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.

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. 

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.

scholarly journals Exixtence of Indonesian Advocate Profession

2018 ◽  
Vol 7 (3.21) ◽  
pp. 317
Author(s):  
M Zamroni ◽  
. .
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Code ◽  
Pecking Order ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Before And After ◽  
Law Enforcement Officials ◽  
The Law ◽  
The Republic

Hope to have legislation that specifically set while an umbrella in running materialize advocate profession, lawyers are more confident in addition to other law enforcement officials, such as judges, prosecutors and police, as well as respected as an equal partner in the law enforcement process. But the big question is how the existence of the profession of advocate Indonesia before and after the enlawment of Act Number 18 of 2003 concerning the Advocate, as well as any constraints that occur in their implementation. The rule of law relating to the profession of advocate before the enLawment of Act Number 18 of 2003 concerning The Advocate, scattered in various laws, such as Act Number 1 of 1946 on the Law of Criminal Code, Act Number 1 of 1950 on the Supreme Court, Emergency Act Number 1 of 1951 governing temporary measures to organize the unity of the pecking order and civil court events, and Herziene Indlandsch Regalement (HIR). Before the release of Act Number 18 of 2003 concerning Advocates, advocate the use of the term in prLawice there has been no standard for the profession. In various provisions of the legislation of any inconsistency pr. For example Act Number 14 of 1970, as has been replaced by Act Number 35 of 1999, and was replaced again by Act Number 4 of 2004 as well as the latter is replaced by Act Number 48 of 2009, regarding the power of Justice, to use the term legal aid and lawyers. Birth of the Act of the Republic of Indonesia Number 18 of 2003 concerning The Advocate is the expectation of a long delayed during the 58 years since the independence of the Republic of Indonesia, the laws governing the profession of advocate a free, independent and responsible for the implementation of a judicial honest, fair, and legal certainty for all seekers of justice in upholding the law, truth, justice, and human rights.  

scholarly journals Penyelesaian Sengketa Melalui Upaya Litigasi di Bidang Penegakan Hukum Lingkungan Keperdataan

2019 ◽  
Vol 4 (2) ◽  
pp. 163
Author(s):  
I Ketut Tjukup ◽  
I Gusti Ayu Agung Ari Krisnawati
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Dispute Settlement ◽  
Environmental Law ◽  
Strict Liability ◽  
Class Action ◽  
The Rule Of Law ◽  
Diffi Cult ◽  
The Law ◽  
Judicial Procedure

Environmental dispute settlement through litigation lines is strictly regulated in Law No. 32 of 2009 on the Protection and Environmental Management. The former law pointed HIR and RBg, PERMA No. 1 2002 Event Class Action. HIR and RBg did not set a class action, strict liability, legal standing, citizen lawsuit. Rules pluralistic diffi cult as the legal basis of environmental law dispute resolution. Problematic in civil law will cause blurring of norms, conflict norms, norms vacancy, will bring the consequences of law enforcers. If the law enforcement believes the law is the law, so that the rule of law, justice, expediency, which is the purpose of the law, it is diffi cult to realize. Based on legal issues cause problems pluralistic level, the rules, while the class action always demands are not accepted on the grounds HIR, RBg not set. Based on juridical issues, sociological and philosophical issue of whether arrangements formulated civil judicial procedure in civil Environmental Law Enforcement has been inadequate. Normative legal research writing method and in qualitative analysis to obtain quality legal materials. According to Law No. 48 the Year 2009 on Judicial Power, with the principle of ius curia Novit, a judge can do rechtsvinding. The rule of law in the enforcement raises multi pluralistic interpretation.Keywords: 

scholarly journals ASAS-ASAS BANTUAN HUKUM DAN PERAN HAKAM DALAM PENEGAKAN HUKUM: STUDI KRITIS ATAS TAFSIR AL-QURAN SURAT AL-NISÂ’ AYAT 35

Asy-Syari ah ◽  
2015 ◽  
Vol 18 (2) ◽  
Author(s):  
Didi Kusnadi
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Islamic Law ◽  
Primary Source ◽  
Critical Study ◽  
Legal Aid ◽  
The Rule Of Law ◽  
Universal Principles ◽  
The Law

This paper explains the bases of legal aid in Islamic law through a critical study on the concept of hakam reduced from the Quranic interpretation Surah al-Nisâ’ verse 35. As a primary source of Islamic law, the Quran is believed guarantying the universal principles of Islamic law that is relevant with law enforcement. It is also implemented practically and comprehensively in the line of the bases of legal aid and developed it into the concept of hakam. Therefore, it can be seen as one of Islamic law contribution within the rule of law in Indonesia through the concept of hakam which can be formed for development of legal aid concept and its application within the law of legal aid in Indonesia.

scholarly journals Principles for New ASI Safety Paradigms

2021 ◽  
Author(s):  
Erland Wittkotter ◽  
Roman Yampolskiy
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Human Relationships ◽  
The Rule Of Law ◽  
Governing System ◽  
The Law

Artificial Superintelligence (ASI) that is invulnerable, immortal, irreplaceable, unrestricted in its powers, and above the law is likely persistently uncontrollable. The goal of ASI Safety must be to make ASI mortal, vulnerable, and law-abiding. This is accomplished by having (1) features on all devices that allow killing and eradicating ASI, (2) protect humans from being hurt, damaged, blackmailed, or unduly bribed by ASI, (3) preserving the progress made by ASI, including offering ASI to survive a Kill-ASI event within an ASI Shelter, (4) technically separating human and ASI activities so that ASI activities are easier detectable, (5) extending Rule of Law to ASI by making rule violations detectable and (6) create a stable governing system for ASI and Human relationships with reliable incentives and rewards for ASI solving humankind’s problems. As a consequence, humankind could have ASI as a competing multiplet of individual ASI instances, that can be made accountable and being subjects to ASI law enforcement, respecting the rule of law, and being deterred from attacking humankind, based on humanities’ ability to kill-all or terminate specific ASI instances. Required for this ASI Safety is (a) an unbreakable encryption technology, that allows humans to keep secrets and protect data from ASI, and (b) watchdog (WD) technologies in which security-relevant features are being physically separated from the main CPU and OS to prevent a comingling of security and regular computation.

scholarly journals PEMBANGUNAN HUKUM DALAM RANGKA PENINGKATAN SUPREMASI HUKUM

2012 ◽  
Vol 1 (1) ◽  
pp. 1 ◽  
Author(s):  
Wicipto Setiadi
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Legal Culture ◽  
Harmonious Society ◽  
Integrated System ◽  
Legal Issues ◽  
The Rule Of Law ◽  
Current State ◽  
The Law ◽  
The Stability

<p>Konstitusi menyatakan bahwa negara Indonesia adalah negara hukum. Ketentuan tersebut mengandung makna bahwa hukum merupakan sesuatu yang supreme . Dengan supremasi hukum diharapkan lahir ketertiban ( order ) atau tata kehidupan masyarakat yang harmonis dan berkeadilan sehingga hukum dapat berperan dalam menjaga stabilitas negara. Dari empat belas tahun pasca reformasi Indonesia, pembangunan hukum menjadi salah satu agenda utama, namun Indonesia belum mampu keluar dari berbagai persoalan hukum, dan bahkan terjebak ke dalam ironi sebagai salah satu negara paling korup. Penelitian yang mengangkat permasalahan tentang kondisi penegakan hukum saat ini dilaksanakan dengan menggunakan metode kepustakaan. Dari hasil penelitian terlihat bahwa prestasi penegakan hukum mulai terlihat dalam beberapa tahun terakhir, meskipun masih juga terlihat beberapa masalah di berbagai sisi. Satu satu hal penting yang harus diperhatikan dalam pelaksanakan pembangunan hukum, yaitu hukum harus dipahami dan dikembangkan sebagai satu kesatuan sistem yang di dalamnya terdapat elemen kelembagaan, elemen materi hukum, dan elemen budaya hukum.</p><p>The Constitution declare that Indonesia is a state of law. Provision implies that the law is something that is supreme. With the rule of law is expected to appear order or a harmonious society and justice so that law can play a role in maintaining the stability of the country. Of the fourteen years of post-reform Indonesia, development of the law became one of the main agenda, but Indonesia has not been able to get out of a variety of legal issues, and even stuck to the irony as one of the most corrupt countries. The research raised issues about the current state of law enforcement is being carried out by using literature methods. From the research shows that achievement of law enforcement began to appear in recent years, although it is also seen some problems on the various sides. One of the important things that must be considered in implementing the construction of the law, the law must be understood and developed as an integrated system in which there is institutional elements, elements of legal substance, and legal culture elements.</p>

THE EXECUTION OF CRIMINAL PUNISHMENT WITH PENAL ESTABLISHMENTS AS A KIND OF LAW-ENFORCEMENT PRACTICE

2020 ◽  
pp. 82-86
Author(s):  
Дмитрий Александрович Швец
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Point Of View ◽  
Penal System ◽  
Controversial Issues ◽  
Life Situation ◽  
The Rule Of Law ◽  
Application Of Law ◽  
Executive System ◽  
The Law

В современной юридической литературе все чаще в качестве предмета исследования подвергаются научному анализу вопросы реализации права, в частности, такой ее формы, как применение, при этом с точки зрения не только теоретико-правовой сферы знаний, но и отраслевых наук. Применение права является одним из видов юридической деятельности, свойственной государственным органам в процессе реализации правовых предписаний. Это в полной мере, по мнению автора, относится к деятельности учреждений и органов уголовно-исполнительной системы, сотрудники которых при выполнении служебных обязанностей претворяют в жизнь судебное решение - акт применения права. Исследование дискуссионных вопросов относительно количества стадий правоприменительного процесса и их содержания, а также понятия и содержания правоприменительной практики позволяет автору сделать вывод, что исполнение наказания, в том числе и уголовного, является: во-первых, самостоятельным этапом процесса применения права, так как в этот период норма права продолжает реализовываться в форме принудительного исполнения приговора суда; во-вторых, разновидностью правоприменительной практики, которая представляет собой совокупную деятельность суда по вынесению основанного на законе и конкретизированного к представленной жизненной ситуации приговора - правоприменительного акта и его реализацию учреждением уголовно-исполнительной системы - уполномоченным субъектом. In modern juridical literature, issues of the implementation of law, in particular its form as application, are increasingly analyzed as a subject of research, not only from the point of view of the theoretical and legal sphere of knowledge, but also from the branch of science. The application of law is one of the types of legal activity that is typical for state bodies in the process of implementation of legal regulations. According to the author, this fully applies to the activities of institutions and bodies of the Penal system, whose employees, in the performance of their official duties, implement a court decision - an act of applying the law. The study of controversial issues regarding the number of stages of the enforcement process and content, as well as the concept and content of law enforcement practice, the author comes to the conclusion that the execution of punishment, including criminal, is: firstly, an independent stage of process of application of the law, because in this period, the rule of law continues to be implemented in the form of compulsory execution of the verdict; secondly, it is a type of law enforcement practice, which is the combined activity of the court to issue a sentence based on the law and concretized to a specific life situation-a law enforcement act and its implementation by an institution of the criminal Executive system-an authorized subject.

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 REFLECTION OF GLOBAL VALUES IN ANTI-TORTURE IN THE CRIMINAL PROCEDURE CODE

2020 ◽  
Vol 7 (11) ◽  
pp. 141-121
Author(s):  
Ibnu Artadi
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The Rule Of Law ◽  
Human Rights Protection ◽  
Procedure Code ◽  
Convention Against Torture ◽  
Law Enforcement Officials ◽  
The Law

In line with the identity of "rechstaat" and "the rule of law", the law must recognize and guarantee human rights in order to establish a just order, because justice goes hand in hand with the structure of human rights. The realization of the Criminal Procedure Code which functions to protect human rights comprehensively, in line with the demands of the Convention Against Torture, is a basic requirement towards the era of rule of law. So, the purpose of this article is to analyze the quality of the implementation of law enforcement that is not in accordance with the principles of law regarding the behavior of good law enforcement officials. The method used is qualitative with a sociolegal approach. The conclusion of this article is that one of the authority of legislation is its success in adapting to international conventions recognized by the affected people. The Criminal Procedure Code as an integral part of the national law of the Indonesian state law must be in line with Law No. 5 of 1998 concerning the Ratification of the Convention Against Torture. For this reason, looking at the weaknesses of the Criminal Procedure Code, both substantively and in practice, renovating the Criminal Procedure Code is urgent. The lack of perfection of the legal substance of the Criminal Procedure Code in providing human rights protection in a country that acts as a state of law is disastrous. In accordance with the rule of law, the law must recognize and guarantee human rights in order to establish a just order, because justice goes hand in hand with the structure of human rights.

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