scholarly journals Особенности формирования правового государства в России

2021 ◽  
Vol 70 (6) ◽  
pp. 67-70
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров

The article examines certain issues of the formation of the rule of law in Russia, problematic aspects of the formation of the rule of law, as well as the significance and characteristics of the development of the rule of law. It is noted that today, there is no clear guidance for establishing general principles of law and building a legal state. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order

2021 ◽  
Vol 70 (6) ◽  
pp. 64-67
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров ◽  
Р.А. Иксанов

The article examines the issues of the formation of the rule of law, the influence of general principles of law on this process, as well as the importance of constitutionalism on the development of the concept of the rule of law. It is noted that the model of the rule of law is embedded in the construction of the international legal system. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order.


2020 ◽  
Vol 9 (2) ◽  
pp. 343-363
Author(s):  
NICO KRISCH ◽  
FRANCESCO CORRADINI ◽  
LUCY LU REIMERS

AbstractLegal multiplicity in the global realm, and the interface conflicts that ensue from it, are widely thought to have a destabilising effect, blocking the path towards a more integrated and perhaps constitutionalised global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots and rivalrous institutions as the main actors, it is less convincing if we regard these conflicts as part of social processes of contestation that define the relations between different norms over time. It is also less plausible if actors with other orientations – norm irritation or navigation – are taken into view. This article works towards a more encompassing account, both temporally and as regards actor orientations. It uses two case studies of conflicts at the interface between economic governance and human rights to probe the plausibility of its conjectures. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts, rather than destabilising the rule of law, may also open a pathway for change in the otherwise rigid structure of the international legal order


Author(s):  
Kotuby Charles T ◽  
Sobota Luke A

The purpose of this chapter is to define the general principles of law as they have been applied in national courts and international tribunals. For instance, the very concept of the law requires good faith adherence to contractual obligations (pacta sunt servanda) and the good faith exercise of legal rights. States as well as private parties are also precluded from contradicting their actions (estoppel) or abusing their rights, thereby defeating the legitimate expectations of another. Nor may they benefit from their own wrong or be unjustly enriched at another’s expense. All parties are liable for acts caused by and attributable to them, and the concept of responsibility requires that the consequences of their wrongful act be wiped out. In their various iterations and permutations, these exemplary principles are the logical consequences of the rule of law and the foundation of every legal order.


2020 ◽  
Vol 10 (1) ◽  
pp. 50-67
Author(s):  
Sundaresh MENON

AbstractThe rule of law bears a special meaning in the context of the international legal order, where there is no clear vertical hierarchy or sovereign. The international rule of law strives to curb the excess autonomy of individual states for the common good. Although there is considerable scepticism about whether the international rule of law actually exists, states largely do behave as if international law is truly “law”, and international obligations are also more enforceable now than ever before. But there have been and will be moments when the international rule of law is interrupted by major powers. In an interdependent world that is both capable of and prone to inflicting unimaginable destruction, the strategy for small states unable to defend themselves directly is to create the conditions that will best promote their survival, and that is accomplished by pursuing and promoting the rule of law both domestically and internationally.


2019 ◽  
Vol 4 (2) ◽  
Author(s):  
Emmanuel Obikwu

This article argues on the continued significance of Kelsen’s theory of the grundnorm and revolution in international law. It urges that revolutions and coups d’etat will continue to occur in the international legal order. That criticisms of Kelsen’s thought on this issue notwithstanding, Kelsen’s arguments on successful revolutions and the shift in the grundnorm is still as relevant today as it was when first propounded. A case of study of Nigeria is used, however this is carried out against a backdrop of developments internationally. Military take-over of governments have occurred internationally and though not adhering to the rule of law and human rights  in the strict sense, national courts and the international legal order must continue to take account of them.  Nigeria under military from 1966 to 1999 underwent several coups. Based on this developments across the globe, the received wisdom of Kelsen is aptly defended in this article through an examination of case law and jurisprudence.  


Author(s):  
Katia Boustany ◽  
François Crépeau ◽  
Pierre Mackay ◽  
Daniel Mockle

SummaryThe progressive withdrawal of the state from the role of “economic agent” has had an impact upon its function of regulator. Therefore, norms production was transferred to international and national bodies favouring more non-binding normative settings (soft law) and self-regulation. This is clearly the case of the normative framework applying to technologies. As a result, the relationship between the international legal order and national legal order bears significant modifications, and fundamental rights of citizens may also be affected within democracies based on the rule of Law.


Author(s):  
Artur Nowak-Far

AbstractAt present, the European rule of law enforcement framework under Article 7 TEU (RLF) is vulnerable to unguaranteed, discretionary influences of the Member States. This vulnerability arises from its procedural format which requires high thresholds in decision-making with the effect that this procedure is prone to be terminated by the EU Member States likely to be scrutinized under it, if only they collude. Yet, the Framework may prove effective to correct serious breaches against human rights (in the context of ineffective rule of law standards). The European Commission is bound to pursue the RLF effectiveness for the sake of achieving relative uniformity of application of EU law (at large), and making the European Union a credible actor and co-creator of international legal order. The RLF is an important tool for the maintenance of relative stability of human rights and the rule of law in the EU despite natural divergence propensity resulting from the procedural autonomy of the EU Member States. By achieving this stability, the EU achieves significant political weight in international dialogue concerning human rights and the rule of law and preserves a high level of its global credibility in this context. Thus, RLF increases the EU’s effectiveness in promoting the European model of their identification and enforcement.


Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley

This chapter discusses Article 7 of the European Convention on Human Rights, which incorporates the principle of legality, by which, in the context of criminal law, a person should only be convicted and punished on a basis of law. Article 7 prohibits the retroactive application of criminal offences and of sentences imposed for them. The guarantee in Article 7 is an essential element of the rule of law, and has as its object and purpose the provision of effective safeguards against arbitrary conviction and punishment. An exception is allowed for offences that were contrary to general principles of law recognized by civilized nations.


Author(s):  
Trinh Hai Yen

This chapter explores international law in Viet Nam. It is difficult to comprehensively conceptualize international law in Viet Nam’s legal system. There is no formal documentation concerning two of the main sources of public international law: international custom and general principles of law. Treaties, by contrast, are dealt with in great detail. Viet Nam adopts a modified monist approach by maintaining the primacy of the Constitution and the priority of treaties and incorporating treaties into the muninipal law on a case-by-case basis. The use of treaties in Viet Nam can be divided into two phases: (i) colonial times and (ii) since independence in 1945 when modern Viet Nam, proactively relying on international law in the quest for ultimate independence and unification in 1975 and since, started a period of robust engagement in the international legal order. The chapter finally looks at Viet Nam’s current practice of concluding and enforcing treaties.


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