USD $187.00
Browse results
Author:
Abstract
The present study is an analysis of a treatise (risāla) by the 18th-century Mālikī al-Tāwudī in which he discusses a doctrinal detail regarding bayʿ al-thunyā, a common stratagem to circumvent the prohibition of interest. I use al-Tāwudī’s text as a lens to reconstruct the hermeneutical perspective of a Muslim jurist of the late premodern era. In the first section, I show that al-Tāwudī’s legal reasoning is strongly informed by the legacy of Mālikī discourse on bayʿ al-thunya, which is one of constant disagreement over the acceptability of the institution. In the course of this conflict, various doctrinal compromises were negotiated, only to be challenged again by the invention of new stratagems or by rigorist backlashes. Al-Tāwudī’s treatise must be understood as part of this doctrinal tug of war.
In the second section, I analyze al-Tāwudī’s epistemological premises. I show that his legal reasoning is strictly exegetical, except that the object of this exegesis is not Qurʾān and Sunna, as proposed in classical uṣūl al-fiqh, but the school’s literary corpus. This corpus, in turn, is hierarchically structured. It consists of many layers of texts, accumulated over centuries and tightly interwoven by intertextual references, with certain texts enjoying a particularly authoritative status. Against this background, reasoning becomes a game of artful referencing. Successful argumentation requires claiming a maximum of authority within the school tradition in support of one’s position.
Author:
Abstract
Judicial independence has always been an important theme of China’s judicial reforms, both historically and in recent years. This article sheds light on how Chinese elites and intellectuals created a unique concept of judicial independence in the context of early twentieth-century China, seeking to trace the historical roots of the ongoing judicial reform in the People’s Republic. This uniqueness was characterized by three features: the heterogeneity within the Chinese conception of judicial independence, the reinterpretation of judicial independence into a tool for reinforcing China’s sovereignty, and the applauded control over courts and judges. These features resulted from the inherent tension within China’s pursuit of a modern state. By examining the early discourse and reform efforts, this paper not only highlights the historical struggles for judicial independence, but also, it contributes to understanding contemporary China’s distinctive path in judicial modernization, deviating from liberal constitutionalism.
Author:
Abstract
This paper asks how moral governance [dezhi 德治] infrastructure has expanded under Xi Jinping. The Xi leadership has designed this expansion by framing moral governance activity within what it calls the Three Governances (law-based governance, moral governance and self-governance), which, in turn sits under the Chinese Communist Party Political-Legal Committee’s social governance regime. Moral governance has expanded as part of the Xi leadership’s efforts to enhance the Party’s governance capacity-building in the area of social governance in three main ways: through ideology, social governance plans, and community engagement. The Party has broadened the boundaries of what elements of social relations it considers risky or capable of inducing social disorder, and in so doing, it has broadened the boundaries of its response to its own perceived expansion of risks. The Party has integrated moral governance into its overall comprehensive social governance ambitions to enhance its capacity to securitize the grassroots, which is the Xi leadership’s number one governance priority.
Abstract
This paper delves into the pivotal role that courts play in shaping public policy, particularly in the context of burgeoning industries. It shifts the focus from Constitutional and Supreme Courts to the significant, yet often unnoticed, role of local courts. It proposes that these local courts are uniquely positioned to act as discoverers of vital information for public policy, especially critical in the fast-paced arena of emerging industries where policymakers often lack comprehensive information. This study highlights three key mechanisms used by courts to gather policy-relevant information: collection, scanning, and extraction. These methods help reduce political bias, explore policy boundaries, and propose feasible alternatives. The paper illustrates these processes through six cases from the emerging industry sectors in China, adjudicated by local courts. It emphasizes the necessity for policy practices to take into account the nuanced judicial judgments at the micro level.
Author:
Abstract
Istiṣḥāb al-ḥāl, the presumption of the persistence of a state or ruling, is a disputed source within Islamic jurisprudence. For some scholars, it is one of the main sources of Islamic law. Many juristic principles are based on istiṣḥāb. The Hanbali scholar al-Ṭūfī (d. 716/1316) follows this idea in Sharḥ Mukhtaṣar al-Rawḍa and holds that istiṣḥāb is the fourth source of law after the Quran, Sunna, and Consensus. Al-Ṭūfī argues for the validity of istiṣḥāb with regard to a physical theory in kalām known as atomism. He discusses the possibility of continuation in existence. In his view istiṣḥāb is based on the principle that persistence/continuation (baqāʾ) is an accident (ʿaraḍ) that is not re-created in each moment in contrast to kalām atomism, which postulates that accidents are re-created constantly. This article presents al-Ṭūfī’s original approach to the validity of istiṣḥāb that guarantees the continuous existence of a state and ruling.
Twenty Years of the Constitutional Court of Indonesia
The Constitutional Court of Indonesia functions in one of the most diverse societies in the world. It is required to resolve disputes within a kaleidoscope of diversity and plurality with flexibility, pragmatism, asymmetry, and wisdom. Whilst national minimum norms are important for nation-building, recognition of local customs, diversities and indigenous systems are equally important to protect the territorial integrity of Indonesia and ensure local peace and stability. Responding to demands of religious plurality, customary lands rights, traditional voting systems, decentralisation to regions and local governments, and responding to diversity of community life, requires extraordinary skill, insight and flexibility. This book gives insight into twenty years of jurisprudence and places it in an international comparison.
Twenty Years of the Constitutional Court of Indonesia
The Constitutional Court of Indonesia functions in one of the most diverse societies in the world. It is required to resolve disputes within a kaleidoscope of diversity and plurality with flexibility, pragmatism, asymmetry, and wisdom. Whilst national minimum norms are important for nation-building, recognition of local customs, diversities and indigenous systems are equally important to protect the territorial integrity of Indonesia and ensure local peace and stability. Responding to demands of religious plurality, customary lands rights, traditional voting systems, decentralisation to regions and local governments, and responding to diversity of community life, requires extraordinary skill, insight and flexibility. This book gives insight into twenty years of jurisprudence and places it in an international comparison.
Author:
Abstract
The role of the Constitutional Court of Indonesia is transformative. It is engaged in the process of nation-building and in the scope of limits of is powers. Its endeavours in this respect are much to be admired.
The High Court of Australia is the final appeal court for all Australian courts. It determines constitutional questions which come before it and has an entrenched judicial review jurisdiction in relation to the exercise of power by Commonwealth officials.
The two institutions have different histories and assume somewhat different roles in their home societies. Both, however, are key to the maintenance of the rule of law.
Author:
Abstract
The electoral system is the principal mechanism through which ordinary persons can influence government policies and express their preferences for the governance of their country. In 2009, the Constitutional Court of Indonesia upheld a cultural practice called ‘noken’, whereby indigenous leaders in certain parts of Papua province can vote on behalf of their entire community in an election. This decision effectively abrogated the individual’s right to vote as guaranteed by the Constitution, and instead allowed for a collective vote to be accepted. The Court decided, in a brief judgement, that the noken system was consistent with the Constitution; that it was a lawful manner to determine the popular vote; that it reflects the laws and customs of ‘customary law societies’; and that the imposition of one-person, one-vote could cause conflict and disintegration in and between those traditional communities. This judgement sparked an ongoing debate between those who hold the view that the use of the noken system in democratic elections is unconstitutional, and those who argue that recognition of the noken system shows how modernity and traditionalism can be harmonised. In a similar vein, the High Court of Australia in 1992 changed the course of legal history in that country by acknowledging the existence of native title. This set Australia on an unprecedented path to recognise indigenous ownership of land. This chapter highlights the challenges experienced by Indonesia and Australia in balancing competing objectives when responding to claims to recognise indigenous rights: how to balance modernity and traditionalism? International law strives to achieve outcomes that on the one hand place the individual at the centre of political, social, cultural, and economic rights; while at the same time there is also recognition in international law that in traditional, indigenous societies the community is a de facto and even de jure bearer of rights, with individual rights only being exercised within the context of the laws, traditions, and customs of the community. These competing objectives are evidenced in the way the two countries have responded to noken and native title.
Author:
Abstract
This chapter examines the Indonesian Constitutional Court’s decision on the strict requirements for the candidates running for governor and deputy governor in the Special Region of Yogyakarta, which had limited the field of eligible candidates to only two men. The Court upheld the unique qualifications based on traditional leadership positions but invalidated national legal provisions that added discriminatory requirements based on gender. Notably, this decision paves the way for a woman to become the provincial governor of Yogyakarta. Although the governor and deputy governor must still be the Sultan of Ngayogyakarta Hadiningrat Sultanate and the Duke of Pakualaman, respectively, a requirement that they have wives was found to contravene the prohibition of gender discrimination. The Court’s decision raises broader questions about the balance between autonomy and national unity, particularly in relation to decentralization, diversity, and a bill of rights. How is the balance struck between autonomy and national unity as expressed in a bill of rights? The Indonesian Constitutional Court’s decision offers a comparative perspective on how the South African Constitutional Court has addressed similar questions. In both Indonesia and South Africa, a bill of rights serves as a crucial check on imbalanced power dynamics between sub-national entities by limiting their autonomy. The impact of the bill of rights on traditional leadership and customary law has already been observed in South Africa, where customary law must be allowed to align with the demands of non-discrimination on the basis of gender.
Author:
Abstract
In post-conflict settings, constitutional courts have important roles to play despite complex and often competing challenges they face to institutionalize their legitimacy and entrench the rule of law while attempting to build bridges from conflict to peace. By processing political conflict through legal means, constitutional courts can shift the tenor of public dialogue and provide a less inflammatory platform for analyzing conflicts that have divided societies. This article analyzes two seminal cases decided by the Constitutional Court of Indonesia in the aftermath of post-Suharto conflict and finds that despite its young age, the Court addressed lustration issues and a Truth and Reconciliation scheme in ways that were consistent with approaches taken by other post-conflict apex courts, concluding that the Constitutional Court of Indonesia has solidified its position among modern constitutional bodies. Instead of relying only on its own decisions or those of the Supreme Court, it has demonstrated its ability to carry out comprehensive global comparative analysis, referring to cases from other constitutional and international courts to help shape its jurisprudence. In this way, the Indonesian Court is ahead of a number of other apex courts in its willingness to consider constitutional issues through a global lens.