Imago veritas falsa: for a (post-)Schmittian decisionist theory of law, legal reasoning, and judging

For decades, while approaching the ‘normativism/pragmatism’ divide and discussing the legitimacy of (and opportunity for) the judge to act as a ‘social engineer’, socio-legal scholars have tried to ascertain whether the jurist should also consider the impact of his/her activity on society at large, and if so, why and to what extent. The present contribution understands instead the law in terms of a structurally incomplete image (imago veritas falsa) which always needs the decisive intervention of the legal interpreter to exercise its performative instances. In particular, by adopting an unconventional theoretico-philosophical approach that transcends the classic boundaries of foundationalist metaphysics as expressed by the dichotomy of Western logic, this paper argues for the necessity of a tertium comparationis capable of explaining that the real essence of law, legal reasoning, and judging is neither that of normativism, nor of pragmatism, but rather of (post-)Schmittian decisionism.

The emergency powers in Bangladesh: means for subversion of the rule of law?

The Constitution of Bangladesh empowers the President to proclaim an emergency on the actual or imminent ground of war or external aggression or internal disturbance. However, the insertion of ‘internal disturbance’ in the Constitution as a ground for invoking emergency has provided the executive with the opportunity to proclaim all the five emergencies in Bangladesh on this vague ground for purposes other than that of securing the life of the nation. Furthermore, in the absence of any effective constitutional mechanisms for scrutinising the exercise of emergency powers and a time limit on the continuation of a state of emergency, some of the proclamations of emergency continued even after the alleged threat posed to the life of the nation was over to perpetuate the survival of the party in power by repressing any political threat to the regime. This Article, therefore, recommends for insertion in the Constitution of Bangladesh detailed norms providing for legal limits on the wide power of the executive concerning the proclamation, administration and termination of emergency with a view to ensure that emergencies can no longer be resorted to as the effective means of discarding the rule of law.

Disrupting (gendered) Islamophobia: the practice of feminist ijtihad to support the agency of young Muslim women

Muslim feminist scholars highlight, and seek to transform, racist, sexist and Islamophobic discourses through feminist interpretations of their religion. This paper reports on data gathered from an interview-based study involving four young Muslim women from the same Brisbane (Queensland) community. The focus is on how these young women are understanding, and finding spaces of agency, within these discourses with reference to their faith. The Islamic principle of ijtihad (jurisprudential interpretation of religious text) and the practice of feminist ijtihad are theorized as powerful tools in supporting the young women to counter the Islamophobia and gendered Islamophobia in their lives. Using these tools, however, as this paper argues, is not unproblematic and can reinscribe disempowering gender and ethno-cultural relations. Amid unprecedented gendered Islamophobia and the clear imperative of supporting Muslim women to access the tools of feminist ijtihad, the paper provides important insight into the possibilities and problematics of these tools.