To the Search of Another Model of Difference Between Constitutional Principles and Rules

2021 ◽  
pp. 72-128
Author(s):  
Marcelo Neves
Keyword(s):  
Legal System ◽  
Functional Differentiation ◽  
Contemporary Society ◽  
Complex Theory ◽  
Constitutional Principle ◽  
Principle Theory

This chapter presents a model for distinguishing between constitutional principles and constitutional rules, emphasizing that it concerns a legal-doctrinal difference that emerged with modern constitutionalism. In this context, principles are defined as reflexive mechanisms in relation to rules, and the circular connection between them becomes the focus of analysis. It also discusses the performance of principles and rules in the process of constitutional concretization as well as pointing out the requirement of a constitutional principle theory adequate to the complexity of contemporary society, even in the context of transconstitutionalism. This chapter is divided into five sections: locating the problem and conceptual contours; constitutional principles as a result of the positivization of law: principles and rules as an internal difference of the legal system; the circular relationship between constitutional principles and rules; from optimization to competition: limits of ‘balancing’; and intra-principle collision, double contingency, and functional differentiation of society: towards a complex theory of principles.

Moral communication and legal uncertainty in small and medium enterprises

Kybernetes ◽  
2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Jan Winczorek
Keyword(s):  
Systems Theory ◽  
Legal System ◽  
Social Systems ◽  
Functional Differentiation ◽  
Theoretical Issue ◽  
Sociology Of Law ◽  
Content Type ◽  
Moral Communication ◽  
Study Results ◽  
Legal Uncertainty

PurposeThe links between moral communication and legal communication have long been studied in sociology of law. Little has yet been said about moral communication invoking when communication in the legal system is impossible, ineffective or uncertain. The paper fills this gap to demonstrate that systems theory-based sociology of law can effectively recognise the role of moral communication in such situations.Design/methodology/approachThe paper presents an empirical study of moral communication in small and medium-sized enterprises (SMEs). It focused on situations when SMEs' interactions with function systems, particularly the legal system, result in irremovable legal uncertainty. The data depict strategies of managing such uncertainty and were obtained in a paths-to-justice survey of 7,292 owners and managers of SMEs and 101 in-depth interviews. The findings are interpreted using the author's concept of “uncertainty translation”, rooted in Luhmann's systems theory. It suggests that business organisations such as SMEs deal with the ubiquitous uncertainty in their operations by translating it into a convenient type.FindingsThe study distinguishes between formative and absorbing moral communication and finds that both types play a role in steering the uncertainty translation mechanism in SMEs. Six scenarios of invoking moral communication are identified in SMEs dealing with legal uncertainty. In such scenarios, moral communication facilitates the translation of business uncertainty “away from law”. Under some circumstances, this, in turn, leads to latent systematic results, reflexively affecting the legal system, the economic system and the SMEs.Research limitations/implicationsIn its core argument, the study is based on qualitative material. While it identifies empirical scenarios of invoking moral communication, it does not report the prevalence of these scenarios due to methodological limitations.Originality/valueThe study results pose questions related to the staple theoretical issue in post-Luhmannian social systems theory: functional differentiation. If moral communication–a type of communication not linked to any social system–can produce far-reaching, systematic results that affect function systems, then the functional differentiation thesis should be less pronounced than Luhmann typically stressed. This said, the paper argues that the contradiction between the findings and Luhmannian theory of morality is only apparent and may be reconciled.

scholarly journals The global legal system and the procedural construction of constituent power

2016 ◽  
Vol 5 (3) ◽  
pp. 405-442
Author(s):  
CHRIS THORNHILL
Keyword(s):  
Classical Theory ◽  
Legal System ◽  
Contemporary Society ◽  
Constituent Power ◽  
Constitutional Order ◽  
Adequate Understanding

Abstract:This article proposes an alternative to more standard, neoclassical theories concerned with the proceduralisation of constituent power. It argues that more established theories of proceduralisation are insufficiently aligned to the sociological realities in which constituent power is located and expressed, and their residual fixation on the premises of classical constitutionalism impedes adequate understanding of constituent power in the global constitutional order of contemporary society. On this basis, the article offers a sociological examination of constituent power, which attempts to grasp constituent power in its objectively existing procedural form. In particular, it claims that constituent power now exists as an inner-legal function, activated through procedures within an increasingly differentiated legal system: whereas in classical theory constituent power was a primary political source of constitutional norms, it now appears only as a secondary expression of norms already contained within the global legal system. Rather than renouncing the idea of constituent power, however, the article uses its sociological focus to observe new procedural openings for the activation of constituent agency, adapted to the material/sociological fabric of contemporary society.

scholarly journals Principle of Laicity in Turkish and French Constitutions

2019 ◽  
Author(s):  
Ebru Karaman
Keyword(s):  
Legal System ◽  
Political Life ◽  
Religious Institutions ◽  
State Institutions ◽  
Constitutional Principle ◽  
Democratic State ◽  
Turkish Constitution ◽  
Religion And State ◽  
State Relations ◽  
The Relationship

To be assumed as a truly democratic state of law; the state should not make law according to a religion and not have a religion-based structure. Turkey and France are two countries different from others being in the discussions on secularism examining the relationship between religion and state. Because the laicity is one of the foundations of the regime and takes part in the legal system as a constitutional principle. In the first chapter the provisions on laicity in the Turkish Constitutions before the date 1982 and in the Turkish Constitution dated 1982 are going to be explained then the discussions in Turkey are going to be evaluated according to the Turkish Constitutional Court's approach to the principle of laicity. In the second part the provisions on the principle of laicity in the French Constitution dated 1958 are going to be explained, afterwards the discussions on laicity in France is going to take place. State and religion relations continue to be relevant a subject. That is why it still gives form to Turkish political life. The freedom of religion and the separation of religious and state relations are the requirements of the laic state. For a state these includes not to have an official religion, be impartial to all the religion and to treat equal to all the believers to different religions, to distinguish the religious institutions and state institutions and not to have an accordance between the rules of and the rules of religion.

scholarly journals CONSIDERAÇÕES SOBRE A INSTANTANEIDADE DOS SISTEMAS JURÍDICOS E SOBRE A ANTERIORIDADE TRIBUTÁRIA A PARTIR DO ITCMD PARANAENSE CONSIDERATIONS ON THE INSTANTANEITY OF THE LEGAL SYSTEMS AND ON THE TAX ANTERIORITY FROM THE ITCMD OF PARANÁ

2018 ◽  
Vol 23 (1) ◽  
pp. 107
Author(s):  
Maurício Dalri Timm do Valle ◽  
Rosaldo Trevisan ◽  
Rosaldo Trevisan
Keyword(s):  
Legal System ◽  
The State ◽  
Legal Systems ◽  
Constitutional Principle ◽  
Federal Constitution ◽  
Distrito Federal ◽  
The Creation

A Constituição Federal brasileira de 1988 autorizou os Estados e o Distrito Federal a instituírem impostos sobre transmissão causa mortis e doação, de quaisquer bens e direitos (ITCMD), tendo o Estado do Paraná levado a cabo a tarefa, inicialmente, por meio da Lei n. 8.927, ainda em 1988. Contudo, tal lei foi revogada em 2015, objetivando o presente estudo a avaliar as consequências da revogação, à luz da previsão constitucional relativa à anterioridade e da noção de sistema jurídico, e sua instantaneidade. A questão ganha relevância pelo fato de a revogação ter operado imediatamente, ao passo que criação de um novo ITCMD paranaense demandou respeito ao princípio da constitucional da anterioridade, garantidor da segurança jurídica, somente produzindo efeito a partir de 1º de janeiro de 2016. Brazilian Federal Constitution of 1988 authorized States and Federal Disctrict to institute taxes on causa mortis and donation of any goods and rights (ITCMD), and the State of Parana carried out the task, initially, through Law n. 8.927, still in 1988. However, this law was repealed in 2015, and the present study seeks to evaluate the consequences of revocation, in light of the constitutional prediction regarding anteriority, and the notion of legal system, and its instantaneousness. The issue becomes relevant because the revocation has operated immediately, whereas the creation of a new ITCMD of Parana demanded respect to the constitutional principle of anteriority, that assure predictability, only producing effect at January 1, 2016.

scholarly journals Properties of constitutional principles

2021 ◽  
Vol 5 (3) ◽  
pp. 126-136
Author(s):  
S. A. Mosin
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Basic Rule ◽  
Constitutional Principle ◽  
The Law ◽  
Theory Of Law ◽  
The Stability ◽  
The Trinity

The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

scholarly journals Multi-Level Governance as a Constitutional Principle in the Legal System of the European Union

2016 ◽  
Vol 16 (4) ◽  
pp. 705-741
Author(s):  
Carlo Panara
Keyword(s):  
Legal System ◽  
The European Union ◽  
Legal Studies ◽  
Constitutional Principle ◽  
Legal Perspective ◽  
Accurate Definition ◽  
Legal Principle ◽  
Multi Level ◽  
Regional Authorities ◽  
The Eu

This is a legal study of multi-level governance (MLG) in the EU. Earlier legal studies investigated the nature of MLG as a legal principle, suggesting that MLG is a “procedural principle” or a “principle of coordination” of the action of governmental and non-governmental actors at various levels within the EU. However, the legal bases of MLG still need to be persuasively identified in EU primary law and in the constitutional laws of the member states, the nature of MLG as a legal principle in the context of the EU requires more compelling evidence, the normative content of MLG needs a more accurate definition, and the practical legal consequences of MLG still need to be clearly determined, especially the application of MLG by Union and national judiciaries. This study looks at these aspects from a legal perspective. It argues that MLG envisages participatory solutions to constitutional problems linked to the position of local and regional authorities in the EU. MLG is normatively linked to the principles of local and regional autonomy and of subsidiarity. It operationalises these principles in the multi-level context of the EU by envisaging the participation of local and regional authorities in EU decision-making processes and in the implementation of EU law and policy. This study identifies four functions of MLG as a constitutional principle in the EU legal system: (1) the epistemological function concerning the nature of the EU, (2) the de iure condendo function, (3) the behaviour-shaping function, and (4) the interpretation-shaping function. MLG as a legal principle shall also guide the interpretation and application of the law by the courts, and particularly the Court of Justice of the EU, in relation to the enforcement of the principle of subsidiarity, the enforcement of participation rights of local and regional authorities, and the locus standi of local and regional authorities in direct challenges to EU acts in Union courts.

The function of moral norms in the legal system: The Krausists’s restoration of the fundamental concepts of law

Human Affairs ◽  
2011 ◽  
Vol 21 (1) ◽  
Author(s):  
Delia Manzanero ◽  
José Vázquez Romero
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Natural Law ◽  
Balance Of Power ◽  
Civil Servants ◽  
Moral Action ◽  
Contemporary Society ◽  
Moral Norms ◽  
Philosophy Of Law ◽  
Theory Of Law

AbstractThere are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society.

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