The Rule of Law in the Age of Statutes

2020 ◽  
Vol 48 (2) ◽  
pp. 159-185
Author(s):  
Lisa B Crawford
Keyword(s):  
Empirical Analysis ◽  
Rule Of Law ◽  
Administrative Law ◽  
Federal Legislation ◽  
Administrative State ◽  
The Rule Of Law ◽  
Legitimate Expectations ◽  
The Law ◽  
Law And Legislation ◽  
The Way

This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

scholarly journals Transformasi Madzhab Qouli Menuju Madzhab Manhaji Jama`iy dalam Bahtsul Masa`il

2018 ◽  
Vol 4 (1) ◽  
pp. 19-29
Author(s):  
Imam Syafi`i
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Decision ◽  
The Rule Of Law ◽  
Existing Problems ◽  
Legal Instrument ◽  
Way Of Thinking ◽  
The Law ◽  
The Way

Among the forums to solve the problem are collectively known as 'bahtsul masa'il'. the legal decision is collective, derived from the consensus of the participants. His method of searching references (maraji ') to find answers regarding the existing problems, known as Madzhab Qauli, madzhab which is understood as the opinion or fatwa of a Mujtahid or Mufti in deciding fiqhiyyah law. However, not infrequently stagnation (maukuf) in the termination of the law. Because there are no references or books that explain the problem. As a result, if enforced (laws with existing references) result in unfair decisions and other issues for the community.From this manifestation of schools began to be considered important to be developed. That is a way to answer the problems faced by following the way of thinking and the rule of law which has been drawn up by the madzhab priest as described above. This last method is actually an attempt to decide the law by directly returning al-Qur'an, al-Hadits and so on by using tools qawa'id ushuliyyah and qawa'id fiqhiyyah. Everyone can not run this method individually. because the legal instrument of the legal system must be completely mastered. Therefore this Manhaji Method can be developed by means of ijtihad Jama'i that is the hard effort of some experts in their respective fields maximally in exploring the law of syar'i which is dhanni by using the method of istimbat. The decision is based on the agreement of the ulama or by acclamation, which is to take the most votes from the results of the deliberations. Keyword: Madzhab Qouli, Madhab Manhaji, Bahtsul Masa`il

TOLERANCE OF INCOHERENCE IN LAW, GRADED SPEECH ACTS AND ILLOCUTIONARY PLURALISM

Legal Theory ◽  
2020 ◽  
Vol 26 (3) ◽  
pp. 214-249
Author(s):  
Oren Perez
Keyword(s):  
Present Article ◽  
Rule Of Law ◽  
Speech Acts ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Lexical Semantic ◽  
Inferential Model ◽  
Conflicting Demands ◽  
The Law ◽  
The Way

AbstractOne of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.

3. The rule of law

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Ancient Greece ◽  
The Rule Of Law ◽  
The Law ◽  
The Uk ◽  
The Way

This chapter starts by defining the rule of law, explaining its importance and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution — (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern day authorities.

14. Procedural Grounds of Judicial Review

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Procedural Fairness ◽  
Case Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Partial Picture ◽  
The Law ◽  
Modern Era ◽  
Do So

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.

HYPERLEXIS AND THE RULE OF LAW

Legal Theory ◽  
2021 ◽  
pp. 1-23
Author(s):  
Vincent Chiao
Keyword(s):  
Rule Of Law ◽  
Alternative Conception ◽  
Administrative State ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Space Of Reasons ◽  
The Law

Abstract On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.

scholarly journals História do Direito Administrativo no Brasil (1937-1964): o debate em torno das delegações legislativas

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Mauricio Costa Mesurini
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Santa Catarina ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Legislative Delegation ◽  
History Of ◽  
The Law ◽  
The Government

História do Direito Administrativo no Brasil (1937-1964): o debate em torno das delegações legislativasThe history of the Administrative Law in Brazil (1937-1964): the debate about legislative delegation Mauricio Costa Mesurini[1] RESUMO: Trata-se de um trabalho sobre história do Direito Administrativo no Brasil, notadamente no período de 1937 a 1964. O objetivo é mostrar alguns aspectos da trajetória do campo, em especial as transformações favorecidas pela tendência modernizadora, entre elas, o debate em torno das delegações legislativas, um tema que se desenvolveu na doutrina a partir e à margem das disposições constitucionais da época. É inegável a importância da lei para o direito público moderno. Mas o que é a lei? Quem tem o poder de confeccioná-la? “O governo das leis” em substituição ao “governo dos homens”, em verdade uma tautologia, encobre o problema sobre a fonte de onde emanam as leis. Assim sendo, mesmo em um Estado de Direito, a disputa político-jurídica permanece latente e continua em jogo a definição de quem são os “senhores” da legislação. O artigo investiga o debate jurídico em torno das delegações legislativas abordando quatro juristas da época: Francisco Campos, Victor Nunes Leal, Bilac Pinto e Themistocles Cavalcanti. PALAVRAS-CHAVE: Direito Administrativo. Direito Constitucional. Delegações legislativas. Separação de poderes. ABSTRACT: This paper is a study on the history of administrative law in Brazil, notably in the period 1937-1964. The purpose is to present some aspects of the development of this field of study, especially the changes favored by the modernization process through which Brazil has passed, such as the debate about legislative delegation, a theme that was developed in the legal doctrine from and beyond the constitutional arrangement of the period. It is undeniable the importance of the legislation to modern public law. But what is legislation? Who has the power to make it? The “rule of law” replacing the “government of men”, in fact a tautology, conceals the problem of the source from where the law emanates. Therefore, even in the bases of the rule of law, the legal-political dispute remains latent, and the definition about who establishes the law remains open. More specifically, the paper analyzes the debate about legislative delegation in Brazil by four legal experts of the period: Francisco Campos, Victor Nunes Leal, Bilac Pinto and Themistocles Cavalcanti. KEYWORDS: Administrative law. Constitutional law. Legislative delegation. Separation of powers.[1] Doutor em História do Direito pela Universidade Federal de Santa Catarina – UFSC, 2016. Mestre em 2008 e graduado em 2005 pela Direito Público Universidade Federal de Santa Catarina – UFSC. Professor de Direito Administrativo da Faculdade Cenecista de Joinville

14. Procedural Grounds of Judicial Review

2021 ◽  
pp. 374-404
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Procedural Fairness ◽  
Case Law ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Partial Picture ◽  
The Law ◽  
Modern Era ◽  
Do So

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses primarily on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.

3. The rule of law

Public Law ◽  
2020 ◽  
pp. 72-114
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Ancient Greece ◽  
The Rule Of Law ◽  
The Law ◽  
The Uk ◽  
The Way

This chapter starts by defining the rule of law, explaining its importance, and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution—(1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern-day authorities.

scholarly journals Authentic interpretation of legal norms: theoretical aspec

2021 ◽  
pp. 215-220
Author(s):  
M. V. Osiadla
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Rule Of Law ◽  
Legal Norm ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Internal Conflicts ◽  
Legitimate Expectations ◽  
The Law

The article examines the problem of interpretive activity in the law enforcement process, which is due to the need to clarify the content of the legal norm. The issue of interpretation in the process of application of legal norms is considered, as the modern Ukrainian legislation is not regulated and contains internal conflicts. The article describes the types of official normative interpretation, in particular, as authentic, legal, departmental. The use of interpretation in the law enforcement process as an opportunity to understand the essence of legislative terms,ensuring equal application by all subjects of public relations, which involves compliance with the principle of legitimate expectations and the rule of law. Keywords: interpretation, application, authentic interpretation, casual interpretation.

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