Early Jurisprudence Research Articles

Virtues of the Flesh: Passion and Purity in Early Islamic Jurisprudence

Virtues of the Flesh: Passion and Purity in Early Islamic Jurisprudence

ZEءEV MAGHEN, Virtues of the Flesh: Passion and Purity in Early Islamic Jurisprudence, Studies in Islamic Law and Society 23 (Leiden: E. J. Brill, 2005). Pp. 308. €98.00 paper, $127.00 cloth

Z<scp>E</scp>ء<scp>EV</scp> M<scp>AGHEN</scp>, <i>Virtues of the Flesh: Passion and Purity in Early Islamic Jurisprudence</i>, Studies in Islamic Law and Society 23 (Leiden: E. J. Brill, 2005). Pp. 308. €98.00 paper, $127.00 cloth

The Necessary Implications of Wrongful Life Claims: Lessons from France

On November 17, 2000, the Assemblee Pleniere of the Cour de Cassation, the highest civil court in France, allowed Nicolas Perruche, a 17 year old suffering from congenital rubella syndrome, to recover damages against the doctor and the laboratory who had negligently advised his mother that she was not infected with rubella while she was pregnant with Nicolas. Suspecting that she was infected with rubella, Nicolas’s mother had told her doctor that she would terminate her pregnancy if the test proved positive. Negligently reassured twice that she was not infected, she continued with the pregnancy and Nicolas was born suffering the effects of the rubella which included severe developmental delay, deafness, partial blindness, and heart problems. The case falls under the rubric of ‘wrongful life’ as Nicolas could not have been born healthy, rather, he was claiming that without the negligence, he would not have been born at all and thus would not have experienced the suffering produced by his exposure to rubella. The decision caused an outcry in France and was widely condemned by the media, academics, groups representing the disabled, doctors and politicians. There was pressure on the government to request an opinion on the matter from the National Bioethics Advisory Committee (CCNE), which it eventually did. The resulting opinion condemned the decision in Perruche. Nevertheless, in three similar cases in July 2001, the Cour de Cassation confirmed its earlier jurisprudence (although recovery was denied on the ground that the women involved would not have been able to terminate their pregnancies had they been correctly informed of the results of their ultrasound examinations due to the operation of the abortion law). In November 2001 Perruche was re-affirmed by the Cour de Cassation. Despite this reinforcement of the position of the Cour de Cassation, there was some resistance by the lower courts. After much debate in the Assemblee Nationale and the Senat during 2001 and the early part of 2002, Perruche was finally overturned by a law dated March 4, 2002, which denies legal redress to one “who is harmed solely by being born”. In this article I proceed on the basis that the arguments around causation, harm and damages are masks for the real questions which surround Perruche. Many of the arguments against Perruche are based on what commentators view as the ‘necessary implications’ of the decision, which inspired the CCNE report and the new law. I examine these ‘implications’ as a series of questions, to determine whether these implications really are inherent in the court’s holding: -does the acceptance of wrongful life claims recognise a right not to be born? -if there is a right not to be born, is this inconsistent with the right to life? -if there is a right not to be born, does this necessarily imply a right to prenatal euthanasia? -does allowing wrongful life claims move us down a slippery slope towards the legalisation of euthanasia? -does allowing wrongful life claims foster a discriminatory society?

The early jurisprudence of the special court for Sierra Leone from the perspective of the rights of the accused

The early jurisprudence of the special court for Sierra Leone from the perspective of the rights of the accused

The S.U.V. model of citizenship: floating bubbles, buffer zones, and the rise of the “purely atomic” individual

Abstract Recent United States Supreme Court decisions concerning protest outside health clinics that provide abortions, coupled with a new wave of “aggressive panhandling” ordinances being adopted by American cities, indicate that Courts and lawmakers are creating a new model of citizenship. This model is marked by a radical individualism and extreme libertarianism based on transformed property relations. Courts are finding that individuals have an innate “right to be left alone” in public space – a strong departure from early jurisprudence which restricted that right to be left alone to private property. These recent decisions and laws suggest the development of a model of citizenship quite at odds with the cosmopolitan, associational citizenship theorized and promoted by many political theorists.

Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?

Abstract: Extension of the acquis to the new Member States raises a number of questions relating to the temporal reach of Community rules. This paper examines a general doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has influenced early jurisprudence of the European Court of Justice. Then, it comments upon the cases brought before the Court in the context of the 1995 enlargement, the entry into force of the EEA Agreement and also the Europe Agreements. These cases evidence substantial differences in the attitudes taken by the national courts, the Advocates General and the Court. One reason for divergence is that the line of reasoning adopted by the Court carries several interpretative difficulties characteristic of the classic doctrine. Secondly, controversies arise in the instances where the Court takes a proactive attitude, which is difficult to reconcile with the traditional scheme. It is argued that greater attention to the structure underlying the reasoning would help to strengthen justification of the Court's solutions and enhance their predictability. This is the more important, as the forthcoming accessions are likely to bring new disputes relating to the effects of Community law in time.

Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State

On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).

Enhanced Third Party Rights in the WTO Dispute Settlement Understanding

This article examines the issue of enhanced third party rights in the WTO DSU. The origin of broader participatory rights in the GATT practice is explored. Further, in the early WTO jurisprudence and in particular, in EC – Hormones, the Appellate Body determined the conditions under which those rights should be granted and the content thereof. Their foundation on the discretionary authority of the Panels and on considerations of due process was thereby established. This contribution focuses on United States – 1916 Anti-Dumping Act, where the Appellate Body was offered the opportunity to elaborate on the issue in a case where claims of procedural prejudice were raised. In light of the unsatisfactory response of the Appellate Body, an analysis of the DSU provisions is undertaken and the argument that enhanced third party rights have a strong basis in the DSU is advocated. At the same time, the procedural and systemic importance of the issue is highlighted.

Appellate Body Jurisprudence Relating to Trade Remedies

In this comprehensive article written shortly after she left the WTO, the first Director of the Appellate Body Secretariat examines the early jurisprudence on trade remedies, including subsidies/countervail, anti-dumping and safeguards. The first subsidies cases were brought before the Appellate Body in 1999 and focused on the prohibition against export subsidies. They were followed closely by a trilogy of safeguards cases in which the Appellate Body set forth its controversial approach to interpreting the obligations relating to the imposition of safeguards measures. Key terms including ‘unforeseen circumstances’, ‘domestic industry’, ‘serious injury’, standard of review, ‘causation’, and ‘like products’ were all scrutinized and given new meaning by the Appellate Body. Important procedural issues also arose in trade remedy cases during that period, including relating to the treatment of evidence, such as ‘business confidential’ information, refusal to provide information and amicus curiae briefs.

YASIN DUTTON, The Origins of Islamic Law: The Qur⊃an, the Muwatta⊃and Madinian⊂Amal (London: Curzon Press, 1999). $80.00 cloth.

Yasin Dutton makes a significant contribution to our understanding of the juristic activity in early Islam. His book produces a systematic and thorough study of the methodologies and legal techniques of Malik's Muwatta⊃, and in so doing, it sheds important light on the origins of Islamic law. Dutton carefully documents Malik's reliance on the Qur⊃an and the ⊂amal (practice) of the people of Medina in formulating early Islamic legal doctrines. In this context, Dutton challenges much of Western scholarship, which tended to minimize the role of the Qur⊃an and the Prophetic sunna in the development of early Islamic jurisprudence. The Qur⊃an, sunna, and ⊂amal, Dutton argues, formed integral components of early Medinian juristic discourses. Importantly, Dutton calls for a more sophisticated understanding of the concept of ⊂amal. He distinguishes between sunna and ⊂amal and between sunna and hadith. Sunna, Dutton contends, consists of the collective inherited precedent of the Prophet. In many ways, it is the Qur⊃anic precedent as well as the interpretations and ijtih―ad of the Prophet as remembered, in a general sense, by the early Muslim community. ⊂Amal, on the other hand, is the Qur⊃an and sunna in action as well as the interpretations and ijtih―ad of the companions, successors, and successors of the successors. Therefore, in a sense, Dutton argues that all ⊂amal includes the sunna, but not all sunna includes ⊂amal.

Bankruptcy's Origins in Debtor Perpetrated Crime

Modern bankruptcy law is viewed as intended for debtor relief, the polar opposite of early jurisprudence in the interest of creditors from which contemporary statutes evolved. Bankruptcy was once defined as an act of debtor fraud, usually absconding with property without paying ones debts and avoiding judicial process. Until the mid-nineteenth century, debtors were defendants accused by plaintiff creditors of committing bankruptcy. At the time of the U.S. Constitution's ratification, bankruptcy was punishable by death in the English Courts. The framers of the U.S. Constitution added bankruptcy to the list of federal powers to prevent fraud since a bankrupt's property could lay within various states outside the reach of the jurisdiction of other state courts. The discharge was introduced to entice debtors to submit to proceedings, expose hidden property, and was only available if certain majorities of creditors voted to grant such, somewhat as an extension of their right to elect assignees and trusties. Successive enactments during severe economic downturns decriminalized bankruptcy and progressively added debtor benefits; voluntary petitioning, widened eligibility and access to the discharge, creditor voting over the discharge was weakened and then abandoned. Eventually, bankruptcy was transformed from a branch of law for the relief of creditors against debtor fraud intended to foster the payment of debts into a pseudo-social welfare program for debtor relief. Modern bankruptcy law legalized what antecedent jurisprudence first sought to prevent, the nonpayment of debt.

BGH, Urteil vom 18.5.1995, - Zur Wirksamkeit einer formularmäßig vereinbarten Globalbürg-schaft nach dem AGBG - Zur teilweisen Aufrechterhaltung einer Klausel im Gegensatz zur unzulassigen

In this decision the 9th Civil Chamber of the German Federal Supreme Court changed its case law on the validity of a standard form contract providing a universal guarantee, and followed the 'causation' line of case law of the 5th and 11th Civil Chambers. The judgment was based on the following set of facts: The plaintiff savings bank provided a property company, a Kommanditgesellschaft, with an overdraft. In 1984 the defendant, a shareholder in the company, agreed to become personal guarantor of the credit advanced to the property company under a standard form of agreement with no restrictions on the time period or amount of the guarantee. Under Condition 1(1) of the Conditions of Guarantee, the guarantee was 'to provide security for all existing and future claims of the savings bank against the principal debtor, including conditional and time limited claims, … which arise out of their business relationship (in particular out of overdraft, credit and loan facilities of all kinds and bills of exchange) as well as out of bills of exchange which are submitted by third parties, guarantees, assignments or by way of subrogation.' In October 1985, the defendant parted from the company and in January 1986 the plaintiff raised the company's overdraft facility to 2.5 million DM and in addition granted it loans of 2 million and 1.5 million DM. The defendant gave notice of the termination of the guarantee in 1990, and shortly thereafter the company became bankrupt. The plaintiff claimed a sum of more than 10 million DM from the defendant as guarantor, and asserted an initial part claim in court for 1 million DM. At first instance and on appeal the claim was allowed. An appeal in cassation in the Supreme Court led to the quashing of the decision of the appeal court and the reference of the case back for a rehearing. In a departure from its earlier jurisprudence, the 9th Civil Chamber of the Supreme Court held that the clause in question was invalid, for breach of § 9 of the Law on General Conditions of Contract, and possibly of § 3 of the same Law. § 767 (1) of the German Civil Code required the guarantee to be limited. In a case where an overdraft facility was guaranteed, the extent of the overdraft allowed at the time the guarantee was given provided the limit within the meaning of this provision. The broad declaration of scope contained in the Conditions of Guarantee was by contrast inconsistent with this interpretation of § 767 (1) of the Civil Code and the purpose of the contract, because under it the guarantor was obliged to stand security for new extensions of credit, provided by the lender without any action on the part of the guarantor and exceeding the level of credit authorised by the lender at the time the guarantee was given. In addition, the standard form extension of liability to all existing and future commitments of the principal debtor was entirely surprising if the guarantee was given in order to encourage the grant or maintenance of a specific overdraft of a given amount, or the raising of the overdraft limit to a certain amount (causation principle). The standard form extension of the liability of the guarantor to all existing and future commitments of the principal debtor arising out of its relationship with the bank had not become a part of the contract of guarantee, therefore, but the declaration of scope remained valid in so far as it concerned the overdraft up to the limit agreed at the time the guarantee was given. The clause could therefore be partly maintained: it was not an impermissible reduction of the contract in an attempt to preserve it. The following comments analyse the decision from the point of view of Belgian (De Wilde), Swiss (Belser) and Greek (Tzouganatos) law.

A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court's willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes or to comply with the obligation of peaceful settlement of disputes.

Norman Calder, Studies in Early Muslim Jurisprudence, Oxford: Clarendon Press, 1993. Pp. x, 257. $55.00 (ISBN 0-19-825813-5).

Norman Calder, Studies in Early Muslim Jurisprudence, Oxford: Clarendon Press, 1993. Pp. x, 257. $55.00 (ISBN 0-19-825813-5).

Mishnah: A Digest of the Basic Principles of the Early Jewish Jurisprudence, Baba Meziah (Middle Gate), Order IV, Treatise II

Mishnah: A Digest of the Basic Principles of the Early Jewish Jurisprudence, Baba Meziah (Middle Gate), Order IV, Treatise II