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An Objective Approach to Contractual Mistake in Islamic Law
No full textThis article conducts a comparative study of various legal systems\u27 approaches to contractual mistake. Part II of this article explores both the French civil law system and the United States common law system approaches to contractual mistake. Part III, using these civil and common law systems as a point of reference, explores the Islamic law approach to contractual mistake with particular emphasis on reconciling the absence of a mistake theory in Islamic law with the notion of consent. It examines particular safeguards and remedies in Islamic law designed to combat the problems traditionally created by the existence of mistake. Finally, Part IV assesses the merits of the Islamic approach to mistake and concludes that the Islamic solution may no longer play an important role in a modem society whose primary concern is that of protecting the reliance interest of parties
Formal Rationality in Islamic Law and the Common Law
No full textRationality in a legal system suggests a consistent set of legal propositions as well as methods for modifying, limiting, and expanding the laws which are governed by some type of logical apparatus. It is a desirable characteristic because it furthers one of the primary ends of a legal system: It facilitates social interaction by enabling members of society to calculate the consequences of their conduct. It is not an easy concept to define, however. Different legal systems may be termed rational in different ways. A judge who avoids existing legal rules and appeals to a sense of justice or morality to solve the problem of a particular case may promote a rational legal system just as much as a judge who follows existing legal principles to reach a solution. A jurist who accepts certain legal rules without question may be no more rational than the jurist who seeks to limit or extend rules as new cases present themselves. Rationality may take different forms, more or less formal, more or less innovative. These different forms shall be examined to determine the type of rationality which characterizes the Islamic legal system compared with the common law. Max Weber and Lawrence Friedman provide the basic framework. Their classification systems for rational and irrational lawmaking and lawfinding are fine models for legal analysis and are used extensively in this Article. Their categorization of Islamic law, on the other hand, misses the mark. It is my belief, illustrated by an example of legal reasoning in Islamic contract law, that this widely known but little understood system is a prime example of innovative logically formal rationality (as that term will be defined in this Article) at a point in history when few other legal systems could claim the same
The Federal Tax Lien: Beyond United States v. Rodgers
No full textIn United States v. Rodgers, the Supreme Court clarified the extent of the federal government\u27s power to force the sale of jointly held property in which at least one but not all holders of an interest is liable on a tax debt. Resolving a conflict between the courts of appeals, the Court held the government could force a sale even if the tax debtor, acting alone, could not. The Court found property could potentially be subject to a forced sale if the tax debtor has or had any interest in the property. The state-created limitations on alienation of property interests held by innocent joint owners no longer automatically barred the sale.\u27 The Court indicated, however, that district courts should evaluate certain equitable considerations prior to authorization of a forced sale. A government\u27s ability to function properly depends upon its ability to levy and collect taxes. Article I, section of the United States Constitution grants taxing authority to the United States government. Much of Title 26 of the United States Code, commonly called the Tax Code, is devoted to levying of taxes. The propriety of any particular tax or the application of any particular Code section to a factual setting is beyond the purview of this paper. The focus of this paper is, instead, the ability of the federal government to collect taxes and, more specifically, its ability to force the sale of property in which a delinquent taxpayer holds or held an interest
Fixed Shares in Intestate Distribution: A Comparative Analysis of Islamic and American Law
No full textThe purpose of this article is not to study further the distributive preferences of decedents-for which there is certainly a need. Rather, it is to present some of the problems which arise when proportional shares are incorporated in a scheme of intestate succession and to propose various techniques for dealing with these problems suggested by a study of the Islamic legal system, which has incorporated the idea of proportional shares in its intestate succession law. Therefore, the article begins with a description of the Islamic system followed by a survey of existing American intestate succession laws. It then discusses the various techniques used in the Islamic system to accommodate a scheme of fixed proportional shares and suggests how they may be used in an American scheme. The conclusions of this article will be confined to problems arising in the construction of a scheme of proportional shares. There is no attempt to expand on the substantive conclusions of the ABA study concerning the proportions which should be allocated among the different classes of heirs
Vom “verwalteten Grundrecht” zum “verwalteten Menschen”?
No full textBook: Politisches Asyl und Einwanderunghttps://scholarship.stu.edu/faculty_book_chapters/1035/thumbnail.jp
The Public Order of The Geostationary Orbit: Blueprints for The Future
No full textThe use of space has grown exponentially. It is impossible today to conceive of international communications, weather forecasting, or the screening of the riches of the earth without the help of space-based devices.\u27 Full-scale industrialization of outer space is under way, and space has become a critical arena for military strategists in the global duel. Many of these uses can be performed successfully only by placing a satellite at a very special location in outer space, the so-called geostationary orbit. Only in this ring high above the earth\u27s equator can space objects be maintained in a fairly stable position relative to the earth. In 1963, the United States launched the first geostationary satellite, Syncom-2. Since then, demand for positions in the orbit has grown rapidly. The rigid constraints of science and technology further stimulate fierce competition. With ever-growing use, saturation of the geostationary orbit has become a matter of widespread concern. In particular, countries less advanced in space technology fear that these valuable orbital positions will be fully occupied before they are capable of launching their own devices. Inclusive arenas have come to deal with the issue, primarily the International Telecommunication Union (ITU) and the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The public order of the geostationary orbit is an annually recurring topic of the agenda of UNCOPUOS, and the ITU will devote a two-session world administrative radio conference in 1985 and 1988 to the use of the geostationary orbit and the planning of space services utilizing it. Consensus has been reached that the geostationary orbit is a limited natural resource, the limits of which may soon be reached, and access to which has to be provided on an equitable basis. This Article explores the specific nature and community relevance of the geostationary orbit, the claims raised and trends in decision with respect to its use, and possible regimes under which this finite and precious resource can be distributed among the numerous claimants in the world community. It proposes a flexible framework of inclusive control over the area, based on the view of the orbit as a res publica internationalis
“Vorläufige Wohnheimordnung”: Anmerkungen zum Statut des Sammellagers Tübingen, Lager und Menschliche Würde
No full textBook: Lager und menschliche Würdehttps://scholarship.stu.edu/faculty_book_chapters/1036/thumbnail.jp
