In particular, I will try to draw a Bangladeshi approach to the use of legal metaphors to develop the jurisprudence of constitutional interpretation. 25 Angella Condello, Metaphor as Analogy: The Reproduction and Production of Legal Concepts Journal of Law and Society 16.
Comparative function
Creative thoughts
Precision
Although they vary across jurisdictions, however, with respect to constitutional ideas, one jurisdiction's metaphors may have influenced another jurisdiction's legal debate. In this part of the paper, I discuss some key metaphors from US, Canadian and UK jurisdictions to understand their interpretive nuances in constitutional settings.
Penumbra
By highlighting certain aspects of a concept and obscuring others, metaphors are beneficial linguistic devices, and having a metaphor recognized can change the outcome of a negotiation, court proceeding, or theoretical legal debate. In his dissenting opinion in Griswold, Black J was skeptical of the finding of a right to privacy in the penumbra of the Constitution and disagreed with the majority's attempt to 'stretch' the Bill of Rights.48 Moreover, Louis Sirico described the term as 'intellectually confusing'. 49.
Incoming tide
Market Place of ideas
Wall of separation between the church and the state
As part of his discussion of the adoption of the first constitutional amendment, Waite CJ included Jefferson's Letter of 1802 in his judgment. Thus, Waite CJ did not explain the metaphor of the wall, but discussed the meaning of the letter as a whole.
Fruit of the poisonous tree
Living tree
Bangladeshi Case Law: An Appreciation of Metaphors
If any provision can be called the pole star of the Constitution then it is the Preamble (emphasis added). 103. For this reason, the mandate of section 102 cannot be separated from Part III of the Constitution.
Conclusion
Although it is not the argument of this article that metaphorical struggle and interpretive struggle are the same, our understanding of constitutional development has been enriched by their use by our leading legal minds. While some metaphors adequately defined the antecedents, architecture, and concepts of constitutional law, a large number failed to do so.
Racial Dichotomy to Escalate Discrimination: An Account of Legal-historiography in Colonial India
- Introduction
- Constructing Race-oriented Classes in Colonial India
- Colonial Commercial Laws and Labour Policies Pressed on Racial Discrimination
- Unequal Criminal Laws and their Application to Native Indians The immunity of white British subjects and the employees of East India
- Unequal Treatment in Employments and the Discriminatory Impacts Thereto
The racial position of the native Indians towards the British rulers was described by Sen as. The racially segregated economic policies of the British rulers ruined the trade and business of the native entrepreneurs.
Measuring Constitutional “Laws” and “Conventions” in Same Parlance: Critiquing the Idrisur Rahman
Conventions Compared with the Normative Concept Law
Certainty of Existence and Meaning
Thorough analyzes of the essential elements that determine the existence of conventions in a particular jurisdiction are certainly beyond the limited scope of this paper. However, in the present context it may be sufficient to say that Baldwin's view does not hold for conventions arising from the "agreement" outlined and explained by Wheare in his Modern Constitutions.43 This is not the case for all conventions arising from "customs". ' either.44 In England, for example, the conventions governing the relations between the Queen and the government are at least as precisely defined as some of the common law rules.45 Again, there may be (or actually is) greater precision about the conventions governing the relations between members of the Commonwealth as by certain rules of common law.46. In addition to Baldwin's 'certainty' test, there is another dimension to the term in terms of its meaning and content.
But conventional rules are more flexible in operation than the legal rules of the constitution because of their difference in way of creation.
Flexibility in Operation
The U.S. Constitution provides that “all legislative powers herein granted shall be vested in a Congress of the United States.”55 The U.S. Congress may delegate legislative power to a minister, department, or officer. One could argue that the U.S. Constitution implicitly at least prohibits Congress's delegation of its legislative power to any other branch of government. To resolve these issues, the US did not need to make any formal changes to the Constitution as the Supreme Court, through a creative interpretive exercise, had well adapted the old words to the new demands of the day.
Wheare, after reviewing several important decisions, nicely summarizes the role of the US Supreme Court in the context of its interpretation of the 'commerce clause'.
Significance as Rules of the Governmental System
If, however, the laws in the constitution are regarded as rigid on this point alone, it may as well be true to say that some conventions are also rigid, since it may indeed be difficult to change them in practice. In the light of the above analysis, I could not but maintain that conventions are not different in kind (can only be different in degree) from the laws of the constitution because of their flexibility in operation because of the differences in their method of formulation or mode of creation. The above view of the Supreme Court of Canada and arguments of Jennings and Mackintosh reveal very clearly that the conventions may be no less important than the laws as rules of a country's constitutional system.
Based on the above critical examination of the issues, I can say with some credibility that there is actually no difference in content or nature between the laws and conventions of the constitution based on their certainty of existence and meaning, flexibility of operation and meaning as rules of the governmental system.
Consequence of Violation
They consider an action "illegal" (and thus unconstitutional) only when it violates a law of the constitution. And an action is only considered "unconstitutional" (but not illegal) when it violates a constitutional convention. The violation is unconstitutional simply because conventions are part (one of two sets of rules) of the constitution.
The distinction obviously has important practical consequences with regard to the question of the effect of violations of the constitution's laws and conventions, as well as their recognition and enforcement in the courts.
Reasons for Obedience
In other words, the sanction contained in the law may be one of the reasons for obeying the law, but there may be other reasons for a person to obey the law besides the sanction. Within the limited scope of this paper, it is not possible to consider each convention separately and explore the reasons for its compliance. From another point of view, we can say that Dicey is not wrong, since "one of the consequences" of non-compliance may be "a reason to respect" the law in question.
Now coming down to the specific question of obedience: how do constitutional laws differ from conventions on this basis.
Recognition and Enforcement in a Court of Law
- Conclusion
The Privy Council thus effectively refused to enforce the treaty in the present case. Second, whether the consent of the provinces was required as a matter of convention of the Constitution. Unlike the laws of the Constitution, they are not enforced by the courts.
In fact, these failures both contributed to and accelerated the Court's implementation of the treaty.
The Positive Complementarity: An Alternative Approach for the ICC’s Engagement
- Part A: The Complementarity in Question
- Part B: Backlash against the ICC
- Part C: From Complementarity to Positive Complementarity
- Conclusion
Initially, Part A of the article explains the issues that have led to concerns about the ICC's recent practice and the credibility of complementarity. Such incidents undermine the value of the principle of complementarity and indicate judicial imperialism on the part of the ICC. 35 Philippa Webb, 'The ICC Prosecutor's Discretion Not to Proceed in the “Interests of Justice Criminal Law Quarterly 305.
The tensions discussed above call for a renewed commitment by the ICC to regain the trust of disaffected states.
Medical Waste Management and Processing System in Post-COVID Bangladesh: A Legal Analysis
- What is the Medical Waste Management and Processing System?
- Analysing the Legal Framework of Medical Waste Management and Processing
- Practicalities of Medical Waste Management and Processing System Post-COVID Bangladesh
- Concluding Remarks
10 Ministry of Health and Family Welfare, Government of the People's Republic of Bangladesh, Environmental Assessment and Action Plan: for the Health, Population and Nutrition Sector Development Program (HPNSDP), (February 2011) 17. 30 Ministry of Health and Family Welfare, Government of the People's Republic of Bangladesh , Environmental Assessment and Action Plan: for the Health, Population and Nutrition Sector Development Program (HPNSDP), (February 2011). 42 Ministry of Health and Family Welfare, Government of the People's Republic of Bangladesh, Environmental Assessment and Action Plan: for the Health, Population and Nutrition Sector Development Program (HPNSDP), (February 2011).
51 Ministry of Health and Family Welfare, Government of the People's Republic of Bangladesh, Environmental Assessment and Action Plan: for the Health, Population and Nutrition Sector Development Program (HPNSDP), (February 2011).
Virtual Classrooms in Bangladesh: Assessing Child Vulnerability in the Light of International Law
Virtual Classrooms
However, the VLE application is now available in other parts of the world due to the consequences caused by COVID-19. The Joint Committee on Information Systems in the UK has provided a definition of a VLE as "a component in which learners and tutors work together. In fact, the government had almost no preparation at the initial stage of the pandemic, although VLEs enabled students to gain access to learning.
Furthermore, a recently published government report shows that the current number of Internet users in Bangladesh is 103.47 million and meanwhile, 94.9 million of them use the mobile Internet.7 The number is significant enough that it appears that 58.4% of the total population in the country have access to the Internet.
Child Vulnerabilities in Virtual Classroom
Amid the pandemic, a new class of vulnerable individuals has emerged: the students; while the children among the students are perceived as more vulnerable in virtual lessons. The negative consequences of the vulnerabilities are likely to affect the students' ability to learn and cause other social risks for the children. Vulnerabilities can be compared to a continuous vicious circle of decline.11. The desired expectation from the school authorities is that they would pay special attention to the children taking into account the factors that are harmful to them in the changed environment due to the pandemic.
Under the challenging circumstances, the physical and psychological condition of the children, especially the students of the elementary grade, will increase adversely when the entire learning process is limited to internet and device-based technology.
Legal Concerns Caused from Virtual Classroom
- Right to education
- Child vulnerabilities
The CRC suggests the implementation of a general, non-discriminatory method of teaching children, which serves the best interests of the child;41 it guarantees the right to life and development,42 and the child's perspectives.43 These principles should be considered as general . the principles of international law when implementing the rights to education.44 However, the pandemic situation has presented some challenges to the international standards set in the areas of online teaching and learning. 44 Laura Lundy, 'The United Nations Convention on the Rights of the Child and Child Welfare' in Asher Ben-Arieh et al (eds), Handbook of Child Welfare (Springer Netherlands 2014) The global pandemic seems to be calling for a new way of thinking about human rights law - the issue has been raised beyond the boundaries of classical international law; while special emphasis should be given to the provisions of the law related to children's rights. Consequently, an anesthetist can also be held liable for the loss of the patients based on medical negligence.16. The following are some of the well-known principles enumerated by the judicial bodies in different jurisdictions on medical negligence. Unexpected death and not being able to conclude, medical negligence did not arise on the part of the doctor.46. In our country, in cases of medical negligence litigation, the courts follow the old BOLAM47 principle. Non-State Actors and International Human Rights Law It aims to develop an understanding that places obligations on non-state actors without undermining the authority of states. It therefore proposes to locate human rights obligations for non-state actors in the prevailing system of international law. In this way obligations can be embedded to address the behavior of non-state actors that threaten human rights. Basic human rights obligations for non-state actors in the existing framework of international law. 68 Patricia Feeney, 'Business and Human Rights: The Struggle for Accountability in the UN and the Future Direction of the Advocacy Agenda.' (2009) Sur. This pillar, as elaborated in the UNGPs, demands that businesses avoid violating human rights and. 72 Barbara A Frey, 'The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights' (1997): Minn. 87 The Working Group on Human Rights and Transnational Corporations and Other Business Enterprises (also referred to as the Working Group on Business and Human Rights) was established by the Human Rights Council in 2011 (resolution 17/ 4). ConclusionMedical Negligence Issues in Bangladesh: An Urge for a Separate Medical Negligence Law
What Obligations for Business Enterprises?
Position of Non-state Actors in International Human Rights Law In international law, a broad range of entities 10 come under the banner of non-state
Grounding Human Rights Obligations for Non-state Actors in the Existing Framework of International Law
