Jurisprudence Commons^™

Islamic Flextime, Liaquat Ali Khan

Ali Khan

Islamic flextime is derived from a divine decree that convenience is the organizing principle of cosmic construction. Rigid temporal frameworks restrict freedom and may even impede human happiness, social harmony, and economic efficiency. This essay explains the foundation of Islamic temporality. Islam teaches that human beings can use temporality but they have no control over time, just as they can benefit from sunlight but cannot conquer the sun. A flexible notion of temporality facilitates the performance of obligations, without repudiating the core concepts of punctuality and time commitments. Islamic flextime is an accommodation principle that respects individual needs and mitigates …

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda

Vito Breda

This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …

Constitutional Patriotism: A Reasonable Theory Of Radical Democracy?, Vito Breda

Vito Breda

Since its first appearance just over a decade ago, Habermas's constitutional patriotism has inspired a rich and articulate series of theoretical analyses and has indirectly encouraged constitutional projects such as the Constitution for Europe. The popularity of constitutional patriotism among political and constitutional theorists has, however, also generated some confusion over the aims and basic structure of Habermas's endeavour. For instance, it is unclear whether constitutional patriotism ought to be considered a constitutional or political theory. This paper seeks to clarify some of the misunderstandings surrounding constitutional patriotism. It will contend that the theory is, at its core, a political …

The Right To Life Of The Unborn Child And The Case Artavia Murillo And Others V. Costa Rica, Emercio J. Aponten Núñez Phd

Emercio J Aponten Núñez PHD

No abstract provided.

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle

Vanice L. Valle

This article describes the historical origins of the Brazilian constitutional frame of socio-economic rights, and the political context that lead to their enforcement through the Judiciary. Based in a particular constitutional text that asserts socioeconomic rights’ immediate enforceability, the present theoretical comprehension is that they establish the State’s obligation to provide goods and services. The consequence is an intense judicialization of rights such as health, education and housing, which results in a wide exercise of judicial activism in controlling public policies – with the Judiciary renouncing to the objective rational criteria consubstantiated in the law, and to an approach that …

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first be …

International Legal Positivism And Legal Realism, D. A. Jeremy Telman

Law Faculty Publications

This chapter, a contribution to a book on International Legal Positivism in a Post-Modern World, gauges the potential for mutually enriching interactions between international legal positivism and legal realism. It first describes the encounter between legal positivism and legal realism in the U.S. legal academy and then proceeds to discuss the rise of a new legal realism in international legal theory. In a concluding section, the chapter assesses the compatibilities and tensions between the new international legal realism and the new international legal positivism.

With its forthright embrace of the inescapability of uncertainty in law, the new international legal …