The Chinese Legal System: Continuing Commitment to the Primacy of State Power

1999 ◽  
Vol 159 ◽  
pp. 673-683 ◽  
Author(s):  
Pitman B. Potter
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
50Th Anniversary ◽  
State Power ◽  
Legal Requirements ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Policy Goals ◽  
Political Relationships

On the 50th anniversary of the founding of the PRC, the legal system plays an increasingly significant role in social, economic and even political relationships. Legal norms drawn largely from foreign experiences have been selected and applied through a plethora of newly established institutions. The role of law as a basis for government authority has become a legitimate and significant issue in the broader political discourse. Despite these achievements, law in China remains dependent on the regime's policy goals. Particularly where political prerogatives are at stake, legal requirements appear to pose little restraint on state power. In this sense, the ten years that have passed since Tiananmen appear to have had little impact on the willingness of the party-state to dispense with legal requirements in pursuit of political expediency. If we are to rely upon Dicey's dictum on the rule of law being in effect when the state becomes just another actor, the rule of law in China still seems a distant prospect indeed.

scholarly journals Problems of application of state coercion in the interpretation of local lawyers in the late XIX – early XX century

2019 ◽  
Vol 2019 (2) ◽  
pp. 96-105
Author(s):  
Никита Тарасов ◽  
Nikita Tarasov
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Theory ◽  
The State ◽  
The Rule Of Law ◽  
Legal Norms ◽  
State Coercion ◽  
Qualitative Characteristics

The questions relating to the interpretation of the Russian lawyers of the late XIX – early XX century of the role of state compulsion in ensuring the rule of law are considered in article. The interrelation between the state of legality and qualitative characteristics of state coercion is emphasized. The author draws attention to the problem of state coercion in the legal and doctrinal aspects. His attention focuses on the development of the idea of the nature, purpose and limits of state coercion in the domestic police-legal theory of the late XIX – early XX century. The author considers that legal scholars thought of state coercion as an exclusive, extreme means, the use and application of which is permissible only on the basis of legal norms in order to ensure the security and stability of its socio-political and political-legal system, in compliance with the rule of law.

scholarly journals In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’

2018 ◽  
Vol 28 (5) ◽  
pp. 573-599
Author(s):  
Alex Batesmith ◽  
Jake Stevens
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
State Power ◽  
Human Experience ◽  
Legal Systems ◽  
Material Support ◽  
The Rule Of Law ◽  
Alternative Perspective ◽  
The Individual ◽  
Individual Human

This article explores how ‘everyday’ lawyers undertaking routine criminal defence cases navigate an authoritarian legal system. Based on original fieldwork in the ‘disciplined democracy’ of Myanmar, the article examines how hegemonic state power and a functional absence of the rule of law have created a culture of passivity among ordinary practitioners. ‘Everyday’ lawyers are nevertheless able to uphold their clients’ dignity by practical and material support for the individual human experience – and in so doing, subtly resist, evade or disrupt state power. The article draws upon the literature on the sociology of lawyering and resistance, arguing for a multilayered understanding of dignity going beyond lawyers’ contributions to their clients’ legal autonomy. Focusing on dignity provides an alternative perspective to the otherwise often all-consuming rule of law discourse. In authoritarian legal systems, enhancing their clients’ dignity beyond legal autonomy may be the only meaningful contribution that ‘everyday’ lawyers can make.

scholarly journals The Internal Limits on Fiduciary Loyalty

2020 ◽  
Vol 65 (1) ◽  
pp. 65-82
Author(s):  
Andrew S Gold
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Compliance ◽  
Internal Constraints ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Judicial Reasoning ◽  
Correct Understanding ◽  
Conceptual Possibility

Abstract: In the abstract, the limits on a lawyer’s loyalty obligations could take several forms. For example, constraints on a fiduciary’s loyalty obligations may be derived from a correct understanding of that fiduciary’s loyalty itself. Indeed, violations might count as a form of disloyalty to the client. Alternatively, such constraints could stem from obligations owed to parties other than a lawyer’s client, or even something more abstract like the rule of law. Notably, such constraints could be derived from legal principles that have nothing to do with fiduciary law. Each of these options is a conceptual possibility, contingent on the choices made by a given legal system. Constraints on a loyalty obligation that are implications of that loyalty obligation itself are defined here as internal. Constraints imposed from outside a given fiduciary loyalty obligation are defined as external. This paper seeks to deepen our understanding of a particular type of fiduciary loyalty (the loyalty owed by lawyers) by focusing on the role of such internal constraints, and in the process to elaborate on the scope of loyalty obligations more generally. This paper will also indicate why we should care about the internal/external distinction. Among other things, this distinction helps determine whether lawyers are better seen as private or public fiduciaries, and in practice it may bear on both judicial reasoning and legal compliance.

Artificial intelligence, legal system and state functions

2020 ◽  
Author(s):  
Aleksandr Bratko
Keyword(s):  
Artificial Intelligence ◽  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Methodological Problems ◽  
Theory Of Law ◽  
State Functions

The monograph deals with methodological problems of embedding artificial intelligence in the legal system taking into account the laws of society. Describes the properties of the rule of law as a Microsystem in subsystems of law and methods of its fixation in the system of law and logic of legal norms. Is proposed and substantiated the idea of creating specifically for artificial intelligence, separate and distinct, unambiguous normative system, parallel to the principal branches of law is built on the logic of the four-membered structure of legal norms. Briefly discusses some of the theory of law as an instrument of methodology of modelling of the legal system and its semantic codes in order to function properly an artificial intelligence. The ways of application of artificial intelligence in the functioning of the state. For students and teachers and all those interested in issues of artificial intelligence from the point of view of law.

The Enlightenment, Public Memory, Liberalism, and the Post-Communist World

2006 ◽  
Vol 20 (3) ◽  
pp. 395-418 ◽  
Author(s):  
Steven M. DeLue
Keyword(s):  
Eastern Europe ◽  
Rule Of Law ◽  
Public Memory ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
The Enlightenment ◽  
Political Relationships ◽  
Equal Respect ◽  
Do So

This article discusses the central role of public memory of radical injustice—or the systematic denial by a regime of the principle of equal respect for persons under the rule of law—in creating and preserving a liberal democratic regime. My contention is that, in the aftermath of the Enlightenment, efforts to deny equal respect in a systematic way to entire groups of people must be remembered by a society—indeed, there is a moral obligation to do so. And when these events are remembered, the basis for establishing and maintaining the rule of law in society on behalf of civic equality is more likely. A public memory of radical injustice has become much stronger in the countries of Eastern Europe than in Russia, and I speculate what the consequences of this circumstance are likely to be for the political relationships between Russia and the countries of Eastern Europe.

scholarly journals English Legal Model in the Views of «White» Lawships

2019 ◽  
Vol 15 (3) ◽  
pp. 14-24
Author(s):  
D. R. Zaynutdinov
Keyword(s):  
Civil War ◽  
Rule Of Law ◽  
Legal System ◽  
Political Activities ◽  
The Rule Of Law ◽  
Legal Science ◽  
Legal Opinions ◽  
Legal Model

The article discusses the legal views of the «white» lawyers – P. G. Vinogradov and V. A. Maklakova. The focus is on their commitment to the ideals of the English legal model. In the process of research, the author studied some of the theoretical and legal ideas of P. G. Vinogradov and V. A. Maklakova, in which they justified the need to introduce certain elements and institutions of the English legal model into the Russian legal system: the rule of law, strengthening the role of the judiciary, and others. The author also considers the legal-theoretical and political activities of P. G. Vinogradov and V. A. Maklakova during the Civil War in Russia. The relevance and novelty of this work is related to the lack of research in Russian legal science devoted to the analysis of legal opinions of «white» lawyers. The author uses the method of legal hermeneutics, with the help of which the interpretation of the legal views of P. G. Vinogradov and V. A. Maklakova. In conclusion, the work reveals the goal pursued by «white» lawyers, speaking about the need to borrow elements and institutions of the English legal model.

scholarly journals CONCEPTUAL ASPECTS OF THE FORMATION OF THE LEGAL MODEL OF SUSTAINABLE DEVELOPMENT OF UKRAINE

2021 ◽  
pp. 3-17
Author(s):  
V.A. Ustymenko ◽  
◽  
R.A. Dzhabrailov ◽  
V.K. Malolitneva ◽  
T.S. Hudima ◽  
...  
Keyword(s):  
Sustainable Development ◽  
Rule Of Law ◽  
Legal System ◽  
Legal Regulation ◽  
The State ◽  
Specific Content ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Legal Model ◽  
The Eu

It has been found that the methodological principles of building a legal model of sustainable development of Ukraine remain imperfect. In this regard, it is argued that the basis of the legal model, first of all, shall be assigned general and sectoral legal principles that will create the theoretical base of normative activity. In particular, it has to be that the Rule of Law principle has a particularly specific content and acquires signs of a particular legal instrument in the process of law-making and law enforcement. Accordingly, the use of the Rule of Law principle in the process of assessing the efficiency of legal norms is proposed, which will talk about promoting the legal act of the ideology of justice. It is necessary to unacceptable laying into the legal model of sustainable development of the false concept of legal regulation of economic relations, which provides for the exclusion from the legal system of the state of certain branches of legislation, in particular economic legislation. It is substantiated that the Economic Code of Ukraine is the basis for achieving the goals of sustainable development on the economic component and synergistic associated with other acts of Ukrainian legislation in the environmental and social spheres. In this regard, it is argued that the effectiveness of the legal model of sustainable development will be significantly higher, subject to preservation in the legal system of the Economic Code of Ukraine, which will additionally testify to compliance with the Rule of Law principle. It is emphasized that in the light of the adaptation of Ukrainian legislation, including economic, to the EU Law and the signing of the Association Agreement between Ukraine and the EU, the influence of international legal norms on the state and directions of development of individual institutions of Economic law, which contributes to the universalization of the legal model of the steady the state's development.

Rethinking the Role of Law in Russia

2016 ◽  
Author(s):  
Kathryn Hendley
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Everyday Lives ◽  
Red Tape ◽  
And Behavior ◽  
Attitudes And Behavior

This book has investigated whether the existence of telephone law rendered law irrelevant for Russians in their everyday lives. It has shown that Russians are not as nihilistic as usually assumed, but neither are they free of skepticism when it comes to their legal system. Their attitudes and behavior vary depending on the situation. Their primary reservation about using the courts is not concern over telephone law, but dread of the inevitable red tape and emotional turmoil that accompany litigation. This concluding chapter returns to the theoretical dilemma of how we should conceptualize legal systems like that of Russia in which law can—but does not always—matter. In particular, it considers how a dualistic legal system, in which politicized law exists side by side with law that is enforced and obeyed based on its written terms, should be evaluated in terms of the rule of law. It argues that a rethinking of the very concept of the “rule of law” in Russia is needed.

“Fair Notice” in the Age of AI

2020 ◽  
pp. 753-768
Author(s):  
Kiel Brennan-Marquez
Keyword(s):  
Artificial Intelligence ◽  
Machine Learning ◽  
Decision Making ◽  
Rule Of Law ◽  
Legal System ◽  
Tripartite Model ◽  
Input Output ◽  
The Rule Of Law ◽  
Key Concepts

This chapter examines the concept of “fair notice,” both in the abstract and as it operates in U.S. constitutional doctrine. Fair notice is paramount to the rule of law. The maxim has ancient roots: people ought to know, in advance, what the law demands of them. As such, fair notice will be among the key concepts for regulating the scope and role of artificial intelligence (AI) in the legal system. AI—like its junior sibling, machine learning—unleashes a historically novel possibility: decision-making tools that are at once powerfully accurate and inscrutable to their human stewards and subjects. To determine when the use of AI-based (or AI-assisted) decision-making tools are consistent with the requirements of fair notice, a sharper account of the principle’s contours is needed. The chapter then develops a tripartite model of fair notice, inspired by the problems and opportunities of AI. It argues that lack of fair notice is used interchangeably to describe three distinct properties: notice of inputs, notice of outputs, and notice of input-output functionality. Disentangling these forms of notice, and deciding which matter in which contexts, will be crucial to the proper governance of AI.

Lawlessness in Russia? Rethinking the Narratives of Law

2016 ◽  
Author(s):  
Kathryn Hendley
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Institutions ◽  
The Rule Of Law ◽  
The Law ◽  
Fundamental Value ◽  
Soviet Russia ◽  
Willingness To Use ◽  
At Will

This book examines how ordinary Russians experience the law and the legal system. Russia consistently ranks near the bottom of indexes that measure the rule of law, an indication of the country's willingness to use the law as an instrument to punish its enemies. The book considers whether the fact that the Kremlin is able to dictate the outcome of cases seemingly at will—a phenomenon known as “telephone justice”—deprives law of its fundamental value as a touchstone for society. Drawing on the literature on “everyday law,” it argues that the routine behavior of individuals, firms, and institutions can tell us something more about the role of law in Russian life than do sensationalized cases. Rather than focusing on the “supply” of laws, the book concentrates on the “demand” for law. This introduction discusses the perceived lawlessness in Soviet Russia and the dualism that lies at the heart of Russians' attitudes toward law and legal institutions. It also provides an overview of the book's chapters.

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