scholarly journals On Some Issues of Source Assessment in the History of Political and Legal Doctrines: Competition of Different Approaches

Lex Russica ◽  
2021 ◽  
pp. 154-162
Author(s):  
A. V. Kornev
Keyword(s):  
Rule Of Law ◽  
Objective Assessment ◽  
History Of Ideas ◽  
Structural Elements ◽  
Scientific Validity ◽  
The Rule Of Law ◽  
Source Assessment ◽  
Power Property ◽  
History Of ◽  
Main Ideas

The paper is devoted to a little-studied problem, namely, source assessment in the history of political and legal doctrines from the perspective of the competition of different approaches. In this paper, sources refer to various forms of theoretical knowledge: views, doctrines, theories, concepts, ideas, schools, trends and approaches. In other words, we consider the types of sources in which thinkers of different eras and trends try to reflect the essence of state legal phenomena, primarily, the state and law, and other closely related institutions, such as power, property, democracy, the rule of law, etc. One of the main ideas of the paper is to justify the fact that the history of doctrines is primarily the evolution of the struggle between them. Moreover, the opposition of ideas is actually observed from the very beginning of political and legal thought. The problem of an objective assessment of the doctrines is highlighted, since there are many factors that prevent this. In this regard, we consider the time (chronological), methodological, ideological, political, scientific, ideological and other circumstances, including individual preferences. The assessment is based on the main form of theoretical political and legal knowledge, i.e. a doctrine and its structure. It is the structural elements of political doctrine that are evaluated by researchers of ideas, who themselves are not always free in their expert activities. This aspect is also reflected in the paper.The author summarizes: since the history of ideas is a history of struggle, competition in their evaluation is inevitable. It is possible to adhere to various philosophical views, but it is impossible to neglect the scientific validity of the teaching that is subject to evaluation. At the same time, this problem does not concern the doctrines that are being evaluated, but the personality of the evaluator of the doctrines, sometimes formed by the greatest thinkers.

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

scholarly journals Connecting Reproductive Rights, Democracy, and the Rule of Law: Lessons from Poland in Times of COVID-19

2021 ◽  
Vol 22 (6) ◽  
pp. 1072-1097
Author(s):  
Atina Krajewska
Keyword(s):  
Rule Of Law ◽  
Reproductive Rights ◽  
The Rule Of Law ◽  
Abortion Law ◽  
Polish Society ◽  
History Of ◽  
Constitutional Tribunal ◽  
Litmus Test ◽  
The Relationship

AbstractThis article examines the relationship between reproductive rights, democracy, and the rule of law in transitional societies. As a case study, it examines the development of abortion law in Poland. The article makes three primary claims. First, it argues that the relationship between reproductive rights and the rule of law in Poland came clearly into view through the abortion judgment K 1/20, handed down by the Constitutional Tribunal in the middle of the COVID-19 pandemic. The judgment and the context in which it was issued and published are interpreted as reflections of deep-lying processes and problems in Polish society. Consequently, second, the article argues that analysis of the history of reproductive rights in recent decades in Poland reveals weak institutionalization of the rule of law. This is manifest in the ways in which different professional groups, especially doctors and lawyers, have addressed questions regarding abortion law. Therefore, third, the article argues that any assessment of the rule of law should take into account how powerful professional actors and organizations interact with the law. The Polish case study shows that reproductive rights should be seen as important parts of a “litmus test,” which we can use to examine the efficacy of democratic transitions and the quality of the democracies in which such transitions result.

scholarly journals Presidential Signing Statements and the Rule of Law as an “Unstructured Institution"

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
Signing Statements ◽  
History Of ◽  
Entire History ◽  
The Government ◽  
Signing Statement

The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called "unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.

State, Sovereignty, and the People: A Comparison of the “Rule of Law” in China and India

2009 ◽  
Vol 68 (1) ◽  
pp. 55-100 ◽  
Author(s):  
Jonathan K. Ocko ◽  
David Gilmartin
Keyword(s):  
Rule Of Law ◽  
Social Order ◽  
The Political ◽  
British India ◽  
Fourth Section ◽  
The Rule Of Law ◽  
China And India ◽  
The People ◽  
History Of

This paper uses the concept of the “rule of law” to compare Qing China and British India. Rather than using the rule of law instrumentally, the paper embeds it in the histories of state power and sovereignty in China and India. Three themes, all framed by the rule of law and the rule of man as oppositional yet paradoxically intertwined notions, organize the paper's comparisons: the role of a discourse of law in simultaneously legitimizing and constraining the political authority of the state; the role of law and legal procedures in shaping and defining society; and the role of law in defining an economic and social order based on contract, property, and rights. A fourth section considers the implications of these findings for the historical trajectories of China and India in the twentieth century. Taking law as an instrument of power and an imagined realm that nonetheless also transcended power and operated outside its ambit, the paper seeks to broaden the history of the “rule of law” beyond Euro-America.

Doing Justice Better

2020 ◽  
pp. 189-194
Author(s):  
Michael Tonry
Keyword(s):  
Rule Of Law ◽  
Human Dignity ◽  
Structural Changes ◽  
Political Influence ◽  
State Agencies ◽  
The Rule Of Law ◽  
Life Without Parole ◽  
Three Strikes ◽  
Main Ideas ◽  
Selection Of

The main ideas in this book are simple. Treat people charged with and convicted of crimes justly, fairly, and even-handedly, as anyone would want done for themselves or their children. Take sympathetic account of the circumstances of peoples’ lives. Punish no one more severely than he or she deserves. Those propositions are implicit in the rule of law and its requirement that the human dignity of every person be respected. Three major structural changes are needed. First, selection of judges and prosecutors, and their day-to-day work, must be insulated from political influence. Second, mandatory minimum sentence, three-strikes, life without parole, truth in sentencing, and similar laws must be repealed. Third, correctional and prosecution systems must be centralized in unified state agencies.

4. The Rule of Law

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Rule Of Law ◽  
Antisocial Behaviour ◽  
The Rule Of Law ◽  
Legal Reforms ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Uk

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the introduction of antisocial behaviour orders; the extension of detention without trial; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies, and whether their actions conform to the Human Rights Act 1998.

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.

Amnesty: Between an Ethics of Forgiveness and the Politics of Forgetting

2005 ◽  
Vol 6 (1) ◽  
pp. 185-195 ◽  
Author(s):  
Peter Krapp
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
The Gift ◽  
History Of

Given the remarkable consistency in Jacques Derrida's work over several decades, it is not hard to draw a line from “Force of Law: The ‘Mystical Foundation of Authority’” to his last seminars, on pardon and forgiveness. The aporias of forgiveness are analogous to those of the gift and of justice he had analyzed in detail in previous decades, as Derrida states in “To Forgive: The Unforgivable and the Imprescriptible” — to that extent his last seminars and lectures were part of the same deconstructive project on the possibility of justice. At the same time, Derrida postulates that forgiveness is an experience outside or heterogeneous to the rule of law. In considering this juncture in Derrida's work, this paper will juxtapose the logic and history of amnesty with Derrida's analysis of pardon: the latter pivots on a monotheistic heritage, a Biblical-Koranic sense that is demarcated from the former concept, that of amnesty between an ethics of forgiveness and the politics of forgetting.

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