The Historical Relation of English Common Law and Classical Islamic Law: a Critical Examination

by | Mar 1, 2025 | FUND, FUND V30I2

The Historical Relation of English Common Law and Classical Islamic Law: a Critical Examination

Authors Nehaluddin Ahmad and Zheimie H Zamri

ISSN: 2411-7870
Affiliations: Law Professor at Sultan Haji Hassanal Bolkiah Faculty of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam. LLB (Hons) MA (Composite History) LLM (Constitutional Law and Administrative Law) (Lucknow University) LLM (IT and Telecom Law) (University of Strathclyde) LLD (Meerut University); PhD Law candidate at Sultan Haji Hassanal Bolkiah Faculty of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam. HND (Islamic criminal justice system) (Sultan Sharif Ali Islamic University) BA (Sharīʻah law) (Hons) (Sultan Sharif Ali Islamic University) LLB (Hons) (Sultan Sharif Ali Islamic University) LLM (International law) (Sultan Sharif Ali Islamic University)
Source: Fundamina, Volume 30 Issue 2, p. 33-63
https://doi.org/10.47348/FUND/v30/i2a2

Abstract

In the twelfth century, the establishment of common law under Henry II, king of England, marked a pivotal moment in the evolution of the English legal system. While the roots of this legal framework are traditionally traced back to Roman and canon law traditions, there is ongoing debate among historians regarding potential direct influences from Islamic legal institutions. Arab civilisation significantly influenced the identity of Sicily, ruling the island for more than two centuries until its conquest by Norman knights in 1061. This contribution seeks to examine critically the historical connections between classical Islamic law, as practised in Arab Sicily, and specific legal principles evident in the common law of England. The analysis delves into the origins of concepts, such as trust (waqf), the primacy of law over the state, individual freedoms, contractual freedom, judicial impartiality and the doctrine of res judicata. It conducts a comparative study to highlight the similarities and differences between these two legal systems. This study clearly indicates that the interaction between Islamic and common law traditions left a lasting imprint on legal systems worldwide, underscoring the significance of cultural exchange, but also emphasises the dynamic nature of legal evolution through cross-cultural influences.

Seventy-Five Years of the Genocide Convention: the Obligations on States to Prevent Genocide

by | Mar 1, 2025 | FUND, FUND V30I2

Seventy-Five Years of the Genocide Convention: the Obligations on States to Prevent Genocide

Author Antonie Klopper

ISSN: 2411-7870
Affiliations: Attorney and Conveyancer of the High Court of South Africa. BCom (Law) LLB LLM (University of Pretoria) LLD candidate (University of Johannesburg)
Source: Fundamina, Volume 30 Issue 2, p. 64-124
https://doi.org/10.47348/FUND/v30/i2a3

Abstract

This contribution explores the historical background of genocide in international law, emphasising its role in shaping the current legal framework for preventing and punishing genocide. The discussion begins by taking a look at the origins of the term “genocide” as introduced to international law after World War II through the Genocide Convention of 1948. This contribution highlights the extensive historical context of the concept of genocide, emphasising the need to examine it from an international public-law perspective to understand the obligations placed on states for preventing genocide. The recent case law before the International Court of Justice in cases brought by Ukraine and South Africa illustrate the importance of genocide in the contemporary international legal context. South Africa requested the court to grant an order for Israel to suspend its military operations in and against Gaza. The court chose to rather follow precedent and granted the order that Israel take all reasonably available measures to prevent genocide. This was predictable as the court has an extensive history of interpreting the crime of genocide. This contribution discusses the legal status of genocide by looking at reports from the International Law Commission, relevant case law of the International Court of Justice and international instruments signed to enforce obligations toward genocide prevention. It provides a much-needed academic summary of the interpretation of genocidal acts as mentioned in the Convention, as well as of the obligations of states toward the prevention of genocide under international law. Such research is relevant as the prevention of genocide remains a priority in the international community.

The Ugandan Parliament’s Power to Censure a Cabinet Minister: Understanding Article 118 of the Constitution in the Light of its Drafting History

by | Mar 1, 2025 | FUND, FUND V30I2

The Ugandan Parliament’s Power to Censure a Cabinet Minister: Understanding Article 118 of the Constitution in the Light of its Drafting History

Author Jamil Ddamulira Mujuzi

ISSN: 2411-7870
Affiliations: Professor, Faculty of Law, University of the Western Cape
Source: Fundamina, Volume 30 Issue 2, p. 125-144
https://doi.org/10.47348/FUND/v30/i2a4

Abstract

Article 118(1) of the Constitution of Uganda, 1995 empowers Parliament to censure a cabinet minister on any of the grounds mentioned therein. In such an event, article 118(2) authorises the president to take appropriate action unless the minister resigns. The Constitution does not describe or define what “appropriate action” means. This contribution looks at the drafting history of article 118 to argue, inter alia, that the drafters intended the president to dismiss the minister upon censure by Parliament. The study relies on similar practices in other countries, such as Ghana and Seychelles, to suggest that there is a need to amend article 118 of the Constitution of Uganda to specify the action(s) the president is required to take once Parliament has censured a minister.

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

by | Aug 25, 2024 | FUND, FUND V30I1

A Historical Overview of Legislative Measures to Criminalise Same-Sex Relations in Selected African Countries

Author John C Mubangizi

ISSN: 2411-7870
Affiliations: LLB (Makerere University) LLM (University of Cape Town) LLD (University of KwaZulu-Natal). Professor, Free State Centre for Human Rights, Faculty of Law, University of the Free State
Source: Fundamina, Volume 30 Issue 1, p. 1-35
https://doi.org/10.47348/FUND/v30/i1a1

Abstract

Same-sex relations are illegal in thirty-two African countries. In some of those countries, offenders are punishable by death. This contribution provides a historical overview of the legislative measures aimed at the criminalisation of same-sex relations in selected African countries, namely Uganda, Kenya, Nigeria, Botswana and South Africa, and examines its correlation with human rights protection and the rule of law. The legislative measures adopted in these countries originated with colonial influences that introduced anti-same-sex laws there during the nineteenth and twentieth centuries. The remnants of these colonial-era laws have persisted, shaping the legal landscape and societal attitudes towards LGBTQIA+ communities. Some countries have upheld and reinforced existing laws, often invoking cultural or religious values to justify the criminalisation. Others have made strides towards decriminalisation or have taken steps to protect the rights of LGBTQIA+ individuals, reflecting a dynamic interplay between tradition, human rights and legal development. The study also looks at the state of human rights and the rule of law in these countries. The correlation between anti-LGBTQIA+ legislation, human rights and the rule of law then becomes a focal point, emphasising the poor record of human rights protection in countries that have criminalised same-sex relations as opposed to countries that have decriminalised such relations. Ultimately, this contribution offers critical insight into the evolving legal landscapes of the selected African countries regarding same-sex relations. It underscores the relationship between anti-LGBTQIA+ laws, human rights and the rule of law.

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

by | Aug 25, 2024 | FUND, FUND V30I1

From Judicial Management to Business Rescue: a Critical Analysis of the Meaning and Purpose of Business Rescue in South Africa Since 1926

Author Simphiwe P Phungula

ISSN: 2411-7870
Affiliations: LLB LLM PhD (UKZN). Senior lecturer, Commercial Law Department, University of Cape Town
Source: Fundamina, Volume 30 Issue 1, p. 36-67
https://doi.org/10.47348/FUND/v30/i1a2

Abstract

When the concept of “corporate rescue” was introduced in the form of judicial management in South African company law in 1926, it was unique. By the start of the twentieth century, it had become clear that companies were not only major contributors to the economy, but also major employers. It was obviously desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be overcome relatively quickly with a return to solvency and viability. That goal, stated in these broad terms, concealed many arising difficulties – one of them being how to determine whether a struggling company had the potential to return to solvency? This and many other difficulties have led to the evolution of corporate rescue since its introduction. Appraising the corporate rescue culture in South Africa is therefore an opportunity to advance knowledge within the area of corporate law and to contribute to the understanding of how business rescue has developed in both theory and practice.

Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

by | Aug 25, 2024 | FUND, FUND V30I1

Beyond Legality: The Historical Disregard of the Principle of Legality and its Impact on Forced Marriage Prosecution in International Criminal Law

Authors Julian Rebecca Okeyo and Emma Charlene Lubaale

ISSN: 2411-7870
Affiliations: LLB (UFH) PGCE LLM (Rhodes). Research assistant, IRPQP, Rhodes University; LLB (Makerere) LLM LLD (Pretoria). Research associate, Faculty of Law, Rhodes University; senior academic, Department of Law and Criminology, University of Greenwich
Source: Fundamina, Volume 30 Issue 1, p. 68-115
https://doi.org/10.47348/FUND/v30/i1a3

Abstract

The principle of legality, a fundamental theme of international criminal law, emphasises that an individual should not be punished for an offence that is not defined by law. Increasingly, international criminal courts and tribunals are disregarding this principle through extending crimes by analogy, an approach that is not supported by the principles of international criminal law. One area where this approach is evident is in the prosecution of the crime of forced marriage, which has never been explicitly proscribed by any of the statues of international criminal tribunals/courts. This contribution first examines the views of the Nuremberg and Tokyo tribunals to come to grips with the latter’s approach to the principle of legality. Subsequently, a brief analysis of the International Criminal Court, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia is conducted to highlight a consistent pattern of disregarding the principle of legality. When compared to the Nuremberg and Tokyo tribunals, the approach of these three courts is unique in that the latter have not classified forced marriage as a distinct crime, choosing instead to include it under crimes against humanity, seemingly suggesting that the principle of legality is not undermined. However, this contribution underscores that this approach is still a violation of the principle of legality. It is argued that the extension of crimes against humanity by analogy represents a continuation of challenges observed by the Nuremberg and Tokyo tribunals concerning the disregard of the legality principle and that the ongoing prosecution of forced marriage in the absence of a specific criminal provision is a violation of this principle.