The Experts below are selected from a list of 39237 Experts worldwide ranked by ideXlab platform
Maphuti Tuba - One of the best experts on this subject based on the ideXlab platform.
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lodhi 5 properties investments cc v firstrand bank limited 2015 3 all sa 32 sca and the enforcement of islamic banking Law in south africa
Potchefstroom Electronic Law Journal, 2017Co-Authors: Maphuti TubaAbstract:On 22 May 2015, the Supreme Court of Appeal (“SCA”) handed down a judgment in the matter of Lodhi 5 Properties Investments Cc v Firstrand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on loan in terms of Islamic Law (Shariah Law) may be a defence for a claim for mora interest in term of a loan agreement. This note critically discusses the judgement in light of the approach adopted by the SCA with regard to addressing dispute arising from a contract that has Islamic Law as a governing Law. As this is the first case that came before the SCA in South Africa, this note critically analyses how this Court discussed the applicable principles of Islamic Law as applicable to the dispute between the parties. In particular, it questions the Court’s assertion that a claim for mora interest has nothing to do with and is not affected by the Shariah Law's prohibition against payment of interest on a loan debt. It also looks at the SCA’s approach (as a Common Law Court) with regard to the enforcement of Islamic banking Law principles. This judgement raises important issues regarding the enforceability of Islamic finance Law and therefore merits discussion, in light of the continuing growth and expansion of Islamic banking and finance Law in South Africa.
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lodhi 5 properties investments cc v firstrand bank limited 2015 3 all sa 32 sca and the enforcement of islamic banking Law in south africa
Social Science Research Network, 2017Co-Authors: Maphuti TubaAbstract:On 22 May 2015, the Supreme Court of Appeal (SCA) handed down a judgment in the matter of Lodhi 5 Properties Investments CC v FirstRand Bank Limited [2015] 3 All SA 32 (SCA). This judgement considered whether the prohibition against the charging of interest on a loan in terms of Islamic Law (Sharia Law) may be a defence for a claim for mora interest in terms of a loan agreement. This note critically discusses the judgment in the light of the approach adopted by the SCA with regard to addressing a dispute arising from a contract that has Islamic Law as a governing Law. As this is the first case to come before the SCA in South Africa, this note critically analyses how the Court discussed the principles of Islamic Law as applicable to the dispute between the parties. In particular, it questions the Court's assertion that a claim for mora interest has nothing to do with and is not affected by the Sharia Law's prohibition against payment of interest on a loan debt. It also looks at the SCA's approach (as a Common Law Court) with regard to the enforcement of the principles of Islamic banking Law. The judgment raises important issues regarding the enforceability of Islamic finance Law and therefore merits discussion in the context of the continuing growth and expansion of Islamic banking and finance Law in South Africa.
David A Strauss - One of the best experts on this subject based on the ideXlab platform.
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the Common Law genius of the warren Court
William and Mary law review, 2007Co-Authors: David A StraussAbstract:Abstract The Warren Court's most important decisions--on school segregation, reapportionment, free speech, and criminal procedure--are firmly entrenched in the Law. But the idea persists, even among those who are sympathetic to the results that the Warren Court reached, that what the Warren Court was doing was somehow not really Law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a Common Law Court. The decisions in Brown v. Board of Education, (1) Gideon v. Wainwright, (2) Miranda v. Arizona, (3) and even in the reapportionment cases all can be justified as Common Law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the Common Law, such as Cardozo's decision in MacPherson v. Buick Motor Co. (4) In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a Common Law system: that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before. TABLE OF CONTENTS I. THE Common Law APPROACH A. Common Law Innovation in Action: MacPherson v. Buick Motor Co B. The Premises of the Common Law II. THE WARREN Court A. Brown v. Board of Education 1. What Justifies Brown? 2. Brown and the Common Law Approach B. Gideon v. Wainwright C. Miranda v. Arizona D. The Reapportionment Cases CONCLUSION It is hard to overstate the significance of the Warren Court to American legal culture. The Warren Court's decisions--most notably, but not exclusively, Brown v. Board of Education, (5) which declared public school segregation unconstitutional--changed the way people thought about Courts in general and the Supreme Court in particular. In the first half of the twentieth century, Courts were, if anything, perceived as hostile to efforts to bring about equality and social justice; (6) after the Warren Court, the Courts came to be seen by many as the natural place for people to turn to achieve these objectives. (7) The influence of the Warren Court has, moreover, spread beyond the United States. The image of Courts as the institution with a special responsibility for the disadvantaged has taken root elsewhere in the world, and the paradigm is the Warren Court. (8) Despite this record of success, though, the notion still lingers that the Warren Court was essentially Lawless. Morally visionary, yes, at least on racial segregation; (9) politically astute, perhaps, in sensing the direction in which the nation was moving at the time; (10) but utterly deficient as a matter of legal craft. This view is held across the spectrum, even by people who are broadly in agreement with the Warren Court's objectives. Mainstream legal scholars during the Warren Court years--including many who were politically inclined to approve of the outcomes of the Warren Court decisions--relentlessly attacked the Warren Court in these terms. Alexander Bickel, probably the most widely respected constitutional scholar of his time, accused "the Supreme Court headed ... by Earl Warren" of having engaged in an "assault upon the legal order." (11) Philip Kurland's Foreword to the Supreme Court issue of the Harvard Law Review in 1964 was overtly contemptuous of the Justices' performance as Lawyers; (12) Kurland later derided Brown v. Board of Education as "the self-licensing of the Court to recreate the equal protection clause in its own image . …
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the Common Law genius of the warren Court
Social Science Research Network, 2002Co-Authors: David A StraussAbstract:The Warren Court's most important decisions -- on school segregation, reapportionment, free speech, and criminal procedure -- are firmly entrenched in the Law. But the idea persists, even among those who were sympathetic to the results that Warren Court reached, that what the Warren Court was doing was somehow not really Law: that the Warren Court "made it up," and that the important Warren Court decisions cannot be justified by reference to conventional legal materials. It is true that the Warren Court's most important decisions cannot be easily justified on the basis of the text of the Constitution or the original understandings. But in its major constitutional decisions, the Warren Court was, in a deep sense, a Common Law Court. The decisions in Brown v. Board of Education, Gideon v. Wainwright, Miranda v. Arizona, and even the reapportionment cases, all can be justified as Common Law decisions. The Warren Court's decisions in these areas resemble the paradigm examples of innovation in the Common Law, such as Cardozo's decision in MacPherson v. Buick Motor Co. In all of those areas, the Warren Court, although it was innovating, did so in a way that was justified by lessons drawn from precedents. And the Warren Court's decisions were consistent with the presuppositions of a Common Law system -- that judges should build on previous decisions rather than claiming superior insight, and that innovation should be justified on the basis of what has gone before.
Rivka Weill - One of the best experts on this subject based on the ideXlab platform.
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the strategic Common Law Court of aharon barak and its aftermath on judicially led constitutional revolutions and democratic backsliding
Law & Ethics of Human Rights, 2020Co-Authors: Rivka WeillAbstract:There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional Courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional Courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional Law and comparative constitutional Law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional Law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional Law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a Common Law judge and ultimately treated parliamentary sovereignty as a doctrine arising from Common Law and constrained by Common Law, though he never quite put it in these terms. The Article concludes with explanations for the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of Law as part of a dialog and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political, and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power, but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not necessarily his prudent tactics and strategy.
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the strategic Common Law Court of aharon barak and its aftermath on judicially led constitutional revolutions and democratic backsliding
2018Co-Authors: Rivka WeillAbstract:There is renewed scholarly interest in studying the dynamics of constitutional revolutions and the explanations for the rise of constitutional Courts around the world. At the same time, there is growing discussion of democratic backsliding and concern that democracies are exhibiting extremism, weakening of opposition forces and constitutional Courts, and violations of civil and political rights that are pertinent to vibrant democracies. Scholars try to study both phenomena and understand the relationship between them. Israel is an important case study for both agendas. This Article analyzes the jurisprudence of Aharon Barak, one of the greatest jurists of our time with a worldwide reputation for revolutionizing both Israeli constitutional Law and comparative constitutional Law. It explains the tactics and strategy used by Barak to revolutionize Israeli constitutional Law on issues of reasonableness, proportionality, standing, justiciability, constitutional review, equality, and supra-constitutional Law. It reveals how each revolution paved the way for the next. It offers explanations for the effectiveness of these judicially-led revolutions as well as possible bases for their legitimation. Barak was a Common Law judge and ultimately treated parliamentary sovereignty as a doctrine arising from Common Law and constrained by Common Law, though he never quite put it in these terms. The Article concludes with explanations to the political backlash experienced by the current Israeli Supreme Court that some have characterized as democratic backsliding. It argues that the Court contributes to the development of Law as part of a dialogue and interaction between the different branches of government. As the Court operates within these dynamics, it must understand and take into account the institutional, political and social environments in which it operates to preserve legitimacy and achieve efficacy. Barak was a strategic player that laid foundations for an expansive judicial power but his Court was very prudent in utilizing that power. His successors may have contributed unintentionally to the backlash against the Court by following Barak’s substantive jurisprudence, but not his prudent tactics and strategy.
Ike N. Kusmiati - One of the best experts on this subject based on the ideXlab platform.
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Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law
GoAcademica Research & Publishing, 2020Co-Authors: Ike N. KusmiatiAbstract:Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such thereis no legalassurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: CommonLaw System and Civil Law Systemas a result of dynamic in business relation involving countries bringing some developments in contract Law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractualphase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common Law, Court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern Law contract waives the legal assuranceto reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the Law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principlesshould be the underpinningof contract Law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract la
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LEGAL STANDING OF PRECONTRACTUAL GOOD FAITH PRINCIPLE AS A Law REFORMATION OF INDONESIAN CONTRACT Law
GoAcademica Research & Publishing, 2020Co-Authors: Ike N. KusmiatiAbstract:Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such there is no legal assurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: Common Law System and Civil Law System as a result of dynamic in business relation involving countries bringing some developments in contract Law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractual phase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common Law, Court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern Law contract waives the legal assurance to reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the Law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principles should be the underpinning of contract Law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract Law
Priya Purohit - One of the best experts on this subject based on the ideXlab platform.
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a Common Law Court in an unCommon environment the difc judiciary and global commercial dispute resolution
Social Science Research Network, 2014Co-Authors: Jayanth K Krishnan, Priya PurohitAbstract:This article analyzes a fascinating development – the emergence of English-speaking, American and British-style Common Law Courts within the Islamic monarchy of Dubai. The ‘Dubai International Financial Centre (DIFC) Courts’ were officially opened in 2006. By 2011, these Courts saw their jurisdiction expanded to cover any commercial matter (domestic or foreign) with consent from the parties. The monarchy’s establishment of this parallel judiciary reflected a dual intent: to promote Dubai’s status among Western investors as the premier place to conduct business, and to confirm that a familiar, reliable, and efficient legal system operates in a just manner. Relying on ethnographic work, interview data, and primary sources, this article evaluates the DIFC Courts and the diverse perspectives surrounding them. As the analysis reveals, the story of this Common Law Court is one of nuance – highlighting how in this era of globalization a Western judicial system can indeed exist within an Islamic, Arab-Gulf monarchy.