This article introduces the rationality and legitimacy conditions and positions them within contemporary sceptical and non-sceptical accounts of adjudication. Two sections are concerned with non-sceptical accounts of adjudication. The next section begins with an analysis of the rationality condition. The article moves on to show that the existence of incommensurability in hard case adjudication ensures that adjudication cannot be rational in the strong sense. It demonstrates that values are implicated within the practice of adjudication, by reference to some examples and by invoking an old jurisprudential lesson about the nature of rule application and interpretation. This article further discusses value pluralism and sketches three claims. It argues that it is difficult to show that rationally indeterminate judicial decisions are legitimate. This article concludes that law and adjudication may not be as pre-eminently desirable as often assumed, since they are not more rational than other non-arbitrary means of organizing our collective life and resolving disputes.
Syed Adnan Hussain
This article examines the historical origins, sources, and subject-matter jurisdiction of Anglo–Muhammadan law, along with its influence on the trajectories of Islamic law. After providing a short history of Anglo–Muhammadan law, the article discusses its subject matter. In particular, it considers the contributions of Syed Ameer Ali, especially in the area of trust law, or awqaf. It proceeds by looking at various sources of Anglo–Muhammadan law, which include textbooks and English translations of primary texts, case law, and legislation and custom. To give a sense of how Anglo–Muhammadan law operated in case law, the 1922 case of Narantakh v. Parakkal is analyzed. The article concludes with an overview of changes in Anglo–Muhammadan law in the immediate period after independence and partition of India.
Scott J. Shapiro
This article brings out the paradoxical nature of authority and discusses the solutions that have been offered on authority's behalf. It further examines two revisionist strategies. The first approach denies that legitimate authorities have the right to impose obligations when they are wrong. The second approach explores the basic premise of the paradoxes, namely, that legitimate authorities have the power to obligate even when wrong. This article suggests modifying our views about the nature of moral autonomy and attempts to justify these assertions and to demonstrate how their acceptance solves the paradoxes of authority within the different frameworks of legitimate authority. It concludes with various arguments that state moral anatomy constitutes the best response to the philosophical anarchist's challenge.
Mariam Sheibani, Amir Toft, and Ahmed El Shamsy
This article examines whether the Qur’an served as a source for the early jurists during the classical period; whether Hadith reports contain authentic information regarding Muhammad’s sayings and actions (and if they do not, when and how they became attributed to him); whether and how the regional legal traditions were transformed into legal schools centered around particular individuals; and how the nature of legal reasoning changed within this period. The article first revisits the debates regarding the role of the Qur’an and Hadith, respectively, in the formulation of Islamic law. It then reviews scholarship on the phases of Islamic law’s development, beginning with the emergence of geographically defined legal traditions and culminating in the formation of the legal schools and their distinctive theoretical principles and substantive doctrines. It concludes by suggesting directions for future research.
This chapter sets out to clarify the ideas of comparison and comparative knowledge. It analyses different approaches to these two issues, both from an analytical perspective and by means of a comparison with other disciplines, such as historical linguistics, comparative religion, and comparative history. The chapter describes the core of comparative knowledge as a structured description of a set of similarities and differences of the objects compared. Analytically, the article is based on the distinction of classifying comparison, qualifying comparison, and complex comparisons. Although qualifying and complex judgments of similarity and difference are irreducibly subjective, they are not meaningless if they relate to a clearly defined epistemological perspective or to a common understanding of the relevant circumstances; moreover they can be rationalized by a number of different tecniques. Those methodological techniques are presented in a list of nine basic conclusions.
The contribution of Critical Legal Studies to comparative law is a matter of considerable international interest, not only in light of the remarkable presence of the movement in several leading US-American academic institutions but also in view of the rather desperate need for comparative law as an academic discipline for theoretical revision and reorientation. This article examines the contributions Critical Legal Studies has really made to comparative law, and how original they are. First, it describes the emergence, as well as some of the work, of Critical Legal Studies in terms of comparative law. Second, it pursues to what extent the Critical Legal Studies approach breaks with, or rather continues, the agenda of the discipline’s mainstream. Third, it presents a sympathetic analysis of the critique, evaluating the actual political and scholarly contribution of the Critical Legal Studies approach to comparative law.
Vivian Grosswald Curran
The study of language is a cognitive model for comparative law. Language’s own dependence on translation is instructive in understanding comparative law in terms of the contrasting categories that undergird the civil and common law legal systems. Comparative law is situated between deeply entrenched, mutually contradictory aspirations of universalism and pluralism. While former domains of pluralism and difference are receding, difference itself remains undiminished. Comparative law’s effectiveness as a translator of the foreign depends on how well its acquired skills and methods can be adapted to new kinds of foreignness.
The idea of legal culture has had an important place in major recent debates about the nature and aims of comparative law. The idea of legal culture entails that law should be treated as embedded in a broader culture of some kind. This culture may, but need not necessarily, be seen as wider than the lawyer’s or lawmaker’s professional realm of law. Often, however, conceptions of legal culture encompass much more than this professional juristic realm. They refer to a more general consciousness or experience of law that is widely shared by those who inhabit a particular legal environment, for example, a particular region, nation, or group of nations. Culture appears fundamental—a kind of lens through which all aspects of law must be perceived, or a gateway of understanding through which every comparatist must pass so as to have any genuine access to the meaning of foreign law.
Nora V. Demleitner
This chapter discusses comparative law within the framework of legal education in North America and Europe. It first considers some of the key debates surrounding the teaching of comparative law before providing a historical overview of major developments on both sides of the Atlantic since the nineteenth century. It then examines the post-World War II resurgence of comparative law in US legal education and the ascent of comparative law teaching in Europe, as well as the place of comparative law in legal education today. It also analyzes the present role of comparative law teaching in the European Union, the impact of international and transnational law on comparative legal education in the United States, and comparative law in Australia and Canada. The chapter concludes with a review of some of the current challenges to comparative law as a subject of teaching and scholarship and how comparative law fits into legal education more generally.
The comparative study of transplants and receptions investigates the patterns of change triggered by contacts among laws and legal cultures. The study of legal transfers offers considerable intellectual rewards. It shows that the law is a complex phenomenon and corrects simplistic views regarding what law is and how it develops. Furthermore, it highlights how the language of the law is transformed as a consequence of such a dynamic through translations and adaptations. The spread of legal institutions, ideals, ideologies, doctrines, rules, and so on, is often in the hands of professional elites. The study of transplants and receptions demonstrates that the knowledge and standing of those elites comes from interactions between the local and non-local dimensions of the law. This picture is true in Berlin, in New York, in London, and in Lima, but it is also true in less cosmopolitan environments. The study of legal transplants has sometimes been accused of embracing a conservative orientation. Yet, this study simply subjects the law’s pretensions concerning its origins and ends to critical analysis. Doing so is not inconsistent with advancing progressive goals at all; in fact, it may be vital to a progressive agenda.
Comparing legal systems involves, at least to some degree, exploring both similarities and differences. For some writers, this forms part of the definition of comparative law. Some comparative lawyers have generally emphasized differences, while others see similarities, particularly in problems and their results, and a third group has sought to strike a balance between observing and analyzing similarities and differences. Drawing on a debate in comparative history, this article argues that the proper balance between looking for similarities and for differences depends on the purpose of the comparative enquiry. Furthermore, it links the issue of difference or similarity to the various steps which are involved in a comparative legal enquiry, suggesting that some steps require more focus on similarity, others on difference, and many call for a balance of both.
This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the ‘private’ sphere and the strongly ‘public’ or collective political nature of much of the ‘private’ ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon—globalization (through cyberspace)—that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.
This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature and status of legislative intent. A vital aspect of the issue concerns the sources on which judges should draw. This article deals with central features of American constitutionalism as the situation within which to consider problems of constitutional interpretation.
The chapter addresses, first, the ontological issue of whether the interpretation of a constitution is fundamentally different than the construction of statutes. Based on a comparison of the Supreme Court of Canada decisions in constitutional interpretation, especially Charter cases, and the contemporary approach to statutory interpretation, endorsing Driedger’s modern principle, it is argued that a convergence of methodology has occurred. Second, recent developments in the domestic use of international law—that is interlegality—also show commonality in constitutional and statutory interpretation. The hypothesis is that recent case law on the operationalization of international normativity, far from supporting the end of the international/national divide, actually reaffirms the Westphalian paradigm. The contextual argument and the presumption of conformity, as interpretative tools, allow courts to be more flexible, indeed more permissive, in resorting to international law.
Mark E. Brandon
This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the origins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legitimacy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are considered: the first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three).
Emilios Christodoulidis and Johan van der Walt
This chapter traces the tradition of critical theory in Europe in the way it has informed and framed legal thought. A key, and distinctive, element of this legal tradition is that it characteristically connects to the state as constitutive reference; in other words it understands the institution of law as that which organizes and mediates the relation of the state to civil society. The other constitutive reference is political economy, a reference that typically grounds this tradition of thinking about the law in the materiality of the practices of social production and reproduction. It is in these connections, of the institution of law to the domains of the state and of the political economy, that critical legal theory locates the function of law, and the emancipatory potentially it affords on the one hand, and the obstacles to emancipation it imposes, on the other.
Rula Jurdi Abisaab
This article examines the relationship between the ‘urfi (monarchical/sultanic) and the shari‘a courts in the administration of justice in Safavid Iran. In particular, it considers the notion that there was a split between a sacred and a secular basis for justice in Safavid Iran. To prove that this is not the case, the article looks at the roles of the Shah, the sadr, the qazis, the shaykh al-Islam, and the divan-begi in administering justice during the period. It shows that legal roles and processes in the Safavid justice system unfolded within a religious framework, reflecting the interface between ideal stipulations and practical ends, and between public shari‘a -derived law and private monarchical law. This provides evidence that shari‘a and ‘urfi courts were interdependent and provided overlays of jurisdiction in Safavid Iran.
Mónica García-Salmones Rovira
This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of international law, which was written at the beginning of the twentieth century. Oppenheim’s recognition of the economic interdependence of nations was one important factor in his success in establishing the international economic system as the supporting framework of his Family of Nations, and as the underlying theory of his international law. Afterwards, the chapter maps the complex legal theoretical transition embedded in the change of philosophical position as regards the understanding of universalism. This involves a move from the transcendent realist philosophy of an earlier era to the immanent philosophy of the Austrian positivists at the beginning of the century.
Jonathan Klick and Max M. Schanzenbach
This chapter offers an empirical analysis of fiduciary law, focusing on whether fiduciaries react to changes in fiduciary standards and which fiduciary rules maximize social welfare. Empirical studies of fiduciary law across three areas are discussed: corporate governance, fiduciary investment, and medical malpractice. The chapter considers fiduciary principles in corporate governance by looking at the duties of care and loyalty, citing empirical evidence implying that fiduciary duties in the corporate governance context influence corporate decision-making. It also examines the law of fiduciary investment, drawing on empirical evidence across three key areas: the implementation of the Prudent Investor Rule in private trusts, management of charitable trusts and prudent distributions, and the consequences of potentially conflicted advice to retirement savers. Finally, it explores the duty of care in the context of medical provider-patient relationships and the duty of loyalty in physician-client relationships.
Elizabeth A. Meyer
The human qualities, types of arguments, and the varieties of evidence that brought victory in a Roman courtroom are the subject of long controversy. The argument offered here is that evidence was subordinated to argument in Roman legal practice and the common thread tying arguments in various types of cases together was personal prestige of a particularly Roman sort—auctoritas, dignitas, gravitas—ideally possessed by litigants, advocates, witnesses, and supporting onlookers. But inert prestige was ineffectual: prestige carried with it expectations of behaviour, and its possessors were required to activate its power by appropriate behaviour in court, which confirmed the truthfulness of what they said, and at the same time strictly avoid inappropriate behaviour, which lessened or obliterated the power of their prestige.