Arts and Humanities Commons^™

Law's Legitimacy: Lon Fuller In A Consequentialist Frame, Daniel L. Feldman

Dissertations, Theses, and Capstone Projects

This thesis argues that Lon Fuller’s approach to jurisprudence offers more important support to the rule of law than has been generally recognized. It argues further that a consequentialist lens allows clearer views of Fuller’s strengths in this regard, despite Fuller’s own resistance to consequentialism and despite consequentialism’s blindness to some of Fuller’s depth and texture. This thesis supplies a formula, although one intended only as a guide to thinking, not for actual computation, to drive judicial decision-making. The inputs into this formula are six values widely shared in the United States, modified by case-by-case salience. Kantian deontology strongly influences …

The Recitation Of Imam Al-Kisa'i And Its Impact On Family Related Jurisprudential Rulings, Hamza Hammad

An-Najah University Journal for Research - B (Humanities)

This study aimed to introduce the Quranic recitations and Imam Al-Kisa’i, and shows the effect of the recitation of Imam Al-Kisa’i on family-related rulings. The study followed the inductive approach, which consists in extrapolating the verses related to the family rulings, then explaining the recitation of Imam Al-Kisa’i, then applying the comparative approach by contrasting the recitation of Al-Kisa’i with other reciters, then the analytical approach by analyzing the reasons for the different recitations and their impact on the jurisprudential rulings related to the family. The study concluded that there are applied jurisprudential models impacted by the recitation of Al-Kisa’i …

النوازل وأثرها على حكم التبني في الفقه الإسلامي: دراســة فقهيــة Calamities And Their Impact On The Rule Of Adoption In Islamic Jurisprudence: A Jurisprudential Study, Sami Al-Ajouri

Jordan Journal of Islamic Studies

ملخص

جاء هذا البحث الموسوم بعنوان: "النوازل وأثرها على حكم التبني في الفقه الإسلامي ـــــ دراسة فقهية" في مبحثين وخاتمة؛ بهدف دراسة حالة من حالات فقه النوازل المعاصرة، أصلها واقعة خاصة حدثت في زماننا المعاصر، واشتمل المبحث الأول -بعد التعريف المبسط للنوازل- على بيان أهمية الاجتهاد في النوازل وحاجة المجتمع إليها، وضوابط الاجتهاد فيها، وكيفيته. ثم جاء المبحث الثاني ليبين أثر النوازل المعاصرة على حكم التبني في الفقه الإسلامي.

وأظهرت نتائج البحث في خاتمته أن حكم التبني في الشريعة الإسلامية باقٍ على أصله بالحرمة، وأن ما تحدثه النوازل لا يعدو كونها توجد ضرورة تبيح المحظور، مع ضرورة الأخذ …

Shakespeare And The Supreme Court: How The Justices Reveal Their Ideologies By Referencing His Works, Rachel Anderson

Honors Projects

The works of William Shakespeare have been referenced many times throughout history, even by Supreme Court justices. Building off of an observation of a mock trial by James Shapiro, this project puts the utilization of Shakespeare from three Court opinions in relation to its context within the play and the opinion to examine what the reference reveals about the authoring justices' ideology. In doing so, this project concludes that the justices utilize Shakespeare's works in their opinions for various reasons, including to infuse their beliefs into their argument. This implies that Supreme Court justices do not base their opinions on …

Jurisprudence Assessment Of The Capital Of Financing Companies Affiliated To Conventional Banks Dealing With Islamic Finance Forms, Mohammed Bani Salman, Ahmed Al-Saad

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

The study aims to explain the nature of the company in general and the subsidiary company in particular in jurisprudence and statutory laws, and to show the types of companies affiliated with conventional banks that deal in Islamic financing formats. Also, the study deals with a statement of the jurisprudence rules governing the ownership of interest-based banks for subsidiary companies that deal in Islamic financing formulas

Fair Construction To Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Joshua Lloyd

Senior Honors Theses

The proper method of constitutional interpretation has been debated throughout the history of the Supreme Court. This debate has been defined by the tension between the originalist and living constitution jurisprudences. Each has been dominant at one point in United States history. A fair construction jurisprudence was almost universally utilized by the Supreme Court to interpret the Constitution according to its original meaning until Plessy v. Ferguson. Then, due to an alliance between evangelicals and progressive scholars, a broader, more lenient living constitution jurisprudence developed which allowed justices to interpret the Constitution in light of changing social norms. Finally, …

Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman

All Faculty Scholarship

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …

How Practices Make Principles, And How Principles Make Rules, Mitchell N. Berman

All Faculty Scholarship

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does. This article offers a novel answer. According to the theory it christens “principled positivism,” legal practices ground legal principles, and legal principles determine legal rules. This two-level account of the determination of legal content differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions. Drawing …

Two Diametrically Opposed Jurists: The Jurisprudence Of Chief Justices Roger B. Taney And Salmon P. Chase, Alexandra M. Michalak

The Cardinal Edge

No abstract provided.

Antiquities Smuggling: Its Concept, Rule, And Ways To Reduce It- Comparative Legal Jurisprudence Study تهريب الآثار مفهومه وحكمه وسبل الحد منه دراسة فقهية قانونية مقارنة, Hamza Abdel Karim Hammad

Jordan Journal of Islamic Studies

ملخص

تهدف هذه الدراسة إلى بيان الموقف الفقهي والقانوني من تهريب الآثار من حيث المفهوم والحكم الشرعي وسبل الحد منه، وقد اتبعت الدراسة المنهج الوصفي؛ بوصف الظاهرة كما هي في الواقع، ثم استقراء الحكم الفقهي لها وسبل الحد منها من خلال تحليل النصوص الشرعية مع مقارنتها ببعض القوانين العربية.

وقد انتهت الدراسة إلى أن تهريب الآثار فعل محرم شرعاً ومجرم قانوناً؛ استناداً إلى مجموعة مؤيدات شرعية؛ هي كون التهريب فيه اعتداء على المال العام، فضلاً عن مخالفته لولي الأمر إضافة إلى الضرر المترتب عليه. أما تدابير الحد من هذه الظاهرة؛ فهي وقائية وعلاجية؛ ومن الوقائية: ضبط الفتوى فيما يتعلق بالآثار، …

استثمار أموال الوقف الإسلامي وإشكالاته الفقهية, الحسن بنعبو

Dirassat

The article deals with the issue of the Islamic endowment, and that from two angles: the first is the jurisprudential angle, and the second is the contemporary investment angle in defining the terminological consideration of the issues of the Islamic endowment. The interest in investing endowments and preserving their continuity now the same. This allows for a fundamental issue, namely, the preparation of investment programs that take into account the interests and legitimacy aspects. In addition to maintaining the delicate balance between its openness to the requirements of preponderant interests and preserving the endowment that is embodied in the survival …

"Eugenics Is Euphemism”:The American Eugenics Movement, The Cultural Law Of Progress, And Its International Connections & Consequences, Bessie Sue Blackburn

Masters Theses

While often hidden under the guise of race betterment in both a scientific and even moral sense, eugenics was a bioethical movement that captivated many at the turn of the 19th century and through the Progressive Era—which was defined by a crisis of identity in the American mind. Sir Francis Galton, the coiner of the term "eugenics," predicted that this science would first infiltrate academia, then become a practical concern, and finally enter into the conscience as a new religion. This thesis examines this prophecy through the lens of the Scopes Monkey Trial, Carrie Buck's case, and the later horrors …

Incitement, Insurrection, Impeachment: Inside The Second Trump Impeachment, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Law School News: Whitehouse, Cicilline To Offer 'Inside View' Of 2nd Trump Impeachment Trial 02-17-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

About Medieval Egyptian Historians, Zukhra Aripova

The Light of Islam

This article is dedicated to the life and work of historians of the Mamluk period (1250-1517) in Egypt and the rich heritage left by them. In the XIII-XV centuries, Egypt had a special place among the countries of the Middle East due to the activities of the Mamluks. The prestige of the Mamluk sultans increased due to their victories in the fght against the Crusaders and the Mongols in the Middle East. The establishment of Mamluk rule in the history of Egypt, the growth of the superiority of military Mamluks in the country, the rise of the Bakhrit Mamluk sultans …

قاعدة العادة محكمة وتطبيقاتها في حسابات المصارف الإسلامية The Rule Of Custom And Its Applications In The Accounts Of Islamic Banks, Omar Abu Shanab, Zakariya Shatanawi

Jordan Journal of Islamic Studies

The study aimed to study the applications of (the rule of the custom) and its sub-rules on the bank accounts in Islamic banks. The study included a general definition of the rule of law and its sub-rules, the types of bank accounts in Islamic banks and the applications of the rule therein. The study found that there are contemporary applications of the rule of thumb in current accounts and investment accounts. The study recommended the need to pay attention to the study of jurisprudential rules and their contemporary applications in Islamic banks, for their importance in the jurisprudential consolidation of …

Warfare In Christianity And Islam: Unveiling Secular Justifications And Motivations Behind So-Called Religious Violence, Onur Korkmaz

USF Tampa Graduate Theses and Dissertations

The phenomenology of religion has received the most attention in social science because it has shaped society on social, political, and economic levels throughout history. Religion can be an organization that brings people together and develops a sense of identification, while also acting as a divisive structure for those of other faiths or nonbelievers. And so, we have witnessed the rise of both religious tendencies and violent acts for the last two decades, occasionally intertwined. Various belief systems have increasingly become a factor that politicians, intellectuals, and the mainstream media associate with violence-based modern warfare. However, scholars and analysts who …

الفروق في أصول الفقه- دراسة نظرية تأصيلية, محمد مصطفى

Hebron University Research Journal-B (Humanities) - (مجلة جامعة الخليل للبحوث- ب (العلوم الانسانيه

This paper deals with a theoretical study of the differences between principles of jurisprudence. The paper addresses: definition, aspects of, differences, the subject and the ruling of learning the differences in the principles of jurisprudence as well as sources through which these differences are derived. Also, it addresses the importance and benefits of being aware of the principles of jurisprudence. Furthermore, the paper provides a brief overview of the origin and literature on the differences in the principles of jurisprudence. The paper is concluded with a group of results the most significant of which is being aware that the knowledge …

Without Personhood: The Missing Point Of Slaves In Missouri's Emancipation-By-Residency Freedom Suit Jurisprudence, 1824-1837, Jacob Alfred Brandler

MSU Graduate Theses

From 1824 to 1837, the Supreme Court of Missouri developed a sophisticated caselaw establishing emancipation-by-residency—where a Missouri court could liberate an enslaved petitioner because of their residence in a free jurisdiction—as a basis of freedom suits. In 1852, however, the Court undermined the precedential value of those decisions and dismantled this basis when deciding Dred Scott’s case, Scott v. Emerson. Scholarship on Missouri’s freedom suits has highlighted how partisanship and the political atmosphere in Missouri as well as across the nation contributed to this outcome. This study adds to the historiography how the previous caselaw itself predisposed the result; …

An Examination And Critique Of The Compatibility And Coherence Of Brian Leiter’S Naturalized Jurisprudence With The American Legal Framework, Michael L. Keck

Masters Theses

In this thesis I argue Brian Leiter’s vision for a naturalized jurisprudence stands in problematic tension with critical facets of objective morality presupposed by the American legal system. Leiter makes the case for the naturalization of jurisprudence through adherence to his version of a naturalistic epistemology. Though Leiter explicitly rejects moral realism—and embraces elements of legal positivism—he acquiesces to the notion that judges sometimes utilize non-legal, “moral reasons,” when deciding cases. Leiter suggests that any moral “knowledge” that may influence the process of adjudication should be delivered by the hard sciences. I suggest Leiter’s epistemological naturalism is incapable of providing …

The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee

St. Mary's Law Journal

Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …

مدى تأثير الغاية على الوسيلة وتطبيقاتها في باب الجنايات والجهاد والقضاء The Extent Of The Effect Of The Purpose On The Method And Its Applications In The Chapter Of Crimes, Jihad And Justice, Abdullah Mahmoud Dawahdeh, Osama Ali Al-Rababaa

Jordan Journal of Islamic Studies

The current study discussed the effect of aims on means and some relevant applications in books of jihad, Felonies and jurisprudence, so it began with explanation of controls through which aims affect means in Islam with examples showing such effects taking into account origin establishment of each issue.

The study aims at clarifying the attitude of Islam towards the theory of “Aims Justify Means” and regulations ruling the consideration of aims in Islam with some examples indicating effects of aims on means in books of Islamic jurisprudence.

The study concluded that Islam regulated considerable aims and means and had balanced …

Rules, Tricks And Emancipation, Jessie Allen

Book Chapters

Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

The “Step-Child Of Scholarly Investigation”: Preliminary Observations About The Origins Of Academic Jewish Law Scholarship, David Hollander

Touro Law Review

No abstract provided.

From Political Hebraism And Jewish Law To The Comparative Paradigm, Amos Israel-Vleeschhouwer

Touro Law Review

No abstract provided.

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism. …

Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters

All Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …

Rethinking Copyright And Personhood, Christopher S. Yoo

All Faculty Scholarship

One of the primary theoretical justifications for copyright is the role that creative works play in helping develop an individual’s sense of personhood and self-actualization. Typically ascribed to the writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel, personhood-based theories of copyright serve as the foundation for the moral rights prominent in European copyright law and mandated by the leading intellectual property treaty, which give authors inalienable control over aspects of their works after they have been created. The conventional wisdom about the relationship between personhood and copyright suffers from two fatal flaws that have gone largely unappreciated. First, in …

Significance: (Should) And: (Should Not) Fundamental Jurisprudence Study"", Osama Adnan Al-Ghonmeen

Jordan Journal of Islamic Studies

This research is entitled: should and should not, a study of fundamentalist jurisprudence, the researcher seeks to grasp the fact behind the use of the words should and shouldn't in the Holy Qur'an and the purified Sunnah and to focus on. It should be pointed out that the word "should" was not included in the Holy Qur'an to refer to the jurisprudential rulings, It should also be pointed out that the use of the word (should), and the composition of (should not), in the semantic connotations, has come at an advanced stage when the prophet Mohammed ,peace be upon him, …