The Concerns of the Founders

2020 ◽  
pp. 21-42
Author(s):  
Howard Gillman ◽  
Erwin Chemerinsky
Keyword(s):  
North America ◽  
Religious Diversity ◽  
Bill Of Rights ◽  
Free Exercise ◽  
Religious Doctrine ◽  
The Law ◽  
The Government ◽  
British Colonies ◽  
Law Making

In the century after the founding of the British colonies in North America, the traditional governing model of establishment (of an official religion) plus conformity (to government-approved religious doctrine and practice) was replaced by a view that the government should be secular and tolerant of religious diversity. The Constitution and the Bill of Rights constructed a government that claimed no relationship to any particular religion, insisted on no test for religious office, vested in the law-making body no authority to legislate on matters of religion, and specifically prohibited the passage of any law respecting an establishment of religion or prohibiting the free exercise thereof. Even with these historic changes, the Constitution left unresolved some basic questions about the meaning of the Religion Clauses.

Where We Are, and How We Got Here

2001 ◽  
Author(s):  
William M. Lewis
Keyword(s):  
North America ◽  
Federal Government ◽  
Public Attitude ◽  
The Common ◽  
The Law ◽  
The Government ◽  
Definition Of ◽  
Free People ◽  
Wetland Regulation ◽  
Wetland Policy

English is a subtle language with many words that offer fine shades of meaning, but it also can be blunt and unequivocal. Dictionaries were not made for words such as hairdo, ballpark, or pigpen. The law, however, as practiced by Americans, can mutate the meaning of even the humblest word. If the law concerns itself with pigpens, then we must know whether a pigpen still exists when the pigs are removed and, if so, for how long. We must know if a pen originally built for cattle can become a pigpen if occupied by pigs and if pigpens are the same in all parts of the nation. In short, we must have federal guidance, regional interpretations, legal specialists, and technical authorities on pigpens. So it is with wetlands. The chapters of this book will show how troublesome the definition of wetlands has become since the federal government began regulating them. In the meantime, it will suffice to define wetlands informally as those portions of a landscape that are not permanently inundated under deep water, but are still too wet most years to be used for the cultivation of upland crops such as corn or soybeans. Wetlands, in other words, coincide pretty well with the common conception of swamps, marshes, and bogs. Government has had its hand in wetlands for about 150 years. Between the 1850s and 1970s, the federal government was intent on eliminating wetlands. Since then, it has been equally intent on preserving them. An individual who behaved in this manner would seem at least irresponsible. Many critics of federal wetland policy have in fact given the government a sound thrashing for its inconsistency, but the shift from elimination to protection of wetlands has continued nevertheless. Blaming government is the duty of a free people, and also good sport. Even so, the obvious truth about wetland regulation is that government has merely reflected a change in public attitude toward wetlands. Most Americans now believe that wetlands should be saved throughout the nation, except possibly on their own property. Americans did not always feel this way. Most European colonists of North America came from homelands that were essentially tame.

scholarly journals An assessment of the constitutionality of the COVID-19 regulations against the requirement to facilitate public participation in the law-making and/or administrative processes in South Africa

2021 ◽  
Vol 25 ◽  
pp. 1-36
Author(s):  
Ntokozo Sobikwa ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Public Participation ◽  
Legal Framework ◽  
Constitutional Democracy ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Law Making

The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.

scholarly journals PERGESERAN NILAI PILAR DEMOKRASI DALAM KERANGKA OTONOMI DAERAH

Yustitia ◽  
2020 ◽  
Vol 6 (1) ◽  
pp. 45-55
Author(s):  
Saeful Kholik
Keyword(s):  
Political Life ◽  
Executive Power ◽  
Regional Government ◽  
Main Function ◽  
Role Of Government ◽  
Regional Autonomy ◽  
Government Organizations ◽  
The Law ◽  
The Government ◽  
Law Making

In a government organization, the expertise of the law making is most accumulated. It enables the law making process to be easily done by law the enforcers. This fact causes the role of government to be central. It also lead to an access of government organizations to become very powerful over the functions of organizations that exist within and outside the government. Therefore, to avoid concentration of power in the hands of government organizations, the idea arises to hold a separation and division of powers. The emergence of a constitutional idea of ​​a rule of law basically changes the power of the government. It makes their existence is not too dominant to see the Indonesian government system recognizing regional government and regional autonomy which are basically capable of impacting in the system of pillars of the democratic legal order. The shift of legislative and executive power within the framework of regional autonomy has indeed occurred with the dynamics of a structurally structured and infrastructural political life. It has an authority over each of the institution's committees. It acts an important function and even considered as the main function of the parliamentary institution. Important function is the legislative institution that is the institution legislators or institutions that determine the making of the law.

scholarly journals MEMBANGUN BUDAYA HUKUM PANCASILA SEBAGAI BAGIAN DARI SISTEM HUKUM NASIONAL INDONESIA DI ABAD 21

2015 ◽  
Vol 1 (2) ◽  
Author(s):  
Sunaryati Hartono
Keyword(s):  
Law Enforcement ◽  
Daily Life ◽  
Legal Culture ◽  
The State ◽  
Proper Place ◽  
The Law ◽  
The Government ◽  
Law Making

This article discusses the weaknesses of Indonesian (internal) legal culture. The author argues that this weakness points to the attitudes, behavior, and beliefs about the proper place of law in daily life as entertained by individuals working in the government, law making institutions as well as those working in the law enforcement sector. Moreover, this internal weakness in Indonesian legal culture, poses a threat to the unity of Indonesia as a nation. One solution offered is to return to and revive the State ideology and philosophy, Pancasila, as the basis to develop a more viable and healthy Indonesian legal culture.

7. Rule of law

2019 ◽  
pp. 143-163
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
The Rule Of Law ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Key Terms ◽  
Core Meaning ◽  
External Measure ◽  
Law Making

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

8. Parliament

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
House Of Commons ◽  
House Of Lords ◽  
The Law ◽  
The Government ◽  
Law Making

This chapter discusses the functions, structure, and procedures of Parliament. Parliament's main functions are to be the forum for debate on the main issues of the day; to represent citizens; to enact legislation; and to hold the government to account. Parliament has three elements: the House of Commons, the House of Lords, and the monarch. The chapter focuses on the two Houses, often referred to as ‘chambers’. The main output of Parliament is legislation. There are two forms of legislation. Primary legislation, referred to as Acts of Parliament, which are the exercise of Parliament's legal supremacy to change the law, either by making new law or amending or abolishing existing law. Parliament also has the power to delegate its law-making power to others, usually to the government, allowing them to make delegated legislation according to the terms set out by Parliament.

8. Parliament

Public Law ◽  
2020 ◽  
pp. 305-355
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
House Of Commons ◽  
House Of Lords ◽  
The Law ◽  
The Government ◽  
Law Making

This chapter discusses the functions, structure, and procedures of Parliament. Parliament’s main functions are to be the forum for debate on the main issues of the day; to represent citizens; to enact legislation; and to hold the government to account. Parliament has three elements: the House of Commons, the House of Lords, and the monarch. The chapter focuses on the two Houses, often referred to as ‘chambers’. The main output of Parliament is legislation. There are two forms of legislation. Primary legislation, referred to as Acts of Parliament, which are the exercise of Parliament’s legal supremacy to change the law, either by making new law or amending or abolishing existing law. Parliament also has the power to delegate its law-making power to others, usually to the government, allowing them to make delegated legislation according to the terms set out by Parliament.

scholarly journals Questioning Open Governance Principle within the Law-Making Process of Omnibus Law

2021 ◽  
Vol 11 (2) ◽  
pp. 143-154
Author(s):  
smail Khozen ◽  
Keyword(s):  
Open Data ◽  
Qualitative Approach ◽  
Alternative Route ◽  
Alternative Option ◽  
Open Process ◽  
Daily Process ◽  
New Business ◽  
The Law ◽  
The Government ◽  
Law Making

The convoluted issuance of permits for opening a new business or the daily process of running a business due to overlapping regulations is one of the reason for the government to take an alternative route in the form of the Omnibus Law, which can replace several rules at once. However, suppose that the alternative option through the omnibus law can work as expected, but it does not mean that every process will be appropriate with the applicable regulations. Using a qualitative approach, this study aims to analyze the fulfilment of open governance principles in omnibus law's promulgation process. Our analysis shows that Indonesia's omnibus law-making process in 2020 still ignores the principle of openness mandated under Law Number 12/2011. The government's neglectful attitude, especially concerning open data and open process, indicates that the government has not paid enough attention to the open governance principle.

scholarly journals THE LAW AND LAW-MAKING IN FRANCE

2015 ◽  
Vol 1 (4) ◽  
pp. 0-0
Author(s):  
Жерар Марку ◽  
Zherar Marku
Keyword(s):  
European Union ◽  
Practical Importance ◽  
Soft Law ◽  
Independent State ◽  
Legal Standards ◽  
General Importance ◽  
The Law ◽  
The Government ◽  
The Impact ◽  
Law Making

The article deals with the relation of the law and departmental law-making in France according on three types: the unity, “spreading”, the openness of the law-making process. The first view of the law-making in France is the unity in the framework of which the question of ensuring the unity of the European Union is developed. Particular attention is paid to the government’s management of the legislative process, the government authority to issue by-laws, the procedure of drafting legislation and decrees of general importance. The second type of realization of law-making in France — outside the Government activity law-making — “spreading”. The impact on the performance of law-making is revealed, new sources of law-making such as acts of European Union are marked, independent state bodies, local self-government. Particular attention is paid to such new phenomena as the legal normativity soft law (“soft law”, “droit souple”). Regarding the third kind of the law-making — the openness — it is noted that the process of law-making is not limited to the relationship between the Government and the Parliament, and all sectors of society and interest groups are involved in that process. It is noted that the amendment to the Constitution, adopted in 2008, resulted in a significant reform of the legislative production. When writing this article except for general scientific research methods (analysis and synthesis), the author has used the formal-logical, theoretical, systematic legal, historical and comparative law. Scientific novelty of the work lies in the comprehensive and systematic approach to the study of the relation of the law and guided-governmental lawmaking in France, which is conducted in three species. Analysis of the development of the main types of law-making in France and law inforcement practice at the present stage is of great scientific and practical importance. The research results can be taken into account in the development of proposals for the implementation in the Russian Federation of new approaches in law-making, adequate to modern socio — economic development of the country, relevant to the international-legal standards and the experience of foreign countries.

8. Rule of law

2021 ◽  
pp. 166-187
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
The Rule Of Law ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Key Terms ◽  
Core Meaning ◽  
External Measure ◽  
Law Making

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.

Sign in / Sign up

Export Citation Format

Share Document