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Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company's other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently allowed under company law and the law of corporate insolvency. We then discuss the normative question as to which Quistclose trusts should be allowed, given the principles of these branches of the law.
How may professionals be made to contribute to legislative processes so that their expertise redounds to the public interest, despite the legislative product being likely to have a negative impact on their clients' wealth? Drawing on a case study of the legislative process that gave birth to Israel's recent (2002–2008) trusts taxation regime, based on five years of participant observation among the trust professional community, I find that to obtain the benefit of private‐sector professionals' expertise under such circumstances, government should have legislation drafted in a dispassionate, exclusive environment of experts rather than in the political arena; it should build professionals' trust in government by adopting an explicitly collegial approach; it should focus reform efforts on elements of the existing law so clearly inequitable as to make a refusal to contribute difficult to justify; and take care that the new regime creates a compliance practice lucrative enough to compensate for any loss to professionals consequent on its enactment. Once professionals' interests are suitably safeguarded, their loyalty to clients appears surprisingly brittle and government can successfully combine with them in the public interest.
The basic colonial encounter involved a colonizing power and colonized locals. Some colonial situations were more complex, involving a third element: settlers of nonlocal stock originating in an ethnos, or nation, different than that with which the colonizer was identified. Two prominent examples from the annals of the British Empire are the French inhabitants of Nouvelle France after France ceded it to the British in 1763, and the Dutch inhabitants of the Cape Colony after the British conquest of 1806. The British typically permitted such settler populations to retain at least parts of the laws to which they were accustomed, which laws were often based on the laws of the settlers' jurisdiction of origin. As regards settler use of English law, the English sometimes provided for the application of parts of it to non-British settlers, while blocking such settlers' attempts to use other parts. The part of English law most commonly applied to non-British colonial subjects, both settlers and natives, was commercial law, in order to facilitate commerce between different parts of the Empire. The parts least commonly applied to such inhabitants were family law, land law, and the law of inheritance.
The practice of Arab women voluntarily renouncing their shares in the family inheritance is well known, having been noticed in several Mediterranean and African countries, including Israel and the West Bank. This practice seems grossly inegalitarian, reflecting many Muslim women's social and economic inferiority and their dependent status. Some Islamic feminists argue that the practice contradicts not only the letter of the sharia, which guarantees women shares in the family inheritance, but also fundamental Islamic principles. Conservatives, however, see the practice as cohering with the spirit of Islam (though not with the letter of sharia), as a voluntary choice by many Muslim women to let their brothers or husbands fulfil their traditional role of providing for their sisters or wives. International institutions concerned with enhancing gender equality have taken the latter view seriously enough to refrain from judging the practice negatively. Our article highlights the Israeli civil courts' diverse responses to the practice: some judges criticise it while others choose a policy of non-interference. The article further discusses the practice and Israeli civil courts' responses in the comparative perspective of Jewish women's practice of renouncing their property and other rights on divorce. Some Jewish husbands make such renunciation a condition of their dissolving the marriage. Israeli civil courts often see such renunciation as an effect of extortion and permit women to rescind it once divorced. We thus conclude with a plea to the civil courts to encourage gender equality among the Arab population to the same extent, at least, to which they promote it among Israel's Jews.
The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.
The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts?
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