{"title":"Still “Snowing” in the Sunshine State: An Analysis of and Potential Solutions to the Lack of Protection from Employer Retaliation for Florida Lawyers Who Adhere to the State’s Mandatory Reporting of Professional Misconduct Rule","authors":"Jason A. Anon","doi":"10.25148/LAWREV.13.6.15","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.15","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131086636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Reflections on the International Law Commission and Its Role in World Affairs","authors":"J. Morton","doi":"10.25148/LAWREV.13.6.9","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.9","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"105 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124761073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Cuba and the United States have had a tumultuous relationship for over five decades now. Since the Revolution in Cuba, Cuban citizens have been immigrating to the United States in large numbers, including through two Cuban government-sponsored mass exoduses in 1980 and 1994. Throughout that time, the Cuban government refused to negotiate with the United States for the return of its citizens. Because of the lack of diplomatic relations, the two nations did not have a repatriation agreement in place and no agreedupon mechanism existed by which the United States could return Cuban citizens to the island nation. As such, the United States was left with no alternative but to implement the wet foot-dry foot policy in 1995. Following the reestablishment of relations between Cuba and the United States, President Obama repealed wet foot-dry foot as a condition of the newlyestablished repatriation agreement. Finally, Cuba agreed to take back its citizens who either attempted to enter the United States illegally or were deportable from the United States for some other reason. After his election in 2016, President Trump took a harsh stance on Cuban policy and reversed some of President Obama’s changes. This led to a strong response from the Cuban government and created an uncertain future for the newly-established repatriation agreement.
{"title":"No Way, Usa!: The Lack of a Repatriation Agreement with Cuba and Its Effects on U.S. Immigration Policies","authors":"Annasofia A. Roig","doi":"10.25148/LAWREV.13.4.15","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.15","url":null,"abstract":"Cuba and the United States have had a tumultuous relationship for over five decades now. Since the Revolution in Cuba, Cuban citizens have been immigrating to the United States in large numbers, including through two Cuban government-sponsored mass exoduses in 1980 and 1994. Throughout that time, the Cuban government refused to negotiate with the United States for the return of its citizens. Because of the lack of diplomatic relations, the two nations did not have a repatriation agreement in place and no agreedupon mechanism existed by which the United States could return Cuban citizens to the island nation. As such, the United States was left with no alternative but to implement the wet foot-dry foot policy in 1995. Following the reestablishment of relations between Cuba and the United States, President Obama repealed wet foot-dry foot as a condition of the newlyestablished repatriation agreement. Finally, Cuba agreed to take back its citizens who either attempted to enter the United States illegally or were deportable from the United States for some other reason. After his election in 2016, President Trump took a harsh stance on Cuban policy and reversed some of President Obama’s changes. This led to a strong response from the Cuban government and created an uncertain future for the newly-established repatriation agreement.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132476009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.
当行政法学者继续关注雪佛龙和相关的司法服从理论时，行政部门正在越来越多地采取重大但非法的，或至少是法外的行动，这些行动似乎几乎没有留下任何司法审查的余地，即使最高法院希望对行政行为进行更积极的监督。在本文中，我将讨论这类行动的几个类别，同时提供奥巴马政府的例子。第一部分讨论了伪装成“指导”的规定，特别提到了美国教育部民权办公室关于校园性侵犯的“亲爱的同事”信。第二部分讨论了在经济紧急情况下采取的措施，尽管这些措施没有法定权力，具体提到了政府官员在2008年金融危机后秘密地为通用汽车公司(General Motors)做日常决策。最后，第三部分讨论了拒绝执行现有法律，具体提到奥巴马政府在执行《平价医疗法案》(Affordable Care Act)的各项条款方面的拖延和推迟。
{"title":"The Abuse of Executive Power: Getting Beyond the Streetlight Effect","authors":"D. Bernstein","doi":"10.25148/LAWREV.11.2.4","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.4","url":null,"abstract":"While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132066452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and their potential legal justifications, blurring the distinction between permissible executive discretion over matters of enforcement with broader discretion to adjust legal benefits and burdens. The purpose of this brief essay, prepared for a symposium at the Florida International University Law School, is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions – where the President’s inherent authority to exercise prosecutorial discretion applies – and what sorts of actions do not.
在实施《平价医疗法案》(Affordable Care Act)和《清洁空气法案》(Clean Air Act)的过程中，奥巴马政府不仅主张有权决定何时、以何种严格程度执行相关规定，还主张有权放弃或推迟国会制定的法律义务。这些行动引起了对行政当局越权的指控。随后围绕这些行为展开的辩论和诉讼，使人们对行政权力的性质和范围产生了很大的困惑。评论家经常误解或错误地描述所采取行为的性质及其潜在的法律理由，模糊了在执行事项上允许的行政自由裁量权与调整法律利益和负担的更广泛的自由裁量权之间的区别。这篇短文是为佛罗里达国际大学法学院(Florida International University Law School)的一个研讨会准备的，目的是为有关行政权力的混乱讨论提供一些清晰的信息。具体来说，其目的是帮助澄清行政部门采取的哪些行动可以被恰当地定性为“执法”行动——在这种情况下，总统行使起诉自由裁量权的固有权力适用——以及哪些行动不适用。
{"title":"Category Errors and Executive Power","authors":"J. Adler","doi":"10.25148/LAWREV.11.2.8","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.8","url":null,"abstract":"In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and their potential legal justifications, blurring the distinction between permissible executive discretion over matters of enforcement with broader discretion to adjust legal benefits and burdens. The purpose of this brief essay, prepared for a symposium at the Florida International University Law School, is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions – where the President’s inherent authority to exercise prosecutorial discretion applies – and what sorts of actions do not.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115590432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.
在实施《合理医疗费用法案》(Affordable Care Act)期间，奥巴马总统一再转向这种再熟悉不过的行政行动模式。首先，《平价医疗法案》(Affordable Care Act)的影响使某些群体的处境变得更糟。其次，国会迫于压力修改法律，以减轻法律的这些负面外部性。然而，民主党人担心共和党人会抓住机会，破坏该法案的其他部分。这阻止了任何可能的两党对立法修正案的支持。第三，面对这种僵局，奥巴马总统转而采取行政措施来改变《平价医疗法案》繁重的规定。具体来说，他推迟并暂停了对个人和雇主的强制要求，并修改了影响国会雇员福利和美国领土范围的条款。这些行政措施——通过正式的通知和评论规则制定或非正式的社交媒体博客来实施——都是完全出人意料的。每一次变化都对法律的长期可持续性构成风险。每一次改变都依赖于对法规的模糊解读，以及对行政权力的可疑主张，以实现与国会设计完全相悖的目标。每一项行动都在法庭上受到各州和私人团体的质疑。然而，由于行政行动的效果是减轻负担，而不是造成任何伤害，政府积极争辩说，没有人有资格提起诉讼。因此，这些行动的最终合法性不是由法院决定的，而是由总统决定的，他孤注一掷地挽救了他的标志性法律。除了众多的延迟和豁免之外，该法律的实施更令人不安的一个方面是，政府宣布这些变化时采取了漫不经心的方式。搜索这些大量的文档转储，试图找到之前在博客文章中宣布的规则的实际依据，很快就变成了一种痛苦的消遣。而且，正如博客文章中所述，这一政策总是与规则中的内容不太相符。这不再是一个法治政府，而是一个博客政府。这篇文章是《佛罗里达国际大学法律评论》主办的三权分立研讨会的一部分。
{"title":"Government by Blog Post","authors":"J. Blackman","doi":"10.25148/LAWREV.11.2.10","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.10","url":null,"abstract":"During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"251 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115590340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.
{"title":"State Court Judges are Not Bound by Nonoriginalist Supreme Court Interpretations","authors":"Lee J. Strang","doi":"10.25148/LAWREV.11.2.6","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.6","url":null,"abstract":"In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131151690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist. In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.
{"title":"Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements","authors":"Michael D. Ramsey","doi":"10.25148/LAWREV.11.2.9","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.9","url":null,"abstract":"The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist. In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123556120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
"11 Florida International University Law Review 19 (2015)It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad - broadly undertaken in service of the Islamic doctrine of jihad - as being somehow compatible with modern norms of international relations, including self-determination and noninterference in the affairs of other states. To detractors, this seems to suggest a certain tension in modern Muslim thought that jihadist movements have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only tolerated by early jurists interpreting Islam's sacred texts but indeed exhorted by them as a duty of the Muslim community, with modern realities, where the jihad as it was historically understood has become something of an embarrassment. In so doing, the argument runs, they leave themselves exposed to the "literalist" claims of the jihadists, who can call up such sources at will and demonstrate the true Islamicity of their actions relative to modernists who can only rely on abstract principles and vague apologies that sound suspiciously Western. The purpose of this paper is to explore the fallacy of this conclusion through the examination of "lone wolf" terrorism. This form of terrorism is quite relevant not only because of its inherent danger, but also because the methods of the lone wolf terrorist have been broadly accepted by a panoply of the most extreme Islamist organizations, very much including the so called Islamic State. I will show that even if early and medieval Muslim jurists hardly incorporated a worldview that rested on principles of mutual tolerance and respect toward other states and other religions, they nonetheless regarded the jihad as a fundamentally conservative doctrine, meant to preserve the Muslim state as it was and direct violence exclusively in external directions, in an organized and systematic attempt to expand what was known as the House of Islam into the universal Muslim state. The notion of lone wolf terrorism - individually directed and organized violence, executed beyond the meaningful control of the caliph - was entirely foreign. Moreover, it depends on deliberate violation of one of classical Islam's core concepts in international relations, that of respect for the terms of a covenant of security, or aman, when granted by a non-Muslim power to a Muslim or the reverse.
11《佛罗里达国际大学法律评论》(Florida International University Law Review, 2015)先知穆罕默德死后的几个世纪里，穆斯林的扩张主义基本上是为伊斯兰圣战教义服务的，几乎不可能将其描述为与现代国际关系准则(包括自决和不干涉他国事务)在某种程度上兼容。对批评者来说，这似乎表明现代穆斯林思想中存在某种紧张关系，圣战运动已经能够利用这种紧张关系。也就是说，现代穆斯林知识分子被迫在某种程度上调和扩张主义的过去，这不仅被解释伊斯兰教神圣文本的早期法学家所容忍，而且实际上被他们劝诫为穆斯林社区的责任，而现代现实是，历史上对圣战的理解已经成为一种尴尬。这种观点认为，这样做，他们将自己暴露在圣战主义者的“字面主义”主张之下，圣战主义者可以随意查阅这些资料，并证明他们的行为具有真正的伊斯兰性，而现代主义者只能依靠抽象的原则和含糊的道歉，听起来像是西方的。本文的目的是通过对“独狼”恐怖主义的考察来探讨这一结论的谬误。这种形式的恐怖主义非常重要，不仅因为其固有的危险，还因为独狼恐怖分子的方法已被最极端的伊斯兰组织广泛接受，其中包括所谓的伊斯兰国。我将表明，即使早期和中世纪的穆斯林法学家几乎没有将世界观建立在相互宽容和尊重其他国家和其他宗教的原则之上，他们仍然认为圣战是一种基本保守的教义，旨在保持穆斯林国家的现状，并将暴力直接指向外部方向，通过有组织和系统的尝试将所谓的伊斯兰之家扩展到普遍的穆斯林国家。独狼恐怖主义的概念——个人指挥和有组织的暴力，在哈里发的有效控制之外执行——是完全陌生的。此外，它还依赖于故意违反经典伊斯兰教在国际关系中的核心概念之一，即尊重非穆斯林国家授予穆斯林或相反授予穆斯林的安全盟约或阿曼的条款。
{"title":"'Lone Wolf' Terrorism and the Classical Jihad : On the Contingencies of Violent Islamic Extremism","authors":"H. Hamoudi","doi":"10.25148/LAWREV.11.1.6","DOIUrl":"https://doi.org/10.25148/LAWREV.11.1.6","url":null,"abstract":"\"11 Florida International University Law Review 19 (2015)It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad - broadly undertaken in service of the Islamic doctrine of jihad - as being somehow compatible with modern norms of international relations, including self-determination and noninterference in the affairs of other states. To detractors, this seems to suggest a certain tension in modern Muslim thought that jihadist movements have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only tolerated by early jurists interpreting Islam's sacred texts but indeed exhorted by them as a duty of the Muslim community, with modern realities, where the jihad as it was historically understood has become something of an embarrassment. In so doing, the argument runs, they leave themselves exposed to the \"literalist\" claims of the jihadists, who can call up such sources at will and demonstrate the true Islamicity of their actions relative to modernists who can only rely on abstract principles and vague apologies that sound suspiciously Western. The purpose of this paper is to explore the fallacy of this conclusion through the examination of \"lone wolf\" terrorism. This form of terrorism is quite relevant not only because of its inherent danger, but also because the methods of the lone wolf terrorist have been broadly accepted by a panoply of the most extreme Islamist organizations, very much including the so called Islamic State. I will show that even if early and medieval Muslim jurists hardly incorporated a worldview that rested on principles of mutual tolerance and respect toward other states and other religions, they nonetheless regarded the jihad as a fundamentally conservative doctrine, meant to preserve the Muslim state as it was and direct violence exclusively in external directions, in an organized and systematic attempt to expand what was known as the House of Islam into the universal Muslim state. The notion of lone wolf terrorism - individually directed and organized violence, executed beyond the meaningful control of the caliph - was entirely foreign. Moreover, it depends on deliberate violation of one of classical Islam's core concepts in international relations, that of respect for the terms of a covenant of security, or aman, when granted by a non-Muslim power to a Muslim or the reverse.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116172810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Religious Sex Status and the Implications for Transgender and Gender Nonconforming People","authors":"S. Crincoli","doi":"10.25148/LAWREV.11.1.10","DOIUrl":"https://doi.org/10.25148/LAWREV.11.1.10","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124869952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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