Law Scholars Research Articles

Hukum Islam Antara Idealisme Dan Realitas

The study discussed in this study is a library study that seeks to present descriptively with methods of qualitative and library research, i.e. library-based research, in the process of data collection, researchers conduct research and analyze library sources obtained from the theories of literary books. (library research). The result of the study of the library obtained there was a gap between the desired idealism and the reality in its implementation; 1) Islamic law idealism offers principles that are fair, fair, and based on Islamic moral values. However, in the reality of its implementation, there are challenges that result in the gap between such idealism and reality. Factors such as varied social, political, cultural, and interpretation of Islamic teachings affect the gap between idealism and the reality of the Islamic law. These factors can hinder the implementation that corresponds to the desired idealism. 3) The impact of the gap between idealism and the reality of Islamic law is visible in societies, where there is sometimes an inconsistency between public expectations of fair implementation and realities that do not meet those expectations. This can lead to dissatisfaction, injustice, and social tension. 4) To overcome this gap, efforts involving various parties are needed, including religious leaders, Islamic law scholars, legal practitioners, and the general public. In this regard, a deeper understanding of Islamic teachings, the strengthening of justice institutions, the involvement of society in the process of law-making, and the promotion of dialogue and understanding between groups can be effective measures. Building understanding and cooperation between religious leaders, Islamic law scholars, and legal practitioners with the general public is key in strengthening the implementation of Islamic Law in accordance with desired idealism. It is essential for the implementation of Islamic law to justice, sustainability, and well-being for society.

My Body Is My Temple? Comparing Sexual Crimes and Property Crimes in a Human Rights Tradition

AbstractDespite recent criminal law reforms to define rape through the lack of consent, practical questions remain about how to regulate different kinds of violations of sexual autonomy. Many common law scholars have found it eye-opening how much more extensive and easily accepted the protection of property rights is compared to the protection of sexual autonomy. But when the rationale of criminalization resides in human rights, such a comparison is alien; protecting human dignity appears separate from protecting instrumental property rights. Considering rape a subversion of our ownership rights to our bodies (the property model of rape) is rightly regarded as problematic. This article argues that comparing sexual crimes and property crimes is not predicated on the property model but rather on autonomy itself. Comparisons based on autonomy could help resolve practical dilemmas of consent-based rape laws while respecting human dignity and thus be fruitful research pursuits within a human rights tradition.

Il diritto romano e le vie dei codici civili

Abstract The recent book by Sandro Schipani, invites legal scholars and, in particular, Roman law scholars, to reflect upon its role and impact. Therefore, we will address the development and diffusion of Roman law, focusing on the authors who contributed to the evolution of this field of law and on Roman law spreading all around the globe. Furthermore, we will consider the equalizing force of Roman law, its expan-sive capacity, and its potential to promote peace within and between nations.

Comparative Public Law Scholarship in the United States

The article addresses the paradoxical nature of comparative public law scholarship in the United States. The globalization of life makes foreign law as inescapable in the United States as in any other modern country. Foreign law models played a substantial role at the founding of the country and for some time thereafter when there was not much American law. But today comparative study of foreign models of public law plays hardly any role at all in the preparation of legislation or constitutional amendments in the United States, and a high-profile debate at the Supreme Court revealed significant antipathy on the Court to the use of comparative law in interpreting domestic law. In those senses, comparative public law scholarship appears to have little impact on U.S. law. There are, moreover, a number of unique features of American law that make it difficult to import legal models from other countries, most notably the especially strong skepticism toward reliance on the state and state regulation that pervades American society and legal thinking about law. One might conclude that a cosmopolitan world view is not very strong in America, but the article argues for a more nuanced view. The forces of globalism expose lawyers and courts in the United States constantly to foreign and international law, immigration continues to enrich the body of scholars working and teaching in the United States, and there is a rich body of foreign and comparative law scholarship in English that is readily available to students and scholars in the United States and that is produced at least in substantial part by scholars working in the United States. These features attest to a curiosity and openness in the United States to learning about foreign law. The article argues that America is home to strong tendencies in both directions, cosmopolitanism and its opposite, nationalism or chauvinism, and comparative public law scholarship in the United States should be seen as navigating between these opposing impulses.

Is Legitimate Exclusion Incompatible with the Sovereign Right to Exclude?

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls,1 the continuously widespread use of deportation as a migration control tool,2 and new digital bordering technologies3 have all come under scrutiny precisely because of the challenges they pose to the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists.4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions.5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices.

Sacred Children, Taboo Tradeoffs, and Distorted Discourses

This Article brings together three literatures—bioethics, psychological research on taboo tradeoffs, and family law—to reveal pervasive distortions in current family law scholarship and judicial reasoning. Empirical work in bioethics shows that child welfare occupies a unique moral sphere. People routinely resist making tradeoffs between spheres. Just as sacrificing adult lives for money is taboo, so too is sacrificing child welfare for adult welfare. When faced with the prospect of these tradeoffs, people engage in a predictable set of avoidance and moral mitigation strategies. Across five case studies, this Article shows how child welfare has talismanic qualities which, even in the rarified world of the legal academy, ward off any open discussion of competing interests and powerfully distort scholarly arguments. The problems are worse in the context of elected officials. No legislator can plausibly say: “Of course I’m harming these children, but look at all the offsetting benefits to adults!” Recognizing the taboo nature of trading off child welfare is critical to fully understanding recent critiques of empirics within family law and has sobering implications for the budding movement toward evidence-based policymaking.

Foreword: Symposium by the Consortium for the Study and Analysis of International Law Scholarship (SAILS)

Foreword: Symposium by the Consortium for the Study and Analysis of International Law Scholarship (SAILS)

Andemic, Maternity, and Inter- national Lawyers from the Global South: a Call for an Intersectional Approach

What are the impacts of virtualisation on mothers from the Global South who are international law scholars and practitioners? This article argues that it created both challenges and opportunities. It starts with a general overview of international legal academia and states that the Divisible College of International Law is a predominantly male global-north college. Next, it provides some data on the pandemic and how it has affected output in academia in unequal ways by using Brazil as a case study. On that basis, the paper finds that motherhood requires distinct attention as against other performative identities. As a remedy, the paper applies TWAIL feminisms as the approach and framework to revisit this debate and render mothers from the Global South visible, especially in the post-pandemic context. Synthesising these findings, the article finally calls for an intersectional approach, namely a TWAIL matricentric feminist approach to international law.

Older people as vulnerable persons in the perspective of law

In the era of the “silent revolution” of an unstoppable aging of the world’s population, there is a question regarding the appropriateness and desirability of establishing a legal category called “elderly individuals” to address the gradual decline in physical and mental abilities associated with aging. This essay explores the potential designation of older people as an independent category under the law, considering that linking changes in their socio-legal status solely to the passage of time has been viewed as a form of “subjective discrimination” by civil law scholars so far. While labor and social welfare laws have long recognized the “special status” of elderly individuals, and the EU has increasingly referred to them in recent consumer-focused legislation, the prevailing view in Italian civil doctrine opposes the creation of an “old subject” category, arguing that vulnerability cannot be considered an intrinsic and defining characteristic solely based on age. Notwithstanding that, the essay suggests that creating a group or category for vulnerable (elderly) individuals could have several advantages, including recognizing their rights, assigning obligations, implementing tailored procedures, and providing forms of protection. Moreover, it would offer an opportunity to reflect on the importance of empowering individuals and promoting their autonomy in using legal instruments to plan their future.

Consumer Law Scholars’ Response to Proposed Rules on Debt Collection Practices (Reg F)

Consumer Law Scholars’ Response to Proposed Rules on Debt Collection Practices (Reg F)

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Carpenter (7th Cir.)

Brief of Criminal Law Scholars as Amici Curiae in Support of Appellant Seeking Reversal, United States v. Carpenter (7th Cir.)

Analytical Examination of General Malice in Light of the Material Element of Crime

Criminal law scholars have assigned a chapter to the degrees of malice in their writings and have addressed several topics under it. What comes to mind from the expression "degrees" is the division of malice based on intensity and weakness. However, with a little reflection on the examples of criminal intent, it can be understood that criminal intent is essentially devoid of intensity and weakness. The question raised in this study is: what is meant by general criminal malice in criminal law? The author believes that general criminal malice in criminal law refers to the perpetrator's intent to commit the act. This research aims to identify general criminal intent and its position in the criminal liability of offenders and seeks to examine general intent as one of the elements of the material element of the crime. This research uses a descriptive-analytical method and relies on library tools, journals, and articles. In general, it can be acknowledged that general criminal intent or the intent to engage in criminal behavior is one of the fundamental and important characteristics of intentional crimes, and without it, the realization of intentional crime is negated. On the other hand, in some classifications, what is defined is not criminal intent but rather a weaker mental state than intent, which is included in the realm of criminal mistake, or for certain reasons, it has been classified under criminal intent.

National Rifle Association of America v. Vullo: Brief to the Supreme Court of Financial and Business Law Scholars as Amici Curiae in Support of Petitioner

National Rifle Association of America v. Vullo: Brief to the Supreme Court of Financial and Business Law Scholars as Amici Curiae in Support of Petitioner

평등의 원칙과 사법 (私法)

The principle of equality has traditionally been a topic in public law scholarship. In recent years, however, it is increasingly discussed in private law scholarship. This paper discusses how the principle of equality operates in private law. The conclusions are as follows: First, private law legislation as well as private law interpretation have been undoubtedly bound by the principle of equality. However, private law relationships between private persons are not. In this area, the so-called horizontal effect of principle of equality or rights thereto shall be denied. Second, there are examples in private law where the principle of equality appears to be applied. Resolutions, decisions, or di spositions by or in corporations, associations or long-term contractual relationship can be illegal if they are discriminatory; refusal to deal, suspension of dealings, or refusal of admission to an organization or long-term contractual relationship can be illegal if they are discriminatory; the exercise of ownership rights or the operation of an organization can be i llegal if it has been open to the publi c while excluding certain persons or groups of persons in contradiction to that practice. These are manifestations of the inherent limits of private autonomy, of the principle of good faith and fair dealing, of abuses of rights, and of the general right to personality, however, rather than of the principle of equality, especi ally constitutional equality. Finally, legislators can still impose obligations on private persons to treat other private persons equally, and many do. Given the inherent tension between private autonomy and equality, however, such legislation should be limited to specified traits and/or specified areas and should not be too broad. Relevant legislations in the United States and Germany demonstrate it. It is questionable whether the drafts for the general equal
 treatment act currently being discussed strikes such a balance.

Morals and Ethics in Counterterrorism

Political leaders, philosophers, sociologists, historians, political scientists, law scholars and economists approach terrorism in diverse ways, especially its definition. Politicians assign the meaning to the term terrorism that best suits them. Political scientists analyze the actions of those in the geopolitical framework. Moral philosophers look at terrorism from the viewpoint of fairness. Historians make a comparative assessment of the phenomenon through its evolution over time, and scholars of law simply dissect counterterrorism measures and assess their consistency with customs and current legislation. Sociologists stress the importance of culture, social relationships and social interactions. Eventually, politicians and lawmakers are not immune to the influence of the common ethics and morals of their own societies and the uses and habits of their own cultures, including religious aspects. Morals and ethics relate to “right” and “wrong” conduct; the first provides guiding principles, and the latter refers to rules provided by an external source, e.g., codes of conduct in workplaces or principles in religions. While morals are concerned with principles of right and wrong, ethics are related to right and wrong conduct of an individual in a particular situation. Ethics, morals and religion are intertwined in the antithetical principles “good and evil.” This work aims to scrutinize the crucial concept of just and unjust war, and just and unjust combatants, and to elaborate on some critical moral and ethical elements within the modern understanding of the interplay between terrorism, counterterrorism, fundamental human rights, and international humanitarian law. Through the examination of all pertinent theoretical positions the paper seeks to shed light on the limits of the use of force and the justification of the violation of fundamental rights in the War on Terror.

THE CRIMINAL LAW ASSESSMENT OF EXTORTION IN THE LIGHT OF THE CSEMEGI CODE AND CONTEMPORARY JUDICIAL PRACTICE

In this essay I would like to introduce the process of the causes leading to the creation of the statutory offence of extortion, the examination of the created offence and the development of judicial practice at the time. For this purpose, I primarily drew on the documents prepared during the codification of the Csemegi Code, the ministerial explanatory memorandum of the Act, the works of the classics of Hungarian criminal law scholarship and court decisions. The extortion first appeared in the Csemegi Code, so prior to its entry into force only extortion-like offences had been regulated. The offence of extortion criminalisation and hence its inclusion in the list of property offences is linked to the Act V of 1878, which name is Csemegi Code. Chapter XXVII of the Special Part of the Csemegi Code is entitled Robbery and Extortion. The Article 350 of the Penal Code is included the basic case of extortion. While the Article 353 of the Csemegi Code is included the qualified cases of extortion. By presenting these in this essay I would like to introduce the specificities of regulation and explain in detail the similarities and differences between robbery and extortion.

Rule by Metrics

Abstract We live in societies in which an ever-growing array of activities in a range of fields are assessed, controlled and governed according to quantitative techniques. This paper focuses on processes grounded on quantitative tools (e.g. scores, indicators, rankings, algorithms) that are used in order to measure the performance of processes, people or organizations. Such processes are referred to in this paper as ‘legal metrics’. We explore how different legal systems and sectors rely on legal metrics, and develop a twofold argument. On the one hand, we argue that performance-based quantification often qualifies as a form of regulatory intervention. On the other hand, we contend that performance-based measures are always adopted and applied in legal contexts that react differently to the quantification turn. Both sides of this picture have largely been overlooked by comparative lawyers, even though they imply looking for law in extraordinary places and appraising a variety of legal manifestations in different settings. Understanding which forms of quantitative measures are widespread, in which sectors and regions, made by whom and producing what regulatory effects, is a research task that could (and in our opinion should) be of interest for all comparative law scholars.

Revisiting Jessup and the imperial origins of transnational law

AbstractPhilip Jessup’s 1956 Storrs Lectures, Transnational Law, developed a case for theorizing law beyond the state which continues to shape understandings of transnational law. Yet while transnational law has assumed increasing importance with globalization, it remains beset by conceptual difficulties. This article suggests that such difficulties are at least partly attributable to misreadings of Transnational Law primarily as proposing a more pragmatic concept to drive law’s progression. Contextualizing the Lectures within Jessup’s involvement in the US’s postwar worldmaking project and the contrasting project pursued by Third World states, and through close textual study, it contends that Transnational Law is better understood as geared to undermining the legal foundations of key efforts to counter Western dominance. It further shows how this reading can aid in clarifying misunderstandings of Jessup’s Lectures that still inform transnational law scholarship and in considering how law’s capacity to sustain inequality and exploitation may be challenged.

Law and politics from the sea

AbstractRecent scholarship in law and society has engaged in novel ways with maritime spaces, articulating how they inform legal theory more broadly. This essay builds on such scholarship, and on a broad-brushed survey of maritime history, to make two basic arguments. First, a look at political and legal processes regarding maritime spaces reveals that law is transnational ‘all the way down’. Legal theorists often assume that transnational legal processes are an added layer beyond domestic and international law. But the maritime perspective reveals that transnationalism comes first, both analytically and historically, as a constant negotiation of the relationship between what is ‘inside’ and what is ‘outside’ a polity. Second, the maritime space begins, at least in dominant legal traditions, as an absolute exteriority – imagined as outside or beyond polities and jurisdictions. But with the climate crisis and the emergence of the Anthropocene we may observe an inversion, the sea now appears as a record of harmful human activity; a mirror showing a troublesome collective portrait of humanity. The inversion from a maritime exteriority to the intimacy of ubiquitous environmental harm defines the parameters of law and politics today. The essay concludes with reflections on how the maritime perspective may best be engaged today in responding to that image through political action. It conceptualizes what I call the ‘commonist lifeboat’ – a model of bottom-up universalism for tumultuous times.

A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press, Free Speech, and More

This systematic review of more than 300 Journalism & Mass Communication Quarterly (JMCQ) articles on media law since 1924 documents what a vital scholarly outlet the journal has been and continues to be for research on freedom of the press and speech. While defamation law remains a popular topic, journalism and mass communication scholars have expanded their focus to a wider range of media law issues, including privacy, copyright, student speech, journalistic privilege, free press v. fair trial, advertising, and issues involving other media. JMCQ has been refreshingly open to international and comparative law, moving away from a U.S.-centric approach to media freedom. The review highlights a decline in the number of media law articles published in recent years, possibly due to competition from alternative journals, manuscript length limitations, and the APA-style requirement. Nevertheless, media law scholarship remains essential, offering invaluable insights into the evolving legal landscape of media.