Ch.2 Modern Applications of the General Principles of Law

2017 ◽  
Author(s):  
Kotuby Charles T ◽  
Sobota Luke A
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
Good Faith ◽  
Legal Rights ◽  
The Rule Of Law ◽  
National Courts ◽  
Legitimate Expectations ◽  
General Principles Of Law ◽  
International Tribunals ◽  
Contractual Obligations

The purpose of this chapter is to define the general principles of law as they have been applied in national courts and international tribunals. For instance, the very concept of the law requires good faith adherence to contractual obligations (pacta sunt servanda) and the good faith exercise of legal rights. States as well as private parties are also precluded from contradicting their actions (estoppel) or abusing their rights, thereby defeating the legitimate expectations of another. Nor may they benefit from their own wrong or be unjustly enriched at another’s expense. All parties are liable for acts caused by and attributable to them, and the concept of responsibility requires that the consequences of their wrongful act be wiped out. In their various iterations and permutations, these exemplary principles are the logical consequences of the rule of law and the foundation of every legal order.

scholarly journals Legal Certainty

2021 ◽  
pp. 185-201
Author(s):  
Viktor Smorodynskyi
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Legal Certainty ◽  
Theoretical Concepts ◽  
The Rule Of Law ◽  
Res Judicata ◽  
National Courts ◽  
Legitimate Expectations ◽  
General Principles Of Law ◽  
Venice Commission

Legal certainty is considered in the paper not only as one of the general principles of law and one of the requirements of the Rule of Law, but also as a fundamental feature and condition of the significance of law and its instrumental value in general. In this regard, the definitions of the Rule of Law conception and the lists of its components proposed by Western philosophers and theorists of law and by the Venice Commission are analyzed. Elements of the principle of legal certainty such as legislation and case law accessibility, legal acts’ predictability, principles of case law unity, legitimate expectations, res judicata, the European concept of autonomous interpretation and the American doctrine of uncertainty of law are covered. By analyzing and synthesizing theoretical concepts of the principle of legal certainty, the practice of its interpretation and application by European and national courts, the connections between it and other general principles of law (in particular – principles of legality and reasonableness), this principle plays a key role in the Rule of Law implementation in the national legal system.

scholarly journals К вопросу о понятии и сущности правового государства

2021 ◽  
Vol 70 (6) ◽  
pp. 64-67
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров ◽  
Р.А. Иксанов
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
General Principles Of Law ◽  
International Legal System

The article examines the issues of the formation of the rule of law, the influence of general principles of law on this process, as well as the importance of constitutionalism on the development of the concept of the rule of law. It is noted that the model of the rule of law is embedded in the construction of the international legal system. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order.

scholarly journals Особенности формирования правового государства в России

2021 ◽  
Vol 70 (6) ◽  
pp. 67-70
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
General Principles Of Law

The article examines certain issues of the formation of the rule of law in Russia, problematic aspects of the formation of the rule of law, as well as the significance and characteristics of the development of the rule of law. It is noted that today, there is no clear guidance for establishing general principles of law and building a legal state. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order

scholarly journals Editorial

2017 ◽  
Vol 12 (2) ◽  
pp. 1
Author(s):  
Francois Venter
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Moral Values ◽  
Legal Order ◽  
Good Faith ◽  
Public Confidence ◽  
The Rule Of Law ◽  
The Public ◽  
Correctional Services ◽  
The Times

The oratio of Judge Deon van Zyl (currently Inspecting Judge: Inspectorate of Correctional Services) on the Judiciary as a Bastion of the Legal Order in Challenging Times appears in this issue at a time when the independence of the judiciary, the structures of the courts and various occurrences involving judges and the rule of law are topical in the public debate in South Africa.  The paper was delivered in October 2008 as the annual FW de Klerk Lecture and it closes with the words: ". . . it is what they say and do in good faith and with reference to the moral values of the community they serve, that stimulates public confidence in the judiciary as a bastion of the legal order, however challenging the times may be."

scholarly journals INTERNATIONAL LAW AND REVOLUTION IN THE 21ST CENTURY

2019 ◽  
Vol 4 (2) ◽  
Author(s):  
Emmanuel Obikwu
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
Legal Order ◽  
Strict Sense ◽  
The Rule Of Law ◽  
National Courts ◽  
Relevant Today ◽  
International Legal Order ◽  
Coups D'etat

This article argues on the continued significance of Kelsen’s theory of the grundnorm and revolution in international law. It urges that revolutions and coups d’etat will continue to occur in the international legal order. That criticisms of Kelsen’s thought on this issue notwithstanding, Kelsen’s arguments on successful revolutions and the shift in the grundnorm is still as relevant today as it was when first propounded. A case of study of Nigeria is used, however this is carried out against a backdrop of developments internationally. Military take-over of governments have occurred internationally and though not adhering to the rule of law and human rights  in the strict sense, national courts and the international legal order must continue to take account of them.  Nigeria under military from 1966 to 1999 underwent several coups. Based on this developments across the globe, the received wisdom of Kelsen is aptly defended in this article through an examination of case law and jurisprudence.  

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.

10. Article 7: Freedom from retroactive criminal offences and punishment

2018 ◽  
Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Criminal Law ◽  
Essential Element ◽  
European Convention ◽  
The Rule Of Law ◽  
General Principles Of Law ◽  
Principle Of Legality

This chapter discusses Article 7 of the European Convention on Human Rights, which incorporates the principle of legality, by which, in the context of criminal law, a person should only be convicted and punished on a basis of law. Article 7 prohibits the retroactive application of criminal offences and of sentences imposed for them. The guarantee in Article 7 is an essential element of the rule of law, and has as its object and purpose the provision of effective safeguards against arbitrary conviction and punishment. An exception is allowed for offences that were contrary to general principles of law recognized by civilized nations.

Enforcing EU Environmental Law against Member States: Air Pollution, National Courts and the Rule of Law

2015 ◽  
Vol 6 (2) ◽  
pp. 305-308
Author(s):  
Áine Ryall
Keyword(s):  
Air Pollution ◽  
Air Quality ◽  
Member State ◽  
Rule Of Law ◽  
Environmental Law ◽  
Member States ◽  
Limit Values ◽  
The Rule Of Law ◽  
National Courts ◽  
The Postponement

Case C-404/13, The Queen, on the application of Client Earth v Secretary of State for the Environment, Food and Rural Affairs EU:C:2014:2382, OJ C – 26 of 26.1.2015, p. 6.When a Member State finds that the limit values cannot be respected before the deadline fixed by the Air Quality Directive and wishes to postpone that deadline for a maximum of five years, that Member State is required to make an application for the postponement of the deadline by drawing up an air quality plan demonstrating how those limits will be met before the new deadline (official headnote).

scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

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