scholarly journals Making Sense of Competitive Authoritarianism: Lessons from the Andes

2018 ◽  
Vol 60 (2) ◽  
pp. 1-22 ◽  
Author(s):  
Maxwell A. Cameron
Keyword(s):  
Rule Of Law ◽  
Political Systems ◽  
Electoral Institutions ◽  
Hybrid Regimes ◽  
The Rule Of Law ◽  
Competitive Authoritarianism ◽  
Making Sense ◽  
The Andes ◽  
Electoral Regime ◽  
Definition Of

AbstractScholarly attention has increasingly shifted from diminished subtypes of democracy to hybrid regimes, particularly competitive authoritarianism. Such regimes retain democracy’s formal features while failing to meet its minimum standards. When properties of distinct concepts like democracy and authoritarianism are combined, however, confusion, inaccuracy, and mischaracterization of cases may occur. By disaggregating political systems into electoral institutions, surrounding rights and freedoms, constitutionalism, and the rule of law, this article complicates the binary distinction between a midrange definition of democracy and competitive authoritarianism. A number of Andean cases are found to fall on the spectrum of defective democracies between these categories. Defective democracies break down when rulers violate the conditions necessary for institutionalized alternation in power by means of public participation and loyal opposition in an electoral regime. Given leaders’ reliance on electoral legitimacy, however, even defective democracies may prove surprisingly resilient.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

Migration, law, democracy: identifiyng where the risk is

2009 ◽  
pp. 139-150
Author(s):  
Javier de Lucas
Keyword(s):  
Rule Of Law ◽  
Point Of View ◽  
Risk Society ◽  
Structural Factors ◽  
The Rule Of Law ◽  
Poor Countries ◽  
Definition Of ◽  
Sans Papiers ◽  
Migratory Movements ◽  
Migration Law

- This paper focuses on migration, law and democracy in order to identify where risk lies. The author concentrates on studying a recent case, the Directive on the Return of so-called illegal immigrants (sans papiers) approved by the European Parliament on 18 June 2008. The usual point of view, that of the dominant discourse, maintains that today's migratory movements constitute one of the structural factors that justify the definition of our societies as the "Risk Society". According to this point of view, the migratory flows entail a risk for social cohesion and even a destabilising potential for both democracy and the rule of law. The risk is illustrated by the menacing image of invasion threatening at our doors, hence the classical argument of the "demographic bomb" as the resource of poor countries. The author's thesis sustains that it is precisely our responses, in the form of migratory policy tools, that constitute a risk factor. Some of these tools, including this Directive, have become destabilising elements of the rules of the game and, moreover, of the values of the rule of law and of democracy.

scholarly journals A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms

2018 ◽  
Vol 15 (1) ◽  
pp. 1-19 ◽  
Author(s):  
Kinnari Bhatt
Keyword(s):  
Rule Of Law ◽  
Land Rights ◽  
Legal Rights ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Legal Scholarship ◽  
The Rule Of Law ◽  
Post Colonial ◽  
Substantive Equality ◽  
Definition Of

AbstractOne way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.

scholarly journals The absolute power of the sovereign, bureaucracy, democracy and constitutional government in the works of Slobodan Jovanovic

Balcanica ◽  
2014 ◽  
pp. 399-434
Author(s):  
Vojislav Stanovcic
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Institutional Development ◽  
Theoretical Framework ◽  
Modern State ◽  
Political Systems ◽  
Major Work ◽  
Absolute Power ◽  
The Rule Of Law ◽  
Constitutional Government

The papers discusses the views of Slobodan Jovanovic (1869-1958) on several phenomena of Serbia?s political and institutional development in the hundred years between the First Serbian Uprising in 1804 and the fall of the Obrenovic dynasty in 1903, and on different political systems, looking at the sources on which his thought drew upon, the ideas he was guided by and the theoretical framework of his legal and socio-political thinking. His major work, a legal theory of the state, as most of his other writings, was his own contribution to what he held to be a national mission, the building of a modern state based on the rule of law.

scholarly journals Perlindungan Hukum atas Desain Industri Berdasarkan Undang-Undang No 31 T Ahun 2000

2021 ◽  
Vol 2 (2) ◽  
pp. 297-301
Author(s):  
Ida Ayu Mas lndriani ◽  
Ni Made Jaya Senastri ◽  
Ni Made Puspasutari Ujianti
Keyword(s):  
Rule Of Law ◽  
Industrial Design ◽  
Legal Protection ◽  
Secondary Data ◽  
Conceptual Approach ◽  
The Rule Of Law ◽  
Legal Implications ◽  
Design Law ◽  
Protection Of Human Rights ◽  
Definition Of

Intellectual property rights including industrial designs. The idea of ​​industrial design safety is based on the belief that human imagination, taste and initiative are closely linked to industrial design. The state grants protection against new industrial designs. The definition of the rule of law used in the legal protection of industrial designs is based on Law No. 31 of 2000. One of the components in this case is the protection of human rights which is the guideline for the legal protection of industrial designs. There are two forms of industrial design legal protection, which include preventive legal protection and repressive legal protection. This study aims to examine the form of legal protection for industrial designs based on Law No. 31 of 2000 and analyze the legal implications if the design rights holder does not register their industrial designs. This research was designed using normative research with a conceptual approach. The data used are primary and secondary data obtained through documentation and recording. The results of the study indicate that preventive legal protection is contained in the Act which is used to prevent violations and a description of the implementation of obligations while repressive legal protection is security in the form of sanctions for violations that have been committed. In view of this and considering the existence of protection in the form of the industrial design law, the designer can prevent the occurrence of plagiarism of his industrial design by registering his industrial design.

The political economy of insecure property rights: insights from the Kingdom of Sicily

2019 ◽  
Vol 16 (2) ◽  
pp. 233-249 ◽  
Author(s):  
Rosolino A. Candela
Keyword(s):  
Political Economy ◽  
Property Rights ◽  
State Formation ◽  
Rule Of Law ◽  
The Political ◽  
Market Exchange ◽  
Credible Commitment ◽  
The Rule Of Law ◽  
Definition Of ◽  
The 19Th Century

AbstractHow did the evolution of the rule of law become stunted in Sicily during the 19th century? The work of economist Yoram Barzel, particularly his property-rights approach to understanding the political economy of state formation, is uniquely suited to understanding the failure of Italy's unification process to secure the rule of law in Sicily during the 19th century. This failure can be explained by a lack of a credible commitment to the rule of law in the state formation process. I argue that this lack of credible commitment manifested itself in the abolition of previously existing parliamentary institutions as an independent collective action mechanism, as well as prior constitutional agreements that existed in the Kingdom of Sicily. The resulting uncertainty over the security and legal definition of property rights over land raised the transaction costs of competing for resources through productive specialization and market exchange. In turn, it reduced the relative costs of competition for land ownership and the use of enforcement through other means, such as rent seeking or organized crime.

scholarly journals Formation’s Principles of the Judiciary of Ukraine

2021 ◽  
Vol 7 (6) ◽  
pp. 1001-1009
Author(s):  
Vitaliy Hudyma
Keyword(s):  
Rule Of Law ◽  
Professional Competence ◽  
Political Influence ◽  
The Political ◽  
Law And Order ◽  
Basic Principles ◽  
The Rule Of Law ◽  
Supreme Council ◽  
The Status ◽  
Definition Of

The article reveals and researches the basic principles of the formation of the judiciary in Ukraine. It is established that judicial corps should be understood as an appropriate number of civil servants who hold the relevant positions as judges in the judicial bodies of Ukraine. It has been proved that judges make universally binding decisions, which determine, for example, other processes of maintaining law and order in the state. It is determined that the legislation lacks a clear definition of the term “judiciary” and lacks the primary grounds and principles by which the process of formation of the judicial corps in Ukraine should take place. It is established that the principles of formation of the judiciary in Ukraine should be based on the requirements for candidates for the position of judges, which are defined by Article 69, “Requirements for candidates for the position of the judge” of the Law of Ukraine “On Judiciary and the Status of Judges”. It is proved that one of the components of the procedure for the formation of the judiciary in Ukraine is the qualification assessment of candidates for the position of judges. It was found out that the qualification assessment of judges by the criterion of professional competence should be based on the principle of specialization and instance. It is established that the main principles based on which the appointment of judges-candidates for the positions of members of the Supreme Council of Justice are: the principle of the rule of law; the principle of professionalism; the principle of publicity; the principle of political neutrality. It is determined that one of the critical principles of formation of the judiciary in Ukraine should be the principle of non-political influence, namely its essence is revealed in the fact that entities that will participate both directly and indirectly in the formation of the judiciary should not, in any case, have any relation to the political sphere. It is noted that the prospects for further research in this area are the study of the holistic system and features of the formation of the judiciary in Ukraine.

scholarly journals JUDICIAL REVIEW PASAL-PASAL MAKAR KUHP: PERSPEKTIF PENAFSIRAN HUKUM DAN HAM (JUDICIAL REVIEW ON TREACHERY ARTICLES OF THE CRIMINAL CODE: THE PERSPECTIVE OF LAW INTERPRETATION AND HUMAN RIGHTS)

2017 ◽  
Vol 8 (2) ◽  
pp. 235-253
Author(s):  
Prianter Jaya Hairi
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Freedom Of Expression ◽  
Criminal Code ◽  
Constitutional Court ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Legal Sanctions ◽  
Definition Of

In 2017, Constitutional Court has received three calls for judicial reviews regarding treachery (makar) article in the Criminal Code. These articles deemed to be contradicting with the principle of legal certainty and freedom of expression. This study analyzes the important issue that is being debate in those judicial reviews. One of those is about the argument which says that the absence of the definition of treachery in the Criminal Code has caused a violation of legal certainty. Besides, the rule of treachery in the Criminal Code has also considered to have caused a violation of freedom of expression which has been guaranteed by Constitution. Analysis shows that the absence of treachery definition in the Criminal Code is not something that instantly becomes a problem in its application that causing the loss of legal certainty. Law enforcer, especially judge, in enforcing the rule of law must always use the method of law interpretation which appropriate with legal norm. With systematic interpretation, treachery can be interpreted according to the sentence of the rule as a unity of the legal system. In this case, the term treachery as regulated in Article 87 of the Criminal Code can be systematically interpreted as the basis for Article 104-Article 108 of the Criminal Code, Article 130 of the Criminal Code, and Article 140 of the Criminal Code which regulates various types of treason and their respective legal sanctions for the perpetrators. Further, on the argument that the articles of treachery in the Criminal Code also can not necessarily be said to limit the freedom of expression, because every citizen’s freedom has limitation, including the limitation of law and human rights. AbstrakPada tahun 2017, Mahkamah Konstitusi telah menerima tiga kali judicial reviewterhadap pasalpasal tindak pidana makar dalam Kitab Undang-Undang Hukum Pidana (KUHP). Pasal-pasal ini dipandang bertentangan dengan prinsip kepastian hukum dan kebebasan berekspresi. Tulisan ini menganalisis substansi yang menjadi perdebatan dalam perkara judicial review tersebut. Di antaranya perdebatan mengenai tidak adanya definisi istilah makar dalam KUHP yang menyebabkan persoalan kepastian hukum. Selain itu, pengaturan tindak pidana makar dalam KUHP juga dinilai melanggar kebebasan berekspresi yang telah dijamin oleh konstitusi. Analisis terhadap persoalanpersoalan tersebut menunjukkan bahwa ketiadaan definisi kata “makar” dalam KUHP bukanlah merupakan sesuatu yang serta merta langsung menjadi persoalan dalam penerapannya sehingga menyebabkan hilangnya kepastian hukum. Penegak hukum, terutama hakim, dalam menegakkan peraturan hukum selalu menggunakan metode penafsiran hukum yang sesuai dengan kaidah ilmu hukum. Dengan penafsiran sistematis, makar dapat dimaknai sesuai kalimat dari peraturan sebagai suatu kesatuan sistem hukum. Dalam hal ini, istilah makar yang diatur dalam Pasal 87 KUHP, secara sistematis dapat ditafsirkan sebagai dasar bagi Pasal 104-Pasal 108 KUHP, Pasal 130 KUHP, dan Pasal 140 KUHP yang mengatur tentang jenis makar beserta sanksi hukumnya masing-masing bagi para pelakunya. Selain itu, mengenai argumen bahwa pasal-pasal makar dalam KUHP berpotensi melanggar HAM dan dipandang bertentangan dengan konstitusi dapat dikatakan tidak beralasan. Sebab kebebasan HAM setiap orang tidak tanpa batas, di antaranya dibatasi nilai-nilai agama, keamanan, dan ketertiban umum.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

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