Search

This paper aims to challenge the disparagement of non-state Islamic systems of law that has established firm roots in contemporary rule of law ideology and practice around the world, from India to Ontario. In this respect, rule of law ideology has tended to ignore actual mechanics and procedures of law, not only in legal venues outside the state's direct control, but also in the state's courts themselves. With respect to non-state legal venues—and especially non-state Islamic legal venues—such ideology understands and describes the practices and procedures that it finds in these non-state venues as crude and underdeveloped at best, and illiberal and in violation of the rule of law at worst. While other scholarly work has vividly demonstrated the various transformations and mutations that any state's ‘ideal legal procedure’ experiences as it is put into real-world practice by a state's courts and judges, this paper makes a converse move. Using a case-study focused on the circumstances and experiences of an Indian Muslim woman, ‘Ayesha’, who recently used a Delhi dar ul qaza to exercise her Islamic divorce rights in India, this paper demonstrates how a non-state Islamic legal venue behaves in ways which are highly evocative of rule of law ideology's idealization of state courts and how they (should) operate procedurally. In doing so, this paper provides evidence for Partha Chatterjee's thesis as to how elite and subaltern domains—understood here to be embodied in both state and non-state legal venues, respectively—are products of ‘mutually conditioned historicities’. In this case, the focus is on the state's conditioning of the non-state. As a result, rule of law ideology's state-oriented critique of the (Islamic) non-state is mistaken because, as this paper demonstrates, the non-state is produced in conversation with the state; one cannot critique the one (non-state) domain without realizing how that critique implicates the other (state) domain. [ABSTRACT FROM PUBLISHER]

The program was introduced at 5:30 p.m., Friday, March 31, by Dean Frederick M. Lawrence of the George Washington University Law School. Judge Thomas Buergenthal of the International Court of [...]

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, [...]

Recent trends in international law scholarship recycle objections to international law advanced by an earlier generation of political and legal realists. Such objections fail to understand the place of international law in the global order. To understand that place, we must distinguish the idea of the rule of law from other understandings of law. That idea is an inherently moral one. Theories of international law that ignore the moral element in law cannot distinguish law as a constraint on power from law as an instrument of power. A Kantian theory of international law can help to recover that moral element. [ABSTRACT FROM AUTHOR]