Jurisprudence Commons^™

Grasping Fatherhood In Abortion And Adoption, Malinda L. Seymore

Malinda L. Seymore

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy--it is easy …

Faultless Guilt: Toward A Relationship Based View Of Criminal Liability, Amy Sepinwall

Amy J. Sepinwall

Cognitive Dissonance Revisited: Roper V. Simmons And The Issue Of Adolescent Decision-Making Competence, 52 Wayne L. Rev. 1 (2006), Donald L. Beschle

Donald L. Beschle

No abstract provided.

The Proscription Of Incorporated Law Practices (Ilps) In Nigeria: The Legal And Constitutional Issues Arising, Abdullahi Saliu Ishola

Abdullahi Saliu Ishola

This paper critically examines the legality and constitutionality of the provision of Rule 5 sub-rule (5) of the Rules of Professional Conduct for Legal Practitioners, 2007 (the Rules), prohibiting the practice of law in Nigeria as a corporation. The appraisal is done on the scales of the provisions of Sections 40 and 42 of the 1999 Constitution of the Federal Republic of Nigeria, as amended (the Constitution), providing for rights to freedom of association and peaceful assembly and freedom from discrimination, respectively; on one hand, and, Section 18 of the Companies and Allied Matters Act (CAMA), allowing any two or …

Homogenous Rules For Heterogeneous Families: The Standardization Of Family Law When There Is No Standard Family, Katharine K. Baker

Katharine K. Baker

Fiduciary Relationships Are Not Contracts, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

The Protection Of Civilians In War: Non-Combatant Immunity In Islamic Law War, Muhammad Munir Dr.

Dr. Muhammad Munir

Islamic law makes a distinction between combatants (those who fight) and non-combatants (those who do not fight) and allows fighting with the former and protection to the latter. The Prophet (PBUH) and his four successors have been issuing instructions to their armies against the killing of civilians. Modern Orientalists rely on Khudduri who has relied on Tabari and who in turn has relied on Waqidi to present a very distorted version of Islamic jus in bello. The work critically evaluates Tabari’s methodology.

The Layha For The Mujahideen: An Analysis Of The Code Of Conduct For The Taliban Fighters Under Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

The following article focuses on the Islamic Emirate of Afghanistan Rules for the Mujahideen to determine their conformity with the Islamic jus in bello. This code of conduct, or Layha, for Taliban fighters highlights limiting suicide attacks, avoiding civilian casualties, and winning the battle for the hearts and minds of the local civilian population. However, it has altered rules or created new ones for punishing captives that have not previously been used in Islamic military and legal history. Other rules disregard the principle of distinction between combatants and civilians and even allow perfidy, which is strictly prohibited in both Islamic …

The Layha For The Mujahideen: An Analysis Of The Code Of Conduct For The Taliban Fighters Under Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

The following article focuses on the Islamic Emirate of Afghanistan Rules for the Mujahideen to determine their conformity with the Islamic jus in bello. This code of conduct, or Layha, for Taliban fighters highlights limiting suicide attacks, avoiding civilian casualties, and winning the battle for the hearts and minds of the local civilian population. However, it has altered rules or created new ones for punishing captives that have not previously been used in Islamic military and legal history. Other rules disregard the principle of distinction between combatants and civilians and even allow perfidy, which is strictly prohibited in both Islamic …

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

The Prophet (Peace Be Upon Him)'S Merciful Reforms In The Conduct Of War: The Prohibited Acts, Muhammad Munir Dr.

Dr. Muhammad Munir

This paper argues that Islam introduced far reaching reforms to warfare; that the conduct of the Prophet (peace be upon him) and his successors does not to allow the burning and drowning of enemy to death. Destroying buildings, cutting down trees, committing perfidy, breaching the trust of the enemy, the killing of women, children, servants, old, infirm, sick, wounded, priests, peasants, prisoners of warand envoys is strictly against the teachings of the Prophet (peace be upon him) or his successors. The destruction of harvest, livestock and forests, looting, plundering and corruption from the war booty and indiscipline are prohibited as …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Marriage And Parenthood As Status And Rights: The Growing, Problematic And Possibly Constitutional Trend To Disaggregate Family Status From Family Rights, Katharine K. Baker

Katharine K. Baker

"That Man Is You!" The Juristic Person And Faithful Love, Scott T. Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Juristocracy In The Trenches: Problem-Solving Judges And The Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard C. Boldt, Jana B. Singer

Jana B. Singer

This article explores the role of judges on two types of “problem-solving courts”: drug treatment courts and unified family courts. It compares the behavior these “problem-solving” judges to more traditional models of judicial behavior and to activist judging at the appellate level. The authors conclude that the judges who serve on these problem-solving courts have largely repudiated the classical judicial virtues of restraint, disinterest and modesty in favor of a more activist and therapeutic stance. However, the causes and consequences of this role-shift are complex. In particular, the authors suggest that the proliferation of problem solving courts and judges is …

The Rights Of Women And Role Of Superior Judiciary In Pakistan With Special Reference To Family Law Case From 2004-2008, Muhammad Munir Dr.

Dr. Muhammad Munir

Granting and protecting the rights of women in the domain of family law remains one of the most important areas of legislation in Pakistan. The role of judiciary is vital to ensure that the rights of women are protected because decisions of the superior judiciary are binding on the lower courts under the doctrine of precedent. This work focuses on cases decided by the superior judiciary in Pakistan over the period of five years to know the various remedies sought by helpless women. This article finds that legislation in the area of family law protects women to a greater degree …

Is Zina Bil Jabr A Hadd, Taz‛Ir Or Siyasa Offence?: A Reappraisal Of The Protection Of Women Act 2006 In Pakistan”, Muhammad Munir Dr.

Dr. Muhammad Munir

This article briefly discusses the various laws passed by the regime of General Musharraf (1999-2008) to relieve the plight of helpless women in Pakistan and analyses the Protection of Women Act, 2006 from a legal, rather than from a political or emotional perspective. It scrutinizes the opinions of leading 'ulama, such as Justice (R) Taqi 'Uthmani, Mufti Muneebur Rahman, Moulana 'Abdul Malik, and Hasan Madani. The position of women rights' groups about the said law is discussed; the claim of the then government that the Act is compatible with the Qur'an and the Sunnah is examined; the various changes made …

"Precedent In Islamic Law With Special Reference To The Federal Shariat Court And The Legal System In Pakistan”, Muhammad Munir Dr.

Dr. Muhammad Munir

This paper attempts to answer the question whether the common law doctrine of precedent as practiced in Pakistan is compatible with the traditional Islamic legal system. After a survey of the various articles and books about the judicial system of Islam it concludes that there is little, if any, material about the role of precedent in Islamic law. The paper also examines the judicial system of India under the Moghuls and the East India Company and traces the origins and evolution of the doctrine of precedent in the Indian sub-continent, more particularly in Pakistan. The role of the principles of …

Suicide Attacks And Islamic Law, Muhammad Munir Dr.

Dr. Muhammad Munir

Suicide attacks are a recurrent feature of many conflicts. Whereas warfare heroism and martyrdom are allowed in certain circumstances in times of war, a suicide bomber might be committing at least five crimes according to Islamic law, namely killing civilians, mutilating their bodies, violating the trust of enemy soldiers and civilians, committing suicide, and destroying civilian objects or properties. The author examines such attacks from an Islamic jus in bello perspective.

Marriage In Islam: A Civil Contract Or A Sacrosanct?, Muhammad Munir Dr.

Dr. Muhammad Munir

Marriage is one of the most sacred contract in Islam and not an ordinary contract of sale and purchase. Since 1886 Courts in the Indo-Pak subcontinent have been ruling that marriage in Islam is a 'civil contract' without giving a deeper thought to the meaning of this phrase. This article examines some of the cases in which the true notion of marriage is distorted by courts in Pakistan and India. At the same time some important cases in which the real place of marriage in Islam is highlited are also discussed. Moreover, it examines the nature of marriage under Islamic …

The Seduction Of Lydia Bennet: Toward A General Theory Of Society, Marriage, And The Family, Scott T. Fitzgibbon

Scott T. FitzGibbon

This article sketches the foundation for a general theory of society. Rejecting portrayals that make society a field of exploitation and dominance, it proposes instead an account that locates the foundation of society in its service of certain basic goods. Society is a kind of friendship. It is to be defined based on the goods of friendship and the projects that serve those goods. Its elements, including those of obligation, office, shame, and rehabilitation, further those goods. The society that emerges from this account is a "society of life." This article also proposes the concept of "components of society," reflecting …

Stipulations In A Muslim Marriage Contract With Special Reference To Talq Al-Tafwid Provisions In Paksitan, Muhammad Munir Dr.

Dr. Muhammad Munir

This work elaborates the over-technical topic of stipulations in a Muslim marriage contract; explains the various types of stipulations benefiting women and men; explains how and to what extent classical Islamic law is incorporated into statutes of many Muslim states; describes case law of Indo-Pak subcontinent on stipulations based on the doctrine of stare decisis; surveys talaq al-tafwid in Pakistan to ascertain the extent of its practical application by the masses; and explore the role of nikah registrars, who are authorized by the government of Pakistan to solemnize nikah (marriage contract) throughout the country.

The Judicial System Of The East India Company: Precursor To The Present Pakistani Legal System, Muhammad Munir Dr.

Dr. Muhammad Munir

The work discusses how the British East India Company came to the subcontinent for the purpose of trade in 1604 and how it slowly and gradually started interfering in the local justice system by acquiring revenue collection of 38 villages in 1717 near Calcutta. In 1765 the Company was granted revenue collection as well as customs of three provinces. The Company also acquired the administration of justice in the areas under its control and the role of Muslim qadis and judges was over. Company’s officials, who were traders rather than trained judges, were running the court system and the Privy …

Marriage And The Ethics Of Office, Scott T. Fitzgibbon

Scott T. FitzGibbon

This Article alms to retrieve the neglected concept of the "office," as in "the judicial office" or "corporate officer" or the"office of deacon or lector." It aims to present a thorough account of what that term means. It inquires into the ethics of office, advancing the thesis that to hold and exercise office is a good thing, not only in the obvious instrumental ways-it serves a function and it gets results-but also as a part of the "final," non instrumental good of the officeholder and even, in some arrangements, of the recipient of the officeholder's services. Office is an aspect …

The Protection Of Women And Children In Islamic Law And International Humanitarian Law: A Critique Of John Kelsay”, Hamdard Islamicus, Xxv (3) (July-September 2002), Pp. 69-82, Muhammad Munir Dr.

Dr. Muhammad Munir

Islam introduced the most humane rules in warfare before other religions or faiths could do it. Most authors acknowledge this fact, however, John Kelsay, Fredrick Donner, and few others doubt Islam's enormous contribution to bring in humanity in warfare. These authors assume that Islam has learned humanitarian principles, such as the principle of distinction, from the pre-Islamic practices; that Imam Al-Shafi'i allowed the killing of all women whether combatant or non-combatant; that even the Prophet Muhammad (peace be upon him) allowed the killing of women and children; and that women and children can be enslaved. This work completely rebuts all …

Gender, Genes, And Choice: A Comparative Look At Feminism, Evolution, And Economics, Katharine K. Baker

Katharine K. Baker

September 11 Attacks And Surviving Same-Sex Partners: Defining Family Through Tragedy, Nancy J. Knauer

Nancy J. Knauer

The September 11 relief efforts present a unique prism through which to view the status of same-sex relationships and to consider which families count when the United States is supposedly at its most generous, most united, and most injured. On a basic human level, would the nation grieve for Peggy Neff, who lost her partner of 18 years when Flight 77 crashed into the Pentagon, as it had for the widow of a fire fighter? Would Neff be eligible to file a claim with the multi-billion dollar federal September 11 Victim Compensation Fund, which Congress established to compensate victims and …

Marriage And The Good Of Obligation, Scott T. Fitzgibbon

Scott T. FitzGibbon

Marriage is obligatory. This is not to say, of course, that bachelorhood must be avoided or that everyone ought to get married. The point, rather, is that those who do wed form a relationship which embraces obligation as a fundamental component ("commitment norms," as Professor Elizabeth Scott has put it). This article aims to show why this is a good thing, and fundamentally so. Marriage and other affiliations, it seems, may involve obligation in two basic ways. The first way is instrumentally. The projects of married life require long-term commitment and fixity of purpose: raising children and paying off the …

"True Human Community": Catholic Social Thought, Aristotelian Ethics, And The Moral Order Of The Business Company, Scott T. Fitzgibbon

Scott T. FitzGibbon

No abstract provided.

Unmasking Undue Influence, Ray D. Madoff

Ray D. Madoff

The substantial passage of wealth that occurs upon death in the United States each year brings into focus the tension between the belief that people should be able to dispose of their wealth as they wish and society’s interest in maintaining social stability. Nowhere is this tension more apparent than in the doctrine of undue influence. The dominant paradigm presents the undue influence doctrine as providing a double benefit of protecting freedom of testation as well as preventing overreaching by others. In this Article, the author challenges the dominant paradigm by demonstrating how the undue influence doctrine denies freedom of …