Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: vii - x Abstract: Dear Readers, PubDate: Fri, 21 Jun 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae014 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 789 - 852 Abstract: AbstractIn the United States, Canada, Israel, Australia, and many parts of Europe, conflicts between religious liberty and gender equality (including LGBTQ equality) are understood and analyzed as “culture wars.” This view has shaped the sociolegal understanding of the conflict—how the legal community makes sense of cases and interprets their social significance—and has narrowed the perceived scope of legal solutions to religion–equality conflicts to zero-sum, either–or decisions: either a carte blanche for religious objectors or a strict and universal enforcement of anti-discrimination law.Drawing on qualitative (N=41) and experimental (N=559) evidence from the United States and Israel and on cases from a range of countries and contexts, this Article makes two arguments: First, the understanding of religion–equality conflicts shall not be complete unless we recognize that they occur both between and within cultures. The two wars are connected in a feedback loop, as the struggle within religion influences what conflicts are waged at the culture war and what conflicts are resolved internally.Second, the war within religion has normative implications: in this struggle, religious communities form intermediate solutions to regulate—and mitigate—religion–equality conflicts. These policies can help expand the nuance and scope of legal solutions to the conflict. Showing how, this Article makes a timely intervention in a legal debate that struggles with setting clear rules and seeks to find more nuanced resolutions for the conflict. PubDate: Tue, 14 May 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae005 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 853 - 899 Abstract: AbstractScholars in recent years have shown interest in challenging the historical origins of international law and its normative claims to universality. This Article challenges the prevailing conceptions of Islamic international law (al-siyar), first set out in English-language scholarship by Majid Khadduri, as primarily an ad-hoc response to the failed aspiration of a universal Muslim commonwealth. It shows that Islamic international law, in its classical phase (eighth–thirteenth centuries), as first formulated by Iraqi, and later, Central Asian, scholars (who together later came to be known as Ḥanafīs), understood all legal order as being rooted in sovereignty and territoriality, with shared religion a secondary concern. This theory of legal order arose out of an understanding of political order as emerging from a natural and universal condition of war that is incidental to the individual’s natural sovereignty. I trace the genealogy of this conception to the founding moment of the Muslim commonwealth and describe its manifestation in classical Ḥanafī solutions to a series of cases in “private international law.” PubDate: Sat, 06 Apr 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae007 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 900 - 929 Abstract: AbstractThe present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions that produced the Three Patterns of Law hypothesis still hold. The question the present Article poses is whether a fourth pattern of law is now necessary to capture the new technological state of affairs and the new geopolitical balances of power: in particular, should a rule of smart law be introduced' This Article surveys some of the relevant legal transformations capable of impacting the mapping of each legal pattern to a given geography. Because the Internet (like law, religion, tradition, or language) is an informative-normative system that has produced a new frontier of development, and because of its ubiquity, I have used it as a test for the current viability of the hypothesis. I conclude that it is too early to add a fourth pattern of law; but it is, perhaps, too late to avoid a pattern of no law taking over global hegemony by substituting algorithms for lawyers. PubDate: Thu, 11 Apr 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae010 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 930 - 988 Abstract: AbstractWhen conducting judicial review of administrative decisions using a deferential standard of review, courts should give a greater role to the decision maker’s responsiveness to the interests of the community of judgment—those directly affected by the decision. This Article uses a theory of judgment developed by Immanuel Kant in the Critique of Judgment, and elaborated by Hannah Arendt, to justify why consideration for the community is essential to deciding reasonably. It also reviews the approach to deferential review in the case law of the United States, the United Kingdom, and Canada to determine what the effect would be of this new approach to assessing the reasonableness of a decision. While reviewing courts usually consider the rationality of the decision for achieving the decision maker’s statutory policy goals and the appropriateness of the decision maker’s appreciation of the relevant facts, they do not generally probe the responsiveness of their reasons to the concerns of those affected by it. This Article suggests that courts should do so. The result is that administrative law will in future require better quality reasons from decision makers. Probing the responsiveness of reasons to the concerns of the community of judgment will require courts to compare the weight that the decision maker has placed on facts and arguments to the weight given to them by community members. This will be a significant change in how courts conduct judicial review, but it should enhance the legitimacy of deferential judicial review. PubDate: Thu, 11 Apr 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae006 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 989 - 1032 Abstract: AbstractHow does variation in the severity of punishment affect public opinion toward the reintegration of former enemy “collaborators” after war' We study this question in the context of Iraq where the Islamic State, an armed rebel group, captured and governed a population of more than five million Iraqi citizens between 2014 and 2017. Building upon extensive fieldwork and interviews in Iraq, we designed a survey experiment that randomly varied the severity of sentences in hypothetical scenarios of civilians who supported the Islamic State in non-violent roles (e.g., cleaners, cooks, and wives of fighters). The experiment allows us to estimate the causal effects of punishment on attitudes toward reintegration. We find that a long prison sentence (fifteen years) does not increase the likelihood of participants’ willingness to allow the reintegration of former collaborators; instead, a noncarceral punishment (community service) has a small but statistically significant positive effect. Our most striking findings show that noncarceral and community-based justice mechanisms can significantly increase the likelihood of successful reintegration after punishment. Fifteen percent of respondents who were initially opposed to the return of former collaborators into their communities said that they would be willing to change their judgment and support reintegration if they were asked to do so by a tribal or religious leader, or if the offender completes a noncarceral rehabilitation program. These findings suggest that noncarceral, restorative, and community-based justice mechanisms may be equally or potentially more effective than long-term incarceration for achieving the objectives of rehabilitation and eventual reintegration of former nonviolent offenders. This Article advances the field of comparative empirical legal scholarship by providing an innovative experimental research design that can be replicated by scholars studying other contexts to help answer important questions about the causal effects of criminal justice policies. PubDate: Sat, 18 May 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae009 Issue No:Vol. 71, No. 4 (2024)
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Please help us test our new pre-print finding feature by giving the pre-print link a rating. A 5 star rating indicates the linked pre-print has the exact same content as the published article.
Pages: 1038 - 1043 Abstract: ComellaVictor Ferreres, The Constitution of Arbitration (Cambridge University Press, 2021) PubDate: Fri, 23 Feb 2024 00:00:00 GMT DOI: 10.1093/ajcl/avae003 Issue No:Vol. 71, No. 4 (2024)
Subscription journal
[1 journal]
