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Visions of Sharīʿa

Contemporary Discussions in Shī ͑ī Legal Theory

Series:

Edited by Ali-reza Bhojani, Laurens de Rooij and Michael Bohlander

In Visions of>/i> Sharīʿa Bhojani, De Rooij and Bohlander present the first broad examination of ways in which legal theory (uṣūl al-fiqh) within Twelver Shīʿī thought continues to be a forum for vibrant debates regarding the assumptions, epistemology and hermeneutics of Sharīʿa in contemporary Shīʿī thought. Bringing together authoritative voices and emerging scholars, from both ‘traditional’ seminaries and ‘Western’ academies, the distinct critical insider and emic accounts provided develop a novel avenue in Islamic legal studies. Contextualised through reference to the history of Shīʿī legal theory as well as contemporary juristic practice and socio-political considerations, the volume demonstrates how one of the most intellectually vibrant and developed discourses of Islamic thought continues to be a key forum for exploring visions of Sharīʿa.

Edited by Donald R. Rothwell, Matthew Zagor and Imogen Saunders

Launched in 1965, the Australian Year Book of International Law (AYBIL) is Australia’s longest standing and most prestigious dedicated international law publication.
The Year Book aims to uniquely combine scholarly commentary with contributions from Australian government officials. Each volume contains a mix of scholarly articles, invited lectures, book reviews, notes of decisions by Australian and international courts, recent legislation, and collected Australian international law state practice.
It is a valuable resource for those working in the field of international law, including government officials, international organisation officials, non-government and community organisations, legal practitioners, academics and other researchers, as well as students studying international law, international relations, human rights and international affairs.
It focuses on Australian practice in international law and general international law, across a broad range of sub-fields including human rights, environmental law and legal theory, which are of interest to international lawyers worldwide. Volume 36 features an Agora on the 2018 Timor Sea Treaty and Conciliation between Australia and Timor Leste.

Judicial Cosmopolitanism

The Use of Foreign Law in Contemporary Constitutional Systems

Edited by Giuseppe Franco Ferrari

Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional Systems offers a detailed account of the use of foreign law by supreme and constitutional Courts of Europe, America and East Asia.
The individual contributions highlight the ways in which the use of foreign law is carried out by the individual courts and the path that led the various Courts to recognize the relevance, for the purpose of the decision, to foreign law. The authors try to highlight reasons and types of the more and more frequent circulation of foreign precedents in the case law of most high courts. At the same time, they show the importance of this practice in the so-called neo constitutionalism.

Series:

David Oppenheimer

Positive measures to prevent and remedy discrimination have been adopted in many parts of the world. By comparing the scope and form of such measures in different legal systems, we can gain a better perspective on our own system, and appreciate possible new approaches. This book compares positive anti-discrimination measures in the United States, India, Brazil, South Africa, Canada, the United Kingdom, and the European Union.

Angela Di Gregorio

This paper analyses the use of the rule-of-law principle in the jurisprudence of the constitutional courts of the new Member States of the European Union. The purpose is to discover whether past or recent decisions could clarify the use of the principle in these countries. An example is the legalistic concept of the rule of law as expressed by the Hungarian and Polish constitutional courts in examining the constitutionality of lustration laws. On the other hand, some constitutional courts (such as the Czech one) have used a wider and more sophisticated application of the rule of law. Considering the severe rule-of-law crisis which has been taking place in Hungary and Poland in recent years, this recognition is particularly important in order to avoid cumulative judgments that could devalue the former communist countries in general, trivializing the harsh path of democratic conditionality with its strengths and weaknesses.

Dovilė Pūraitė-Andrikienė

This article discusses the need, preconditions and possibilities for modifying the constitutionally consolidated regulation whereby the Constitutional Court of the Republic of Lithuania gives conclusions on the issues specified in the Constitution while, on the basis of its conclusions, the Seimas takes a final decision; in addition, the discussion looks at other issues that have emerged in the course of the lately adjudicated cases of the type in question and necessitate the modification of the consolidated legal regulation. These issues are examined in the context of powers conferred on constitutional justice institutions in other Central and Eastern European states, with a view to comparing the scope of powers vested with constitutional justice institutions in Lithuania and other states of this region in the area under discussion.

Nina Zafoschnig

This article examines the proposed amendment to the Third Gas Directive, which extends the applicability of the core principles of EU energy legislation to import pipelines from third countries within EU territory. The article describes the potential impacts of this amendment, in particular regarding the Nord Stream 2 gas pipeline, and why this amendment can be considered a “Lex Nord Stream 2”. Furthermore, the article gives an overview of the applicable primary and secondary legislation and core principles of EU energy law.

Max Steuer

The political discourse on regulation of extreme speech in Central Europe has shifted in favor of militant democracy, an approach which supports enhanced criminal law restrictions on speech. Developing the conceptual framework of the consequences of militant democracy and applying legal and parliamentary discourse analysis, this article shows whether and how the legal restrictions on extreme speech adopted in the Czech Republic, Slovakia and Hungary fulfilled the purpose for which they were adopted. The juxtaposition of justifications for restrictions and their application by judiciaries uncovers how extreme speech became normalized and appeared in more sophisticated forms due to the failure of legal militant democratic measures. Thus, it highlights how without reflecting the contextual specifics in the respective countries, restrictive legal regulation may not achieve the very purpose it was adopted for.

Paul Gragl

Seeing that a bilateral agreement between the EU and Russia on the Nord Stream 2 pipeline project is highly unlikely to be concluded due to political considerations, this paper enquires which existing legal regime is applicable to the governing of this pipeline, especially in order to guarantee solidarity and security within the EU energy market through third-party access and unbundling requirements. The question is whether EU law in general (which the Council denies) or international law applies, and if the latter, which specific regime(s): the Energy Charter Treaty, wto law, the law of the sea, or a combination of regimes? Lastly, this paper also investigates whether and to what extent these international law regimes might guarantee the same solidarity and energy security standards as EU law.

Raquel Carvalho

Public procurement relies in an apparent irreconcilability between competition, which implies some confidentiality, and transparency. The latest Public Procurement Directives have made e-procurement a mandatory feature. Since blockchain technology has been developed and designed to accomplish integrity, transparency, efficiency and data accuracy, goals which are very much appreciated in public procurement, an interesting question then arises: is there room to apply this technology within public procurement procedures? Will smart contracts be an interesting tool within public procurement? Considering public duties such as data protection, which must be complied with by contracting authorities, and some blockchain features such as non-withdrawable information and the likely broad access to the information there enclosed, one can be drawn to conclude that there is no possible conciliation between these two procedures. The mandatory e-procurement implies some neighbouring problems with this technology. Yet, are there any technological solutions for some of the drawbacks?