Waiting for the Rule of Law in Brazil: A Meta-legal Analysis of the Insufficient Realization of the Rule of Law in Brazil

2014 ◽  
pp. 331-347
Author(s):  
Augusto Zimmermann
Keyword(s):  
Rule Of Law ◽  
Legal Analysis ◽  
The Rule Of Law

THE POSITION OF THE PUBLIC PROSECUTOR IN ADMINISTRATIVE PROCEEDINGS – LEGAL ANALYSIS

2021 ◽  
Vol 1 (XXI) ◽  
pp. 97-114
Author(s):  
Michał Sędziński
Keyword(s):  
Rule Of Law ◽  
Public Prosecutor ◽  
Special Role ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
The Public ◽  
Administrative Procedure ◽  
Court Proceedings ◽  
Administrative Proceedings

The aim of this article is to comprehensively analyse the legal position of the public prosecutor in administrative proceedings and administrative court proceedings. This subject is interesting because the public prosecutor is usually associated with criminal proceedings and his capacity as the public accuser. However, the public prosecutor plays a special role in administrative proceedings, i.e. participates in them as an entity with the rights of a party, even though he has no legal interest in it. It is also worth noting that the powers of the public prosecutor are clearly more extensive than those of other entities with the rights of a party. This article is an attempt to determine the role of the public prosecutor in administrative proceedings and decide whether he is the accuser or rather the representative of the public interest. The position of the public prosecutor in proceedings before administrative courts is special as well. This issue needs to be discussed in detail, which was taken into account in the second part of the article. The position of the public prosecutor as the advocate of the rule of law is regulated by the Act on the Public Prosecutor’s Office. The analysis of these provisions in conjunction with Chapter 4 of the Code of Administrative Procedure leads to a conclusion that the public prosecutor who acts in administrative proceedings as an entity with the rights of a party has powers vested in him alone and watches over such proceedings, thereby fulfilling the duties of an advocate of the rule of law. To fully show the special position of the public prosecutor, it is necessary to enumerate his powers in administrative proceedings and compare them with the competences of “ordinary” entities with the rights of a party.

Recent Developments in Austrian Asylum Law: A Race to the Bottom?

2016 ◽  
Vol 17 (6) ◽  
pp. 949-966 ◽  
Author(s):  
Wolfgang Benedek
Keyword(s):  
Rule Of Law ◽  
Asylum Seekers ◽  
Legal Analysis ◽  
Race To The Bottom ◽  
Internal Security ◽  
The Rule Of Law ◽  
Upper Limit ◽  
Asylum Law ◽  
Legal Perspective ◽  
Recent Developments

The Austrian asylum policy is shifting from a showcase of support to asylum seekers to one of the most restrictive in Europe. Recent amendments to the asylum law are due to the massive influx of asylum seekers in 2015/2016 as a result of which Austria has accepted the second largest number of asylum seekers per capita in Europe. The Austrian government first responded by setting an upper limit of asylum applications from 2016 and then by creating the possibility of suspending its obligations under international and European asylum law. Both measures are legally doubtful and based on the assumption that if the upper limit is met this may threaten the maintenance of public order and the protection of internal security, which is not possible to prove. The contribution provides a legal analysis of the recent legal developments in Austrian asylum law, which are reviewed from the perspective of international and European asylum law as well as human rights. It concludes that the Austrian measures are part of a race to the bottom of European countries with the purpose of keeping refugees away. They cannot be justified from a legal perspective and create a threat to the respect for the rule of law.

Legal Culture of Public Servants: The Comparative Legal Analysis of the Formation Practices of Various Countries

2019 ◽  
Vol 10 (7) ◽  
pp. 1956
Author(s):  
Mira A. ALIMBEKOVA ◽  
Alua S. IBRAYEVA ◽  
Gulnar T. ICHSHANOVA ◽  
Karlygash R. USEINOVA ◽  
Nurlan S. IBRAYEV
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal Culture ◽  
The United States ◽  
Practical Significance ◽  
Legal Analysis ◽  
Public Servants ◽  
The Rule Of Law ◽  
Compliance With The Law ◽  
Main Component

The legal culture of public servants is determined by the fact that the legislation implements a mechanism for the formation of a moral component, which allows to limit the use of punitive measures and at the same time ensure compliance with the law in the framework of public administration processes. The relevance of the study is determined by the fact that a public servant, in addition to following state standards for dealing with citizens, must also follow the general social culture of observing the rule of law. The novelty of the study is determined by the fact that as the main component in the formation of the legal culture of public servants, it is necessary to consider the implementation of law and the corresponding moral standard directly in the legislation and, based on this position, implement practical activities both within the framework of the public administration system and within the framework of public interaction. The authors investigate the theoretical aspects of the implementation of this provision in the legislation of the countries of the Euroregion, Kazakhstan and the United States. The article shows that the main impact on the legal culture of public servants here is exerted by norms that are implicit in the legislation. The practical significance of the study is determined by the fact that the theoretical model under study will make it possible to adopt basic regulations on the basis of the principles of sustainability of the society functioning and to adopt the concept of development of the rule of law.  

scholarly journals IS THE RULE-OF-LAW STATE POSSIBLE IN THE DIGITAL AGE?

2021 ◽  
Vol 17 (3(65)) ◽  
pp. 32-43
Author(s):  
Анатолий Васильевич НЕСТЕРОВ
Keyword(s):  
Rule Of Law ◽  
Systematic Approach ◽  
Personal Data ◽  
Concentration Camp ◽  
Digital Environment ◽  
Legal Analysis ◽  
Federal Law ◽  
World War ◽  
The Rule Of Law ◽  
The Russian Federation

The development of scientific and technological progress, especially engineering products, metaphorically called «artificial intelligence technologies», led to the fact that some futurologists, forecasters and other visionaries began to warn about the end of the era of rule-of-law states and the future «digital slavery». Purpose: to consider the issues related to the metaphors «digital concentration camp» and «digital slavery» taking into account the adoption of the Federal Law «On a Single Federal Information Resource Containing Information about the Population of the Russian Federation», as well as other laws regulating legal relations in the so-called «digital environment», in particular, related to personal data. Therefore, legal scholars have a task to discuss what will happen to the rights of a person (a person and a citizen) so that humanity does not turn into «digital slaves», from whom the «digital identity» is stolen. Methods: the author applies a systematic approach and standard methods of legal analysis. Results: it is shown that these fears are not in vain, but human civilization will not allow the power of robots, a world war on self-destruction, and the emergence of what is called a digital concentration camp.

scholarly journals Legal Analysis of the Exemption of Iranian Red Crescent Relief Workers from Compensation for Traffic Accident Injuries

2021 ◽  
pp. 177-187
Keyword(s):  
Rule Of Law ◽  
Digital Libraries ◽  
Civil Liability ◽  
The Body ◽  
Main Question ◽  
Legal Analysis ◽  
Aid Workers ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Main Basis

INTRODUCTION: The main activities of the Red Crescent rescuers are to rescue and release the injured. Most of the actions of these forces in road accidents cause damage to the body and rights of injured persons and third parties. These damages, which are required to carry out the activities of the relief force, are allowed subject to the normal damage; however, they are responsible for the damages that result from their indulgence and misappropriation. The main question is "What are the legal principles of exemption of relief workers from civil liability and how is it possible to combine the protection of the rights of the victims toward their bodies, lives, and property with supporting the good intentions and actions of the aid workers and performing their legal duties? METHODS: This descriptive-analytical research describes the subjects or phenomena and their conditions and elements. Considering that to conduct research and explain the content, the provision of legal analysis is based on the analytical method, the method of data analysis is also based on the logical analysis. In this research, documents at traditional and digital libraries were used for data collection and note-taking was employed as the tool to gather data. FINDINGS: This study, through contrasting the two ideas of protecting aid workers and the rights of victims to physical integrity, aimed to destabilize the relief workers' exemption based on such principles as beneficence, rule of law, urgency, and benevolent intervention and determine the limits and conditions of such exemption to ensure that the guaranteed rights of the injured individuals are not violated on their bodies and property. CONCLUSION: It seems that the rule of law is the only basis that can always justify the relief workers' exemption from civil liability and other justifiable factors cannot always be compatible with the situation of relief workers. According to the rule, beneficence, the rule of law, benevolent intervention, and urgency can be considered factors in exempting relief workers. However, matching the situation of the rescuers with the justifiable factors shows that the main basis of the rescuers' exemption is the rule of law, which gives them the authority and duty to carry out rescue operations, and the necessary damages to rescue the injured is based on the rule of "permission in the object results in permission in its consequences".

scholarly journals HEALTH EMERGENCY MANAGEMENT. A LEGAL ANALYSIS OF THE ITALIAN EXPERIENCE

2020 ◽  
Vol 2 (2) ◽  
pp. 117-146
Author(s):  
Vicenzo Baldini
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
Legal Order ◽  
Legal Analysis ◽  
State Of Emergency ◽  
Landing Point ◽  
The Rule Of Law ◽  
Italian Experience ◽  
The One

The state of emergency that is being experienced has generated a sort of dynamic disorder of complex systematic re-elaboration within the framework of the legal system of the state. We appreciate a permanent tension between the rule of law and the discipline of emergency which manages to find a problematic landing point in the prefiguration of the existence of an emergency legal system, based on a different Grundnorm and parallel to the one that sustains the whole establishment of the legal system of the sources of the state legal order

The legal framework for the Syrian urban reconstruction

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Antonio-Martín Porras-Gómez
Keyword(s):  
Rule Of Law ◽  
Legal Framework ◽  
Regulatory Capture ◽  
Legal Analysis ◽  
Legal Text ◽  
Content Type ◽  
The Rule Of Law ◽  
Legal Instrument ◽  
Legal Provisions ◽  
Post War

Purpose As the Syrian civil war winds down, the massive reconstruction of the devastated cities has become a recurring subject of political and scientific discussions. A crucial question pervades all these debates: is the current legal framework adequate for confronting the reconstruction challenges in an effective way? With the purpose of understanding and informing the question, this study aims to analyze the most important legal instrument for the Syrian urban reconstruction, Law 10/2018. Design/methodology/approach A functional analysis of the legal text and of its effective implementation is provided. Following a doctrinal legal approach, internal inconsistencies are highlighted, as well as possible “legal gaps” that might allow and favor instances of disrespect of the rule of law and regulatory capture. Findings The main hypotheses discussed are, first, from a descriptive-analytical perspective, that the neoliberal trend in the Syrian political economy underpins the legal framework for the Syrian reconstruction. Second, from a design perspective, that, while offering a strong mechanism for disciplining the Syrian urban planning, Law 10/2018 does not warrant a scenario of respect of the rule of law and seems too easy prey for regulatory capture. Originality/value While the most recent and prominent legal instrument aimed to frame Syrian post-war reconstruction, Law 10/2018, has been subject to multiple policy analyzes and critiques, these have focused almost exclusively on its presumed warchitecture dimension, lacking contextual depth and, most worryingly, ignoring any kind of doctrinal legal analysis. Setting the Law 10/2018 in its legal context is something that has not been done yet, even if, according to their own ontology, legal provisions have to be understood within the context of the legal system they are inserted in. This paper delves into the subject, analyzing the legal text, its juridical context and the way it has been interpreted by the administrative decision-maker while looking at instances where the axiological goals constitutionally proclaimed and legally enshrined might be prevented by the very regulatory configuration.

Liberalism, Allegiance, and Obedience: The Inappropriateness of Loyalty Oaths in a Liberal Democracy

2014 ◽  
Vol 27 (1) ◽  
pp. 99-122 ◽  
Author(s):  
Liav Orgad
Keyword(s):  
Rule Of Law ◽  
Liberal Democracy ◽  
Added Value ◽  
Legal Institution ◽  
Legal Analysis ◽  
Historical Evidence ◽  
Liberal Democracies ◽  
The Rule Of Law ◽  
The Law ◽  
Loyalty Oaths

The Article examines the wisdom of loyalty oaths as a legal institution in contemporary liberal democracies. First, using comparative analysis the Article highlights the growing global interest in loyalty oaths. Second, based upon historical evidence the Article explores the functions of loyalty oaths and assesses their role. Third, through using legal analysis the Article challenges the validity of loyalty oaths and identifies three fundamental problems related to their content and form: the rule of law, freedom of conscience, and equality.The Article reveals liberal concerns associated with the added value of the duty of “loyalty to the law” (allegiance), as distinct from the duty to “obey the law” (obedience). It presents an ongoing tension between loyalty and liberalism and argues that the more loyalty liberal democracies demand, the less liberal they become. The Article concludes that loyalty oaths yield high costs but have low benefits and suggests that liberal states should abandon them as a legal institution.

scholarly journals IDEAS OF NATIONAL SOVEREIGNTY IN THE CONSTITUTION OF KAZAKHSTAN AND THEIR IMPLEMENTATION

2021 ◽  
Author(s):  
Khuandag Bazhay ◽  
Akhmet Bergengul
Keyword(s):  
Rule Of Law ◽  
State Power ◽  
Popular Sovereignty ◽  
Legal Analysis ◽  
Social Harmony ◽  
National Unity ◽  
National Sovereignty ◽  
The Rule Of Law ◽  
The Creation

The article reveals Kazakhstan's model of implementation of the ideas of national sovereignty in the context of interethnic harmony, internal national unity and modernization of society in the Constitution. Comparative legal analysis of scientific conclusions related to the principles of the idea of popular sovereignty is carried out. The importance of strengthening state power and social harmony in the creation of a state governed by the rule of law is emphasized, logical conclusions and thoughts are summed up.

scholarly journals THE ROLE OF LAW IN PROMOTING THE EFFICIENCY OF THE MODERN ECONOMY (Theoretical Approach)

2021 ◽  
Vol 17 (4) ◽  
pp. 62-71
Author(s):  
V. Sereda
Keyword(s):  
Economic Development ◽  
Rule Of Law ◽  
Digital Economy ◽  
Economic Regulation ◽  
Evolutionary Analysis ◽  
Legal Analysis ◽  
Optimal Regulation ◽  
The Rule Of Law ◽  
Methods Analytical

Introduction. Trends of effective economic development are combined with the innovation, building science-intensive economic potential in Ukraine and the flourishing of entrepreneurship. One of the factors of effective economic dynamics is the improvement of economic regulation, the development a holistic strategy for the introduction of digital technologies and innovations in production.Problem Statement. An urgent scientific task is to assess the scientific orientation of the developments of economists and lawyers and fill them with new content of modern realities based on the rule of law in society.Purpose. Theoretical rethinking of the role of law in modern economic development through the prism of the rule of law and the promotion of innovations.Materials and methods. Analytical, historical, and evolutionary analysis methods for theoretical developments, as well economic and legal analysis, the empirical method.Results. Economic and legal analysis and rethinking and strengthening of scientific developments of J. Schumpeter and other in the category of economic development, "creative destruction" and the driving force of entrepreneurship in economic growth supported by a striking example of Ireland's economic rise in 1987–2006, proved their acceptability for modern implementation to domestic economic strategy and legal policy. As a result of generalization is the original scientific vectors of optimal regulation of the digital economy by establishing the principle of the rule of law as an urgent need to create a positive impetus to economic progress.Conclusions. Optimal regulation of the digital economy is a lever to promoting economic progress, increasing national prosperity, and combating poverty. Factors for economic efficiency are the protection of the economicfreedom of entrepreneurship, the introduction of innovations and the rule of law in society.

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