Muslim personal law

The article examines the development of the legalism of Personal Law and provisions of community rights for disparate communities in modern India, and the role of religion and communal politics in their perpetuation. The case study undertaken here is specifically the Muslim community’s Constitutionally-sanctioned Personal law (MPL). MPL has not been without criticisms both from outside and within the community, particularly in respect of gendered disadvantages that arise within the provisions safeguarding the practices, which cover marriage, divorce, alimony, inheritance, custody, succession, and so forth.

Concepts and principles in unjust enrichment : a comparative study

The Thesis was inspired by a perceived need better to understand the unique description of unjust enrichment by the Australian courts, as a unifying legal concept. It demonstrates that concepts and principles are essential features of the common law because they identify the character and taxonomy of rules. The comparative study, encompassing Australian and English law primarily, and law of other jurisdictions, modern and ancient, elucidates the special characteristics of the concepts and principles of Anglo/Australian unjust enrichment and of concepts and principles generally. A like concept has had a place in the common law since its inception under several characterisations. It bears the mark of ancient Roman jurisprudence, but relates to independent principles. The jurisprudence was formed by special characteristics of its history. It is distinct from modern Roman/Dutch law but the doctrinal overtones of its foundational case law reflect the basis of reasoning which in Continental law, is found in the adopted ancient codes. It is this foundation of reasoning and the firm rejection of a normative general principle that makes Anglo/Australian law different in character and jurisprudence from unjust enrichment in USA and Canada. Stifled for centuries by quasi contract misconceptions, the law of unjust enrichment entered the modern law in the 20th C through the seminal judgements of Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd, and related cases and through the strong judicial and juristic following they inspired. That “…any civilised system of law is bound to provide remedies for … unjust enrichment…” became an imperative across the common law world: it has long held a place in the Roman Dutch jurisdictions of South Africa and Continental Europe. The special character of unjust enrichment in Anglo/Australian law is focussed upon a unique action where-by the law imposes an obligation upon the establishment of a recognised ground. The notion of breach of a primary rule does not arise: the obligation is therefore a primary obligation imposed by law, as distinct from a remedy for a breach. Important consequences flow from the characteristic. The juristic development of unjust enrichment in the common law has long been the sole prerogative of the superior courts. The place of historical features of the jurisprudence has however been subsumed by modern judicial methodology that is slowly assuming a unifying pattern of reasoning from case to case; from one ground to another. This is the special characteristic of the unifying legal concept and English principle of unjust enrichment. The thesis draws widely based conclusions about concepts and principles of unjust enrichment and the actions and obligations they sponsor. It portrays them as the substance of legal reasoning and analyses underlying theory. to this end, it addresses counter juristic and historical arguments. Its central conclusion are that there are sound jurisprudential arguments for actions based upon a unifying legal concept and English principle of unjust enrichment, and that the explanation of the unjust enrichment concept as the foundation of an independent branch of the common law and taxonomy is theoretically sustainable. In this manner concepts and principles of the common law are demonstrated as critical characteristics of the common law at large.

Introduction: Lambert and lampposts: the end of equality in Anglo-Australian matrimonial property law

This contribution introduces the volume by classifying the collection into 3 categories: (i) examinations of the area of property law which focus on the relationship between the decisions in White, Figgins and Lambert; (ii) reactions to the implications of McFarlane, Parlour for the evolution of spousal maintenance; (iii) more general theoretical considerations of ‘fairness’. It is argued that the judicial response to the breadth of the discretion provided by the respective legislatures has been to create ‘rules of thumb’; and that the absence of any serious examination of underlying principles has been to permit opportunistic cross-referencing between the jurisdictions. In this context it is argued that (analogously with the introduction of no-fault divorce) the recent attraction of ‘equality’ as a governing principle owes more to the incapacity and/or unwillingness of the forensic process to evaluate contribution in a coherent manner than to any genuine commitment to substantive equality.

Mineral law and the doctrine of rights : a microscope of magnification?

The doctrine of rights has become part of private law jurisprudence. In this article the application of the doctrine in two decisions dealing with surface support in mineral law is examined. It is argued that the decision of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie, namely, that the right to surface support is an entitlement, is more correct than Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd in which it was decided that the right to surface support is a competence. It is submitted that depending on the legal location of the entitlement in the relationship between owner and miner of land one may simply refer to either an owner's entitlement to surface support or a miner's entitlement to undertake opencast-cast mining.

Law and theology in Gilbert of Foliot's (c. 1105/10-1187/88) correspondence

Lord Peter Stein, eminent historian of Roman law, described the interaction of law and theology in the writings of one twelfth-century writer as a kind of 'universal jurisprudence' , The twelfth-century figure to whom he referred was Master Vacarius (c. 1115/2O-c. 1200), well-known English Roman lawyer and Anglo-Norman canonist. While Stein drew this conclusion largely on the basis of an analysis of Vacatius' strictly 'legal' work, the Liber pauperum, I have shown elsewhere, following a systematic study ofVacarius' other works, dealing with maniage, christology and heresy, that, when seen together, they demonstrate a use of law as a universal heuristic device to resolve conflict in law and theology.

Uneasy alliances: Traditional dynamics in women's relationships in urban Hindu society (1910-2010)

This paper argues that in spite of the phenomenal economic progress made by India, the urban Indian Hindu woman still faces major challenges and hindrances in charting the course of her existence, some aspects of which are still located within a very traditional discourse. Women of particular age groups combine highly competitive careers in medicine, management, engineering, and other demanding professions with marriage and motherhood, while simultaneously juggling the eternal roles of the docile, hardworking daughter-in-law and the dutiful daughter. It is, yet again, another sacrifice of individual needs and time on the part of the urban Indian Hindu woman within a discourse that imposes constant adjustment and compromise from one's birth as a female child. The economic context might appear to be very different in this century, and the socio-cultural discourse may appear to have changed along with it, but the expectations and the status quo of the urban Hindu woman has not changed very much, given the underlying historical and socio-cultural discourse that is still extant.

Law, theology, and the schools: the use of scripture in Ricardus Anglicus’s distinctiones decretorum

The Anglo-Norman canonist Ricardus Anglicus (de Mores or de Morins), as Giulio Silano’s 1982 PhD thesis and provisional edition argues, was as interested in biblical theology as he was in canon law. This wide interest was a product of his time in the Parisian schools. How then did his influential commentary on Gratian’s Decretum, the Distinctiones decretorum, use Scriptural sources to explicate ostensibly canonistic concepts? This paper attempts to explore these issues in the context of the interaction of law and theology in the mid-to-late twelfth-century schools, courts, and ecclesial familiae of Bologna and England.