Doctrinal Debate Research Articles

Ships of State and Empty Vessels: Critical Reflections on ‘Territorial Status in International Law’

Abstract In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.

Book Review: Historicizing Sunni Islam in the Ottoman Empire, c. 1450–c. 1750

The book examines Ottoman Sunnism’s evolution, orthodoxy, and spatial dimensions. Divided into three chapters, it critically engages with historical narratives, doctrinal debates, and socio-political dynamics shaping Ottoman Sunnism. Chapter I reevaluates Sunnī orthodoxy by tracing its historical dialogue with the past and the present. It examines the emergence of a new hadith culture in the sixteenth century, challenges conventional views through Shāhzādah Qorqud’s writings, explores the influence of Ibn Taymiyyah on Ottoman thought, redefines knowledge boundaries in Ottoman catechisms, and scrutinizes perceptions of heresy in Ottoman society. Moreover, Chapter II focuses on the spatial dimensions of Sunnitization, exploring how pious communities were constructed within urban institutions and convents. It investigates the transformation of spaces like the ʿimārah into mosques, the integration of Abdāl-affiliated convents into Khalwatī darwīsh networks, and the role of imāms in congregational prayers during the Ottoman Sunnitization era. Chapter III delves into the contextual and genre-specific nature of confessional politics, shedding light on the complexities of Sunnī-Shiʿī’ relations and Ottoman-Safavid diplomacy. It reexamines the portrayal of Qizilbash actors in Ottoman borderlands, evaluates Ottoman historical writing through the lens of Islamic history, and explores Islamic discourse in Ottoman-Safavid diplomatic exchanges.

Sola Scriptura and the Evolutionary Argument Against Naturalism

Inspired by Plantinga’s Evolutionary Argument Against Naturalism (EAAN), we develop an argument—the “Scriptural Argument Against Dogmatic Protestantism” (SAADP)—that Protestants who accept the doctrine of sola scriptura cannot reasonably hold that Catholic and Eastern churches are in doctrinal error. If sola scriptura is true and Catholic and Eastern Churches have fallen into error, it is improbable that any Protestant can reliably form true beliefs about controversial points of Christian doctrine, including sola scriptura or suggestions that Catholic and Eastern Christians are in error. We evaluate potential responses to SADDP, considering how SAADP should affect ecumenical doctrinal debates.

Public Perceptions Can Guide Regulation of Public Facial Recognition

Facial recognition technology is changing how people pass through customs at airports, check in at schools, and move anonymously in public spaces. Yet despite these transformations, its use by the government is largely unregulated. This Article informs the policy and doctrinal debates about facial recognition by presenting a public attitudes perspective. These three novel empirical studies show the nuanced views that Americans hold about government use of facial recognition. The data reveal that people are generally comfortable with the government using facial recognition to investigate serious crimes, enhance the security of controlled spaces like airports and schools, and increase the efficiency of identity verification in some contexts. But people are often not comfortable with casual governmental facial recognition use in public spaces. This pattern of strong comfort for tailored uses persisted even when, in a second study, participants were primed with negative information about the accuracy of facial recognition. Here I explore the implications of these results for both current Fourth Amendment doctrine as well as future legislative reform, promoting a balanced approach that allows tailored use of facial recognition while regulating its purposes.

A never-ending tug-of-war: The inherent right of self-defense against non-state actors

Within the scope of jus ad bellum, the right of self-defense attracts the greatest legal controversies. The long doctrinal debate surrounding it reveals the difficulty in determining its scope and precise limits during a unilateral military reaction against terrorist organizations. Here, we integrate this debate, arguing that this right is no longer only capable of being invoked in the event of an armed attack already perpetrated by a State, but it also does not have enough elasticity – without distorting it – to accommodate self-defense against terrorism. The cases of Afghanistan and Syria, on the one hand, reflect this controversy. On the other hand, they demonstrate the need for jus ad bellum to quickly adapt to reality. Therefore, we propose an intermediate position – the Unwilling and Unable doctrine, which allows the implemented system not to be distorted if it is properly defined, and if it is no longer indiscriminately invoked by States.

The legal personality of foreign states in civil law: l’affaire Zappa and the bequest of the Marquise du Plessis-Bellière

Summary This article traces the doctrinal debate on the civil legal personality of foreign states occasioned by two famous legal cases during the closing decade of the nineteenth century: the protracted conflict between Greece and Romania following Evangelis Zappa’s bequest of immovable property located in Romania to the Greek state for the purpose of resurrecting the Olympic Games, and the contested will of the Marquise du Plessis-Bellière which named Pope Leo xiii as legatee of real estate located in France. As Ernst Rabel and others have thought, the debate confirmed the scholarly consensus that the recognition given to a foreign state according to the rules of public international law, implies recognition of its capacity in private law matters. The objective of this article is to reconstruct the considerations that led to this apparent consensus, thus helping to facilitate an assessment of the persuasiveness of those considerations.

Doctrinal Debate on the Age of Contracting of Marital in Ibero-America

In this article, I intend to identify, within the frame of the semiotic theories of C.S. Peirce and U. Eco, some indications that may help to shed light on a remarkable phenomenon of constitutional interpretation, namely the influence exerted, in the determination process of the constitutional provisions which attribute fundamental rights, by the set of beliefs, expectations, purposes, etc., sedimented within a socially oriented linguistic practice. Through this operation of analogical transposition, I aim to highlight how the identification of the theoretical-doctrinal backgrounds related to the complex of ethical-political conceptions incorporated by the constitutions is strongly influenced by various elements of an intra- and extra-textual nature. Furthermore, by placing the interpretative processes in a broader hermeneutic-semiotic framework that considers legal cases as sign functions, the text seeks to demonstrate in a relatively easy-to-understand manner that the theoretical complications present in the legal field are ultimately not dissimilar to those found in any other interpretative activity that involves the use of a natural-historical language.

Master Nian念法師 as the “Westerner”: Re-Establishing Orthodoxy in Chinese Abhidharma

Sarvāstivāda Abhidharma treatises started to be carefully studied and commented on by monks in early medieval China with the translation of hṛdaya treatises, the *Aṣṭagrantha, and the *Vibhāṣas. However, with the “new” translations undertaken by Xuanzang and his clique, these were regarded as “old” translations and the thoughts of these scholars were gradually marginalized. Examining a doctrinal debate in Puguang’s Jushe lun ji, this article delves into the construction of authority by Xuanzang and his disciples in the field of Abhidharma. In this debate, Puguang criticizes Zhinian’s viewpoint solely based on its similarity with the view of “westerners” (xifang shi). The evidence Puguang presents is a quote from the newly translated *Mahavibhāṣa, which he uses to extol the value of Xuanzang’s “new” translation. It shows how Xuanzang and his team use the orthodoxy constructed by Kashmiri Vaibhāsikas to justify their own authority. Their success comes at a sacrifice of diversity of Abhidharma studies in China.

The International Recognition of Governments in Practice(s): Creatures, Mirages, and Dilemmas in Post-2011 Libya

Abstract The international (non)recognition of governments is a composite macro practice that has grown in visibility in recent years in response to contentious domestic political processes such as coups d’état, revolutions, and civil wars, yet it remains understudied in international relations. Doctrinal debates in international law and foreign policy reveal the normative vacuum and normative competition that have long surrounded this phenomenon, but say little about its specific operation and effects. This article brings together insights from recognition theory and international practice theory, and uses post-2011 Libya as an in-depth case study, drawing on elite interviews with diplomats, international officials, and other practitioners. The aim is to sketch a new research agenda by building a generalizable typology of smaller-scale government recognition micro practices (declaratory, diplomatic, informal engagement, intergovernmental cooperation, and support practices), and uncovering their guiding logics and consequences. I argue that, first, the international (non)recognition of governments is endowed with a distinct generative power, as it produces its own creatures through a range of micro practices that have identity formation and change, material empowerment, political legitimation, and sovereignty line-drawing effects. Secondly, it is geopolitically inevitable, as external actors involved in a country cannot ultimately avoid engaging with territorially grounded domestic political actors. Thirdly, it is not a black-and-white situation, as it involves a broad variety of practices guided by different, often contradictory logics. Finally, international government recognition practices are likely to run into three dilemmas stemming from three tensions: international versus domestic recognition, legitimacy versus effectiveness, and coherence versus inclusivity in conflict mediation.

Regulatory Expropriation – A New Hope: The Use of Legal Theory for Investment Law

Abstract What use could legal theory be for international investment law? This article shows that theoretical and doctrinal arguments are inextricably linked, using regulatory expropriation as a case-study. It proceeds from mainstream investment lawyers’ doctrinal arguments to the theoretical questions that are engendered by them and does this in three steps. First, it analyses the common debate on regulatory expropriation whose participants, while offering outwardly different solutions, actually see the problem the same way and draw the same conclusion. Second, it engages in a structural analysis of the traditional international investment agreement (IIA) expropriation clause. Third, it analyses one of the structural limits engendered by the relation between IIAs and customary international law in detail: we cannot assume that expropriation clauses ‘incorporate’ or ‘are to be interpreted while taking into account’ general law. This relationship is much less straightforward and helpful for defining the limits of indirect expropriation than is commonly argued.

The Plea of Necessity in Cyber Emergencies

Abstract Although an increasing number of states has explicitly acknowledged the plea of necessity as a circumstance precluding wrongfulness to be applicable in situations of cyber emergencies, important doctrinal questions remain underexposed in both official expressions of opinio juris and in the literature. The article closes this gap by giving an account of three of the most salient issues in the context of the necessity defence: the “only way” requirement, the condition of non-contribution, and assistance by unaffected states to defensive measures taken in emergencies. It concludes that while recently growing academic criticism of the prevailing strict understanding of the “only way” criterion might be less relevant in the cyber context, states should consider more explicitly how emerging norms obliging states to observe a certain standard of cyber hygiene in regard to domestic cyber infrastructures could influence legal assessments as to a possible contribution to a situation of cyber emergency, potentially precluding the necessity defence. Finally, long-running doctrinal debates surrounding the exact legal nature of the defence within the larger context of the customary rules on state responsibility are revisited to examine whether third states could be permitted to come to the help of imperilled states even if the defence does not apply to them individually.

Islamic Law and Human Rights: Doctrinal Controversies in Sunni and Shia Islam Since The 1948 Universal Declaration

From a comparative perspective, this article analyses the doctrinal debate that arose in Sunni and Shia Islam after adopting the Universal Declaration of Human Rights in 1948. This research method is a descriptive comparative prospective study carried out by comparing and explaining the object of research objectively and factually based on the data sources obtained. In this case, the benchmark for comparative data is Islamic law and human rights studies from the perspective of Islamic teachings and Shia Islam. For decades, this text has produced almost no response in Islam. In its final recommendations, the Congress of the Sixth Academy called for uniting the Muslim community, respecting human dignity and human rights, condemning racial discrimination by certain States that believe they are civilized, as well as only publishing works that expose the position of his arguments correspond to the thesis outlined by Abū al-Aʿlā Maudūdī in his texts on the Islamic State and a booklet on human rights in Islam. Certain are confident they are civilized and only publish works that expose the Islamic position on human rights. In November 1975, Mawdūdī gave a lecture in Lahore on the question which arose in response to this recommendation. From the 1980s onwards, more prominent thinkers began to confront their legal traditions with those that became the source of human rights. While comparing the two legal systems contributes to major developments and contrasts in the con-thought of temporary Islamic law.

The Rule of Law and the Welfare State: The Ways to Overcome Contradictions

Since the establishment of the guidelines for the development of the welfare state and the rule of law in Ukraine, doctrinal debates about the content of these concepts have not stopped. Legal theoreticians, constitutionalists, jurists of the sectoral direction investigate various problematic issues related to both – the rule of law and the welfare state. Such studies mainly concern each concept taken separately. The range of scientific research is pretty wide, starting from the attempts to formulate a comprehensive definition up to efforts to provide a universal list of signs (components) of each of the named phenomena. However, many domestic researchers pay attention to the contradictions between the doctrines of the welfare state and the rule of law rather than to their separateness. These contradictions are embedded in their deep essence, and which, in their practical dimension, can hinder the development of both – the welfare state and the rule of law. Nevertheless, the Euro-Atlantic civilization, of which Ukraine sees itself as a part, is constantly moving towards the socialization of states and the development of the rule of law. This process does not take place with the same success in all states. Ukraine belongs to those states that prefer to declare this intention. There are many explanations for this state of affairs, but the author of this article focuses on only one of them, namely the unjustified interference of state institutions in the free development of society based on respect for human rights and the rule of law.The author’s conclusions relate to the ways of overcoming the existing contradictions between the two concepts. First of all, we are talking about human dignity, as the basis of all human rights, including social rights. Other ways are the application of such components of the rule of law as proportionality, limitation of discretionary powers, legal certainty, transparency and accessibility, the right to appeal, etc.

Jāḥiẓian Negotiations: The Image of the Rāfiḍa in Al-Jāḥiẓ’s Corpus

ABSTRACT This article examines how the littérateur and theologian al-Jāḥiẓ (d. 869) portrayed the Imāmī community (Rāfiḍa) in terms of both its theological views and its social practices. In addition to their early date and unique beauty, Jāḥiẓ’s texts are unparalleled records of doctrinal debates and sociological insights. What emerges from his writings on the Rāfiḍa is an image of a community of simple-minded fanatics. On the one hand, the Imāmīs adhere to anthropomorphic and deterministic beliefs and are blind followers of authority. On the other hand, they are passionate believers who strongly stand in solidarity with one another. This, for Jāḥiẓ, explains their coalition with the superficial traditionalists against the rationalist Muʿtazila. The article is a stage in a larger monograph project.

Concili perduti o censurati? I dibattiti smarriti su grazia e libero arbitrio (Gallia, secoli V e VI)

The article considers three episcopal assemblies held in Gaul, which the manuscript tradition has not preserved, all involved in doctrinal debates on grace and free will. The first two, the council of Arles and the synod of Lyon, took place in the second half of the fifth century and concerned the affair of the presbyter Lucidus. The third is the Council of Valence that met just before the Second Council of Orange (529), that is, the council that marks the “resolution” of the conflict and also the only documented. With the idea that the history of the councils occupies important points in the reconstruction of the debate on grace and free will, even in the case of councils whose acts have not been transmitted, the article seeks to enhance these three events by reconsidering indirect sources. The episcopal meetings of Arles, Lyon, and Valence are, indeed, an integral part of the doctrinal work on grace and free will, which for about a century interested monastic and ecclesiastical circles in Gaul. Moreover, the recovery of their history restores well the complexity of the cultural, religious and political climate in which they took place.

Die Aufklärung der Aufklärung: Lessing und die Herausforderung des Christentums by Hannes Kerber

Reviewed by: Die Aufklärung der Aufklärung: Lessing und die Herausforderung des Christentums by Hannes Kerber Joseph A. Haydt Hannes Kerber. Die Aufklärung der Aufklärung: Lessing und die Herausforderung des Christentums. Göttingen: Wallstein, 2021. 286 pp. Hannes Kerber's monograph exploits close readings of largely neglected participants in the so-called fragments controversy to deliver a genuinely original reading of Lessing's authorial strategy during the early years of the controversy. On the strictly philological plane, this study merits attention among Lessing scholars for uncovering a host of sources within the Christian theological tradition that influenced Lessing's late religious thought. Kerber carefully documents Lessing's underappreciated sensitivity not only to the doctrinal debates that animated the formative (pre-Nicene) centuries of Christianity but also to the core theological innovations of the early Reformation. Kerber's book is no mere philological investigation, however, and his exegetical discoveries serve a broader interpretive agenda that bears on Lessing's assessment of Enlightenment philosophy and theology. In Kerber's view, Lessing believed that the religious disputes of his contemporaries systematically neglected the principles that the great theologians of both ancient Christianity and the Reformation had deemed to represent the most profound insights of Christianity. Kerber's Lessing aims to reconfigure such debates by restoring these dormant theological resources. Here, I focus on one example from Kerber's reconstruction of this strategy: Lessing's efforts to restore a Lutheran conception of faith in Über den Beweis des Geistes und der Kraft, composed in 1777 in response to Johann Daniel Schumann's defense of Christianity in Über die Evidenz der Beweise für die Wahrheit der christlichen Religion. In his discussion, Kerber documents in extensive detail the [End Page 195] careful attention that Lessing paid to Schumann's text in crafting his famous response, with the aim of challenging the widely held belief that the essay articulates Lessing's own theory of religious and historical truth. By comparing Lessing's text to Schumann's, Kerber demonstrates that each major junction of Lessing's argument proceeds by invoking a specific passage or claim in Schumann's text. Kerber argues that Lessing does not use Schumann's essay merely as an occasion to elaborate an independent theory of revelation; instead, Lessing's text adopts the terms of Schumann's argument and drives them to their logical conclusion, thereby calling attention to the incongruence between his interlocutor's premises and the conclusions they are meant to support. Kerber convincingly argues that this text does not aim to criticize religion or divine revelation as such but rather seeks to expose a particular form of religious thinking that conceived of religious faith as a species of certainty that could be justified by historical or rational truth. Kerber's Lessing believed that this conception of faith had surreptitiously become paradigmatic for the religious thought of his contemporaries, a development that involved abandoning a category distinction that had been fundamental for the theology of the Reformation: that faith is not an issue of rational certainty, but a matter of trust. In the guise of confessional orthodoxy, Schumann—and those who shared his views about the task of Christian theology—had parted ways with this central tenet of Protestant thought and reduced Christianity to a disguised rationalism. And, Kerber argues, it is just this lost tenet that Lessing wants to restore. Far from developing a critique of orthodoxy based on the philosophical principles of the Enlightenment, Kerber's Lessing is engaged in a process of recovering traditional orthodox beliefs to criticize the innovations of his theologian contemporaries, innovations which had come at the price of forfeiting the deepest theological claim that the Reformation had proposed with respect to divine revelation. (In a subsequent chapter, Kerber turns to Nathan der Weise to elaborate what Lessing takes to be at stake in this Protestant concept, arguing that it is a central concern of the play to portray the ethical, religious, and social force of the Lutheran conception of faith when taken in its complete scope.) Kerber's aim throughout this study is to show that Lessing was equally critical of both contemporary orthodoxy and its Enlightenment critics. While it has frequently...

Building Solidarity in the Field of Asylum: From an Abstract Principle to an Effective Policy?

Solidarity is widely present in European Union legislation. Several primary law provisions reflect its articulation, simultaneously assuming it as a value, an objective and a principle. Article 80 TFEU provides that the principle of solidarity and fair sharing of responsibility between Member States is the “guiding principle” of all common Union policies on border management, asylum, and immigration. Despite all this, solidarity has so far lacked a clear definition and meaning, appearing rather as an “amorphous concept”. Indeed, political narrative recognises solidarity as “the glue that holds our Union together”. However, in practice and as far as asylum is concerned, the conception according to which “solidarity must be given voluntarily, it must come from the heart, it cannot be forced” seems to prevail. By critically reviewing the relevant literature and the CJEU’s jurisprudence, this paper pursues a twofold purpose: examining the doctrinal debates on the nature, scope and (abstract or binding) character of the solidarity principle; and gauging the role that the CJEU may be playing towards an effective solidarity, uncovering the constitutional bases that prevent from continuing to treat solidarity, in its multiple manifestations and policy areas, in particular that of asylum, as little less than the stone guest.
 Received: 31 July 2022Accepted: 10 October 2022

Live broadcasting of sporting events: a trigger to the revolutionary reform of Chinese copyright law by transforming the condition of originality

In Chinese law, the seemingly transparent condition of originality has been used to classify audiovisual productions into two categories: videograms protectable by neighboring rights and cinematographic works protectable by copyright, the latter of which benefit from a higher level of protection. However, the reality is that audiovisual productions often involve the intellectual efforts of their production teams, as shown through the live broadcasting of sporting events, such that one cannot completely deny the absence of originality therein. In addition, considering that the legitimate interests of TV and broadcasting organizations are justified by their significant investments and the need to prohibit rampant retransmission of their broadcasts on the Internet, it is no longer possible to maintain the distinction between cinematographic works and non-copyrightable audiovisual productions. In these circumstances, a series of famous cases and doctrinal debates regarding live broadcasting of sporting events have triggered the revolutionary reform of the Copyright Law of China in 2020, in which the statutory category of cinematographic works has been replaced by audiovisual works. This reform has not only granted copyright protection to all audiovisual productions but has also adopted the minimum threshold requirement for which copyrightable works may qualify for originality. This minimum threshold will likely further open the door of copyrights to encompass all productions vital to industries.

Harold B. Lee and Mormonism's Black Priesthood and Temple Ban

Harold B. Lee and Mormonism's Black Priesthood and Temple Ban

The Jesuits Politico-Religious Strategy to Catholicize Ethiopia from Top to Bottom Approach: Opportunities and Challenges, 1557 to 1632

The Catholic Missionaries in Ethiopia was encouraged since the beginning of the Portuguese assistance against the Muslims in the war of Ahmed Grañ. The successive Ethiopian monarchal authority was engaged to defend a full-scale war between the Muslim Sultanates of Adal, led by Ibin Ibrāhīm al-Ġāzī usually known by many writers as Ahmed Grañ. The Portuguese expansion with the succeeding Jesuit mission in Ethiopia was a turning point in the history of Ethiopia. Moreover, the Portuguese and Spanish Jesuit missionaries were more attracted by the strategic location of the country. This, in fact, enabled them to monitor the expansion of Islamic power in the Red Sea and the long experienced Christian faith in the country that had further consolidated the Ethiopian and Portuguese alliance. Initially, a Jesuit undertaking led by Father Andrés D. Oviedo first entered the country in 1557 to have started the top-down conversion process. This research aims to assess the opportunities and challenges of the Jesuits missionary strategy for the Catholicization of Ethiopia from top to down Approach. To achieve the objectives of this study, the researcher used qualitative research approach to investigate the issue and used historical research design for this study as well. Historical research requires access to the original events or records that took place in the past as distinct procedure for the investigation. Thus, the primary sources that were produced at the time under study as well as secondary sources were used. Primary data sources such as Royal chronicles, Tarike Nagast, Diaries of eye witness, Jesuit texts and European travel accounts by travelers who visited the northern part of the country by the time have been used. Published and unpublished secondary sources such as books, articles, journals and internet sources were utilized. More significantly, the researcher verified the authenticity and credibility of the acquired historical source through accuracy, occurrence, relevance and authority. The findings of the research revealed that the Jesuits missionary ambition to implant Catholicism remained in vain with bloody wars that claim thousands of human lives. Ultimately, the Jesuit missionaries expelled from the country. However, they left behind a theological controversy that gave it to local theme to Catholicism in Ethiopia that finally resulted in the doctrinal debate particularly centered on the teaching of the two natures of Christ. The intense doctrinal debate which was held during the seventeenth and eighteenth centuries Ethiopia hastens to the absence of strong centralized monarchial authority that eventually led to the era of the princes.