scholarly journals The Principle of the Separation of Powers: the Ontological Presumption of an Ideologeme

2020 ◽  
Vol 13 (2) ◽  
pp. 1-23
Author(s):  
Gediminas Mesonis
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
The State ◽  
Social Discourse ◽  
Human Being ◽  
Causal Relationships ◽  
The Rule Of Law ◽  
Positive Law ◽  
Separated Powers ◽  
Form Of Expression

Abstract The theoretical materiality of the principle of the separation of powers is beyond doubt. This principle is inevitable in discourse on the constitutional framework of the state, democracy and the rule of law, and it has its own form of expression in positive law. Although the relevance of the principle of the separation of powers in social discourse creates the illusion of the conceivability of its content, the ontological questions concerning this principle remain largely vague. This can be explained by considering two aspects. First, as established in scientific doctrines and constitutional forms of expression, the principle of the separation of powers has become a social and legal ideologeme; it approximates an axiom which is no longer substantiated anew. Second, discourse concerning ontology is always complicated, since it calls to question the essence itself. It is complicated not only because it requires a particular intellectual effort and academic courage, but also because the outcome of such discourse is unpredictable and can lead either to the ideologeme being confirmed to be true or being unexpectedly revised, or perhaps can even lead to the demise of what has so far been self-evident, unquestionable, obvious, universally known, etc. This article analyses the ontological essence of the principle of the separation of powers – an approach towards the human being, whereby meaning is given to the consequent system of causal relationships within the whole theory. Discourse in this article takes ontological issues as its object of inquiry: why did we decide to separate powers and how many of these separated powers are there?

THE CONDITIONS FOR THE FORMATION OF THE SYSTEM OF THE RULE OF LAW IN RUSSIA

2020 ◽  
pp. 204-210
Author(s):  
Nikita S. Grudinin
Keyword(s):  
Rule Of Law ◽  
Russian Federation ◽  
Separation Of Powers ◽  
The State ◽  
Social Progress ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Russian Federation ◽  
Constitutional System ◽  
The Stability

The article is devoted to the study of the conditions for the formation of a truly legal state in the Russian Federation. It is noted that the process of formation of the system of the rule of law requires signifi cant efforts both by the state and by society. It is also emphasised that the key conditions that can ensure the effective functioning of the rule of law in Russia are the respect of the provisions of the Constitution of 1993 by citizens and the willingness to comply with those provisions in cooperation with the state, the independence of the judiciary, the real and rational separation of powers, the functioning of legislative bodies in accordance with the interests of citizens of the Russian Federation. According to the author’s opinion, trust in the Constitution and its ability to ensure social progress in general is the basis for strengthening the legal statehood of the Russian Federation in the long term. The author concludes that the strength of the construction of legal statehood in Russia is based on the stability of the constitutional system and the supremacy of the Constitution of the Russian Federation, its ability to subordinate to its action all citizens of the country and offi cials of public authorities.

The Principles of Constitutionalism

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Civil Society ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Limit State ◽  
Well Being ◽  
The State ◽  
The Rule Of Law ◽  
Constitutional State ◽  
The Relationship

In this follow-up volume to the critically acclaimed Constitutional State, Nick Barber explores how the principles of constitutionalism structure and influence successful states. Far from acting exclusively as a mechanism to limit state powers, Barber contends that constitutionalism and its associated principles require that the state be structured to advance the well-being of its people. An attractive and satisfying account of constitutionalism, and, by derivation, of the state, can only be reached if the principles of constitutionalism are seen as interlocking parts of a broader doctrine. This holistic study of the relationship between the constitutional state and its central principles—sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society—casts light on long-standing debates over the meaning and implications of constitutionalism. The book provides a concise introduction to constitutionalism and a detailed account of the nature and implications of each of the six principles in question. It concludes with an examination of the importance of constitutional principles to the work of judges, legislators, and others involved in the operation and creation of the constitution. The book is essential reading for those seeking a definitive account of constitutionalism and its benefits.

scholarly journals „Dobre” społeczeństwo i państwo prawa. Prolegomena do konstytucji

2007 ◽  
Vol 10 ◽  
pp. 29-42
Author(s):  
Paweł Kaczorowski
Keyword(s):  
Social Relationships ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Legal Protection ◽  
The State ◽  
The Rule Of Law ◽  
Legal Standards ◽  
The Law ◽  
The Right ◽  
Legal Character

The idea of a law-governed state, which is referred to so commonly, exists as a synonym of the principle of the supreme meaning and standing of the constitution in the state system. The law-governed state in its pure form is one where the law provides not only the framework and barriers for the state and the actions of the authorities, but a state wherein its beginning and foundations are rooted in the law. The concept of the law-governed state has many highly detailed elements (the very existence of the constitution, the separation of powers, the independence of the courts, the legal character of administrative actions, legal protection against decisions made by the authorities, the right to appeal, etc.); its essence, however, is the recognition of the law as a particular means and a yardstick with which both the state’s system and the recognition of the legal standards vested with the power to shape social relationships, the regulatory power, are moulded. It is the prestige of the law – nomos basileus – which should be the source of state order. The supremacy of the law provides the premise on which the introduction of every detailed solution which turns the idea of the law-governed state into specifics, is based. If the rule of law, rather than that of the authorities is to exist, this must be a law wherein each citizen may contribute to its shape; ideally it will be one established directly by the citizens rather than by the established authorities, democratic in an indirect way. This must be a law binding upon everyone equally, observed by everyone, operating effectively and surely. It must also be a law made for society’s sake rather than for that of an idea, and it must be fitting to those realities, standards and common practices that exist in that society. It must also be a law not too rigorous and imposing neither excessive requirements nor strange measures.

Reaktualisasi Proses Penyidikan oleh Kepolisian Berbasis Nilai-Nilai Pancasila dan Optimalisasi Pemanfaatan Teknologi

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1737
Author(s):  
Ira Alia Maerani
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Public Prosecutor ◽  
Public Confidence ◽  
The Rule Of Law ◽  
Positive Law ◽  
Use Of Technology ◽  
The Times

Abstract                Indonesian Criminal Justice System consists of the police, public prosecutor and the courts. The role of the police investigators is certainly vital as the frontline in building public confidence in the rule of law in Indonesia. The role of the investigator is quite important in realizing society’s  justice. The era of globalization requires a pattern fast-paced, instant, measurable, and transparent of life and it requires investigators to follow the times by optimizing the use of technology. The aim of this study is to give effect to the rule of law in Indonesia that provides fairness, expediency and certainty. However, it considers to have priority of Pancasila values in the process of inquiry and investigation. The values of supreme divinity, God (religious), humanity, unity, democracy and justice are values that establish a balance (harmony) in enforcing the law. Law and its implementation can create product which meets the demands for social justice. This paper will examine the role of the investigator according to positive law currently in force as well as the role of investigator in implementing the values of Pancasila, accompanied by optimizing the use of technology. Keywords: Re-actualizing, Investigation, Police, values of Pancasila, Technology   AbstrakSistem Peradilan Pidana Indonesia meliputi institusi kepolisian, kejaksaan, dan pengadilan. Peran penyidik dalam institusi kepolisian tentunya amat vital sebagai garda terdepan dalam membangun kepercayaan masyarakat terhadap penegakan hukum di Indonesia. Peran penyidik amat besar dalam terwujudnya keadilan di masyarakat. Era globalisasi yang menuntut pola kehidupan yang serba cepat, instan, terukur, dan transparan menuntut penyidik untuk mengikuti perkembangan zaman dengan mengoptimalkan pemanfaatan teknologi. Tujuannya adalah untuk memberikan arti bagi penegakan hukum di Indonesia yakni memberikan keadilan, kemanfaatan, dan kepastian. Namun yang harus diperhatikan adalah mengutamakan nilai-nilai Pancasila dalam melakukan proses penyelidikan dan penyidikan. Nilai-nilai ketuhanan yang maha esa (religius), kemanusiaan, persatuan, kerakyatan dan keadilan merupakan nilai-nilai yang membangun keseimbangan (harmoni) dalam menegakkan hukum. Sehingga produk hukum dan pelaksanaannya memenuhi rasa keadilan masyarakat. Tulisan ini akan mengkaji tentang peran penyidik menurut hukum positif yang saat ini berlaku serta peran penyidik dalam mengimplementasikan  nilai-nilai Pancasila dengan diiringi optimalisasi pemanfaatan teknologi.Kata Kunci: Reaktualisasi,Penyidikan,Kepolisian,Nilai-nilai Pancasila,Teknologi

Theoretical and methodological determinants of the Robert von Mol’s concept of the social state

2020 ◽  
Vol 2020 (1) ◽  
pp. 37-45
Author(s):  
Svetlana Pirozhok
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
Social Protection ◽  
The State ◽  
Scientific Article ◽  
Social State ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Social ◽  
The 19Th Century

The relevance of determining the theoretical and methodological determinants of the Robert von Moll’s concept of the social state is due to the need to determine the patterns of evolution of ideas about the state and law, as well as the need to assess the ability to use the potential of the Robert von Moll’s theoretical and legal heritage, his predecessors and contemporaries to identify the optimal model of the social state. Modern Russia attempts to build such state. The proclamation and consolidation of Russia as a social state governed by the rule of law at the constitutional level requires attention both to the experiments carried out in social and legal development, and to the practices of social reform, and also to those ideas that have not yet been embodied. The ideas of European scholars regarding the evolution of the state-legal organization of society in the early modern period, based on which Robert von Mohl (1799–1875) developed original concepts of a social state and a state governed by the rule of law are discussed in the article. An analysis of the state of European political and legal thought and identification of the factors that have a significant impact on the development of Robert von Mohl’s doctrine of a social state governed by the rule of law are the purposes of the scientific article. The methodological basis of the study was the dialectical-materialistic, general scientific (historical, systemic) and special (historical-legal, comparativelegal) methods of legal research. The method of reconstruction and interpretation of legal ideas had great importance. As a result of the study, it was concluded that in the first half of the 19th century in European political and legal thought various approaches was formed to consider the problems of social protection and how to resolve them. The development trend of European political science became the transition from ideas and principles formed in the conditions of police states and enlightened absolutism to the ideas of a state governed by the rule of law (constitutional) that protects the rights and freedoms of a citizen. At the same time, it was a question of the rights and freedoms of only a part of the population: the proletariat growing in number and significance was not always evaluated as an independent social stratum. The axiological principles of state justification have also changed. Rights and utility principle became dominant principles. In the first half of the 19th century the social issue as an independent scientific problem of the European political and legal thought was not posed and not systematically developed. Questions about the social essence of the state, the specifics of the implementation of the state social function, the features of public administration in the new stage of socio-economic development of society predetermined the emergence of the idea of a social state. This idea was comprehensively characterized in the Robert von Mohl’s works. He went down in the history of political and legal thought as founder of the concepts of social and governed by the rule of law state.

Conclusion

2018 ◽  
Author(s):  
Fanie du Toit
Keyword(s):  
South African ◽  
Social Exclusion ◽  
Rule Of Law ◽  
The State ◽  
African History ◽  
Divided Societies ◽  
The Rule Of Law ◽  
South Africans ◽  
Social Goods ◽  
Forward Looking

Reading South African history through the lens of interdependence helps explain the disappointment that many South Africans feel in relation to reconciliation. While they are justified in feeling let down, owing to rising inequality and social exclusion, it is wrong to blame Mandela’s strategy of just interdependence because it was abandoned too early. In seeking to overcome oppression, reconciliation is forward-looking and predicated on rebuilding relationships in divided societies. Dealing with a violent past is valuable when striving for a more just future. Reconciliation fosters just, inclusive, and fair societies and is locally owned and driven. A progressive approach to reconciliation is also needed. Reconciliation recognizes the inherent interdependence between citizens themselves, and between citizens and the state. These relationships are progressively re-established in more just ways. In so doing, it helps to create conditions in which social goods such as forgiveness, the rule of law, or democracy become possible.

Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal

2021 ◽  
Vol 10 (1) ◽  
pp. 139-150
Author(s):  
GIANLUIGI PALOMBELLA
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Member States ◽  
The Rule Of Law ◽  
Internal Organization ◽  
Positive Law ◽  
Margin Of Appreciation ◽  
Principle Of Legality

AbstractCan citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

Cicero and Milo

1974 ◽  
Vol 64 ◽  
pp. 62-78 ◽  
Author(s):  
A. W. Lintott
Keyword(s):  
Civil War ◽  
Rule Of Law ◽  
The State ◽  
The Political ◽  
New Era ◽  
The Rule Of Law ◽  
Political Position ◽  
The Republic ◽  
Political Realignment ◽  
Political Scene

The battle of Bovillae on 18th January, 52 B.C., which led to Clodius' death, was literally treated by Cicero in a letter to Atticus as the beginning of a new era—he dated the letter by it, although over a year had elapsed. It is difficult to exaggerate the relief it afforded him from fear and humiliation for a few precious years before civil war put him once more in jeopardy. At one stroke Cicero lost his chief inimicus and the Republic lost a hostis and pestis. Moreover, the turmoil led to a political realignment for which Cicero had been striving for the last ten years—a reconciliation between the boni and Pompey, as a result of which Pompey was commissioned to put the state to rights. Cicero's behaviour in this context, especially his return to the centre of the political scene, is, one would have thought, of capital importance to the biographer of Cicero. Yet two recent English biographies have but briefly touched on the topic. It is true that, in the background of Cicero's personal drama, Caesar and Pompey were taking up positions which, as events turned out, would lead to the collapse of the Republic. However, Cicero and Milo were not to know this, nor were their opponents; friendly cooperation between the two super-politicians apparently was continuing. Politicians on all sides were still aiming to secure power and honour through the traditional Republican magistracies, and in this pursuit were prepared to use the odd mixture of violence, bribery and insistence on the strict letter of the constitution, which was becoming a popular recipe. In retrospect their obsession with the customary organs of power has a certain irony. Yet it is a testimony to the political atmosphere then. Their manoeuvres are also important because both the instability caused by the violence of Clodius and Milo, and the eventual confidence in the rule of law established under Pompey's protection, helped to determine the political position of the boni associated with Pompey in 49 B.C. Cicero's relationship with Milo is at first sight one of the more puzzling aspects of his career. What had they in common, except that Milo, like most late Republican politicians, was at one time associated with Pompey? Properly interpreted, however, this relationship may not only illuminate Cicero's own attitudes but illustrate the character of the last years of Republican politics.

Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain

2021 ◽  
Vol 7 (3) ◽  
pp. 379-398
Author(s):  
David Parra Gómez
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Social Rights ◽  
Institutional Reforms ◽  
Public Authorities ◽  
The Rule Of Law ◽  
The Public ◽  
Division Of Powers ◽  
European Democracy ◽  
Aggressive Interference

Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

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