scholarly journals História do Direito Administrativo no Brasil (1937-1964): o debate em torno das delegações legislativas

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Mauricio Costa Mesurini
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Santa Catarina ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Legislative Delegation ◽  
History Of ◽  
The Law ◽  
The Government

História do Direito Administrativo no Brasil (1937-1964): o debate em torno das delegações legislativasThe history of the Administrative Law in Brazil (1937-1964): the debate about legislative delegation Mauricio Costa Mesurini[1] RESUMO: Trata-se de um trabalho sobre história do Direito Administrativo no Brasil, notadamente no período de 1937 a 1964. O objetivo é mostrar alguns aspectos da trajetória do campo, em especial as transformações favorecidas pela tendência modernizadora, entre elas, o debate em torno das delegações legislativas, um tema que se desenvolveu na doutrina a partir e à margem das disposições constitucionais da época. É inegável a importância da lei para o direito público moderno. Mas o que é a lei? Quem tem o poder de confeccioná-la? “O governo das leis” em substituição ao “governo dos homens”, em verdade uma tautologia, encobre o problema sobre a fonte de onde emanam as leis. Assim sendo, mesmo em um Estado de Direito, a disputa político-jurídica permanece latente e continua em jogo a definição de quem são os “senhores” da legislação. O artigo investiga o debate jurídico em torno das delegações legislativas abordando quatro juristas da época: Francisco Campos, Victor Nunes Leal, Bilac Pinto e Themistocles Cavalcanti. PALAVRAS-CHAVE: Direito Administrativo. Direito Constitucional. Delegações legislativas. Separação de poderes. ABSTRACT: This paper is a study on the history of administrative law in Brazil, notably in the period 1937-1964. The purpose is to present some aspects of the development of this field of study, especially the changes favored by the modernization process through which Brazil has passed, such as the debate about legislative delegation, a theme that was developed in the legal doctrine from and beyond the constitutional arrangement of the period. It is undeniable the importance of the legislation to modern public law. But what is legislation? Who has the power to make it? The “rule of law” replacing the “government of men”, in fact a tautology, conceals the problem of the source from where the law emanates. Therefore, even in the bases of the rule of law, the legal-political dispute remains latent, and the definition about who establishes the law remains open. More specifically, the paper analyzes the debate about legislative delegation in Brazil by four legal experts of the period: Francisco Campos, Victor Nunes Leal, Bilac Pinto and Themistocles Cavalcanti. KEYWORDS: Administrative law. Constitutional law. Legislative delegation. Separation of powers.[1] Doutor em História do Direito pela Universidade Federal de Santa Catarina – UFSC, 2016. Mestre em 2008 e graduado em 2005 pela Direito Público Universidade Federal de Santa Catarina – UFSC. Professor de Direito Administrativo da Faculdade Cenecista de Joinville

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.

An Overview of Good Governance

2019 ◽  
pp. 15-24
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Administrative Law ◽  
The State ◽  
Institutional Framework ◽  
The Rule Of Law ◽  
Administrative Legislation ◽  
The Government

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.

The Separation of Powers in African Constitutionalism

2019 ◽  
Author(s):  
Charles Manga Fombad
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Separation Of Powers ◽  
Common Denominator ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
Pure System ◽  
Key Innovation ◽  
Anglo American ◽  
The Government

One reason why dictatorships flourished in Africa until the 1990s was that constitutions concentrated excessive powers in presidents. The democratic revival of the 1990s led to the introduction of new or substantially revised constitutions in a number of countries that for the first time sought to promote constitutionalism, good governance, and respect for the rule of law. A key innovation was the introduction of provisions providing for separation of powers. However, in many cases the reintroduction of multipartyism did not lead to thorough constitutional reform, setting the scene for a subsequent struggle between opposition parties, civil society, and the government, over the rule of law. This reflects the complex politics of constitutionalism in Africa over the last 60 years. In this context, it is important to note that most of the constitutions introduced at independence had provided for some degree of separation of powers, but the provisions relating to this were often vaguely worded and quickly undermined. Despite this, the doctrine of separation of powers has a long history, and the abundant literature on it shows that there is no general agreement on what it means or what its contemporary relevance is. Of the three main models of separation of powers, the American one, which comes closest to a “pure” system of separation of powers, and the British, which involves an extensive fusion of powers, have influenced developments in anglophone Africa. The French model, which combines elements of the British and American models but in which the executive predominates over the other two branches, has influenced developments in all civilian jurisdictions in Africa, particularly those in francophone Africa. The common denominator among the models is the desire to prevent tyrannical and arbitrary government by separating powers but doing so in a manner that allows for limited interference through checks and balances on the principle that le pouvoir arrête le pouvoir. The combined Anglo-American (common law) and French (civil law) models received during the colonial period remain applicable today, but despite its adoption in the 1990s, the effectiveness of the doctrine of separation of powers in limiting governmental abuse has been curtailed by the excessive powers African presidents still enjoy and the control they exercise over dominant parties in legislatures. South Africa in its 1996 Constitution, followed by Kenya in 2010 and Zimbabwe in 2013, entrenched a number of hybrid institutions of accountability that have the potential not only to complement the checks and balances provided by the traditional triad but also to act where it is unable or unwilling to do so. The advent of these institutions has given the doctrine of separation of powers renewed potency and relevance in advancing Africa’s faltering constitutionalism project.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

scholarly journals Some Issues of the Relationship of the Judicial Systems of the Republic of Uzbekistan and the Republic of Karakalpakstan

2020 ◽  
Vol 6 (6) ◽  
pp. 244-251 ◽  
Author(s):  
G. Berdimuratova
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
The Republic ◽  
The Government ◽  
Relationship Of ◽  
Principle Of Legality ◽  
The Relationship ◽  
Mechanism Of Separation ◽  
Judicial Systems

This work is devoted to the consideration of the constitutional directions of interaction and interdependence of the judiciary of the Republic of Uzbekistan and the Republic of Karakalpakstan. As a result of studying the issues under consideration, the author concludes that the importance and significance of the role and place of the judicial branch of the government in the mechanism of separation of powers is precisely in ensuring the rule of law, avoiding violations of the principle of legality and the rule of law based on it.

scholarly journals Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia

SEEU Review ◽  
2015 ◽  
Vol 11 (1) ◽  
pp. 86-98
Author(s):  
Ivana Shumanovska-Spasovska ◽  
Konstantin Bitrakov
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Great Influence ◽  
Executive Branch ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Republic Of Macedonia ◽  
Magna Carta ◽  
The Law ◽  
The Republic

Abstract One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.

scholarly journals Implementasi Penerapan Undang-Undang Nomor 13 Tahun 2006 tentang Perlindungan Saksi dan Korban (Sudi di Polres Kuningan)

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Haris Budiman dan Gios Adhyaksa
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Trial Judge ◽  
The Rule Of Law ◽  
Operational Costs ◽  
The Law ◽  
The Government ◽  
The Cost ◽  
Unwritten Law

Article 1 (1) of the 1945 Constitution states that, Indonesia is the law of the State in the form of Republic. Therefore, the provisions of the applicable legislation and set the life of the Indonesian nation comes from the law, whether written or unwritten law. One runway is used as basic guidelines in order to achieve justice for all Indonesian people, especially in the field of law, set forth in Article 27 paragraph (1) of the Act of 1945, which reads, "All citizens are equal before the law and government and must uphold the rule of law and without exception. " Protection of witnesses reporting the crime of pornography, the identity of a witness, obviously very secret and confidential examined by the police, even on a trial judge has no right to bring a witness, before the trial because the reporter's identity confidentiality is strictly protected by the Law No. 44 Year 2008 on pornography.  Factors that became penghamabat the police to provide protection against the crime of pornography reporting, that one of the eligibility period and the cost to hold the protection of witnesses and victims must require substantial funds, although basically the police have been very ready to implement the law , subject to the government in terms of a special budget for the program of protection, especially for operational costs in the field.  Keywords: Crime, Pornography, Witness, Protection. 

scholarly journals Basic Ideas of State Power Limitation in Political and Legal Doctrine

2017 ◽  
Vol 10 (4) ◽  
pp. 197
Author(s):  
Galina S. Belyaeva ◽  
Boris V. Makogon ◽  
Sergej N. Bezugly ◽  
Marina L. Prokhorova ◽  
Dariusz Szpoper
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
State Power ◽  
The State ◽  
Scientific Concepts ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
The Law ◽  
Basic Ideas

The article deals with some issues of the state power restriction, and the necessity of this is justified. The evolution of state power restriction certain criteria and forms are analyzed in accordance with the emergence of relevant ideas and scientific concepts and their chronology: the restriction of power by another power, self-restraint of state power; the restriction of state power by the law and human rights in connection with the contemporary problems of state power restrictions in a state governed by the rule of law.

scholarly journals Government Lawyers in the Trump Administration

2017 ◽  
Author(s):  
W. Bradley Wendel
Keyword(s):  
Theoretical Analysis ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Administrative Law ◽  
Professional Conduct ◽  
Donald Trump ◽  
The Rule Of Law ◽  
Legal Standards ◽  
President Elect ◽  
Trump Administration

The words and actions of candidate, President-Elect, and now President Donald Trump indicate that this Administration will aggressively seek to use state power with little regard for the rule of law. A great deal has been written about the constitutional and administrative law regulating inter- and intra-branch separation of powers. However, there is no comprehensive legal and theoretical analysis of government lawyers as lawyers, subject to regulation by state rules of professional conduct and other positive legal standards. This Article engages with numerous contested issues in the law of lawyering to provide a constructive legal and ethical conception of government legal advisors. In practical terms, it may serve as a source of guidance for lawyers in the new administration, or as a roadmap for discipline by lawyer regulators. More theoretically, it defends a conception of the rule of law as a practice of reason-giving, not dependent upon legal objectivity or determinacy.

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