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Authors:Bhuiyan M. Pages: 399 - 448 Abstract: There are different ways in which scholars comprehend secularism. According to some scholars, secularism is the phenomenon in which religion is fully separated from the state and plays no part in the public domain. Others are of the view that, while secularism denotes separation between religion and state, there should be little involvement of religion in the public domain because it is a vital part of the lives of individuals. This Article aims to discuss the various interpretations of secularism, create a classification of secularism models, and examine how secularism is considered in Bangladesh. For this purpose, this Article analyzes statements given by Sheikh Mujibur Rahman (known as the Father of the Nation and the leader of the Bangladesh Awami League) to identify the secularism model followed in Bangladesh. Sheikh Mujib and his political party, the Awami League, did not explicitly use the word “secularism” until the independence war in 1971. However, secularist ideals were emphasized by the party. After independence, the Constitution of Bangladesh was adopted in 1972 and secularism was included in the Constitution.In Bangladesh, secularism is understood as the antithesis of communalism. Anti-communalism in Bangladesh does not refer to anti-religion; rather, it eliminates conflict between the various subnational communities and describes politics by giving equal status to individuals in a unified national community. President Ziaur Rahman removed the secularism principle from the Constitution in 1977 through the Fifth Amendment. Islam was declared as the state religion in 1988 during the rule of President Hussain Muhammad Ershad through the Eighth Amendment. In 2011, the Fifteenth Amendment to the Constitution was adopted during the tenure of Sheikh Hasina’s Awami League as Sheikh Hasina saw the necessity for following an established religion model, while making sure that sufficient rights were also awarded to religious minorities. Adopting Islam as the state religion is considered by the Awami League as a means of satisfying the Muslim majority and peacefully coexisting with religious groups such as Hefazat-e-Islam. This Article argues that the Awami League’s stance implies the practice of modus vivendi, which, in contemporary terms, signifies a means of living together for the population, in spite of their contradictory features, which emerge mostly because of difference in opinions, interests, religions, ethnicities, or beliefs. Through the practice of modus vivendi, these differences are recognized and facilitated. The meaning of secularism (and the issue of whether the state should be committed to secularism) is deeply contested in Bangladesh, making the country an interesting case study. PubDate: Thu, 20 Jan 2022 00:00:00 GMT DOI: 10.1093/ajcl/avab014 Issue No:Vol. 69, No. 3 (2022)
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Authors:Cohen-Eliya M; Porat I. Pages: 449 - 477 Abstract: The European-based proportionality doctrine seems to be in vogue in American constitutional scholarship. Recently, the Harvard Law Review has devoted its Foreword by Jamal Greene, to this doctrine. In a provocative and bold article, titled “Rights as Trumps',” Greene argued that proportionality analysis should be openly adopted in the United States as a more sophisticated and up-to-date doctrine than the rights-as-trumps categorical approach. Current constitutional adjudication, he contended, requires a nuanced and factually based analysis of the sort afforded by proportionality. We argue, contrary to this argument, that proportionality may not be the best doctrinal candidate in the United States, taking into consideration the populist shift in the United States. We wish to make a more general point about the use of proportionality in the new global age of populism. The rise of populism, and the increasing signs of democratic backsliding across the globe, require the employment of a more categorical approach that better serves the purpose of red lining and enhances the democratic process. PubDate: Wed, 16 Mar 2022 00:00:00 GMT DOI: 10.1093/ajcl/avac005 Issue No:Vol. 69, No. 3 (2022)
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Authors:Kershaw D; Schuster E. Pages: 478 - 538 Abstract: What is the purpose of a corporation' This fundamental question is as old as corporate law itself, and traditionally it is asked with reference to the ultimate beneficiaries of a corporation’s activities. Modern management theory and the current technology-driven transformation of the economy, however, have breathed new life into the question about corporate purpose. Here, purpose is understood as an animated mission-purpose articulation of the reason for a corporation’s existence; an aspirational idea about its existence that has the capacity to bond internal and external stakeholders to the company, inspiring innovation, productivity, and customer loyalty. This understanding of corporate purpose offers a pathway to a more inclusive and interconnected form of modern capitalism.This approach to purpose is now gaining regulatory traction. In December 2018, the United Kingdom’s “comply or explain” Corporate Governance Code adopted a provision which provides that “the board should establish the company’s purpose.” This Article takes the United Kingdom’s regulatory adoption of mission-purpose as a platform from which we can explore the economic and social benefits of purposeful companies and the legal and non-legal conditions that are necessary to support and nurture such companies. The Article argues that in the absence of purposeful shareholders corporate law must enable companies to construct a zone of insulation which protects its purpose—whatever it may be—from the pressures of immediate shareholder preferences which can compromise mission-purpose. It argues that in jurisdictions where law and market practice prevent the construction of such a zone of insulation, the economic and social benefits of purposeful companies will be unavailable, as mission-purpose disintegrates into the prosaic or a mere marketing device. This claim generates several theoretical and empirical objections, which the Article considers and rejects. PubDate: Wed, 16 Mar 2022 00:00:00 GMT DOI: 10.1093/ajcl/avac004 Issue No:Vol. 69, No. 3 (2022)
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Authors:Schonthal B. Pages: 539 - 573 Abstract: This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call “secondary rules,” which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist “rules about rules” not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law—one of the oldest and most wide-spread systems of nonstate law—for the broader field of comparative legal studies, from which it has been largely absent. PubDate: Tue, 29 Mar 2022 00:00:00 GMT DOI: 10.1093/ajcl/avab025 Issue No:Vol. 69, No. 3 (2022)
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Authors:Stute D. Pages: 574 - 614 Abstract: Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place.To reach this conclusion, this post hoc longitudinal study examines German statutory foundations for the crime of “law bending” (Rechtsbeugung), related legal history, and jurisprudence during three distinct periods: (1) the codification of Rechtsbeugung in 1851 through the end of World War II; (2) Rechtsbeugung jurisprudence in postwar Germany, particularly as related to Nazi-era judicial actions; and (3) Rechtsbeugung legislative changes and jurisprudence leading up to and following Germany’s reunification.The German experience with Rechtsbeugung provides a cautionary tale of judges’ unwillingness to hold other judges criminally responsible, even for the worst of judicial transgressions, such as those committed by judges in Nazi Germany. Following German reunification, the court was less lenient in cases of East German judges. In this context, the court came to renounce its postwar Rechtsbeugung jurisprudence in clear and decisive terms, and affirmed convictions of East German judges. Yet, German high court jurisprudence remains elusive to this day. PubDate: Thu, 17 Mar 2022 00:00:00 GMT DOI: 10.1093/ajcl/avac003 Issue No:Vol. 69, No. 3 (2022)
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Authors:Kadambi R. Pages: 620 - 625 Abstract: KhoslaMadhav , India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press, 2020) PubDate: Tue, 25 Jan 2022 00:00:00 GMT DOI: 10.1093/ajcl/avab026 Issue No:Vol. 69, No. 3 (2022)
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Authors:Gardbaum S. Pages: 615 - 619 Abstract: ChiltonAdam & VersteegMila, How Constitutional Rights Matter (Oxford University Press, 2020) PubDate: Fri, 09 Apr 2021 00:00:00 GMT DOI: 10.1093/ajcl/avab007 Issue No:Vol. 69, No. 3 (2021)
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