scholarly journals The Rule of the Present, Not the Past

Jus Cogens ◽  
2021 ◽  
Author(s):  
Franco Peirone
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Practical Reasons ◽  
Legal Practice ◽  
The Rule Of Law ◽  
The Past ◽  
The Law ◽  
The One ◽  
Law Making ◽  
The Ideal

Abstract There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned.

scholarly journals Breaking Up the Unity of the World: Peter Fitzpatrick’s Conception of Responsive Law

2020 ◽  
pp. 174387212097533
Author(s):  
Johan van der Walt
Keyword(s):  
Rule Of Law ◽  
The Other ◽  
Short Article ◽  
The Rule Of Law ◽  
Other Hand ◽  
The World ◽  
The Law ◽  
The One ◽  
The Ideal

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully present and therefore already and completely contained in itself. This aspect of law reflects the law’s claim to “immanence,” that is, its claim of always being able to rely strictly on its own operational terms without having to take recourse to any consideration not already contained within itself. It is this aspect of law that renders the ideal of the “rule of law” feasible. On the other hand, the law’s claim to doing justice to every unique and therefore every new case also demands that it takes leave of that which is already settled within it. This aspect of law can be called its “imminence.” The imminence of the law concerns the reality that law always finds itself on the threshold of that which has not yet been said and must still be said. The article shows how Fitzpatrick relied on Freud’s concept of the totem to explain the “wondrous” unity of its immanence and imminence.

Maintenance of Law in Ministries’ Acts in the Russian Empire (XIX — early XX century)

2015 ◽  
Vol 3 (11) ◽  
pp. 0-0
Author(s):  
Ирина Михеева ◽  
Irina Mikheeva
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Russian Empire ◽  
Control Methods ◽  
The Rule Of Law ◽  
Perception Of Control ◽  
The Law ◽  
Supervision Mechanism ◽  
The Russian Empire ◽  
Law Making

The article is devoted to the rule of law in rulemaking activity of the Russian Empire ministries in XIX — early XX century. The author reviews the complex of control methods in rulemaking activity of the ministries in the Russian Empire. The author presents content and structure of control and supervision mechanism in the law-making activity of the Russian Empire ministries. The author defines difference of approaches to the perception of control and supervision as a means of law enforcement in the Russian Empire and modern Russia. The author draws the conclusion about similarity of the ways for providing the rule of law in rulemaking activity at different historical stages in the Russian Empire.

scholarly journals Relicts of the earliest understanding of fairness, justice and law in the first states of antiquity: A legal-anthropological view

2020 ◽  
Vol 54 (3) ◽  
pp. 907-928
Author(s):  
Vojislav Stanimirović
Keyword(s):  
Rule Of Law ◽  
Writing System ◽  
Irreversible Damage ◽  
The Rule Of Law ◽  
The Past ◽  
The Poor ◽  
Greater Good ◽  
The Law ◽  
Book Of The Dead ◽  
The Ideal

All archaic societies were founded on the principles of equality and solidarity. Another common trait were the mechanisms for regulating social behaviour, as they were crucial for a society's survival. In such types of societies, archaic fairness existed. It manifested itself through egalitarianism, solidarity, but also through the static and conservative elements and was based on the customs which were binding on all the members of the society. When archaic societies became layered and started to expand and mix with other communities, the initial cohesion, security and archaic righteousness slowly started to disappear and instead, the concept of justice appeared. Unfortunately, that caused an irreversible damage to the balance that once existed as the ideal state in the archaic societies. The invention of the writing system and the creation of the first states eventually enabled the Cuneiform Law to develop and as the result, the first law codes of the humanity came to life. The first states and their rulers found themselves at the crossroads between "the old" and "the new". The law was heavily shaped by the nobility, so all of the privileges were created explicitly for the nobles, while the poor were yearning for the past times which were more kind to them. The new law slowly started to suppress the old customs. The ancient rulers, at least instinctively, if not consciously, recognised the need for a balance which would guarantee order and peace in the state. In Egypt, where the archaic elements survived the longest, the echoes of archaic societies and ancient beliefs could be found in the principle of Ma'at, the weighing of souls and the Book of the dead. The creators of Cuneiform Law also found their ways and strategies to present themselves as just and caring rulers. The evidence for that can be found especially in the provisions of the law. Whether they are referring to their own achievements and merits, or offering protection and care to the vulnerable members of the society, or revoking privileges of the nobles for the sake of the greater good, or turning back to the tradition, or "buddying up" with the gods, or determining measures and compensation amounts, they are, above all, trying to be exemplary rulers to their subjects by putting the rule of law first.

scholarly journals PENAHANAN DAN PENANGGUHAN PENAHANAN DALAM TEORI DAN PRAKTEK

to-ra ◽  
2018 ◽  
Vol 4 (1) ◽  
pp. 34
Author(s):  
Thomas Abbon
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
Preliminary Evidence ◽  
The State ◽  
The Rule Of Law ◽  
The Past ◽  
Procedure Code ◽  
The Law

Abstract   The issue of upholding the rule of law is a chore that must be resolved by the current government. The state and nation have been disadvantaged from all aspects, because in the end the harassment of the law has given rise  to corruption, collusion and nepotism. One of the things that stands out about law enforcement is the issue of detention and suspension of detention and sentencing that has to do with detention. The problem of detention and the detention in practice so far has been widely distorted by unscrupulous law enforcers and this institution has become an "open business arena". Detention and suspension of detention is actually a legal effort, which aims to realize the enforcement of the law itself, because detention is only allowed as long as there is suf cient preliminary evidence, and detention is solely in order to facilitate investigation / examination and besides that detention is also intended as protecting the suspect / defendant from violence / other people (eigenrichting).   The suspension of detention should be able to be given to every suspect / defendant who provides guarantees according to the law, unless otherwise speci ed in certain cases. In addition there is another side of the Criminal Procedure Code which determines that detention is part of punishment, so it has become a habit in practice that if a suspect / defendant who was originally detained "must be sentenced" .From the facts that are decomposed in the past this has brought a a very dif cult situation to nd out who really deserves detention or suspended detention and it turns out everyone is nally able to pay "anything" to release himself from the snare of detention even though it should not be his right.   Keywords: rule of law; corruption, collusion, and nepotism; legal effort.  

PURPOSE, PRINCIPLES AND SPECIFIC FEATURES OF PROSECUTOR’S OFFICE LEGAL CREATION ACTIVITY

2021 ◽  
Vol 6 (10) ◽  
pp. 53-62
Author(s):  
Shoxrukhkhon Saidov ◽  
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Legal Space ◽  
The Law ◽  
Law Making

This article describes the specifics of the law-making process conducted by the prosecutor's office. The purpose and principles of the prosecutor's office's participation in this process have been studied scientifically and theoretically. Taking into account the high relevance of ensuring legality in the law-making process, opinions were expressed about the need for adequate regulation and organization of solving this task by the prosecutor's office at the level of law and legality. The participation of the prosecutor's office in law-making activities contradicts the needs of the population, the protection of human and civil rights and freedoms, ensuring the rule of law, promoting the formation of a unified legal space and improving legislation, ensuring consistency legal instructions, systematization of legislation, scientifically based analysis are aimed at reducing the influence of bureaucratic interests and preventing the inclusion of factors that generate corruption in normative acts and their projects

scholarly journals RETURNS OF ASSETS IN CORRUPTION CRIMINAL ACTS AS ALTERNATIVE RESTORING STATE LOSSES

2020 ◽  
Vol 2 (1) ◽  
pp. 27-34
Author(s):  
Komang Ekayana
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The State ◽  
Recovery Model ◽  
Formal Approach ◽  
The Rule Of Law ◽  
Asset Recovery ◽  
Criminal Procedure Law ◽  
The Law

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 

scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

Law’s Elasticity An Inquiry into the Relation of Law and Power in Finance

2021 ◽  
pp. 1-25
Author(s):  
Katharina Pistor
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Inherent Limitation ◽  
The Rule Of Law ◽  
Insurance Group ◽  
The Law ◽  
Full Force ◽  
Commitment Device

Abstract Law is a powerful commitment device. By entering into a binding contract, a contracting party can invoke the coercive law enforcement powers of states to compel another party to perform. Many, if not most, contracts are carried out without ever invoking these coercive powers; they operate in the shadow of the law. Less attention has been paid to the flip side of law’s shadow: the possibility of relaxing or suspending the full force of the law, or making law elastic. While this may seem anathema to the “rule of law”, it is not an infrequent occurrence, especially in times of crisis. The elasticity of law should be distinguished from the incompleteness of law, that is, the inherent limitation lawmakers face in trying to anticipate all future contingencies. In this paper I will offer two tales of the American Insurance Group (AIG) to illustrate the elasticity of contracts as well as of law.

Die Entwicklung des Strafrechts der Ukraine

2020 ◽  
Vol 66 (3) ◽  
pp. 380-396
Author(s):  
Rainer Birke
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Law ◽  
Penal Code ◽  
Science And Society ◽  
The Rule Of Law ◽  
Law System ◽  
The Law ◽  
Simplified Procedure ◽  
Procedural Rights

In 2001, a new penal code was adopted in Ukraine after a comprehensive discussion in politics, legal science and society, replacing a codification of the Soviet era dating back to 1960, obviously unsuitable for the new realities. The new penal code of 2001 has been changed many times since then. This also applies to the criminal law provisions against corruption, evaluated and commended by GRECO. However, there is criticism of the criminal law system in Ukraine. A large number of the issues have little or nothing to do with the text of the penal code itself, but with deficits in the application of the law and the resulting loss of confidence in the activities of the law enforcement authorities. The judiciary is said to have a significant corruption problem and is significantly overloaded. The latter is to be counteracted by the introduction of the class of misdemeanor (“kryminalnyj prostupok”) in 2019 that can be investigated in a simplified procedure, which has been criticized, inter alia, because it bears the risk of the loss of quality and possibly infringes procedural rights. Also in 2019, the work on a once again completely new codification of the penal code was commenced, which is not entirely surprising in view to the existing criticism of manual errors or inadequacies of the recent code. It is to be hoped that Ukraine, with the existing will and the necessary strength, will succeed in the creation of a criminal law system that is fully in compliance with the rule of law and that a penal code will be drafted that finally finds full recognition in the society.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

Sign in / Sign up

Export Citation Format

Share Document