless him and grant him peace, and to identify the implications of the command and noncommand sentences. Declarative, interrogative, and prohibitive sentences mentioned after God’s saying (O Prophet). This study combines rooting and application. It has been titled: Legislative directives in God’s speech to His Prophet by saying, O Prophet, a jurisprudential interpretive study. The researcher used the inductive and analytical approach that combines vision Theoretical and applied, in addition to following the fundamentalist vision, which came in an introduction and three sections, which are: • The first topic: The call to “O Prophet” in the Holy Qur’an. • The second topic: The interpretive vision of God’s speech to His Prophet by saying: (O Prophet). • The third topic: The jurisprudential vision of God’s speech to His Prophet by saying (O Prophet). This research has reached a number of results, including: The jurisprudential topics included in the call (O Prophet) are: issues related to conveying the message, issues related to piety and obedience, issues related to jihad, issues related to divorce, issues related to choice, and issues related to giving allegiance to the word. : (Ali is forbidden), and issues related to women’s clothing. The study recommends paying attention to the Holy Qur’an and the Noble Hadith as a lesson and research, and paying attention to the call to prayer and the commands and prohibitions that follow it in the Holy Qur’an through extraction, care, and research, and studying the method of the call in the Holy Qur’an as an interpretive jurisprudential study. [ABSTRACT FROM AUTHOR]

This article traces the emergence of what is nowadays called "postsecular" religion from German-Jewish philosophy of the 1920s and 1930s. The three different cases of Franz Rosenzweig, Alexander Altmann, and Leo Strauss impel us to pay particular attention to a few recurring argumentative and rhetorical strategies. The emergence of postsecularism marks a shift in the epistemic foundations of Jewish religious thought, which had long been under pressure from secular European thought. Beginning with Rosenzweig, Jewish philosophy used secular categories of European philosophy to facilitate a return to the foundations of Judaism, eventually turning against what it sees as the epistemic weaknesses of secularism itself. This article traces the new phenomenon to Rosenzweig's evolving view of secularism, especially to his ridicule of Siegfried Kracauer's secular messianism, before examining a few key arguments in his book The Star of Redemption (1921). A brief discussion of Alexander Altmann's writings of the early 1930s provides that even modern Orthodox Jewish thought, which had never been "secular", used postsecular categories and arguments to make the philosophical case for orthodoxy. Leo Strauss's introduction to his Philosophy and Law (1935) provides a far more elaborated form of Rosenzweig's argument. As this article seeks to show, postsecular Jewish thought comes with a slight twist of epistemic relativism, particularly when it comes to the juxtaposition of the Biblical and scientific "world-views". But here it merely draws the full consequences of modern science, beating scientism with its own weapons. Furthermore, religious thought in the 20th century had no other option than to rebuild itself on postsecular grounds. [ABSTRACT FROM AUTHOR]

For decades, a question has simmered in criminal procedure: Can the Fourth Amendment seizure analysis account for a suspect’s race? Scholars have long advocated for courts to consider race when resolving Fourth Amendment questions, but to date, the Supreme Court has not provided a definitive answer. The question has now bubbled to the surface. With calls for advocates to raise race when litigating Fourth Amendment questions, and with more and more advocates heeding those calls, courts are being asked to contemplate how race factors into deciding whether a person has been seized. When the question is explicitly asked, courts have answered differently, with many refusing to consider race as part of the seizure analysis. It is easy to think that it is only a matter of time before the Supreme Court holds that race has no place in the Fourth Amendment, especially given its muscular articulation of colorblindness in the recent affirmative action cases. Indeed, the lower courts that have held that race cannot be considered as part of a seizure analysis have couched their decisions in the same rhetoric and reasoning found in the Supreme Court’s colorblind rulings. As this Article explains, when scrutinized, colorblind constitutionalism is an illogical fit for the Fourth Amendment. In fact, the analytical underpinnings of colorblindness are consistent with race being considered as part of the seizure free-to-leave analysis. That race can be relevant to a seizure is reinforced when considered against the broader backdrop of Fourth Amendment law and all of the many ways it implicitly and explicitly recognizes race. This Article therefore clarifies that it is permissible to consider the racial identity of the Fourth Amendment’s “reasonable person.” But the insights of this Article extend beyond the Fourth Amendment, because at bottom, it is a warning against “case law creep” — where case law is imported from one context to another to advance a specific ideological mission without interrogating whether the case law supports the cause in that context. It is a reminder that the law should not be an unyielding wrecking ball that swings from jurisprudence to jurisprudence, smashing any hope of progress. Thus, ultimately, this Article seeds hope that the law can catch up to our pluralistic society and learn to recognize a multitude of experiences. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the author discusses articles within the issue on topics including innovation and reform in the law of trusts, jurisprudence on statutory trusts, and reform of charitable trusts and corporations in England, Wales and Australia.

The reflection seeks to offer alternative thoughts on a "search for the soul of Black preaching." Casual allusion is made to experience, music, Scripture, literature, scholarship, context, and jurisprudence, for clues as to how and where the soul of Black preaching might be found. A central suggestion is that "Black preaching" is not simply a contemporary racial or ethnic construct, but a timeless provisional and contextual divine warrant from the beginning of creation to proclaim liberation from chaos, profess divine truth to power, and offer enduring hope in light of historical injustices. [ABSTRACT FROM AUTHOR]

The article analyzes the Supreme Court's copyright cases spanning from 1978 to 2023, comparing them with patent cases and examining various aspects such as circuit court decisions, clustering of cases, different eras, citation metrics, and the role of the Solicitor General. It aims to provide insights into the Court's approach to copyright law and its implications for intellectual property jurisprudence.

The article discusses the evolution of the mandamus jurisprudence and summary judgment procedure in the U.S. in the past 30 years as of April 2024 by analyzing the denial of summary judgment in the case In re Prudential. Other topics include appellate remedies, appellate rights, and the evidence to warrant a trial.

How does time feature and function in juridical understandings of torture, inhuman and degrading treatment? With a view to international human rights adjudication, this article offers a kaleidoscopic reading of temporal logics (registers and reasoning) operating in the contemporary anti-torture cause and jurisprudence. Time, it is found, plays an important albeit at times implicit role in how judges imagine and evidence torturous harms brought before them. This article explicates and singles out time as a factor. It finds that, whilst indeterminacies and ambiguities persist, singular (and spectacular) or plural (and prolonged) harmful acts and impacts operate to serve adjudicators' reasoning, variably (and intuitively) to find violations or to divert from doing so. Time thus works as a device of inclusion and exclusion. [ABSTRACT FROM AUTHOR]

The author reflects on the works of University of Toronto law professor Karen Knop. Topics include a background on her teaching career at the University of Toronto Faculty of Law, the faculty's approaches to legal scholarship, Knop's early work in public international law from 1993 to 2008, a discussion of her general legal theory, and some reflections on her cosmopolitanism.

John Finnis's central role in Brexit was only the latest intervention in a long life of practical action that recommends a closer examination of the genesis of his distinctive philosophy. He always insisted that it was intended 'primarily to assist the practical reflections of those concerned to act, whether as judges or as statesmen or as citizens.' In this article, I argue that Finnis crafted his philosophy as a practical guide for conservative actors in the disenchanted Cold War world of the 1960–70s. My first aim is to excavate the theoretical foundations of his Thomist theory of natural law. While his turn to practical rather than speculative reason is well known, few if any appreciate how Finnis radically refounded Thomist natural law on an implicit theory of history. By accepting that the world was historically contingent and changing, he needed to show how we could know the timeless truth of practical reasonableness and the basic goods. In the final chapter of Natural Law and Natural Rights, Finnis introduced an 'abysmal' philosophy of history that explained how a spoudaios (wise man) could reason his way out of the historical contingency of the human world to access the timeless moral truths that transcended it. My second aim is to show how Finnis used his Thomist theory of natural law as a practical guide for action in our contingent world. He followed Eric Voegelin in describing humanity as two 'hostile camps' – the 'transcendental' Christians and their secular allies versus the 'immanentist' liberals, communists, and fascists all committed to 'consequentialist' ideologies. In this eternal battle of good versus evil, Finnis saw his philosophy as a practical guide for this 'creative minority' of transcendentalists for collective action against the heretical faith of immanentist movements aiming to perfect mankind and build heavens on earth. [ABSTRACT FROM AUTHOR]

Karen Knop had a myriad of human and intellectual qualities, not least a remarkable ability to straddle a range of different worlds. She was as comfortable delving into legal theory as she was conversing with judges of the Supreme Court of Canada or the International Court of Justice. Her ability to meld the personal and the scholarly was reflected in her work and in the essence of her being, offering those who engaged with her scholarship the courage to mix the two in their own ways. Her book, Diversity and Self-Determination in International Law, laid bare the threads of unstated biases and instincts that influenced scholarship and rulings on self-determination. Its call to examine issues of diversity, marginalization, and gender impacted scholarship as well as the strategic and substantive choices of some who represented Mauritius in the Chagos proceedings before the International Court of Justice. This, it might be said, contributed to the life of the Court in its advisory opinion. [ABSTRACT FROM AUTHOR]

This technical note reviews the plethora of concentration units used to report blood‐alcohol concentration (BAC) and breath‐alcohol concentrations (BrAC) for legal purposes in different countries. The choice of units sometimes causes confusion when scientific papers originating from a certain country might be introduced into evidence via expert testimony, such as when alcohol‐related crimes are prosecuted. The concentration units are also important to consider when blood/breath ratios (BBRs) of alcohol are calculated and compared between countries. Statutory BAC limits for driving in most nations are reported in mass/volume (m/v) units, such as g/100 mL (g%) in the United States, mg/100 mL (mg%) in the United Kingdom and Republic of Ireland, or g/L (mg/mL) in many EU nations. By contrast, Germany and the Nordic countries report BAC as mass/mass (m/m) units, hence g/kg or mg/g, which are ~5.5% lower than m/v units, because whole blood has an average density of 1.055 g/mL. There are historical reasons for reporting BAC in mass/mass units because the aliquots of blood analyzed were measured by weight rather than volume. The difference between m/m and m/v is also important in postmortem toxicology, such as when distribution ratios of ethanol between blood and other biological specimens, such as urine, vitreous humor, and cerebrospinal fluid, are reported. [ABSTRACT FROM AUTHOR]

The anthology Collective Action, Philosophy and Law brings together two key strands of philosophical inquiry: social ontology and jurisprudence. Most of the papers use collective agency as a starting point to get a better grasp on collective entities and activities in the legal domain, but others reverse the approach and use legal examples to refine theories of collective agency. The introduction provides a comprehensive overview of the literature on collective agency, emphasizing issues in jurisprudence and legal practices where collective agency plays a central role. It also offers a detailed overview of the anthology’s structure and contents. With thirteen papers organized into four parts, the anthology covers a broad spectrum of topics. While each paper deserves in-depth exploration, this review will provide a brief summary of all the papers, followed by concise discussions of the contributions of Sara Rachel Chant and Bill Wringe. [ABSTRACT FROM AUTHOR]

The study aims to know the ruling on forced divorce in Islamic jurisprudence, compared to the personal status system. To reveal his choices and goals. The descriptive and analytical approach was adopted to explain its effect on the occurrence of divorce, the extent of the judiciary’s authority to impose it, and when it is classified as an annulment in jurisprudence compared to the system. The researcher concluded that the Maliki school of thought is the least restrictive of the judge’s authority to effect divorce. As for the Shafi’is and Hanbalis, they restrict its authority to its rhythm, and prefer the side of annulment. To avoid wasting the husband’s credit and violating his private right to it. The system chose jurisprudence that prevents the judge from divorce at all, and distinguished between his authority and the husband’s authority, taking into account what is best for the spouses. The husband is not considered a divorce that he did not consent to, and the wife hastens to remove the harm from her with an irrevocable annulment. [ABSTRACT FROM AUTHOR]

Artificial womb technology for extracorporeal gestation of human offspring (ectogenesis or ectogestation) has profound ethical, sociological and religious implications for Muslim communities. In this article we examine the usage of the technology through the lens of Islamic ethico-legal frameworks specifically the legal maxims (al-Qawaid al-Fiqhiyyah) and higher objectives of Islamic law (Maqaṣid al-Shariah). Our analysis suggests that its application may be contingently permissible (halal) in situations of dire need such as sustaining life and development of extremely premature newborns, for advancing fetal medicine and avoiding maternal co-morbidities during fetal treatment, and for enabling motherhood for women without functional wombs, or who face grave medical risks in pregnancy. However, its application may be proscribed (haram) for enabling healthy women to avoid pregnancy and childbirth, or to achieve parenthood equity. Specification of these views to particular policy, legal contexts and Fatwa will require multidisciplinary Shariah-based bioethical deliberations between jurists, policymakers, and scientists. [ABSTRACT FROM AUTHOR]

In this article, I argue that Abu Abdullah al-Muhajir and his book, 'Issues in the jurisprudence of jihad' (Masāʾil fī fiqh al-jihād), has likely been a major source of influence on the formation of the jurisprudential aspect of a new form of the Jihadi Salafi ideology which was epitomized by the practices of Abu Musab al-Zarqawi in the first place and of ISIS afterwards. I point out the similarities between al-Muhajir's ideas and fatwas issued in his book and ISIS's views and actions espoused and enacted later on in order to demonstrate how the book contributed to the making of the jurisprudential aspect of ISIS's ideology. I pick three main themes, which I deemed to be representative of ISIS's traits, to that purpose. The suicide attacks and civilian casualties that showed a dramatic rise after the invasion of Iraq in 2003 make up the first. The second one is the anti-Shia sentiment and attacks as they follow from it. The last one, maybe an ISIS signature among various intellectual lines and currents of Jihadi Salafism, consists of 'savage' or 'brutal' acts. Based on these three main themes, I aim to display the influence of al-Muhajir's standpoints on ISIS's ideology. [ABSTRACT FROM AUTHOR]

In this introduction, we first outline the background to this collection of papers and recall some of the conversations that were its genesis, before introducing the questions we wish to address through it. We then situate the collection within scholarship on Hindu majoritarianism and suggest that a nuanced understanding needs to take into account both its institutional and everyday dimensions. To do so, we focus on both jurisprudence and geography which, we argue, are crucial sites for the making of contemporary Hinduism but have not previously been brought together analytically. Through the work of six scholars of diverse disciplinary backgrounds (Law, Anthropology, Indology and Religious Studies) the special issue theorises the spatial and legal dimensions of contemporary Hinduism as cross-fertilising, and as crucial sites for the formation and functioning of Hindu majoritarianism. [ABSTRACT FROM AUTHOR]

This article explores how Hindu deities and places of worship are understood as legal persons in the Supreme Court of India's (2019) and the Allahabad High Court's (2014) verdicts concerning the 'Ayodhya Dispute' – M. Siddiq v. Suresh Das. It discusses the Courts' interpretations of a specific Sanskrit maxim attributed to the sixteenth Century Sanskrit jurist, Raghunandana Bhaṭṭācārya, in the specific context of their distinction between the juridical personality of the deities Rām Lalla Virajman (the infant form of Rāma worshipped at the Babri Masjid/Ram Janmabhumi site) and Asthan Rām Janmabhūmi (the deification of the contested site itself). The Allahabad High Court invoked Raghunandana to justify a faith-based application of Sanskrit jurisprudence (Dharmaśāstra) to expand the Hindu community's constitutionally-protected rights to freedom of religion into a legal weapon with which to assert control over India's contested geography. The Supreme Court, however, rejected this majoritarian 'Trojan Horse' by reframing Raghunandana's maxim – as cited in a body of judicial precedent – to support the legal personality of Rām Virajman merely as the pious purpose of worship at Ayodhya. Legal debates about the juristic personality of Hindu deities are inseparable, I argue, from determinations about the ownership of some hotly-contested religious sites in India. [ABSTRACT FROM AUTHOR]

Article 36(2) of the International Law Commission's Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that the responsible state shall compensate for all financially assessable damage. However, ARSIWA provides no guidance as to how such a broad rule should be applied in practice, which creates significant ambiguities for adjudicators in charge of adjudicating compensation claims in international law. In the past decade, the International Court of Justice has adjudicated three important compensation cases wherein it has exhibited a visible turn to equitable considerations in compensation determination. This article conducts an analysis of such an emerging equitable approach to compensation and argues that it is a welcome development, given the flexibility it provides to the Court for balancing different factors, with the aim of achieving an equitable determination of compensation. This article also addresses the justifications and predictability concerns of this approach. [ABSTRACT FROM AUTHOR]

This article explores both the reasons for, and the potential impact of, the current level of disenfranchisement in Scotland. First, we scrutinise Scottish legal provisions for their compatibility with the European Court of Human Rights (ECtHR)'s jurisprudence, which require disenfranchisement's aims to be clarified and delimited. Second, we examine where disenfranchisement sits within the wider context of Scottish penal values, and what principles underlie its imposition. Finally, we turn to a discussion of whether and how dis/enfranchisement aligns with the Scottish Government's commitments to the rehabilitation and reintegration of people who have been in prison, and to related empirical evidence about desistance from crime. The limited enfranchisement of prisoners established by the Scottish Government in 2020 avoided these core questions and this article aims to help address this neglect and to open up dialogue on these issues. [ABSTRACT FROM AUTHOR]

Irish judges have tended to 'jealously guard' the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in this or that non‐judicial body – not the non‐judicial actors operating at the coalface. But in Zalewski v Workplace Relations Commission a majority of the Supreme Court has signaled a shift away from the rigid judicial 'centralism' that has prevailed for a century in the Irish legal system. The judges have departed from the formulaic approach to assessing what counts as judicial power, preferring instead a purposive approach more in line with comparator countries. They have revived a 'saver' provision of the Constitution (Article 37.1) expressly providing for 'the exercise of limited functions and powers of a judicial nature' by bodies other than courts. And they have indicated that courts and lawyers do not have a monopoly on authority in respect of public law norms. Things remain in flux, however, because there are conflicting messages in the majority judgment in respect of this more 'pluralist' conception of public law. [ABSTRACT FROM AUTHOR]

This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill‐defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called 'limitations', and elements of a rule that exist separately from it, called 'exceptions'. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights. [ABSTRACT FROM AUTHOR]