Western Legal Research Articles

Searching for Justice: Indigenous Self-Determination over the Landfill Search as a Matter of Justice for MMIWG2S

“Search the Landfill” is an Indigenous-led movement for justice for missing and murdered Indigenous women, girls, and Two-Spirit people (MMIWG2S) which originated through Indigenous resistance to police racism in Winnipeg, Canada. The movement calls upon all levels of government to support and execute the search of the Prairie Green Landfill, just north of the City of Winnipeg, to recover the bodies of at least two of four First Nations women who were murdered in early 2022 at the hands of a white male serial killer. Through an analysis of the news articles, press releases, and reports, this paper explores the way in which Indigenous leaders resisted and rewrote the discourses that surrounded the search. By at once condemning the Winnipeg Police Service’s refusal to search the landfill and rejecting police authority and control over the decision-making process, Indigenous women who became the leaders of this movement crafted the space to articulate for themselves how and why the search must be done as a matter of Indigenous rights. This paper explores how Indigenous leadership offers glimpses of what a decolonizing approach to justice may look like in cases of MMIWG2S and which, in turn, invites further opportunities to problematize, subvert, and move beyond the Western legal norms and traditions.

The Doctrine of Natural Law as the Ideology of the Western Legal Tradition

The Doctrine of Natural Law as the Ideology of the Western Legal Tradition

Accelerating the Digital Transition

Abstract Investigating the potential compatibility between the ongoing shariʿa-compliant cyber reforms with the standards enshrined in the European Declaration on Digital Rights and Principles, the article regards the contemporary European digital agenda as a point of reference to examine the variegated Muslim responses to modern technologies, including virtual Islamic (e-)counseling. Comparing Western and Islamic attitudes toward the usage of robotics and a (human-centric) artificial intelligence, it becomes clear that these tools must support individuals, being Islamic scholars or Western legal professionals. While skillfully relying on different languages and transcending domestic borders, European Islamic bodies can also engage in synergetic collaborations with state institutions at inter/national levels by aligning themselves with the cyber reorientation of the digital public space.

Ideological Foundations of the Crisis of the Western Legal Tradition

Ideological Foundations of the Crisis of the Western Legal Tradition

Judges and lawyers’ beliefs in repression and dissociative amnesia may imperil justice: further guidance required

ABSTRACT This article examines continuing misunderstanding about memory function especially for trauma, across three UK samples (N = 717). Delayed allegations of child sexual and physical abuse are prevalent in Western legal systems and often rely upon uncorroborated memory testimony to prove guilt. U.K. legal professionals and jurors typically assess the reliability of such memory recall via common sense, yet decades of scientific research show common sense beliefs often conflict with science. Recent international surveys show controversial notions of repression and accurate memory recovery remain strongly endorsed. In historical cases, these notions may lead to wrongful convictions. The current study surveyed the U.K. public, lawyers, and mental health professionals’ beliefs about repression, dissociative amnesia and false memories. Study findings give unique data on judges’ and barristers’ beliefs. Overall, the study findings reinforce international scientists’ concerns of a science – knowledge-gap. Repression was strongly endorsed by lay, legal and clinical participants (> 78%) as was dissociative amnesia (> 87%). Moreover, suboptimal professional legal education and juror guidance may increase misunderstanding. Correcting beliefs about memory function, and extending the contribution of memory science in the courtroom remains an important quest for cognitive scientists.

IMPACT OF BRITISH COLONIALISM ON THE ỌDIONWERE CONFLICT MANAGEMENT INSTITUTION IN BENIN KINGDOM, NIGERIA

This study examines the profound impact of British colonialism on the Odionwere conflict management institution in Benin Kingdom, Nigeria. Before the colonial intervention, the Odionwere played a crucial role in resolving disputes and maintaining social harmony within the community. However, the advent of British colonial rule in the late 19th century significantly changed traditional governance structures. The imposition of indirect rule by the British colonial administrators altered the Benin Kingdom’s power dynamics, marginalizing the Odionwere’s authority. The establishment of colonial courts and the introduction of Western legal systems further undermined the traditional conflict resolution mechanisms. This study explores how the Odionwere, once central to dispute resolution, experienced a decline in influence and autonomy as colonial policies reshaped the socio-political landscape. By meticulously analyzing archival documents, oral histories, and ethnographic data, this research contributes to understanding the intricate interplay between colonialism and Indigenous institutions, shedding light on the lasting repercussions of colonial policies on local governance structures and conflict resolution practices in the Benin Kingdom.

Towards the Establishment of Spouse Tort Liability within Marriage

In the evolution of law, there is a growing awakening of individual consciousness. The number of intra-marital tort claims not predicated on divorce has increased in judicial practice. However, China currently only has a compensation system for damages arising from divorce, which is not conducive to the protection of the legitimate rights and interests of the parties involved. With the development of the economy, the liberalization of ideas, the collision of Chinese and Western legal thoughts, and the independent status of marital economics, the establishment of an intra-marital tort system has become possible. Intra-marital tort litigation is not predicated on the termination of marriage, but is established to protect the victim, punish the at-fault party, and prevent the occurrence of tortious acts. The elements of such litigation should have stricter requirements than general torts.

Women’s Rights and Gender Equality in Islamic and Western Legal Systems: A Comparative Analysis between Pakistan, the USA, and Europe

Women’s Rights and Gender Equality in Islamic and Western Legal Systems: A Comparative Analysis between Pakistan, the USA, and Europe

The Influence of Basic Laws on Criminal Law and the Right to Remain Silent According to Israeli Supreme Court Rulings – A Brief Overview

The practice of “Privilege Against Self Incrimination” of secrecy against self-incrimination in all Western legal methods, including Israeli law, is seen as one of the human rights in general and part of the right to due process in particular. The constitutional revolution took place and with the enactment of the basic laws of human dignity and freedom, which established several human rights, among them is the right to remain silent, which is considered a right derived from the Basic Law of Human Dignity and Freedom.

Abolition of the Death Penalty Movement in the Russian Empire at the Beginning of the 20th Century: Political and Legal Aspects

Introduction. The article is devoted to the movement for the abolition of the death penalty, which unfolded in the Russian Empire during the First Russian Revolution. The movement was initiated by leading Russian legal scholars and manifested itself in a variety of forms: law press, collections of articles, lobbying the abolition law in the State Duma etc. At the same time, the movement was integrated into the general Western legal discourse, within the framework of which the issue of excluding the death penalty from the ladder of criminal penalties had been discussed for a long time. Theoretical Basis. Starting with the Italian philosopher Cesare Beccaria, many European and American scientists and public figures, such as Benjamin Rush, Jeremy Bentham, Louis Lepeletier argued from different sides for the need to abandon death penalty, which undoubtedly affected Russian lawyers which sought to give this theoretical argumentation a real legal form during the First Russian Revolution. Results. In this article, the authors for the first time made an attempt not only to characterize the main milestones in the history of the movement of Russian lawyers for the abolition of the death penalty, but also to integrate this movement into a certain narrative within the history of Western intellectual and legal thought. It is important to note that by the beginning of the 20th century, in most developed countries criminal codes still retained capital punishment, so the described movement was distinguished not only by a rich set of rhetorical arguments, but also by its very progressive nature. That is why the study of this issue is of great importance for the Russian law science.

The Concept of Equality under the Indigenous and Western Legal Systems: Issues and Challenges on Sustainable Development of Africa

Communities in Africa in the pre-colonial days lived with one another in a just and equitable manner, in love, on the principles of ubuntu. The way of life was further sustained by the communities’ perception and equation of the land with humanity, where everyone had equal access to the land as factor of production. The communal system which assured of equal treatment of everyone suffered a set-back, through centuries of slave trading and the colonization and the eventual imposition of western laws on indigenous peoples of Africa, these transformed the indigenous communities from their classlessness into stratified un-equal societies of those who have and those who do not have. Corruption evolves as a result of private property ownership and this further compounds in-equality, such that communal properties are unfairly taken over by few individuals, under non-transparent privatisation of public utilities. Access to factors of production and to justice in the post-colonial Africa is a myth on account of technicality and cost. The prospect of sustaining the pre-colonial equitable access to factors of production and to justice through oral tradition suffers a setback on account of the loss of cultural archives like the African traditional religion and the indigenous languages.

Verfassungs- und Gesetzesvorschriften über die Sprachenregelung im rumänischen Staat während der Zwischenkriegszeit

Language regulations in interwar Romania were affected by the antinomy between their political and legal (especially constitutional) architecture, devised along Western models, and the concrete political circumstances, in a polity whose aims were defined by the ethno-cultural and linguistic character of national community supportive of the state. The perception of the alterity of the new ethnic, religious and linguistic minorities—now accounting for a significant part of the total population—occurred through the lens of two conceptual paradigms, both of them ultimately striving to promote uniformity. On the one hand, the “nation state” character of interwar Romania entailed, at least implicitly, an advancement of the economic, social and professional status of the nation supportive of the state, to the disadvantage of the national minorities. The identity claims of the latter may well be accepted, but in exchange for relinquishing the right to participate in decision-making on major political issues, concerning the state as a whole. On the other hand, the state-centered legal thinking in constitutional and administrative law—adopted under French influence—was an instrument well-suited for promoting and achieving the desired cultural uniformity. Nevertheless, the discrepancy between the Western legal and political paradigm identifying the state with the (political) nation—which formally coined the Versailles Treaty system—and the Central-European (mainly Austrian) pattern of thought, more sensitive to linguistic diversity, was discernable also at the level of the minority treaties.

PERKEMBANGAN HUKUM ISLAM PASCA PERIODE TAQLID (KEMAPANAN MAZHAB)

Islamic law experienced dullness and decline after the period of taklid. However, that period disappeared after Muslims sought a solution so as not to be left behind from the West which was increasingly advanced while Islam was the opposite. The revolution of Islamic thought was present during the progress of Islam after blind taklid, spearheaded by Islamic thinkers of his time, such as Abdul, Sheikh Muhammad as- Sirhindi, Sayyid Ahmad Syahid, Muhammad Abdul Wahab and so on, which made Islamic law and Islamic thought advance again. This research aims to analyze the development of Islamic law after the taqlid period. This research uses a qualitative method with a literature study approach as a data search process. Primary and secondary data are obtained from books, electronic journal manuscripts that have been published in journals that have national and international reputations related to the development of Islamic law during the taqlid period. After the data has been obtained, data analysis is carried out to find answers to the problems raised and after that the real conclusion is drawn. The results showed that Islamic law experienced a period of development, one of which is called the Awakening period which began in the second part of the 19th century until now, with the central figures being Jalaluddin Al-Afghani (1839-1897) and Muhammad Abduh (1849-1905). Their thoughts were heavily influenced by those of Ibn Taymiyyah (1263-1328). The first characteristic is the call to establish Pan Islamism and make comprehensive changes to the Islamic world, especially in the field of utilizing reason over the Qur'an and Sunnah and at the same time releasing ties from the shackles of the madhhab. Mazhab is something common, but excessive bigotry against the mazhab is something that perishes and destroys. Second, the approach to Islamic law through Mazhab Comparison, both the Shafi'i, Maliki, Hanafi and Hambali madhabs plus the Shi'a Mazhab. Comparisons are even made with Western legal systems and other laws. Third, it is characterized by considerable attention from the European and Western world in general to study Islamic law so that they make Islamic law an official subject in the Faculty of Law. Fourth, from the development of Islamic law is the tendency in Muslim countries to return to Islamic Law as seen in the Middle East and in Southeast Asia. Even if the country is not an Islamic state, the law applied in it is Islamic law.

The Catholic Modernity of Pope Benedict XVI: Healthy Secularity and Christian Jurisprudence

This article examines the concept of healthy secularity in the thought of Pope Benedict XVI. In developing the idea of healthy secularity, Benedict builds upon longstanding themes in Catholic social thought while also provoking a deeper engagement with western modernity. Rather than placing Christianity and the secular in an oppositional framework, Benedict positions Christianity as the foundation of an authentic secular order. In so doing, he opens up new modes of critical engagement with western legal and political thought. Yet, while the concept offers a creative theological method for addressing contemporary issues, it depends for its realisation on vanishing cultural resources that are being eroded by the very secular order he aims to heal.

Sovereignty-Political Power Distinction as the Theoretical Basis of the Concept of the State of Law -A Comparative Study in the Context of Islamic and Western Legal Thought-

Sovereignty-Political Power Distinction as the Theoretical Basis of the Concept of the State of Law -A Comparative Study in the Context of Islamic and Western Legal Thought-

Law, Crime and the Criminal Justice System’s Transformation in Post-Soviet Lithuania: Some Trends and Functioning

The aim of the research is to identify, what changes, trends and tendencies are visible in defining crime, and rethinking and reforming criminal law and the criminal justice system in post-Soviet Lithuania. The chronological limits are the first decade of Lithuania’s independence. Lithuania is contextualised in the post-Soviet region, thus mapping and tracking the transition of its post-Soviet criminal prosecution system. In this region, after the collapse of the USSR, the tension was constantly growing between: a) the declared dream of the democratic transition; and b) the growing rate and visibility of crime. Lithuania, as a part of these processes, used local law talents and Western legal aid to speed up the process of reestablishing the rule of law. But although successful in some respects ( for instance, in dealing with the most visible and threatening forms of organised crime), the country did not make enough progress in others ( for instance, the adoption of the new criminal and criminal prosecution code took a long time, as did the Western-oriented reform of the criminal prosecution process).

Best Practices in Interconnecting Sharia Arbitration Norms: A Comparative Analysis of Indonesia and Europe

This paper explores the intricate process of interconnecting Sharia law with the legal systems of Europe, with a focus on the theoretical perspectives presented by Robert Alexy and H.L.A. Hart. It delves into the complexity and challenges associated with this integration and identifies key points of contention and opportunities. Notable challenges include overcoming the negative perceptions of Sharia law within Western legal circles, recognizing the diverse interpretations of Sharia, and harmonizing capitalist and Shariacompliant economic principles. The paper emphasizes the significance of interconnecting Sharia law with European legal systems, particularly within the realm of economic law, where concepts of justice, ethics, and Sharia's intricate provisions come into play. Using the theoretical frameworks of Alexy and Hart, the paper operationalizes the variables of "cause" and "effect" through comparative analysis to facilitate an effective and fair interconnection. It concludes by highlighting the importance of embracing an approach that balances the relevant aspects while minimizing legal uncertainties. In achieving this balance, the paper suggests strategies such as defining clear Sharia arbitration rules and ensuring the coexistence of Islamic banking practices with public interests. The evolving interaction between the two legal systems driven by the growing relevance of Islamic law necessitates a diverse legal landscape with various implications for Europe's everevolving legal framework.

The origins of the concept of corporate control in foreign and Russian science

The concept of corporate control depends on the scope of application. For instance, an economist may reveal corporate control through the economic power over the corporation, and a lawyer through corporate rights. At the same time, the legal doctrine has not developed a dominant approach to the definition of corporate control. Therefore, it is necessary to establish the origins of the doctrine of corporate control in foreign and Russian science. The author in the article summarizes the key positions of scientists on the issue under discussion and identifies the difference between the domestic approach and Western legal systems

The Legal Origins of Financial Development: Evidence from the Shanghai Concessions

ABSTRACTThe primary challenge to assessing the legal origins view of comparative financial development is identifying exogenous changes in legal systems. We assemble new data on Shanghai's British and French concessions between 1845 and 1936. Two regime changes altered British and French legal jurisdiction over their respective concessions. By examining the changing application of different legal traditions to adjacent neighborhoods within the same city and controlling for military, economic, and political characteristics, we offer new evidence consistent with the legal origins view: the financial development advantage in the British concession widened after Western legal jurisdiction intensified and narrowed after it abated.

Development of legislation on general administrative procedure in Ukraine

The article deals with determining the place of the Law of Ukraine «On Administrative Procedure» (LAP) in the system of Ukrainian legislation and its impact on the systematization of administrative procedure legislation in general. The author analyzes the general features of such a type and form of systematization as codification and compares it with the adoption of the LAP and its impact on current and future legislation. On the one hand, the author emphasizes such common features and positive impact of the LAP as improvement of the structure of legal acts, improvement of their logic and terminology. After all, the LAP introduces uniform principles of administrative procedure, general rules for consideration and resolution of cases based on applications of individuals and on the initiative of an administrative body, requirements for the execution of administrative acts, administrative appeal, enforcement of administrative acts, and early termination of administrative acts. On the other hand, the LAP mainly fills in the gaps using the best practices, doctrine and experience of countries of Western legal and political culture, especially Europe. In the short term, the LAP may not change the number of legislative acts, and is likely to have a rather limited impact on reducing the volume of procedural parts in special legislative acts. At the first stage, the amount of procedural regulation may even increase. This is due to the fact that in order to eliminate conflicts and gaps, it may be necessary to introduce additional «linking» provisions with the LAP, and sometimes even temporary duplicate provisions, etc. In the medium and long term, we can predict that the LAP will play the role of the main procedural regulator in public administration. The LAP should act as a general law for all sectors of public administration. And here, indeed, the LAP should serve as a measure for reviewing, streamlining and reducing special regulation. In the future, special legislative acts and other regulations will continue to be in effect, and, if necessary, preserve or establish specifics of regulation. However, it will be possible to reduce the scope of special procedural regulation more and more radically and systematically. The LAP will be especially valuable in the future, as special legislation will have less and less need to regulate the procedure. In this case, the regulatory value of the LAP itself will be maximized, as it will be easier for both public administration and private individuals to interact on the basis of common principles and rules. The LAP is extremely valuable for its principles, which are not only the basis for this law, but also a measure for resolving conflicts and filling gaps in all administrative procedure legislation. Particularly important are such principles as guaranteeing the right of a person to participate in administrative proceedings, formality, and reasonableness. Key words: general administrative procedure, systematization, codification, principles of administrative procedure.