THE CONTRIBUTION OF LEGISLATIVE DRAFTING TO THE RULE OF LAW

2018 ◽  
Vol 77 (3) ◽  
pp. 630-635 ◽  
Author(s):  
Philip Sales
Keyword(s):  
Rule Of Law ◽  
Political Will ◽  
Legal Form ◽  
The Rule Of Law ◽  
Formal Rule ◽  
Important Position ◽  
Law Making

AbstractDrafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.

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 Functions of the state: concepts, classifications, scientific interpretations

1970 ◽  
pp. 406-410
Author(s):  
Marharyta Butsan
Keyword(s):  
Rule Of Law ◽  
Public Life ◽  
The State ◽  
Political Life ◽  
Historical Period ◽  
Legal Form ◽  
The Rule Of Law ◽  
The Government ◽  
Cultural Functions ◽  
State Functions

In the article the concept of state functions, realizing which the state carries out a targeted management impact on various spheres of a public life. They show that the government should do to achieve and implement the goals and tasks that lie before him in a certain historical period. Purposes of the functions of the state are the results that must be obtained in implementing the functions, goals can be immediate, intermediate, ultimate. On one stage of historical development, priority may be given to economic, the other political or socio-cultural functions, the third function of defense, etc. At the beginning of its inception, the state played a very small list of functions. The contents of most of them was of a pronounced class character. The functions manifest national characteristics of the country, because the state is obliged to provide the geopolitical interests of the ethnic group, to support the development of national culture, language, and the like. The contents and the list of functions to a large extent depend on the nature of the state, its social purpose in public life. The main duty of the state to maintain a level of social organization that would ensure not only the preservation of the integrity and prosperity of society as a whole, but also the needs of individuals. The article studies scientific approaches with respect to interpretation of the concept of functions, given the existing classification of state functions: the areas of activities of the state, duration and the like. The analysis of existing functions in Ukraine. The human rights function is currently the most relevant. Advocacy function has the expression in activities that are aimed at protecting the rights and freedoms of man and citizen, the rule of law and the rule of law in all spheres of public and political life. The peculiarities of exercise of the functions of the state are divided into legal and organizational. The legal form is a homogenous activity of state bodies related to the adoption of legal acts. Organizational form is a homogenous activity of the state aimed at creating organizational conditions to ensure functions of the state. In Ukraine there are three main forms of implementation of the activities of the state depending on types of activities: legislative, Executive, judicial. The basis for this separation is the provision of the Constitution of Ukraine, which is highlighted in these branches of government. In the implementation of all main functions of the state are actively involved all types of public power in Ukraine.

scholarly journals ‘When I See the ‘Broom’, I Will Pass over You’: An Assessment of President Muhammadu Buhari’s Anti-Corruption Crusade in Nigeria, 2015-2019

2021 ◽  
Vol 21 (2) ◽  
pp. 195-232
Author(s):  
O.O. Thompson ◽  
A.S. Afolabi ◽  
A.N. Raheem ◽  
C.A. Onifade
Keyword(s):  
Social Norms ◽  
Rule Of Law ◽  
Critical Analysis ◽  
Press Releases ◽  
Political Will ◽  
The Rule Of Law ◽  
Media Reports

Corruption is a global phenomenon. Many states have embarked on several crusades to fight the menace, with little to show for these efforts. Using a critical analysis ofliterature, media reports and press releases, this articleassesses the anti-corruption crusade of President Muhammadu Buhari’s administration, 2015-2019. The article argues that in spite of the strategies and panoply of laws employed by the administration to tackle the menace, the crusade has to a large extent failed because the crusade is waged along ethnic and particularly party lines. The article recommends among other things the need for transparency in the crusade, building institutions, revival of social norms, political will, and respect of the rule of law.

Legal technique of normative and contractual legislation

2021 ◽  
pp. 55-64
Author(s):  
Ilya Shutak
Keyword(s):  
Rule Of Law ◽  
Practical Importance ◽  
Theoretical Understanding ◽  
The Rule Of Law ◽  
Functional Methods ◽  
Functional Nature ◽  
Internal Inconsistency ◽  
Law Making ◽  
State Functions

Purpose. The purpose of the study is to reveal the features of the legal technique of normative-contractual law-making of modern Ukraine. Methodology. First of all, the principles and techniques of formal-logical methodology are used. Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral relations in the normative-contractual form of state functions is based on the functional nature of law in general and contractual and regulatory means in particular, which allowed to distinguish two types of intersectoral relations in contractual and regulatory activities. In addition, dialectical, system-structural and functional methods, the method of interpretation (applied to regulations) were used in the work. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of normative-contract law-making, which is interpreted as an integral harmonious part of the law-making system in a state governed by the rule of law. It is shown how with the help of means and methods of legal technique there is an optimization of contractual work and minimization of risks of disputes caused by vagueness and internal inconsistency of contracts. Results. As a result of research the inexpediency of identification of the contract with the regulatory legal act and its inclusion in the system of the legislation is argued. The regulatory role of the contract likens it to a legal act. A normative agreement can be both a consequence of a law and a cause of a normative legal act. Practical importance. The results of the study can be used in law-making activities in order to improve the design of the regulatory agreement, improve its quality and efficiency.

Commitment Decisions in EU Competition Enforcement: Policy Effectiveness v. the Formal Rule of Law

2019 ◽  
Vol 38 ◽  
pp. 361-399 ◽  
Author(s):  
Ryan Stones
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Ad Hoc ◽  
Economic Value ◽  
Business Practices ◽  
Legal Form ◽  
Formal Rule ◽  
Subject Specific ◽  
The Eu ◽  
Competition Enforcement

Abstract Marking the fifteenth anniversary of the entry into force of Regulation 1/2003, 2019 offers a vantage point from which to analyse the rise of commitment decisions as the primary enforcement mechanism for non-cartel competition law investigations at EU level. Commitment decisions, the closure of competition cases with a package of remedial obligations in response to Commission concerns, have an undeniable administrative appeal. They afford the Commission the absolute discretion to counteract any form of market conduct, whether beyond the pre-existing scope of the law deduced by the EU Courts from Articles 101 and 102 TFEU, or below exacting thresholds for prohibition of legally controversial business practices. Furthermore, the Commission can secure any remedial outcome, even if disproportionate or seemingly disconnected from its competitive concerns, to thereby redraw markets according to its idealized vision. In this regard, commitment decisions allow the Commission to achieve its policy goals with utmost effectiveness. Nevertheless, this article argues that such a method of market intervention represents a significant divergence from realizing the ideal of the formal rule of law in EU competition enforcement: normative certainty for businesses, facilitated by the equal application of generalized legal norms, which are subject to close oversight by courts. This offers an aspirational legal form of considerable political and economic value. Using commitment decisions to enforce EU competition policy via ad hoc, subject-specific decision making, conditional upon unforeseeable remedial obligations, is of systemic detriment to the legal comprehensibility of not just future Commission decision making, but the entire edifice of norms deduced from the Treaties by the EU Courts in this field. A rather relaxed approach to judicially reviewing the remedial proportionality of commitment decisions has partly contributed to this issue. However it is suggested that the EU Courts are largely unable to remedy the problems of novel theories of harm or subject-specific determinations, delivering upon their important residual role envisaged by the rule of law ideal, because of a factor mostly beyond their control: the lack of commitment decisions brought before them for review. To that end, the article concludes by recommending the automatic review of commitment decisions by the Courts. This would hopefully foster a more balanced reconciliation of effective policy achievement by the Commission and realization of the formal rule of law ideal in contemporary EU competition enforcement.

Against the Witness: Hindu Nationalism and the Law in India

2016 ◽  
Vol 15 (1) ◽  
pp. 172-189
Author(s):  
Moyukh Chatterjee
Keyword(s):  
Rule Of Law ◽  
Political Regime ◽  
Hindu Nationalism ◽  
Mass Violence ◽  
Legal Form ◽  
Religious Minorities ◽  
The Rule Of Law ◽  
Lower Courts ◽  
The Law ◽  
Ethnographic Analysis

In the aftermath of anti-Muslim violence in Gujarat, India, in 2002, NGOs and activists encouraged survivors to testify against Hindu perpetrators in court. Through an ethnographic analysis of a criminal trial in the lower courts of Ahmedabad, I show how state officials and perpetrators used legal procedures to transform Muslim survivors into unreliable witnesses in the courtroom. These formal and informal techniques to destabilize Muslim witnesses are best understood not as byproducts of the law’s failure to address mass violence, but as a legal performance of Hindu supremacy. Procedural and positivistic approaches to the rule of law failed to address the law as a performance embedded in the context of Hindu nationalism in Gujarat. Not only do such trials discredit witnesses of mass violence, but they also give a legal form to the subordinate status of religious minorities within a majoritarian political regime.

scholarly journals Theoretical and Practical Aspects of the Development of the Rule of Law State in Ukraine

2020 ◽  
Vol 9 (26) ◽  
pp. 442-449
Author(s):  
Vasyl Ya. Tatsiy ◽  
Oleg G. Danilyan
Keyword(s):  
Rule Of Law ◽  
Civil Liability ◽  
Legal Aspects ◽  
Democratic Governance ◽  
The Rule Of Law ◽  
Process Implementation ◽  
European Tradition ◽  
Law Making

The article is devoted to the analysis of socio-cultural and institutional-legal features of the development of the rule of law state in Ukraine. It is noted that the development of the rule of law state in Ukraine involves the interaction of several socio-cultural, ideological and institutional-legal aspects, the implementation of which at present is burdened with various difficulties of an objective and subjective nature. In particular, the most significant problems that need to be addressed immediately are optimization of the Ukrainian government system and improvement of the quality of law-making, increasing the level of professionalism and civil liability of officials of all levels, overcoming imbalance in government and effective legal support of this process, implementation of the principles of the rule of law state taking into account the European tradition of democratic governance.

7 Conclusions

2007 ◽  
Author(s):  
Goldsworthy Jeffrey
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Constitutional Law ◽  
The United States ◽  
The Other ◽  
Judicial Discretion ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Descriptive Sense ◽  
Law Making

This book has identified substantial differences between the philosophies of the courts of Australia, Canada, Germany, India, South Africa, and the United States with respect to interpretations of their constitutions. The differences can be characterised mainly in terms of the stronger attraction of some courts to legalism. Legalism in constitutional law has been associated with various tendencies, including literalism, formalism, positivism, and originalism. Legalism is used in a purely descriptive sense, not to applaud or to denigrate, but merely to denote interpretive philosophies motivated by two main concerns. One is disapproval of judicial discretion — of decision-making based on judges' values and ideologies rather than objective legal norms. The other is disapproval of judicial law-making — of decision-making that changes law instead of merely applying it. Legalists disapprove of judicial discretion and law-making for various reasons, including equity among litigants, predictability, democracy and the rule of law.

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