Jindal Global Law Review

THE GLOBALIZATION OF LEGAL KNOWLEDGE

VOLUME 2, ISSUE 1, 2010

Issue Editors : Vik Kanwar Prabhakar Singh

Editor’s Foreword (PDF)

ARTICLES

1. Knowledge-Based Policing: India and the Global Revolution in Crime Prevention
     Lawrence W. Sherman
    Article (PDF) | Abstract

The past three decades have witnessed a global revolution in the development and application of the prevention sciences, notably in health, transportation, and public safety. That revolution has saved countless lives that would otherwise have been lost to disease, plane crashes, murders and other tragedies. This revolution is strongest in the methods for creating new knowledge but remains uneven in applying new knowledge.
Lawrence Sherman, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 1:11, ISSN 0975-2498.


2. Legal Transplants: Western Legal Transplants and India
       Jean-Louis Halpérin
      Article (PDF) | Abstract

Alan Watson’s theory on legal transplants can be used to examine same particularities of Indian legal history. British colonization not only imported in India many rules and features of their legal system, but they have also re-invented the tradition of Hindu law and experienced in India some new legal derives through the codification process. These legal transplants have also played the role of ‘irritants’ – according to Terbner’s terminology – by provoking unforeseen changes in the Indian legal scene. The originality of the Indian legal order since the independence is thus linked with the construction of a complex legacy of various transplants.
Jean-Louis Halpérin, Jindal Global Law Review, Volume 2, Issue 1, March 2010,13:40, ISSN 0975-2498.

 

3. Legal Transplants and Codification: Exploring the North American Sources of  the Civil Code of Argentina 1871
     Agustín Parise
     Article (PDF) | Abstract

The examines possible legal transplants in the drafting of the 1871 Civil Code of Argentina with reference to text, history, and the sources available to tits author, Vélez. In particular, it makes systematic comparisons of provisions of the Civil Code of Argentina and North American Codes (e.g., Louisiana Civil Code) and codification projects (e.g., a project for a New York Code) to documents the process of transplantations. The process of transplantation is shown not only to inolve the importation of legal provisions and perspectives, but also their integration into a recipient society whose unique ethos results in a new and distinctive body of law.
Agustín Parise, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 41:86, ISSN 0975-2498.

 

4.Human Rights Law, Policy, and Implementation: The Responsibility to Protect Watershed or Old Wine in a New Bottle?
   Stephen P. Marks and Nicholas Cooper
   Article (PDF) | Abstract

This article argues that the responsibility to protect (R2P) is not a radical departure on the role of international community regarding mass atrocities, but a codification of pre-existing concepts of ‘just war’ and harmonisation intervention, and a call to ensure their consistent application. The authors highlight R2P’s holistic approach of preventing, reacting to, and rebuilding after grave crimes are committed, treating impunity and its redressal as a process rather than standalone events. This article concludes with political hurdles for R2P to be realised in action and suggest creative ways to overcome them.
Stephen P. Marks and Nicholas Cooper, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 87:131, ISSN 0975-2498.

 

5.Human Rights Law, Policy, and Implementation – TRIPS and Human Rights: The Case of India Subramanya
    Subramanya Sirish Tamvada
    Article (PDF) | Abstract

The Twenty-first century has seen a rapid growth of two regimes: the intellectual property rights regime and the human rights regime. On one hand, growth of multinational corporation has led to a stronger and stricter intellectual property rights regime. On the other hand, human rights have gained primacy in public as well as political debates. Developing countries have argued that intellectual property rights and Human Rights often come into conflict, particularly when implementing their international obligations under TRIPS. Nevertheless, developing countries are forced to provide better intellectual property protections. There is a need to give heed to the voices of the developing countries. This article seeks to understand and bring clarity to this debate. It suggests that intellectual property should be seen through human rights lens and analyses various approaches.
Subramanya Sirish Tamvada, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 133:154, ISSN 0975-2498.

 

6.Human Rights: Globalizing Labor Standards: The Developed Developing Divide

   Supriyo Routh
   Article (PDF) | Abstract

Globalization gives rise to two apparently conflicting opinions for labor policy makers and advocates, both with social justice implications for workers. This article argues that all international labor standards need not be (and should not be) adhered to by all developing states. The international community should not mandate the religious adherence of international labor standards by all states under threat of sanctions via overlapping international organizations. Member states should be given leeway to a certain extent to determine the nature of labor standards that suit their necessities and level of development. This should not be, however, taken to mean that the plight of the workers be made subject to the whim of a domestic political elite. The international community should secure minimum adherence to the labor standards by the member states through diplomatic and political channels, rather than enforcement of positive lae through sanctions.
Supriyo Ruth, Jindal Global Law Review, Volume 2, Issue 1, March 2010,155:173, ISSN 0975-2498.


7.Human Rights: How to Better Infuse Gender into the Human Rights Council’s Universal Periodic Review Process?
     Jeremy Sarkin
    Article (PDF) | Abstract

The shift at the United Nations (UN) from the much criticized Human Rights Commission to the Human Rights Council in 2006 has supposedly brought new opportunities to affect the promotion and protection of human rights around the world. One of the major developments has been the implementation of the Universal Periodic Review (UPR) process to review the human rights (HR) situations in all UN be determined. One are that such a review mechanism could have a dramatic effect still needs to be determined. One area that such a review mechanism could have a dramatic effect is on the lives of women to ensure that levels of discrimination and violence against women are reduced and that real and meaningful equality occurs for women and girls. This article reviews the way in which gender issues could be brought more directly into the work of UPR process by reviewing the way UPR works and making recommendations on the way the process could be reformed to ensure greater infusion of gender issues into the process. This is crucial as gender discrimination around the world remains a major scourge. Finding where it is occurring and finding ways to deal with it must be a critical part of the human rights agenda at international, regional, sub-regional and domestic levels. The UPR process, it is argued, can and makes recommendations to improve it with regard to dealing with gender more comprehensively and cohesively. Suggestions are made to ensure that the UPR process has the desired effect in the country concerned to ensure that the lives of billions of women and girls are improved by striving for equality by reducing discrimination and combating other types of human rights violations committed against women and girls in both the public and private sphere.
Jeremy Sarkin, Jindal Global Law Review, Volume 2, Issue 1, March 2010,175:193, ISSN 0975-2498.

 

8.Foundations of Constitutionalism: Justice for All: A Better Path to Global Firearms Control
    David B. Kopel, Paul Gallant and Joanne D. Eisen
    Article (PDF) | Abstract

Human rights activists who support a binding global Arms Trade Treaty (ATT) miss an important dimension of global reality: many people the world over own firearms primarily to protect their families and communities from government-sponsored genocide and other abuses. Governments historically have been, and still are, the primary perpetrators of violence and human rights violations. The most effective long-term path towards disarmament in conflict-ridden parts of the world is to reduce demand by civilians to possess defensive arms. Rather than relying upon ineffective and counter-productive top-down measures, the better way to do so would be to promote grassroots movements dedicated to strengthening good governance and the rule of law.
David B. Kopel, Paul Gallant and Joanne D. Eisen, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 203:216, ISSN 0975-2498.

 

9.Foundations of Constitutionalism: The True Foundation of Judicial Review: A View from Nigeria
    Ajepe Taiwo Shehu
   Article (PDF) | Abstract

The article is a contribution to the debate on the true origins of judicial review. It argues that since most of the common law grounds of review had their origin in the principles of natural law, common law cannot be its true origin. It contends that the intention of the Legislature – ‘directly’ or otherwise – cannot be the foundation. Where the court cannot find justification in the constitution, particularly in countries with written constitutions, it should look for its source in the formal constitution. A constitution, though written, is a codification or the positivization of unwritten norms. Britain has an unwritten constitution. Yet this does not mean that there are constitutional norms not known to people. In the author0s view, the power of the court to review executive or legislative actions must be traceable to the written or the formal constitutions. This paper looks into how the judiciary came about its power of review of parliamentary and executive actions.
A.T. Shehu, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 217:236, ISSN 0975-2498.

 

10.Foundations of Constitutionalism: A Lockean Defense of the Political Question Doctrine’s Application in War Powers Cases
     Matthew Jordan Cochran
     Article (PDF) | Abstract

This article offers a Lockean natural law justification for political question doctrine, which in turn provides a clear philosophical perspective on America’s war powers controversy, dispensing with constitutional arguments and replacing them with an evaluation of government’s actions according to its political power. In light of Lockean concerns, the War Powers Resolution – a perennial point of disagreement between the US Congress and Presidents – is found to be redundant and counter-productive. The true test of legitimacy of a decision regarding war is responsiveness to the will of the people, a standard which also precludes the judiciary from interfering in such matters. In this way, the political question doctrine cannot be understood as a judicial check on political prerogative but a restatement of necessary abstention.
Matthew Jordan Cochran, Jindal Global Law Review, Volume 2, Issue 1, March 2010, 237:254, ISSN 0975-2498.

 

11. Refining the Methodology of Rights Based Monitoring: The Role of Human Rights Indicators
      Y.S.R. Murthy
      Article (PDF) | Abstract

This Note surveys the role of human rights indicators in the ongoing quest for implementation and accountability. Section I summarizes a history of the development of Human Rights indicators; Section II assesses some strengths and weaknesses in the use of indicators; and Section III examines whether or not the entry of quantitative indicators into human rights discourse is a desirable phenomenon.
YSR Murthy, Jindal Global Law Review, Volume 2, Issue 1, March 2010,195:201, ISSN 0975-2498.
   

BOOK REVIEW

   12.Sen v. Rawls
   Nathan M. Rehn
      (PDF)