scholarly journals The Rule of Law, Religious Authority, and Oaths of Office

2018 ◽  
Vol 6 (2-3) ◽  
pp. 195-212 ◽  
Author(s):  
Nicholas Aroney
Keyword(s):  
Rule Of Law ◽  
Moral Obligation ◽  
Democratic Politics ◽  
Moral Principle ◽  
The Political ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
Political Office ◽  
The Law ◽  
The Relationship

The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious conviction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics.

Political Dissent, Human Rights, and Legal Transformations: Communist and Post-Communist Experiences

2005 ◽  
Vol 19 (4) ◽  
pp. 553-572 ◽  
Author(s):  
Jiří Přibáň
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Democratic Politics ◽  
The Political ◽  
Political Dissent ◽  
The Rule Of Law ◽  
Liberal Democratic ◽  
Communist System ◽  
Protection Of Human Rights ◽  
Communist Countries

The article focuses on the legacy of political dissent in communist countries and its impact on post-communist political and legal transformations. The first part describes the nature of communist politics and the legal system founded on the principle of ‘socialist legality.’ In the following part, the dissident argumentative blend of legalism and natural rights will be analysed as both a critique of the communist system and a structural precondition of post-communist constitutional and legal transformations. The final part will focus on how the political dissent in communist countries symbolised virtues of civil society and liberal democratic politics based on the rule of law and influenced the emerging constitutional systems based on the protection of human rights.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

Part III The Relationship Between the Judiciary and the Political Branches, 7 Super-presidentialism in Angola and the Angolan Judiciary

2016 ◽  
Author(s):  
Thomashausen André
Keyword(s):  
Rule Of Law ◽  
The Political ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional State ◽  
History Of ◽  
The Relationship ◽  
Parliamentary Oversight ◽  
Supply Information

This chapter recounts the history of constitutional developments in Angola leading up to the 2010 constitution. It introduces the new Angolan Constitutional Court and discusses the first and thus far only substantive decision of this Court—the Parliamentary Oversight Judgment of 9 October 2013—a serious constitutional conflict between parliament and the president. The Court held that the 2010 constitution had reduced the powers of parliament as compared to the previous text and that parliament lacked the power to question the executive or to summon ministers to hearings before it. Since these are presidential powers, the Court held, parliament may not arrogate them, though it may request the president to supply information or order his ministers before it. Although the conservative leaning of the Court in this dispute disappointed the opposition and many commentators, the judgment strengthened the rule of law and of the constitutional state.

The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre

2014 ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
Constitutional Theory ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Liberal Tradition ◽  
Oral Argument ◽  
The Law

This chapter focuses on Schmitt’s critique of the rule of law in his Constitutional Theory. Schmitt argues that liberalism, which once tied the rule of law to the protection of individual liberty, has deteriorated into an account in which any valid law is considered legitimate just because it is valid. This critique is driven by Schmitt’s conception of politics, and, as his oral argument in a crucial constitutional case of 1932 illustrates, his position affirms that law cannot be more than a mere instrument of political power and that it can stabilize politics only if the political power is exercised to bring about a substantive homogeneity in the population subject to the law. In conclusion, it is suggested that Schmitt points to genuine weaknesses in the liberal tradition that require an elaboration of a secular conception of authority in which principles of legality play a central role.

scholarly journals Legitimacy of democracy in the works by Max Weber and Сarl Schmitt

Pravovedenie ◽  
2018 ◽  
Vol 62 (3) ◽  
pp. 501-517
Author(s):  
Viktor P. Kirilenko ◽  
◽  
Georgij V. Alekseev ◽  
Keyword(s):  
Rule Of Law ◽  
Max Weber ◽  
Legal Culture ◽  
Carl Schmitt ◽  
Political Regime ◽  
The Political ◽  
Modern Democracy ◽  
The Rule Of Law ◽  
Political Events ◽  
The Relationship

Identification of political regime’s legality and legitimacy by the German lawyer Carl Schmitt seems to be an attempt to solve the problem of unjust laws which is close to the idea of legitimate domination stated by Max Weber. Popularity of the legitimacy paradigm within the framework of political and legal discourse on its way towards the provision of rational government is often associated with an underestimation of democratic charisma’s role in legitimation when it is compared to the legal bureaucratic justification of government. Noting the fact that rationality is the most important and at the same time the least reasoned part of Max Weber’s social theory, we need to assess the potential of the bureaucracy in securing the ideals of the rule of law with an extreme caution. If Carl Schmitt’s position on the relationship between legality and legitimacy changed along with the development of political events of the 20th century, the ideas of Max Weber were modified during the translations of his works from German and gave to legitimacy deep textbook value. Decrease in chances of unjust law’s application requires certain legal culture that allows not only to question any formal prescription of the law and to test it for legitimacy, but also gives an opportunity to assess the legality of any democratic decision before it is implemented. Understanding the legitimacy of democracy depends largely on the ideology that dominates society, and the legal culture of the person that assesses the political regime. It is obvious in the context of political mistakes made during the first half of the twentieth century that the danger of underestimating the threats to the rule of law, originating both from illegitimate authorities and from unlawful political decisions. Historical experience underscores the need for a broad understanding of the rule of law state (Rechtsstaat) in a modern democracy, which simultaneously protects the formal legality and legitimacy of the political regime.

scholarly journals RULE OF LAW AND LEGALITY AS PRINCIPLES OF NATIONAL POLICE ACTIVITY

2021 ◽  
pp. 45-53
Author(s):  
А. Т. Комзюк ◽  
Salmanova O. Yu.
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Police Officers ◽  
Legal Regulation ◽  
General Idea ◽  
The Rule Of Law ◽  
The Law ◽  
Definition Of ◽  
National Police ◽  
The Relationship

The article defines the relationship between the principles of the rule of law and legality and their importance in the activities of the National Police of Ukraine. Indicated, that the principle of the rule of law is enshrined in the Constitution of Ukraine, and in relation to the National Police – also in the Law on it. Attention is drawn to the fact that the definition of the rule of law in the Constitution and the Law of Ukraine «On the National Police» is interpreted differently. Therefore, in a generalized form, the principle of the rule of law is proposed to be interpreted as the idea of the rule of law, which is embodied in the creation of appropriate laws, their proper implementation, prohibition of arbitrariness, human rights, non-discrimination and equality before the law. It was emphasized that it was expedient to define this principle as a general idea in the Law “On the National Police”, as its other components cannot always be fulfilled in the activity of the police. In particular, the authorities and police officers cannot question the compliance of the law with the ideas of social justice, freedom, equality, etc. Nor can they, in the performance of their tasks and functions, be guided by norms of morality, traditions, customs, etc., and not by formally defined norms of law (ie laws). It is in the light of such reservations that it is proposed to define this principle. The police must implement it through certain requirements – legality, prohibition of arbitrariness, respect for human rights, non-discrimination and equality before the law. Therefore, legality is of paramount importance in the activity of the police – the police act exclusively on the basis, within the powers and in the manner determined by the Constitution and laws of Ukraine. In this regard, the proposals to improve the legal regulation of the rule of law and legality as principles of the National Police of Ukraine are substantiated.

The Spirit of Israel Law

1974 ◽  
Vol 9 (4) ◽  
pp. 456-462
Author(s):  
Haim H. Cohn
Keyword(s):  
Rule Of Law ◽  
General Trend ◽  
A Priori ◽  
The Self ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Traditions ◽  
Political Motivation ◽  
The Creation ◽  
The Law

It may appear unduly pretentious to speak of the Spirit of the Law of a State which just completed but 25 years of independent legislative and judicial life. States with legislative and judicial records of hundreds of years may find it difficult, and perhaps also rather unprofitable, to delve into speculations of the Spirit behind their laws. In most cases, the general trend and the political motivation of the creation and the administration of law are anyhow known beforehand and well defined a priori—be it the realization of democracy by the rule of law, be it the implementation of socialism or communism, or the self-assertion of a fascist or communist dictatorship. Add to such trends and motivations the national legal traditions which a State inherited and consciously or unconsciously continues to maintain—and you will obtain, for what it may be worth or useful, a fair overall picture of the “Spirit”.of its laws.

Judicial Deference in Foreign Relations

1989 ◽  
Vol 83 (4) ◽  
pp. 805-813 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Rule Of Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Policy Implications ◽  
The Political ◽  
The Rule Of Law ◽  
The Law

Disputes with foreign policy implications have often been brought to the federal courts. These cases call attention to the tension between the authority of the political branches to conduct the foreign relations of the United States and the authority of the courts to render judgments according to the law. How this tension is resolved, in turn, bears directly on the commitment of the United States to the rule of law.

Playing Fair

2018 ◽  
Author(s):  
Richard Dagger
Keyword(s):  
Rule Of Law ◽  
Political Order ◽  
Political Obligation ◽  
The Political ◽  
Fair Play ◽  
Fair Share ◽  
The Rule Of Law ◽  
General Obligation ◽  
Cooperative Enterprise ◽  
The Law

Is there a general obligation to obey the laws of a reasonably just polity? Is there any justification for imposing suffering, in the form of punishment, on those who break the law? Political and legal philosophers have long debated these vexing questions, but the debates typically have taken up each question in isolation. Playing Fair, however, treats the two questions as intertwined and provides affirmative answers to both—answers grounded, in both cases, in the principle of fair play. According to this principle, those who are engaged in a mutually beneficial cooperative practice or enterprise have a duty to the cooperating participants to bear a fair share of the burdens of the practice. Applied to the political order, the principle holds that a reasonably just polity is a cooperative enterprise whose members receive benefits from the rule of law only because other members obey the law even when they find obedience burdensome. The members of a reasonably just polity thus have a political obligation, understood as a defeasible moral duty to obey the law, to one another. Those who break the laws fail to fulfill this obligation, and their failure justifies the law-abiding members, acting through the proper authorities, in punishing the lawbreakers. Rather than two separate problems, then, political obligation and punishment are two aspects of the same fundamental concern for sustaining a polity that its members can reasonably regard as a cooperative enterprise under the rule of law.

The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundations

2017 ◽  
Vol 30 (2) ◽  
pp. 443-465 ◽  
Author(s):  
W. Bradley Wendel
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Political Community ◽  
The Political ◽  
Legal Ethics ◽  
The Rule Of Law ◽  
Positive Law ◽  
The Law ◽  
Anglo American

The “positivist turn” in legal ethics has found many scholars in the Anglo-American common-law world relating the duties of lawyers to the rights and duties assigned by the law to their clients. On this view, the role of lawyers should be understood as contributing to the law’s function of resolving conflict and establishing a framework for cooperation in a pluralist society. Critics of positivist legal ethics have suggested that it is impossible for lawyers to avoid resorting to moral considerations when representing clients. These critics claim that the guidance provided by law runs out at critical moments, leaving a lawyer no choice but to fall back on the moral considerations supposedly pre-empted by positive law. In particular they argue that the law cannot determine its own application, and normative questions remain regarding the interpretive attitude lawyers ought to take when representing clients. This paper responds to critics of positivist legal ethics by returning to foundations, specifically the values underpinning the rule of law as a practice of giving reasons based on norms established in the name of the political community.

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