Showing posts from July, 2021

What does the progress in relation to post-divorce maintenance for women in Indian law tell us about the relationship of law and society in South Asia?

On 16 December 2012, the events that unfolded on a bus changed the life of one woman dramatically. Four men raped the defenceless woman and beat her; she died two weeks later. On 13 September 2013 the four were found guilty and sentenced to life imprisonment. Whilst it would be naïve to think such events are confined to India, the reaction by certain factions of the public, which blamed the victim, evidences an underlying element of discrimination that remains present in the minds of certain persons within the region (Burke and Major (2014)).  This paper considers whether the Hindu Marriage Act 1955, which aimed to cater for gender neutrality, and its reception by the judiciary tasked with implementing it. It is concluded that whilst progress between the Act and the Uniform Code may have seemed alleviate all forms of discrimination, the substance paints a different picture where religion and societal differences remain at play and often override legislative aims. The legislatio

The Legal Transplant Doctrine and Comparative Jurisprudence

Introduction “[T]he law does not exist in a vacuum” - a maxim chanted by many when looking to implement legislative reform. 1 The legal transplant doctrine is one way in which reform can be brought about by adopting the legal systems other jurisdictions. This essay begins by presenting a brief introduction to the legal transplant doctrine, in particular by looking at two competing and polarised interpretations presented by two equally distinguished scholars. It then considers how the case of Leyla Sahin v Turkey 2 ( Sahin ) reflects upon the interpretations of legal transplants; also presenting a brief comparison with subsequent case law in a different contextual and societal setting. It is concluded that the case law has preferred a wider approach to the legal transplants doctrine.  The Legal Transplant Doctrine When looking to reform old laws or implement new ones lawmakers rarely start on a blank canvas. Instead, it is common practice to look to the laws of other juris

The Doctrine of Frustration: Development and Limitations under English Contract Law.

INTRODUCTION Pacta sunt servanda is a fundamental and universally accepted concept of contract law. As a matter of principle, each party must adhere to the letter of the agreement. Lord Hope recently expressed the opinion that “the maxim pacta sunt servanda [...] lies at the root of the whole contract law”. 1 Since effective economic activity is not possible without reliable promises, the importance of the precept is indeed paramount. 2 Nonetheless, the principle of sanctity of contract is not considered to be absolute. Practice has demonstrated that strict application of the doctrine might lead to an immensely impractical and wholly outrageous result. Situation existing at the conclusion of an agreement might have subsequently changed so significantly that any reasonable party would not have entered into the contract or would have stipulated for a different one, had it known the future occurrence. 3 In response to the need for a feasible solution, the English system has develop