The Principle of Legal Certainty: whether there Can Be Gaps in the Public Law?

2020 ◽  
Vol 2(22) ◽  
pp. 29-36
Author(s):  
Maria A. Kapustina
Keyword(s):  
Social Relations ◽  
Real Life ◽  
Legal Regulation ◽  
Public Law ◽  
Legal Order ◽  
Social Regulation ◽  
Legal Certainty ◽  
The Public ◽  
Legal Literature ◽  
The Moment

Legal regulation is caused by the necessity to provide legal order of social regulation. The legal order of regulation is provided by formal legal certainty of regulatory provisions (legal prescripts) and their legal substance. However, there exist relations, whose content, namely, subjective rights and juridical responsibilities of the parties are not strictly prescribed in the legislative norms. Because a legislator cannot foresee all the variety of social relations that may occur in real life and prescribe their formal and legal substance in corresponding legislative acts. In such cases, we usually talk about gaps in law, about the uncertainty of legal regulation. Gaps are taken for granted, considered as an obligatory element of any legal system. Nonetheless, whether there can be gaps in the public law, if in the public law sphere norms are created purposively? In public law, norms are created purposefully (with a goal in mind), public law institutions are artificially established and rationally modernized. The lack of a norm of a statute can mean the refusal of the legislator to legally regulate the question, at least at the moment. This is so-called in legal literature “qualified silence of the legislator” that should not be considered as a gap in law.

scholarly journals PROVIDING PUBLIC ORDER IN THE LIGHT OF CODIFICATION OF CURRENT LEGISLATION

2019 ◽  
pp. 90-93
Author(s):  
S. A. Komissarov
Keyword(s):  
Social Relations ◽  
Legal Regulation ◽  
Administrative Law ◽  
Public Law ◽  
Public Order ◽  
Main Function ◽  
The Public ◽  
Public Purpose ◽  
Legal Thinking ◽  
European Standards

The article deals with the codification of administrative legislation. The basic concepts are considered, approaches to a problem are revealed, directions of improvement of the current legislation are analyzed. The main attention is paid to the issue of codification as a legal category and codification of administrative law, since it is a form of lawmaking, and its main purpose is to providing the most complete legal regulation of a certain sphere of social relations by adopting logically complete normative acts of complex and generalizing nature. It is suggested that public law should perform the function of public order, which is provided with appropriate means of influence in case of violation of relations in this field. It is emphasized that the list of remedies of public order includes the rules of public law, but those with a protective orientation, public-legal relations that arise in cases of committing offenses in the sphere of public order, and acts of implementation of these rules. As for administrative law, its main function should be to protect the rights and freedoms of a citizen from illicit acts or inction of state bodies (officials). On the basis of a critical analysis of the foundations of post-Soviet jurisprudence, a modern understanding of the role and content of norms of administrative law is offered, as well as a comprehensive, balanced and consistent revision of the legislation, and its adjustment with modern European standards. In particular, there is an urgent need to reform the administrative law of Ukraine, the basis for defining the purpose of which is an approach formed in Soviet times, which should be based on a substantially updated, more democratic understanding of the public purpose of public law, which will replace Soviet administrative law. It is concluded that a qualitatively new ideology of legal thinking must be created and practically introduced in Ukraine.

scholarly journals Scientific Concepts of a Deputy’s Mandate: Apology and Criticism

2020 ◽  
Vol 11 ◽  
pp. 41-44
Author(s):  
Natalya T. Leonenko ◽  
Keyword(s):  
Legal Regulation ◽  
Public Law ◽  
Scientific Concepts ◽  
Government Structure ◽  
The Public ◽  
Legal Nature ◽  
Historical Comparative ◽  
Representative System

The article studies the genesis of the deputy’s mandate institution. The relevancy of this subject is determined by the imperfection of the legal regulation of the institution under study; absence of clarity in its implementation; modernization of public law relations. The public government structure and the general democracy system largely depend on which type of mandate will be preferred in the Russian representative system. The purpose of the article is the research of the legal nature of the institution of mandate of a deputy of representative public government authorities and various aspects of this problem using formal legal, historical, comparative legal and logical methods.

scholarly journals Javnopravno uređenje zvanične toponimije - od državnog nivoa do nivoa lokalne samouprave / The Public Law Regulation of the Official Toponymy From State’s To Local Level

2016 ◽  
Vol 6 (6) ◽  
pp. 86
Author(s):  
Vladimir Đurić ◽  
Nevenko Vranješ
Keyword(s):  
Local Level ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Public Law ◽  
Place Names ◽  
The Public ◽  
Administrative Procedure ◽  
The Republic ◽  
Domestic Law ◽  
Law Regulation

It is the purpose of this paper to highlight the relation between official toponymy in comparative and domestic law. Toponymy is legally regulated. After the analyzing of the position of official toponymy in the comparative law, selected legal aspects of its regulation in the Bosnia and Herzegovina and the Republic of Srpska legal systems are presented: the constitutional regulation of the names of country, constitutive unites and capitals, the constitutional and law regulation of the official use of language and script, the legal regulation of the local-self-government unit names and official place names, as well as the administrative procedure of the place names change.

Public Servitudes for the Certain Types of Facilities Placing: Towards a Discussion on Public Interest Presence

2021 ◽  
Author(s):  
A.P. Ushakova ◽  
Keyword(s):  
Public Interest ◽  
Legal Regulation ◽  
Public Law ◽  
Point Of View ◽  
Private Interest ◽  
Public Interests ◽  
The Public ◽  
Private Interests ◽  
Arbitrary Decision ◽  
The Right

From the standpoint of the dominant interest criterion the article examines the justification of the legislator`s decision to apply public law methods in order to regulate relations concerning the use of land for infrastructural facilities placing. The author gives the arguments in favor of understanding the public interest as the interest of the whole society as a system, rather than the interest of an indefinite range of persons or the majority of the population. The author concludes that there is the simultaneous presence in the specified legal relations and private interests of the participants of legal relations, and public interests of society as a system. Both types of interests in these legal relations are important, but in terms of different aspects of the legal impact mechanism. Public interest is important because its realization is the purpose of legal regulation of this type of legal relations, from this point of view it acts as a dominant interest. The private interest of the holder of a public servitude is important as an incentive to attract the efforts of private individuals to achieve a publicly significant goal. The private interest of a land plot owner is important from the point of view of securing the right of ownership. It is substantiated that the public servitude is not an arbitrary decision of the legislator, but an example of application of the incentive method in the land law, which provides a favorable legal regime for a socially useful activity.

5. The Internationalization of Public Law and its Impact on the UK

2019 ◽  
pp. 121-154
Author(s):  
David Feldman
Keyword(s):  
Public Law ◽  
Legal Order ◽  
Democratic Accountability ◽  
The Public ◽  
Legal Standards ◽  
System A ◽  
National Values ◽  
Political Theories ◽  
The World ◽  
The Uk

Municipal public law (by which is meant the public law of national or sub-national polities, including but not limited to local government) is always influenced by events taking place elsewhere in the world and the activities and norms of other polities. For example, the existence of a state depends at least partly on its recognition by other states, and political theories and legal ideas have always flowed across and between regions of the world even if they provoked opposition rather than adoption or adaptation. Yet despite, or perhaps because of, this, any state has good reasons for controlling the introduction of foreign legal and constitutional norms to its own legal order. It is important to check that the norms are compatible with one’s own national values and interests before allowing them to operate within one’s own system. A state which values a commitment to the rule of law, human rights, or democratic accountability is entitled to place national controls over potentially disruptive foreign influences. This chapter considers the nature and legitimacy of those national controls, particularly as they apply in the UK, in the light of general public law standards, bearing in mind that influences operate in both directions, not only between states but also between municipal legal standards and public international law.

scholarly journals To the Peculiarities of Legal and Non-Legal Regulation of Social Relations in the Field of Sport

Retos ◽  
2020 ◽  
pp. 131-137
Author(s):  
Evgen Kharytonov ◽  
Olena Kharytonova ◽  
Anatoliy Kostruba ◽  
Maxym Tkalych ◽  
Yuliia Tolmachevska
Keyword(s):  
Social Relations ◽  
Legal Regulation ◽  
Legal Order ◽  
Scientific Cognition ◽  
Sports Organizations ◽  
Historical Method ◽  
Legal Method ◽  
Logical Method ◽  
Special Area ◽  
Sports Officials

Sport is a unique area of social relations, which is officially autonomous and ruled not only and not so much by national law, but to a greater extent – by the rules of sports organizations. Due to the fact that sport has an autonomous character, which, in particular, is characterized by the presence of various regulatory sources that comprehensively affect the relevant social relations, the concept of a unique "sports legal order" is now beginning to take shape. The study aims to analyze social relations in the field of sport and the peculiarities of their regulation. Moreover, the research methodology includes a set of methods of scientific cognition, among which are the methods of analysis, synthesis, induction, deduction, formal-logical method, historical method and comparative legal method. Regulation of relations in the field of sports is significantly different from the regulation of other social relations. The presence of such features gives grounds for sports officials to declare the special status of the field of sports and the need to remove it from the general legal order. As a result of the study, the authors of the article came to the conclusion that modern sport has an autonomous status and is a special area of legal and non-legal regulation, which has the characteristics of an independent legal order. At the same time, it is too early to claim the existence of a full-fledged “sports legal order”. Resumen. El deporte es un área única de las relaciones sociales, que es oficialmente autónoma y se rige no solo y no tanto por la legislación nacional, sino en mayor medida, por las reglas de las organizaciones deportivas. Debido a que el deporte tiene un carácter autónomo, que, en particular, se caracteriza por la presencia de diversas fuentes regulatorias que inciden de manera integral en las relaciones sociales relevantes, comienza a tomar forma el concepto de un “orden jurídico deportivo” único. El estudio tiene como objetivo analizar las relaciones sociales en el ámbito del deporte y las peculiaridades de su regulación. Además, la metodología de investigación incluye un conjunto de métodos de cognición científica, entre los que se encuentran los métodos de análisis, síntesis, inducción, deducción, método lógico-formal, método histórico y método jurídico comparado. La regulación de las relaciones en el campo del deporte es significativamente diferente de la regulación de otras relaciones sociales. La presencia de tales características da motivos para que los oficiales deportivos declaren el estatus especial del campo de los deportes y la necesidad de eliminarlo del orden legal general. Como resultado del estudio, los autores del artículo llegaron a la conclusión de que el deporte moderno tiene un estatus autónomo y es un área especial de regulación legal y no legal, que tiene las características de un orden legal independiente. Al mismo tiempo, es demasiado pronto para afirmar la existencia de un “orden jurídico deportivo” en toda regla.

scholarly journals Islam-osmanli state law in Serbia

2006 ◽  
pp. 271-286
Author(s):  
Miroljub Jevtic
Keyword(s):  
Social Relations ◽  
The State ◽  
Legal Order ◽  
Point Of View ◽  
State Law ◽  
Normal Functioning ◽  
Basic Goal ◽  
The Law ◽  
The Moment ◽  
State Functions

Every state functions through its legal order and that legal order shows the nature of every state. From that point of view, the nature of the state and the authority which functioned in the regions of the Serbian lands from the moment of the Osmanli conquests till the end of that rule was best reflected through the law which regulated social relations. If one views the state which ruled in the regions of the Serbian lands in that way, one can clearly state that it, in its nature, had the basic goal to realize Islamic doctrine. All legal acts which the administration in Constantinople passed to ensure its normal functioning had the Islamic character. As most of these acts had been created long before the birth of the Osmanli state, they cannot be called Osmanli, because they were not such by their origin or their essence. It is specially important that their intention was not to maintain the Turkish national idea, as it could be concluded from a large number of historical syntheses which discuss that part of our history, but the triumph of Islam. Therefore, it is most correct to call that law Islamic-Osmanli law because its largest part had been created before the appearance of the Osmanli state and had as a goal the triumph of Islam; it is an Osmanli law because it was implemented in the territories ruled by the Osmanli dynasty.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

Application of the Rules of the Code of Obligations for Concession Contract Relations: Concession Contract on the Boundary between the Public and Private Interests

10.4335/52 ◽  
2009 ◽  
Vol 6 (2) ◽  
pp. 245-270
Author(s):  
Janez Ahlin
Keyword(s):  
Public Interest ◽  
Public Law ◽  
Public Private Partnership ◽  
Legal Order ◽  
Public And Private ◽  
Private Partnership ◽  
The Public ◽  
Private Interests ◽  
Legal Nature ◽  
Concession Contract

The special legal nature of the concession contract (as one of the legal transactions) which represents a legal framework where the public and private interests meet (two parties cooperate for mutual benefit) is characterised by intertwining of general rules of obligation law and special legal institutes that originate from the sphere of public law. The legal nature of the contractual relationships that arise between administrative and private entities requires special regulation of individual institutes that should reflect the public interest as an important guiding principle for concluding these contracts, and a special legal position of a public law entity as a holder of this public interest. Despite adoption of the new Public-Private Partnership Act in the legislative regulation of the concession contract that still remains variously regulated in previously adopted special provisions of sectoral laws, there are still some deficiencies and dilemmas that are more or less effectively dealt with in the contractual practice. For the legal positions that are classically civil at first sight, the legislator or court practice have laid down special modified rules of civil law in most developed countries. In the course of time, these rules became part of public law / administrative law. Thus, the French legal order has best developed the rules of the public contractual law and the legal institute of the administrative contract that the Slovenian administrative theoreticians try more and more to introduce also into our legal order. KEY WORDS: • concession contract • concession partnership • public-private partnership • public interest • party equality principle • law of obligations

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