scholarly journals The Destruction of Legal Reason: Lessons from the Past

2019 ◽  
Vol 89 ◽  
pp. 15-30
Author(s):  
Cosmin Cercel
Keyword(s):  
Rule Of Law ◽  
Current Status ◽  
Constitutional Theory ◽  
Sovereign Power ◽  
Legal Reason ◽  
The Rule Of Law ◽  
The Past ◽  
Law And Politics ◽  
Contemporary Situation ◽  
The Law

The legal predicament of today in Europe and beyond takes the form of a devaluation of the meaning of legality, constitutionality and, of the rule of law. What we are dealing with is yet another crisis of both the tradition of the Rechtsstaat in continental setting and, more broadly, of liberal legality. While this disruption within the sphere of the law seems to mirror the reshuffling in established politics that took place over the last twenty years, it traces back to central jurisprudential questions that have made the substance of crucial debates during the interwar and have fashioned both the field of constitutional theory of the continent and our jurisprudential apparatus for approaching the nexus between law and politics. In this article I argue that the apparent uchronia that the current status of the law opens in relation to past theoretical questions that were seeking to ground legality, is neither a simple by-product of a Zeigeist oversaturated by appeals to procedural democracy or for returns to sovereign power, nor a mere regression to past juridico-political settings. It is a historical development that has been dormant for the past decades, yet has slowly undermined legal thought and praxis. Revisiting, as a matter of historical and jurisprudential inquiry, the context and the content of this original opposition between liberal legality and its enemy, is a way of understanding what constructs our own contemporary situation.

The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre

2014 ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
Constitutional Theory ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Liberal Tradition ◽  
Oral Argument ◽  
The Law

This chapter focuses on Schmitt’s critique of the rule of law in his Constitutional Theory. Schmitt argues that liberalism, which once tied the rule of law to the protection of individual liberty, has deteriorated into an account in which any valid law is considered legitimate just because it is valid. This critique is driven by Schmitt’s conception of politics, and, as his oral argument in a crucial constitutional case of 1932 illustrates, his position affirms that law cannot be more than a mere instrument of political power and that it can stabilize politics only if the political power is exercised to bring about a substantive homogeneity in the population subject to the law. In conclusion, it is suggested that Schmitt points to genuine weaknesses in the liberal tradition that require an elaboration of a secular conception of authority in which principles of legality play a central role.

scholarly journals The Rule of the Present, Not the Past

Jus Cogens ◽  
2021 ◽  
Author(s):  
Franco Peirone
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Practical Reasons ◽  
Legal Practice ◽  
The Rule Of Law ◽  
The Past ◽  
The Law ◽  
The One ◽  
Law Making ◽  
The Ideal

Abstract There is a perennial ambiguity in the rule-of-law preposition: it predicates that the law shall rule, but which law? This legal loophole has led to a diverse array of interpretations of the concept. Of these, two appear particularly adverse to what the rule of law should primarily be—the rulership of the law—yet still remain dominant. On the one hand, the rule of law is intended to be the vehicle to deliver above-the-law goods such as human rights or other individual entitlements like property, and to forever shield them against any other force, including the law. On the other hand, the rule of law is believed to be a tool at the rulers’ disposal, who make use of the law but are not bound by it, for either legal or practical reasons. In both cases, a pre-legal setting for society allocates rulership to something but not the law, against the very essence of the ideal: an authoritative legal practice for the sake of regulating the present society. As such, the rule of law has to meet certain requirements of craftsmanship, like conditions in law-making and law-enforcement, and sources, which are to be democratically underpinned.

scholarly journals Relicts of the earliest understanding of fairness, justice and law in the first states of antiquity: A legal-anthropological view

2020 ◽  
Vol 54 (3) ◽  
pp. 907-928
Author(s):  
Vojislav Stanimirović
Keyword(s):  
Rule Of Law ◽  
Writing System ◽  
Irreversible Damage ◽  
The Rule Of Law ◽  
The Past ◽  
The Poor ◽  
Greater Good ◽  
The Law ◽  
Book Of The Dead ◽  
The Ideal

All archaic societies were founded on the principles of equality and solidarity. Another common trait were the mechanisms for regulating social behaviour, as they were crucial for a society's survival. In such types of societies, archaic fairness existed. It manifested itself through egalitarianism, solidarity, but also through the static and conservative elements and was based on the customs which were binding on all the members of the society. When archaic societies became layered and started to expand and mix with other communities, the initial cohesion, security and archaic righteousness slowly started to disappear and instead, the concept of justice appeared. Unfortunately, that caused an irreversible damage to the balance that once existed as the ideal state in the archaic societies. The invention of the writing system and the creation of the first states eventually enabled the Cuneiform Law to develop and as the result, the first law codes of the humanity came to life. The first states and their rulers found themselves at the crossroads between "the old" and "the new". The law was heavily shaped by the nobility, so all of the privileges were created explicitly for the nobles, while the poor were yearning for the past times which were more kind to them. The new law slowly started to suppress the old customs. The ancient rulers, at least instinctively, if not consciously, recognised the need for a balance which would guarantee order and peace in the state. In Egypt, where the archaic elements survived the longest, the echoes of archaic societies and ancient beliefs could be found in the principle of Ma'at, the weighing of souls and the Book of the dead. The creators of Cuneiform Law also found their ways and strategies to present themselves as just and caring rulers. The evidence for that can be found especially in the provisions of the law. Whether they are referring to their own achievements and merits, or offering protection and care to the vulnerable members of the society, or revoking privileges of the nobles for the sake of the greater good, or turning back to the tradition, or "buddying up" with the gods, or determining measures and compensation amounts, they are, above all, trying to be exemplary rulers to their subjects by putting the rule of law first.

scholarly journals PENAHANAN DAN PENANGGUHAN PENAHANAN DALAM TEORI DAN PRAKTEK

to-ra ◽  
2018 ◽  
Vol 4 (1) ◽  
pp. 34
Author(s):  
Thomas Abbon
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
Preliminary Evidence ◽  
The State ◽  
The Rule Of Law ◽  
The Past ◽  
Procedure Code ◽  
The Law

Abstract   The issue of upholding the rule of law is a chore that must be resolved by the current government. The state and nation have been disadvantaged from all aspects, because in the end the harassment of the law has given rise  to corruption, collusion and nepotism. One of the things that stands out about law enforcement is the issue of detention and suspension of detention and sentencing that has to do with detention. The problem of detention and the detention in practice so far has been widely distorted by unscrupulous law enforcers and this institution has become an "open business arena". Detention and suspension of detention is actually a legal effort, which aims to realize the enforcement of the law itself, because detention is only allowed as long as there is suf cient preliminary evidence, and detention is solely in order to facilitate investigation / examination and besides that detention is also intended as protecting the suspect / defendant from violence / other people (eigenrichting).   The suspension of detention should be able to be given to every suspect / defendant who provides guarantees according to the law, unless otherwise speci ed in certain cases. In addition there is another side of the Criminal Procedure Code which determines that detention is part of punishment, so it has become a habit in practice that if a suspect / defendant who was originally detained "must be sentenced" .From the facts that are decomposed in the past this has brought a a very dif cult situation to nd out who really deserves detention or suspended detention and it turns out everyone is nally able to pay "anything" to release himself from the snare of detention even though it should not be his right.   Keywords: rule of law; corruption, collusion, and nepotism; legal effort.  

Internationale Investitionen in Form von Gesellschaftsbeteiligungen

2021 ◽  
Author(s):  
Philipp Berrsche
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Treaties ◽  
International Treaty ◽  
The Rule Of Law ◽  
Investment Protection ◽  
The Past ◽  
Diplomatic Protection ◽  
Right Of Action ◽  
The Law

One of the most important differences between the investment protection law of the past, which is based on the law of diplomatic protection and customary aliens law, and modern investment protection law, which is based on a large number of international treaties, including international treaty provisions on the procedural enforcement of claims, is the question of whether, in addition to the company whose rights have been violated by state measures, its shareholders are also entitled to a legally enforceable claim for compensation under international law. The thesis is dedicated to the proof of the following theses: 1.) Foreign shareholders have a fundamental right of action, regardless of the amount and whether it is a direct or indirect shareholding. 2.) In order to guarantee that the principles of the rule of law are observed in mass proceedings, the existing ICSID-regulations need to be supplemented by "additional procedural rules" which have yet to be formulated.

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

PURPOSE, PRINCIPLES AND SPECIFIC FEATURES OF PROSECUTOR’S OFFICE LEGAL CREATION ACTIVITY

2021 ◽  
Vol 6 (10) ◽  
pp. 53-62
Author(s):  
Shoxrukhkhon Saidov ◽  
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Legal Space ◽  
The Law ◽  
Law Making

This article describes the specifics of the law-making process conducted by the prosecutor's office. The purpose and principles of the prosecutor's office's participation in this process have been studied scientifically and theoretically. Taking into account the high relevance of ensuring legality in the law-making process, opinions were expressed about the need for adequate regulation and organization of solving this task by the prosecutor's office at the level of law and legality. The participation of the prosecutor's office in law-making activities contradicts the needs of the population, the protection of human and civil rights and freedoms, ensuring the rule of law, promoting the formation of a unified legal space and improving legislation, ensuring consistency legal instructions, systematization of legislation, scientifically based analysis are aimed at reducing the influence of bureaucratic interests and preventing the inclusion of factors that generate corruption in normative acts and their projects

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