This article examines the historical development and social and intellectual functioning of Islamic law in the twelfth through fifteenth centuries. In particular, it considers the progressive stabilization and institutionalization of the four classical Sunni madhhabs (schools of law) and the corresponding developments in Imami Shiʽism; developments in legal theory (usul al-fiqh); and the practical administration of the law. It also discusses the various forms of ijtihad and taqlid that could generate new legal rulings, along with the textual forms and real-world interactions within which legal judgments were sought and expressed. Finally, it looks at the fatwa, which consists of a legal opinion issued in response to an inquiry (istifta’).
This article discusses academic work in relation to appellate courts. It concentrates on characterizing and explaining judicial decision-making and winning on an appeal. Furthermore, it raises questions about the nature and coverage of empirical legal research on appellate courts, and discusses general methodological questions. It also looks at rival approaches to describing what judges do in making decisions, and what motivational assumptions are most commonly made and finally indicates the broad outlines of how the field should develop methodologically in the future. Empirical legal research suffers from the main weakness of the entire body of empirical research applied to appellate courts. This article concludes by mentioning that a shift of focus is needed to other aspects of law. To be forced into a choice, a judge must feel that what he regards as morally correct would be inconsistent with existing law.
The chapter introduces the Court of Justice of the EU by looking at five key elements defining the institution in a diachronic perspective: the structure of the Union courts located in Luxembourg, looked at vertically (the ECJ, the GC, and the CST) as well as horizontally (division of work within the ECJ and in particular the role of the grand chamber); the type of judicial business the Court of Justice carries out today, in both its quantitative as well as qualitative dimensions; its composition, including the recent changes made by the Treaty of Lisbon to the way in which judges and Advocates General are selected and appointed; the often discussed reasoning style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice.
Analysis of EU law making is made difficult by the presence of multiple legislative procedures. Matters are further complicated by neither national nor postnational models of democracy providing convincing answers as to when EU law making is democratic. This grants EU law making a democratic ambiguity. It is committed to democracy and has democratic features, but not sufficiently to convince the Union’s citizens of its democratic authority. The scepticism generated by this is itself valuable. Democratic ambiguity generates further positive features within all EU legislative procedures: the possibility of triple review by different institutional actors—the European Parliament, national governments, and national parliaments. This is unparalleled but compromised by other features of EU law making: first, the lack of compass to indicate when it is democratic for the Union to legislate, and second, democratic fluidity, the presence of informal processes that serve to bypass and undermine this triple review.
Although the development of EU law is the result of the interaction of many political and institutional actors, no other relationship is perhaps as important as that between the ECJ and the national courts. Their interaction is dialectical, full of circumspection and deference, albeit occasionally tense, and based on an incomplete and somewhat unstable political bargain. This contribution seeks to explore some recent trends in this intra-judicial dialogue. It looks at the attributes of the interaction between the ECJ and the national courts, the centralized constitutional model favoured by the ECJ case law, and the vexed issue of Kompetenz-Kompetenz. Finally, it explores some recent judgments which suggest uneasiness and even open defiance on the part of some the national supreme jurisdictions.
John Baldwin and Gwynn Davis
This article considers the contribution to legal scholarship which has been and is being made by research strategies which fall under the broad heading of ‘empirical’. Empirical research in law involves the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. It is not a synonym for ‘statistical’ or ‘factual’, and its intellectual depth and significance are not determined by the empirical label but can only be judged by reference to the same standards and the same yardsticks as would be applied to any other academic endeavour.
Equitable property, especially as illustrated in the trust, and equitable obligations, especially fiduciary obligations, are without precise civil law counterparts. This ought to have marked these areas out as prime candidates for innovative and inventive common law and comparative scholarship. Instead, even at the turn of the century, modern equity scholarship is still overwhelmingly devoted to doctrinal analysis that seeks simply to define and understand these equitable concepts. The legal concepts underpinning equitable property and equitable obligation are difficult, and proper definition is important to coherent development of the law's practices. This article discusses the following: ideas of equitable property, fiduciary law scholarship, and the common law-equity divide.
The aim of this article is to give an account of legal families as a comparative law approach and as a classification of legal systems. The text discusses especially the future of legal families. The article begins with a short review of macro-comparative law’s basic approaches and concepts. It then considers the past and present of the basic notions of macro-comparative law, focusing on the classification of legal families and the recent critique of them. Finally, this article examines the new roles of legal families and, in particular, it addresses the possible future utility of legal family as a basic notion and as an approach in macro-comparative law.
Whereas Islamic law and Islamic theology are usually discussed separately, this article examines the relationship between the two in Islamic Studies scholarship. After defining the terms “law” and “theology,” this article offers three historiographical approaches to the subject, namely: “Orientalist,” “Revisionist,” and “Pragmatist”, each reflecting assumptions about the function of Islamic law in Muslim communities. Orientalists are skeptical of Islamic religious texts, and argue that Islamic law and theology are unconnected, static sciences that have little to offer modern Muslims. Revisionists re-read Islamic sources to suggest that Islamic law was once a theological enterprise that devolved into legalism, but that it can be revived by returning to theology. Pragmatists, using subaltern and feminist lenses, argue that Islamic law and theology are interconnected and evolving sciences that perpetually animate Muslim discourse. The article concludes by discussing the political import of this topic, and suggesting avenues for further research.