scholarly journals Law and values in the theory of law of Józef Nowacki

2018 ◽  
Vol 6 (2) ◽  
pp. 255-276
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Specific Nature ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Critical Attention ◽  
The Law ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Ideological Assumptions

The contents of the paper present the basic assumptions of Józef Nowacki’s theory of law. The author was a proponent of Hans Kelsen’s theory. The characteristic of Józef Nowacki’s views was the conviction that the foundations of the study of the  aw should be their „purity”. It is understood by him as freedom from any ideological assumption. This approach is consistently presented in his works dealing with issues of a specific nature. In the course of deliberations, the problem of the concept of law was discussed, as understood by Józef Nowacki. His works on the issues of the rule of law were also analyzed. Moreover, they presented his critical attention devoted to the jurisdiction of the Polish Constitutional Court. The conclusions highlight the validity of the author’s view that the consideration of the law should be free of any ideological assumptions

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

scholarly journals The Responsibility of Courts in Maintaining the Rule of Law: Two Tales of Consequential Judicial Self-Restraint

2021 ◽  
pp. 155-181
Author(s):  
Pál Sonnevend
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Court Decisions ◽  
The European Union ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Legislative Power ◽  
The Face ◽  
The Law

AbstractModern constitutionalism is based on the paradigm that courts are inherently entitled and obliged to enforce the constitution of the respective polity. This responsibility of courts also applies in the context of the European Union to both the CJEU and national constitutional courts. The present chapter argues that in the face of constitutional crises the CJEU and the Hungarian Constitutional Court shy away from applying the law as it is to the full. The reasons behind this unwarranted judicial self-restraint are most different: the CJEU aims to avoid conflicts with national constitutional courts whereas the Hungarian Constitutional Court has been facing a legislative power also acting as constitution making power willing to amend the constitution to achieve specific legislative purposes or to undo previous constitutional court decisions. Yet both courts respond to expediencies that do not follow from the law they are called upon to apply. It is argued that rule of law backsliding requires these courts to abandon the unnecessary self-restraint and exploit the means already available.

scholarly journals ПОКРЕТАЊЕ ПОСТУПКА НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У РЕПУБЛИЦИ СРБИЈИ

TEME ◽  
2019 ◽  
pp. 1419
Author(s):  
Bálint Pásztor
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Advantages And Disadvantages ◽  
Institutional Values ◽  
The Law ◽  
The Republic ◽  
The One

The author of the article analyzes the specificities of the normative control of the law, i.e. the procedure of assessing the constitutionality and legality of the law in the Republic of Serbia, with the aim of detecting historical and legal preconditions of the effective functioning of the rule of law. The historical perspective of the development of the constitutional judiciary in the Socialist Federal Republic of Yugoslavia and the Republic of Serbia, as well as the analysis of the experiences of various systems of control of constitutionality and legality, open the contextual, scientific-historical and pragmatic dimensions of understanding. The specificity of the system of normative control is reflected in its triplicity, meaning that three institutes are known that characterize different procedural possibilities (to initiate the process of assessing the constitutionality and legality of general acts). The paper is written in order to point out the dichotomy of the proposal and initiative of the procedure of the assessment of constitutionality and legality, as well as the advantages and disadvantages of the ex officio procedure. Furthermore, the author wanted to point out the essential and procedural differences between the proposal, the initiative and the constitutional complaint, especially analyzing the purpose of retaining the institute of the initiative in the light of the existence of the constitutional complaint and the fact that the initiative does not imply the automation of the initiation of proceedings. The dilemma that the article opens concerns the possibility that in the case of abolishing the initiative as an institution accessible to all, is it possible to preserve the democratic culture and the participation of citizens, furthermore is it possible to abolish the fundamental institutional values and freedoms of a legal state and the rule of law? The paper opens other issues of importance for the establishment of an effective constitutional architecture that concern: the width of the circle of authorized proposers of normative control before the Constitutional Court; the dual role of the constitutional judiciary: on the one hand protection of the Constitution, constitutionality and legality, on the other hand effective protection of human and minority rights and freedoms.

scholarly journals BASIS EPISTEMOLOGIS PARADIGMA RASIONAL DALAM ILMU HUKUM: SEBUAH DESKRIPSI TENTANG ASUMSI-ASUMSI DASAR TEORI HUKUM MURNI-HANS KELSEN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Kelik Wardiono ◽  
Khudzaifah Dimyati
Keyword(s):  
Cognitive Science ◽  
Rule Of Law ◽  
Legal Norm ◽  
Empirical Reality ◽  
Philosophical Approach ◽  
Pure Theory ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Hans Kelsen ◽  
Theory Of Law

Based on the philosophical approach, it is known basic assumptions of rational paradigm as seen in Hans Kelsen's pure theory of law that consists of: human assumptions based on the quasi-transcendental along with its characters and aurea aetas; ontological assumptions based on empirical reality and equating sein reality with sollen, and normativity created as logico transcendental conditions; epistemological assumption that underlying the science of law as cognitive science, creating the rule of law as a whole object, and reconstructing legal norm as the relation between non-causal and non-metaphysical facts; axiological assumption that reconstructs norm as the object of legal science and equating the basic norms with natural laws.Key words: basic assumptions, rational paradigm, the theory pure of law, jurisprudance.

Judicial Review of Executive Power: Legality, Rationality and Reasonableness (Part 1)

2017 ◽  
Vol 30 (1) ◽  
pp. 122-152
Author(s):  
Chuks Okpaluba
Keyword(s):  
Rule Of Law ◽  
Executive Branch ◽  
Executive Power ◽  
Constitutional Court ◽  
Theoretical Terms ◽  
Intelligence Agency ◽  
The Rule Of Law ◽  
Administrative Action ◽  
The Law ◽  
The Many

Early in the life of the South African democratic dispensation, the Constitutional Court distinguished the conduct of the President as the head of the executive branch of government from an administrative action. However, it held that executive conduct was, like all exercise of public power, constrained by the constitutional principles of legality and rationality. So, as a necessary incident of the rule of law, the executive may not exercise powers or perform duties not conferred upon it by the Constitution and the law. The cases decided since then demonstrate in practical and theoretical terms the democratic aphorism that no one is above the law and everyone is subject to the Constitution and the law. In the process, the Constitutional Court has entertained appeals for the review of executive powers such as where, inter alia, the President had acted on a wrong advice or terminated the appointment of the head of the National Intelligence Agency; the legality of Ministerial Regulations and of the rationality of the presidential appointment of the Director of the National Prosecuting Authority. The role of reasonableness as a ground of review of executive conduct rather than administrative action has been demonstrated in the many cases where the distinction has been made between the rationality test and the reasonableness test. The conclusion, therefore, is that, through their interpretation of the Constitution and review of executive powers, the courts have developed a code of principles regarding the rule of law, good government, and democracy.

scholarly journals Constitutional Justice

2017 ◽  
Vol 19 (33) ◽  
pp. 135-142
Author(s):  
Anca-Florina Moroșteș ◽  
Narcisa-Mihaela Stoicu
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Contemporary Society ◽  
The Rule Of Law ◽  
Democratic State ◽  
Constitutional Justice ◽  
The Law

Abstract The paper with the title “Constitutional Justice” aims to analyse a topic of urgent actuality and of particular importance in the contemporary society. We have tried to show in this paper the importance of the Constitutional control in the rule of law. Starting from the idea of necessity of existence of a Constitution in a democratic State and, implicitly, of a body to follow-up the compliance with its provision, we have tried to highlight in this paper the role of Romanian Constitutional Court and not only, by presenting one of its most important attributions which is the control of the law constitutionality.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

scholarly journals KEBERADAAN KONSEP RULE BY LAW (NEGARA BERDASARKAN HUKUM) DIDALAM TEORI NEGARA HUKUM THE RULE OF LAW

2013 ◽  
Vol 2 (3) ◽  
Author(s):  
Made Hendra Wijaya
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Historical Analysis ◽  
The Rule Of Law ◽  
Rule By Law ◽  
Comparative Structure ◽  
The Law ◽  
Principles Of Justice ◽  
Good Order ◽  
Theory Of Law

This research titled, the existence of the concept of rule by law (state law) within thestate theories of law the rule of law, which is where the first problem: How can theadvantages of Rule by Law in the theory of law Rule of Law?, How is the dis advantages of aconcept of Rule by law in the theory of law Rule of Law.This research method using the method of normative, legal research that examines thewritten laws of the various aspects, ie aspects of the theory, history, philosophy, comparative,structure and composition, scope, and content, consistent, overview, and chapter by chapter,formality, and the binding force of a law, and the legal language used, but did not examine orimlementasi applied aspects. By using this approach of Historical analysis and approach oflegal conceptual analysis.In this research have found that the advantages of the concept of Rule by Law lies in theproviding of certainty, can also be social control for the community, thus ensuring all citizensin good order at all reciprocal relationships within the community. And Disadvantages of theconcept of Rule by Law if the Law which legalized state action is not supported by democracyand human rights, and the principles of justice, there will be a denial of human rights,widespread poverty, and racial segregation, and if the law is only utilized out by theauthorities as a means to legalize all forms of actions that violate human can inflicttotalitarian nature of the ruling

scholarly journals Mahkamah Konstitusi di Beberapa Negara Perspektif Perbandingan Hukum

2019 ◽  
Vol 6 (1) ◽  
pp. 83
Author(s):  
Andi Safriani
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
Constitutional State ◽  
Similarities And Differences ◽  
The Law

Konsep negara hukum juga disebut sebagai negara konstitusional atau constitusional state, yaitu negara yang dibatasi oleh konstitusi. Semua konstitusi selalu menjadikan kekuasaan sebagai pusat perhatian, karena kekuasaan itu sendiri pada intinya memang perlu diatur dan dibatasi sebagaimana mestinya. Untuk menjamin konstitusionalitas pelaksanaannya baik dalam bentuk aturan hukum maupun tindakan penyelenggara negara berdasarkan ketentuan undang-undang, dibentuklah Mahkamah Konstitusi. Kewenangan Mahkamah Konstitusi antara suatu negara dengan negara lain tentunya memiliki persamaan dan perbedaan. The Concept of the rule of law too as a constitutional state. All constitutions always make power the center of attention. Because power itself in essence really needs to regulated and limited to ensure the quality of its implementation in the form of rules and the actions of states administrators based on the provisions of the law a constitutional court was formed. The Authority of the constitutional court between a country and another country certainly has similarities and differences.          

scholarly journals IS THE MANDAMENT VAN SPOLIE AN APPROPRIATE REMEDY IN CASES OF STATUTORY CONFLICTS? Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Lefa S Ntsoane
Keyword(s):  
Rule Of Law ◽  
Motor Vehicle ◽  
Road Traffic ◽  
High Volume ◽  
Constitutional Court ◽  
Legal Process ◽  
The Rule Of Law ◽  
Statutory Provision ◽  
The Law ◽  
The Right

The availability of the mandament van spolie in cases where a statutory provision provides for despoilment has been dealt with in a recent Constitutional Court judgment, handed down on 15 May 2014 (Ngqukumba v Minister of Safety and Security 2014 (5) SA 112 (CC)). In this case the Court had to decide on the question whether the mandament van spolie, as a common-law remedy aimed to restore lost possession, can be granted by the Court despite the fact that section 68(6)(b) of the National Road Traffic Act 93 of 1996 prohibits possession “without lawful cause” of a motor vehicle of which the engine or chassis number has been falsified or mutilated. The question was answered in the affirmative. The Court held that the mandament van spolie can be granted, despite the prohibition against the return of the vehicle as provided for by the Traffic Act. This is also the case despite the fact that section 31(1)(a) of the Criminal Procedure Act 51 of 1977 provides for almost the same relief as that which can be achieved by the mandament van spolie, except that the remedy provides for an urgent relief, and it is more cost-effective than resorting to the CPA. In terms of a mandament van spolie, a person who has been unlawfully despoiled of possession may apply to the Court for this remedy, claiming restoration of that possession. The main purpose of the remedy is to protect lost possession of the property by the applicant. This remedy is only concerned with whether the applicant was in factual possession (ius possessionis) of the property, whether movable or immovable, rather than the right to possess (ius possidendi). The merits of the case are therefore not considered by the Court in an application for a mandament van spolie. The aim is to prevent people from taking the law into their own hands by prohibiting the taking of possession otherwise than in accordance with the law . There are two requirements that must first be met for a successful reliance on the mandament van spolie. Firstly, the applicant must prove on a balance of probabilities that he was in peaceful and undisturbed possession of the item. Secondly, the applicant must also prove that the respondent deprived him of possession unlawfully. The first requirement will not be discussed because it was not an issue in this case. A brief analysis of the second requirement will be conducted because of the role it played in this judgment. It is, however, important to mention that these requirements were not the subject of dispute in the present case. This note carries the view that the Ngqukumba judgment strengthened the applicability of the mandament van spolie in cases of dispossession where compliance with due legal process has been compromised. The judgment is important because it promotes the rule of law and due legal process, by ensuring that no one (including organs of State) is above the law. This is particularly true, taking into account the high volume of civil claims lodged by individuals against the Minister of Police in cases where police officials failed to comply with the law. The rule of law has both a procedural and a substantive component. The procedural component of the rule of law requires every action (be it by an individual or an organ of State) to be in accordance with the relevant provisions regulating that act. This is meant to prevent the abuse of power by individuals or Government institutions. The substantive component is concerned with the protection of rights, and this includes the right to dignity, privacy and property. The purpose of this note is threefold. Firstly, the facts, arguments and the judgment will be stated briefly. Secondly, this note will analyse the applicability of the remedy in cases where a statutory provision provides for despoilment. Thirdly, suggestions for a way forward for the applicability of the remedy in cases of a conflict with a statutory provision will be given.

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