scholarly journals INTERPRETATION OF OPEN LEGAL POLICY BY THE CONSTITUTIONAL JUDGES IN JUDICIAL REVIEW OF PARLIAMENTARY THRESHOLDS

2021 ◽  
Vol 6 (2) ◽  
pp. 231-246
Author(s):  
Sholahuddin Al-Fatih

This study attempted to discuss the interpretation of open legal policy by constitutional judges in terms of reviewing legislation related to the legal norms of parliamentary thresholds. Through conceptual and statutory approaches, this study tries to examine the ways or models of interpretation conducted by constitutional judges. This research uses Aharon Barak's thinking on the concept of legal interpretation a benchmark and an analytical tool. The results of this study show that the interpretation conducted by the constitutional judge relating to a norm that is considered an open legal policy is appropriate. This research is expected to help academics and legal practitioners, especially with regard to election law to be able to dig deeper into models of legal interpretation, not only based on the idea of Aharon Barak but also by other thinkers or experts.

2021 ◽  
pp. 323-328
Author(s):  
V. M. Ternavska

The interpretation of law plays a special role in the process of legal communication. Subjects of law, entering into legal relations of a certain type, interpret the content of legal norms already at the subconscious level with the aim of better satisfying their subjective rights, realization of legitimate interests and the proper implementation of legal obligations. The rule of law has general and abstract character that permit to cover a large number of specific situations, but which always differ in their individuality, their personalized nature. Taking into account this, as well as the existing shortcomings of the rule-making process, such as the presence of the vast majority of blanket and reference norms in constitutional law and non-compliance with the rules of legal technique, resulting in difficulty of expression or lack of normative definition of special legal terms, there is a need for interpretation of legal acts. The article is devoted to determining the nature of the interpretation of law and its role in the implementation of the constitutional and legal policy of the state. Various methodological aspects of the concept of legal interpretation and techniques of interpretation of law, as well as the criteria of truth and correctness of interpretation of law in the process of learning the content of legal norms are studied. The ratio of the categories «legal interpretive policy» and «legal interpretive form of legal policy implementation» is analyzed. It is concluded that the state-authorized subjects of legal interpretation, based on legal doctrine, form a legal interpretive policy aimed at developing a strategy and tactics for unification of legal ideas on adequate and uniform understanding and application of norms of the Constitution of Ukraine and other legal acts by all subjects of constitutional law. The means of achieving the goals of legal interpretive policy and fulfilling its tasks are legal doctrine, legal interpretation technique, interpretive practice, information resources and legal interpretative acts. Legal interpretive policy gives grounds to single out legal interpretation as an independent form of implementation of constitutional and legal policy along with law enforcement form, which is important for proper protection of human rights and freedoms, development of civil society and principles of sovereignability of the Ukrainian state on the basis of their equal understanding and application. Keywords: interpretation of law, legal interpretative acts, legal interpretive technique, constitutional and legal policy, legal interpretive policy.


2019 ◽  
Vol 12 (5) ◽  
pp. 48
Author(s):  
Maxim Valerevich Voronin ◽  
Igor Vladimirovich Przhilenskiy

The article considers the problem of implementing of legal policy as a social technology. The authors compare the concepts of social and legal technology as a set of elements in achieving the goal, and also consider systematicity as the main property of these technologies. The systematic approach is presented both at the decision-making level and at the stages of its legislative execution and practical application in the process of implementing of legal norms. The implementation of legal policy led to the dynamics of legislative changes in recent years. Various state institutions have been reformed and actually reorganized to work on the basis of new principles. Moreover, the reforms of recent years are determined not only and not so much by objective ideological transformations associated with the transition to democracy, the implementation of international law, but also by a change in the technological paradigm of management and implementation of political processes. The actions of the executive and legislative branches, as well as the entire process of legal proceedings in courts of various levels, are considered in the article as unique social technologies, all of which are systemic in nature. The authors conclude that the consistency of power, social and legal technologies serves as a vehicle for political legal strategy, and also allows you to express the functionality of the main legal institutions.


2020 ◽  
Vol 2 (1) ◽  
pp. 63-78
Author(s):  
Haqqiyah Uthlufah

The problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law. What cannot be separated from Islamic law is Islamic family law because it is related to the faith of a Muslim. Islamic family law can only apply to Muslims and cannot apply to non-Muslims. The problem of the principle of submission to the divorce law was incomplete (incomplete norm) or the existence of a legal vacuum (vacuum of norm) in marriage law in Indonesia. This research is a legal research and is normative in nature. The approach used is statutory, case, and conceptual. The legal materials used are primary, secondary and tertiary. The method of collecting legal materials is first to qualify the facts and then to qualify the law. The analytical tool used is legal interpretation in the form of principal, systematic and grammatical interpretation.


2018 ◽  
Vol 60 (1) ◽  
pp. 515-538
Author(s):  
Severin Meier

Social Darwinism as a utopian project had a decisive influence on the interpretation of the ius ad bellum before World War I. This contribution tries, among others, to draw parallels to the way today’s utopian visions of democracy and the rule of law affect international law. Approaches to legal interpretation influenced by critical legal theory are used to explain how such extra-legal considerations can play a role in the interpretation of international legal norms. Such approaches maintain that international law cannot be objective, i.e. simultaneously based on State consent and on extra-consensual standards. The article further asks how international law should be understood if it cannot be objective. In other words, it discusses the practical consequences if international law has to rely on extra-legal considerations, such as the belief in Social Darwinism or the desire to spread democracy, in order to reach solutions to legal problems. It is argued that upholding the belief in international law’s objectivity is preferable to its alternatives.


2021 ◽  
Vol 3 (2) ◽  
pp. 103-117
Author(s):  
Sholahuddin Al-Fatih

The article aims at discussing the application of parliamentary threshold legal norms in an integrative legal perspective. Through historical, conceptual and statutory approaches, this study tries to examine holistically and prescriptively the dynamics of applying parliamentary thresholds in legislative elections. This article makes the thinking of leaders on integrative law a benchmark and an analytical knife. The results of this study demostrates that the application of parliamentary thresholds in elections based on an integrative legal perspective is not appropriate because it has not been able to guarantee the fulfillment of a sense of justice for all Indonesians because integrative law views a legal event as a comprehensive state of pros and cons. This research is expected to help academics and legal practitioners, especially with regard to election law to be able to dig out deeper into integrative law, not only from one or two experts, but from several other experts.


Legal Concept ◽  
2021 ◽  
pp. 73-78
Author(s):  
Evgeny Terekhov ◽  

Introduction: a legal interpretation activity is an independent type of legal activity. Despite this, its system today is rather poorly studied, which leads to the contradictions in the formation of interpretative practice. One of the elements of the system of legal interpretation activity is interpretative norms, which in legal science have not been distinguished as an independent legal category and have not been comprehensively studied. Purpose: to establish the truth in the issue of distinguishing interpretative norms as an independent legal category. Methods: the methodological framework for the study is a set of methods of scientific knowledge, including consistency, analysis, comparative legal, formal legal. Results: the author’s position grounded in the work is based on the study of the term “interpretative norms”, as well as their comparative analysis with the norms of law to identify the common and individual features. Conclusions: as a result of the conducted research, it is established that interpretative norms should be considered in the legal science as an independent legal category. This is confirmed by the possibility of distinguishing one’s own concept, as well as the presence of an individual legal nature. The current system of Russian law is an interdependent tandem of legal norms and interpretative norms, which interact with each other, allowing the most optimal way to achieve the goals of the legal regulation.


2021 ◽  
Vol 21 (4) ◽  
pp. 507
Author(s):  
Syprianus Aristeus

The best way in an effort to manage investment is by transplanting, adopting laws, harmonization by making breakthroughs to existing regulations, such as in the case of implementing the Job Creation Law. The Omnibus Law offered by the government as a “practical and pragmatic” solution is a political and legal policy to cut various regulatory barriers, to simplify bureaucracy, to accelerate services, to increase efficiency, to increase competitiveness, and to prevent opportunities for corrupt behavior. The government must evaluate this law (Job Creation) where there is still overlap without regard to regulations. The statement of the problem in this scientific paper is why there is a conflict of interest and regulations that are not in accordance with the laws and regulations? As normative juridical research, this research is based on an analysis of legal norms. The Omnibus Law is a political product. In the process of its discussion, the law resulted from a political process. The government must evaluate this law (Job Creation) where in the process of making it there is still overlap without regard to regulations.


2020 ◽  
Author(s):  
E.A. Magomedova ◽  
M.V. Isaeva ◽  
A.O. Samorodnova

The article provides a theoretical analysis of the structure of legal policy. As elements of legal policy, the authors distinguish political organizations, political and legal norms, political interest, political consciousness, political relations, and political activity. The following is a description of all structural elements, taking into account their legal content. In addition, the article describes the practical aspect of legal policy in relation to the state-legal reality of modern Russia.


2021 ◽  
Vol 117 (4) ◽  
pp. 17-25
Author(s):  
TYSHCHENKO Yuliia

Background. The most of the world’s trade relations are governed by uniform rules that form the legal basis of the WTO. Member states sometimes have different understanding of the content of their rights and obligations, which are in the WTO agreements. This gives rise to controversy between them. To reduce the number of disputes between states, they should use uniform ways of interpreting WTO agreements. Analysis of recent research and publications has revealed that the interpretation of WTO legal sources has not been the subject of a separate study, therefore, requires clarification. The aim of the article is to identify and theoretically comprehend the main ways of interpreting the WTO agreements. Materials and methods. The set of general scientific and special methods of scientific research is chosen as the methodological basis. Results. WTO law consists of legal norms and the general rules of interpretationof the theory of law are applied to clarify their meaning. The legal sources of the WTO are the sources of public international law. Therefore, for the interpretation of the norms of this organization, the methods of international law are primarily used. The main source of rules for the interpretation of international treaties is the 1969 Vienna Convention on Treaties. The Agreement on the Rules for the Settlement of Disputes specifies that the usual rules of interpretation of international law are applied to clarify the rules of WTO agreements. Thus, for the interpretation of WTO agreements, the rules enshrined in the Vienna Convention and other methods of interpretation used in international law are applied. Articles 31, 32 of the Convention provide for such methods of interpretation as textual, teleological interpretation, clarification of the meaning of the term of the contract by establishing the intentions of the participants and historical interpretation. It is worth adding to the list of ways of interpreting WTO law such general theoretical methods as logical, systematic, special legal interpretation, etc. Conclusion. So, the methods of interpretation of the WTO agreements include textual, teleological, historical interpretation, the interpretation of norms by clarifying the intentions of the parties to the treaty, as well as general theoretical methods of interpretation. Keywords: legal interpretation, methods of interpretation, textual, teleological, historical interpretation, intentions of the parties, WTO agreements.


Author(s):  
Jelly Leviza ◽  
T. Keizerina Devi

Legal protection against a daily work is very urgent today given the increasing number of them. Governments have an obligation to ensure the protection of the rights of them. This study discusses two subjects. The first is the inventory of labour rights according to the constitution and rules of normative and the implementation for daily work. The second is the substance of the government’s policy to accommodate the protection of the rights of workers based on the Ministry of Manpower and Transmigration Republic of Indonesia Number: Kep.100 / Men/VI/2004 about the Provisions in the Implementation of Given Time Employment Agreement. The purpose of this study was to determine the protection of the constitutional and normative rights for daily workers. Next to determine the legal policy of the Indonesian government in providing protection to daily workers through Ministerial Decree No. 100/2004. Normative methods used to analyze the legal norms applicable in Indonesia governing the protection of daily workers. Based on this method, the portion of the protection of the rights of workers will be known. The results of this research are that the rights of an employee still do not fulfil the rights of workers constitutively and normatively. Government policy in the protection of daily workers was still not enough to provide legal certainty, usefulness, and fairness for workers. The government’s policy regarding the rights of daily workers still needs to be improved in order to accommodate the rights of daily workers.


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