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Mitidiero D: Ratio Decidendi and Obiter
Dictum

Ratio Decidendi and Obiter Dictum

A Curious Case

The law codes in the Middle East North Africa (MENA) region are a well-crafted blend of civil and Islamic law in which civil law principles do not violate Islamic provisions. Yet, common law principles derived either from English common law or Islamic customary usages remain unidentified and thus ignored. Here, this complex scenario is rectified through a comparative analysis of the primary data (e.g. cases, statutes and arbitral award decisions), adding common law and uncodified Islamic custom to MENA law codes. The purpose of this comparative analysis is to allow common legal principles found in civil, common and Islamic law to be distilled in order to create a new, harmonised international commercial arbitration law code (HICALC) or uniform Arab arbitration law (UAAL) for adoption in the MENA region, where these principles already greatly influence the legal systems and can be readily assimilated into a harmonised or uniform code. The work demonstrates that this new code would lead to improved arbitral award enforcement in the MENA.

The law codes in the Middle East North Africa (MENA) region are a well-crafted blend of civil and Islamic law in which civil law principles do not violate Islamic provisions. Yet, common law principles derived either from English common law or Islamic customary usages remain unidentified and thus ignored. Here, this complex scenario is rectified through a comparative analysis of the primary data (e.g. cases, statutes and arbitral award decisions), adding common law and uncodified Islamic custom to MENA law codes. The purpose of this comparative analysis is to allow common legal principles found in civil, common and Islamic law to be distilled in order to create a new, harmonised international commercial arbitration law code (HICALC) or uniform Arab arbitration law (UAAL) for adoption in the MENA region, where these principles already greatly influence the legal systems and can be readily assimilated into a harmonised or uniform code. The work demonstrates that this new code would leadto improved arbitral award enforcement in the MENA.

A Model Harmonised International Arbitration Law Code for the Middle East and North Africa

This book focuses on contemporary problems related to fraud and risk in commercial law. It has been said by some that we are in a 'golden age of fraud'. In part this has been caused by globalisation, technological changes and the financialisation of business. This has resulted in the creation of automated linkages with integrated supply chains and the creation of systemic risks, which have been exacerbated by new forms of intangible assets like tokens and their ease of movement. While regulation has ebbed and flowed given the desire of governments to generate economic growth, as well as the distrust of their coercive powers, the courts have sought to strike a balance between considerations such as commercial certainty and fairness. The book provides an analysis of key contemporary issues on the theme of fraud and risk in commercial law, including: technology and fraud, secondary liability and 'failure to prevent' economic crime, abuse of business entities, insolvency and creditor protection, injunctions and other orders, cross-border issues, the relationship between regulation and private law, and solutions for policy makers.

Fraud and Risk in Commercial Law

This book explores the global phenomenon of migration, transplantation, and borrowing of constitutional ideas. It combines conceptual and normative approaches, to dissect a phenomenon which has been both praised and maligned in current political and academic discourse. The contributors consider constitutional transplantation as a specific case of migration of ideas, and place it within that broader intellectual framework of movement of knowledge. They analyse, from historical, conceptual, and normative angles, the transplantation of constitutions and constitutional ideas from one state to another, and the role played by existing cultures and histories in the reception of constitutional provisions and ideas. The book takes a broad view of the term 'constitutional'. The results of the movement of constitutional ideas can be found outside, as well as within, the law, and the implications of such movement go beyond it. The authors are drawn from the fields of comparative constitutional law, medieval history, political philosophy, private law, and administration of justice. It reflects a view that the study of non-hegemonic systems, as well as hegemonic systems, is important in understanding transplantation of constitutional ideas, both as sources of transplants and as their receivers, and includes discussions of constitutions in Latin America, Asia, Europe, and North America.

This book explores the global phenomenon of migration, transplantation, and borrowing of constitutional ideas. It combines conceptual and normative approaches, to dissect a phenomenon which has been both praised and maligned in current political and academic discourse. 

The contributors consider constitutional transplantation as a specific case of migration of ideas, and place it within that broader intellectual framework of movement of knowledge. They analyse, from historical, conceptual, and normative angles, the transplantation of constitutions and constitutional ideas from one state to another, and the role played by existing cultures and histories in the reception of constitutional provisions and ideas.

The book takes a broad view of the term ‘constitutional’. The results of the movement of constitutional ideas can be found outside, as well as within, the law, and the implications of such movement go beyond it. The authors are drawn from the fields of comparative constitutional law, medieval history, political philosophy, private law, and administration of justice.

It reflects a view that the study of non-hegemonic systems, as well as hegemonic systems, is important in understanding transplantation of constitutional ideas, both as sources of transplants and as their receivers, and includes discussions of constitutions in Latin America, Asia, Europe, and North America.

The Diffusion and Adoption of Constitutional Ideas

Constitutional Transplantations

Product Standards, Carbon Border Measures and Preferential Trade Agreements

Environmental Leverage in Times of Climate Crisis

Law for Professionals

How Top Leaders Unlock Performance to Win the Future

Leading Transformation in Law Firms

Landmark Cases

International Jurisprudence on the Rights of Refugees

Landmark Cases in International Refugee Protection

Schriften zu Leben und Gesellschaft - Series on Life and Society

Science and the Other is about modern science and its role in the ruling geopolitics of onto-epistemic violence. Tracing back over a century in scientific meta-discourse in philosophy, sociology, anthropology, feminist and decolonial STS, the book explores how scientific universalism has been functioning as an ideological machine for globalising structures of exploitation. By seeking “objective truth” in a world divided into subjects and objects, culture and nature, humans and non-humans, "developed" and "underdeveloped" people and regions, modern science tacitly naturalises structural inequalities and legitimises the exploitation of both non-human nature and a major part of humanity. Modern science has given us the superpowers that brought about the “Anthropocene”, but unfortunately not the wisdom to face its existential challenges. There is an urgent need to engage with Other(ed), marginalised ways of knowing in equitable, pluriversal dialogue about the knowledge needed to build liveable world(s).&nbsp;
Science and the Other is an in-depth inquiry into the question of what actually hinders us from engaging into cross-fertilising pluriversal dialogue. Based on a three years action research with the Potiguara in north-east Brazil, the book offers a comparative analysis of Potiguara's and scientific cosmologies. Scientists and philosophers have been struggling to provide a coherent naturalistic theory of mind and matter – with little success. Instead, evidence from quantum physics and neuroscience suggests a variety of possible ontological interpretations, some of which describe a world made up by entities and principles with properties comparable to those in the Potiguara´s world. However, the Potiguara´s cosmology uses radically different metaphors, thereby painting a radically different picture of “reality”, and thus, allowing for onto-epistemic shifts and new insights. Accordingly, a dialogue between modern science and Other, hitherto excluded knowledge cultures should not only be possible; looking through the Others´ lens might also help us find alternative solutions to old, recalcitrant problems (e.g. relativism or the mind-body problem) and open our eyes for new horizons and alternative futures beyond the scope of modern/colonial epistemologies.
This is an open access book.

Science and the Other is about modern science and its role in the ruling geopolitics of onto-epistemic violence. Tracing back over a century in scientific meta-discourse in philosophy, sociology, anthropology, feminist and decolonial STS, the book explores how scientific universalism has been functioning as an ideological machine for globalising structures of exploitation. By seeking “objective truth” in a world divided into subjects and objects, culture and nature, humans and non-humans, "developed" and "underdeveloped" people and regions, modern science tacitly naturalises structural inequalities and legitimises the exploitation of both non-human nature and a major part of humanity. Modern science has given us the superpowers that brought about the “Anthropocene”, but unfortunately not the wisdom to face its existential challenges. There is an urgent need to engage with Other(ed), marginalised ways of knowing in equitable, pluriversal dialogue about the knowledge needed to build liveable world(s).&nbsp;Science and the Other is an in-depth inquiry into the question of what actually hinders us from engaging into cross-fertilising pluriversal dialogue. Based on a three years action research with the Potiguara in north-east Brazil, the book offers a comparative analysis of Potiguara's and scientific cosmologies. Scientists and philosophers have been struggling to provide a coherent naturalistic theory of mind and matter – with little success. Instead, evidence from quantum physics and neuroscience suggests a variety of possible ontological interpretations, some of which describe a world made up by entities and principles with properties comparable to those in the Potiguara´s world. However, the Potiguara´s cosmology uses radically different metaphors, thereby painting a radically different picture of “reality”, and thus, allowing for onto-epistemic shifts and new insights. Accordingly, a dialogue between modern science and Other, hitherto excluded knowledge cultures should not only be possible; looking through the Others´ lens might also help us find alternative solutions to old, recalcitrant problems (e.g. relativism or the mind-body problem) and open our eyes for new horizons and alternative futures beyond the scope of modern/colonial epistemologies.This is an open access book.

An inquiry into the geopolitics of knowledge, Potiguara ontology and the hard problem of modern science

Science and the Other

Ethics, Legislation, and Governance in the Age of Artificial Intelligence

The New Laws of Outer Space

Administrative Tribunals in the Common Law World

Examines how international, regional, and national legal frameworks hold corporations operating in the natural resource sector accountable for human rights violations in the Global South.

Accountability for a Just Transition

Business, Human Rights and Natural Resource Governance

Uwe Kischel's comprehensive treatise on comparative law offers a critical introduction to the central tenets of comparative legal scholarship. The first part of the book is dedicated to general aspects of comparative law. The controversial question of methods, in particular, is addressed by explaining and discussing different approaches, and by developing a contextual approach that seeks to engage with real-world issues and takes a practical perspective on contemporary comparative legal scholarship. The second part of the book offers a detailed treatment of the major legal contexts across the globe, including common law, civil law systems (based on Germany and France, and extended to Eastern Europe, Scandinavia, and Latin America, among others), the African context (with an emphasis on customary law), different contexts in Asia, Islamic law and law in Islamic countries (plus a brief treatment of Jewish law and canon law), and transnational contexts (public international law, European Union law, and lex mercatoria). The book offers a coherent treatment of global legal systems that aims not only to describe their varying norms and legal institutions but to propose a better way of seeking to understand how the overall context of legal systems influences legal thinking and legal practice.

This treatise offers in-depth coverage of comparative law, carefully structured and clearly explained by a leading expert. It is an invaluable resource for students seeking a critical introduction to the field, as well as scholars and practitioners, for whom it offers new insights, structures, and approaches.

Comparative Law

Improved usage of forensic science evidence by legal practitioners is essential to reduce miscarriages of justice. This book presents critical insights into contemporary issues of forensic proof from a broad perspective. Using DNA and fingerprint evidence, the authors compare and contrast the science of forensics and how it is communicated to judges, juries, and counsel. With authors from Australia, the UK, and the U.S., the book also addresses how these different countries address science in the courtroom. This resource is ideal for all those who work in forensic capacities, including those scientists who increasingly are called to testify abroad.

Improved usage of forensic science evidence by legal practitioners is essential to reduce miscarriages of justice. This book presents critical insights into contemporary issues of forensic proof from a broad perspective. Using DNA and fingerprint evidence, the authors compare and contrast the science of forensics and how it is communicated to judges, juries, and counsel. With authors from Australia, the UK, and the U.S., the book also addresses how these different countries address science in the courtroom. This resource is ideal for all those who work in forensic capacities, including those scientists who increasingly are called to testify abroad.

Best Practices for Law

Forensic Science Evidence

Ratio Decidendi and Obiter Dictum

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