Emory International Law Review

Volume 28Issue 1

Police Powers and the Constitution of India: The Inconspicuous Ascent of an Incongruous American Implant

Arvind Datar, Shivprasad Swaminathan | 28 Emory Int'l L. Rev. 63 (2014)

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly “immoral” or “noxious ” activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of “police powers” (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas), which lies behind Chief Justice Das¿s invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution.

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Rethinking and Theorizing Regional Integration in Southern Africa

Luwam G. Dirar | 28 Emory Int'l L. Rev. 123 (2014)

Regional integration studies is characterized by, and normally understood as, a combination of inquiries from various disciplines. Conventionally, integration requires the amalgamation of political and economic policies. Yet, integration projects transcend political and economic cooperation and might even require harmonization of laws and principles. Scholars from legal, economic, and political sciences have studied and engaged in intra-disciplinary conceptualization of integration. Some of the theories that developed in relation to integration schemes in the developed North reflect socio-economic, political and historical factors of the North, casting doubt on the applicability, value, and consistency of those theories to integration schemes in southern Africa. Hence, this article is an attempt to conceptualize integration through a multidisciplinary analysis in order to proffer a broader conception of integration that encompasses local and regional emancipation movements in Africa in general, and in southern African countries in particular.

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Lincoln’s Legacy for American International Law

Antonio F. Perez | 28 Emory Int'l L. Rev. 167 (2014)

Is the United States, as an international actor, different from all other international actors? If so, how is it different? What makes it different? How does American sovereignty fit into a larger conception of international law? These questions go back to the beginning of the Republic, and they remain pressing today. Many have debated this question in terms of the legacy of the Founding. Some find in the Founding the seeds of multilateralism and perhaps even cosmopolitanism; others, rejecting this interpretation, advance a nationalist and unilateralist account of the Founding. But the Founding is not the whole story.

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Class Action Mechanisms in Chinese and Taiwanese Contexts—A Mixture of Private and Public Law

Jing-Huey Shao | 28 Emory Int'l L. Rev. 237 (2014)

This Article provides an overview of the class action mechanisms of China and Taiwan, including an analysis of the legal and court systems and other institutions involved in the implementation. By examining representative cases and empirical evidence, this Article marks transitions between the introduction of a class action mechanism and its later transition.

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The Civil Codes of Libya and Syria: Hybridity, Durability, and Post–Revolution Viability in the Aftermath of the Arab Spring

Dan E. Stigall | 28 Emory Int'l L. Rev. 283 (2014)

The Arab Spring sent shockwaves through the political landscape of the Middle East and North Africa and upended long-standing authoritarian regimes throughout the region in rapid succession. Among the many countries touched by the Arab Spring, Libya and Syria have been among the most profoundly impacted, experiencing institutional deficits that complicate efforts to resolve ongoing conflicts and now threaten regional stability. The effects of such instability also pose a threat to the international community. In order to transition from conflict to peace and sustainable development in Libya and Syria, however, international actors will need to make concerted efforts at rebuilding the architecture of governance, a process which entails restoration of rule of law, dispute resolution, and core government functions. Such a process necessarily entails engagement with the civil law systems in force in these countries. This Article, therefore, explores the structure and substance of the Libyan Civil Code and the Syrian Civil Code, with special attention given to two of the most critical aspects of civil law vis-à-vis post-conflict reconstruction: The way each civil code addresses the formation of obligations and the regulation of property rights. This Article explicates the formal rules that: (1) regulate the legal affairs of citizens in those countries; (2) notes the applicability of those laws to post-revolution problems; (3) explores those elements and aspects of the Libyan and Syrian civil codes which have made them such durable legal institutions; (4) and assesses their ongoing, post-revolution viability.

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Religion and Constitutionalism: Lessons from American and Islamic Constitutionalism

Nimer Sultany | 28 Emory Int'l L. Rev. 345 (2014)

This Article examines the role of religious law in constitutionalism by focusing on Egypt and Tunisia as two main case studies: Egypt is an example of the so-called “Islamic constitutionalism” and Tunisia is an example of a more secular variety. Both cases are analyzed against the backdrop of U.S. constitutional theory and law. I begin by rejecting conceptualist approaches which focus on abstract concepts in order to assess the compatibility of religion, like Islam, with democracy. I show the futility of this kind of debate through a comparison to American debates between opensmartdoublequote]living constitutionalists” and “originalists.” I then elaborate a pragmatic account that assesses the consequences of different institutional arrangements.

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