scholarly journals ADR and the rule of law under a modern justice system

2021 ◽  
Author(s):  
◽  
Annabel Shaw
Keyword(s):  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Alternative Form ◽  
Symbiotic Relationship ◽  
The Rule Of Law ◽  
The World ◽  
Justice Practice ◽  
Modern Form

<p>Alternative dispute resolution (ADR) has been used around the world as a means to resolve conflict for hundreds of years, and has existed in its more modern form for more than four decades. Despite this long history and widespread use, ADR is still challenged as an illegitimate part of the justice system. This challenge has not gone unheeded and has been met with a vigorous defence. Much of the ensuing debate centres on the comparison between this ‘alternative’ form of justice and what is often called the more traditional form, adjudication. This paper addresses the longstanding claim made as part of this debate that ADR undermines the rule of law. Specifically, it seeks to determine whether ADR and the rule of law can be reconciled. It does this by firstly laying out and analysing the arguments made for and against ADR in this regard. Following this analysis, it proposes that ADR and the rule of law can be reconciled through the symbiotic relationship that exists between ADR and adjudication within the modern justice system. This theory is then evidenced through a case study by way of an examination of New Zealand’s restorative justice practice in the adult criminal justice system. The paper finds that ADR contributes necessary functions to the modern justice system, including the opportunity for broader justice through the wide and encompassing resolution of disputes that it can provide, and is clearly established as an essential component of the modern justice system. It concludes that ADR does not undermine the rule of law and these two can be reconciled.</p>

scholarly journals ADR and the rule of law under a modern justice system

2021 ◽  
Author(s):  
◽  
Annabel Shaw
Keyword(s):  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Alternative Form ◽  
Symbiotic Relationship ◽  
The Rule Of Law ◽  
The World ◽  
Justice Practice ◽  
Modern Form

<p>Alternative dispute resolution (ADR) has been used around the world as a means to resolve conflict for hundreds of years, and has existed in its more modern form for more than four decades. Despite this long history and widespread use, ADR is still challenged as an illegitimate part of the justice system. This challenge has not gone unheeded and has been met with a vigorous defence. Much of the ensuing debate centres on the comparison between this ‘alternative’ form of justice and what is often called the more traditional form, adjudication. This paper addresses the longstanding claim made as part of this debate that ADR undermines the rule of law. Specifically, it seeks to determine whether ADR and the rule of law can be reconciled. It does this by firstly laying out and analysing the arguments made for and against ADR in this regard. Following this analysis, it proposes that ADR and the rule of law can be reconciled through the symbiotic relationship that exists between ADR and adjudication within the modern justice system. This theory is then evidenced through a case study by way of an examination of New Zealand’s restorative justice practice in the adult criminal justice system. The paper finds that ADR contributes necessary functions to the modern justice system, including the opportunity for broader justice through the wide and encompassing resolution of disputes that it can provide, and is clearly established as an essential component of the modern justice system. It concludes that ADR does not undermine the rule of law and these two can be reconciled.</p>

Citizen-led digital policing and democratic norms: The case of self-styled paedophile hunters

2019 ◽  
pp. 174889581988095 ◽  
Author(s):  
Katerina Hadjimatheou
Keyword(s):  
United Kingdom ◽  
The Netherlands ◽  
Rule Of Law ◽  
Citizen Involvement ◽  
The Rule Of Law ◽  
The United Kingdom ◽  
The World ◽  
Democratic Principles ◽  
Democratic Norms

Citizen involvement in the provision of security is often presented as a win–win way to relieve pressure on police resources while building stronger, more responsible and democratically engaged communities. Governments in countries such as the United Kingdom and the Netherlands have adopted a ‘strategy of responsibilisation’ designed to encourage, enable and support citizens to take on tasks otherwise left for police. Yet, this strategy conspicuously ignores the growing number of citizen-led digital policing initiatives which operate independently without the encouragement or guidance of police. This article considers the implications of this trend for democratic norms in policing. It uses the phenomenon of self-styled paedophile hunters – which are now active in countries around the world – as a case study. The article makes comparisons between such initiatives and other, relatively well-theorised informal security providers, such as vigilante groups and civilian policing. It argues that, like vigilantes, citizen-led digital police often challenge democratic principles of transparency, accountability and the rule of law. Yet, like other civilian policing initiatives, they increase empowerment and participation, and rely for their success on the presence of strong and legitimate institutions of justice, to which they ultimately defer. These characteristics present a discreet set of opportunities and challenges for contemporary policing, which this article argues can only be addressed by strategic police engagement.

scholarly journals PEMIDANAAN ANAK MENURUT HUKUM ISLAM DAN HUKUM PIDANA INDONESIA

2015 ◽  
Author(s):  
Adam Sani
Keyword(s):  
Human Resources ◽  
Restorative Justice ◽  
Rule Of Law ◽  
Justice System ◽  
Islamic Law ◽  
Criminal Offense ◽  
The Rule Of Law ◽  
The World ◽  
The Law ◽  
The Government

Children is that of Allah swt which exists to the world is on the nothing but (pure children as the youth is the successors to achieve struggles and human resources for the development of nasional. children need guidance and attention specifically, Especially their parents and the government to achieve the development of physical , mental and spiritual maximally .The rule of law against children a criminal offense in Indonesia arranged in act no. 3 year 1997 on court children later improved by the law no. 11 2012 about the justice system children .Hence , if the child a criminal offense therefore his is to be processed legally based on the bill. Law no. 11 2012 about judicial systems children prefer diversi in the form of restorative justice in terms of handle matter children proven to commit crimes. According to islamic law , children committing a commit crimes.Keyword: children,  islamic law, crimes law, of Indonesia

The Case of Ayesha, Muslim ‘Courts’, and the Rule of Law: Some ethnographic lessons for legal theory

2014 ◽  
Vol 48 (4) ◽  
pp. 940-985 ◽  
Author(s):  
JEFFREY A. REDDING
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
State Courts ◽  
Scholarly Work ◽  
Direct Control ◽  
The Rule Of Law ◽  
The World ◽  
The One ◽  
Established Firm

AbstractThis paper aims to challenge the disparagement of non-state Islamic systems of law that has established firm roots in contemporary rule of law ideology and practice around the world, from India to Ontario. In this respect, rule of law ideology has tended to ignore actual mechanics and procedures of law, not only in legal venues outside the state's direct control, but also in the state's courts themselves. With respect to non-state legal venues—and especially non-state Islamic legal venues—such ideology understands and describes the practices and procedures that it finds in these non-state venues as crude and underdeveloped at best, and illiberal and in violation of the rule of law at worst. While other scholarly work has vividly demonstrated the various transformations and mutations that any state's ‘ideal legal procedure’ experiences as it is put into real-world practice by a state's courts and judges, this paper makes a converse move. Using a case-study focused on the circumstances and experiences of an Indian Muslim woman, ‘Ayesha’, who recently used a Delhi dar ul qaza to exercise her Islamic divorce rights in India, this paper demonstrates how a non-state Islamic legal venue behaves in ways which are highly evocative of rule of law ideology's idealization of state courts and how they (should) operate procedurally. In doing so, this paper provides evidence for Partha Chatterjee's thesis as to how elite and subaltern domains—understood here to be embodied in both state and non-state legal venues, respectively—are products of ‘mutually conditioned historicities’. In this case, the focus is on the state's conditioning of the non-state. As a result, rule of law ideology's state-oriented critique of the (Islamic) non-state is mistaken because, as this paper demonstrates, the non-state is produced in conversation with the state; one cannot critique the one (non-state) domain without realizing how that critique implicates the other (state) domain.

What makes prosecutors independent? Analysing the institutional determinants of prosecutorial independence

2017 ◽  
Vol 15 (1) ◽  
pp. 99-120 ◽  
Author(s):  
STEFAN VOIGT ◽  
ALEXANDER J. WULF
Keyword(s):  
Rule Of Law ◽  
Justice System ◽  
Common Law ◽  
Press Freedom ◽  
The Rule Of Law ◽  
Institutional Determinants ◽  
Criminal Justice Systems ◽  
The World ◽  
Criminal Suspects ◽  
The Common

AbstractThe prosecution of criminal suspects is an integral part of a country's justice system. While substantial scholarly attention has been devoted to the study of the police and judges and their relevance to the rule of law, surprisingly little is known about prosecutors. The aim of this paper is to contribute towards filling this knowledge gap. We first demonstrate the rising importance of prosecutors in criminal justice systems around the world. We identify the independence of prosecution agencies from the other two branches of government as a centrally important characteristic and then proceed to analyse the determinants of de facto prosecutorial independence from a political economy perspective. We find that press freedom, the immunity of parliamentarians and belonging to the common law tradition are positively associated with higher de facto independence.

scholarly journals THE TRANSITION FROM TRADITIONAL TO VIRTUAL COURTS: REALITY OR MYTH FOR THE JUSTICE SYSTEM IN UKRAINE?

Legal Ukraine ◽  
2020 ◽  
pp. 17-27
Author(s):  
Mariana Zhuravel
Keyword(s):  
Key Words ◽  
Rule Of Law ◽  
Justice System ◽  
Healthcare Systems ◽  
Fair Trial ◽  
Access To Justice ◽  
The Rule Of Law ◽  
The World ◽  
The Uk

The COVID-19 pandemic has presented difficulties in jurisdictions across the world and accelerated the digitalisation processes of justice. While the world experienced massive distress and healthcare systems worldwide could hardly cope with an increasing number of coronavirus patients, the justice system was also presented with numerous challenges during the various national lockdowns. Since upholding the rule of law through access to justice in a fair trial should under no circumstances be halted, courtrooms remained opened even though these doors had to be virtual or accessed with electronic keys, as was the case in Ukraine. The earlier concept of ESITS and the E-court could have served useful purpose during this time of crisis but it failed due to technical and implementation issues and judges, therefore, had to explore other means to conduct hearings remotely. This article aims to address the situation which Ukrainian courts faced during the time of the pandemic, making reference to foreign practices in the UK and China and concluding with the prospects for virtual justice in Ukraine. Key words: justice system, ESITS, E-court, virtual hearings, traditional courts, Online Court, COVID-19 pandemic, Smart Courts, digitalisation.

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

Russia and EU Countries: Partnership for Modernization

2013 ◽  
pp. 54-61
Author(s):  
T. Romanova ◽  
E. Pavlova
Keyword(s):  
Rule Of Law ◽  
New Classification ◽  
Member States ◽  
The Rule Of Law ◽  
Normative Power ◽  
Eu Member States ◽  
The World ◽  
The Difference ◽  
The Eu

The article examines how the normative power, which the EU puts forward as an ideological basis of its actions in the world, manifests itself in the national partnerships for modernization between Russia and EU member states. The authors demonstrate the influence of the EU’s normativity on its approach to modernization as well as the difference in the positions of its member countries. It is concluded that there is no unity in the EU’s approach to democracy, human rights and the rule of law, and the new classification of EU member states, which is based on their readiness to act in accordance with the Union’s concept of normative power, is offered.

The Rule of Law: The New Leviathan?

1999 ◽  
Vol 12 (1) ◽  
pp. 151-168 ◽  
Author(s):  
Olufemi Taiwo
Keyword(s):  
Rule Of Law ◽  
Philosophical Tradition ◽  
Global Level ◽  
The Rule Of Law ◽  
The World ◽  
Social Ordering ◽  
Soviet Communism ◽  
Just Society ◽  
Different Parts ◽  
The Ideal

These are the best of times for the Rule of Law. In all parts of the world, states, governments, and individuals, have found in the rule of law, at various times, a rallying cry, a principle of social ordering that promises the dawn of a just society that its supporters in Euro-American democracies claim to be its crowning glory, or a set of practices that is a sine qua non of a good society. The pursuit of the ideal is nothing new: after all, even those states where it was observed more often in its breach always paid lip service to it. And the defunct socialist countries of Eastern Europe, while they existed, could not escape its lure even as they sought to give it a different nomenclature—socialist legality. The movement towards the rule of law has accelerated after the collapse of Soviet communism and its foster progeny in different parts of the world. Given the present momentum towards the rule of law and the widespread enthusiasm with which it is being embraced and pursued at the global level, some would consider it somewhat churlish for anyone to inject any note of doubt or caution. This is more so when such a note emanates from Marxist quarters. But that is precisely what I wish to do in this essay. Although I do not intend to rain on the rule of law’s entire parade, I surely propose to rain on a segment of it: the Marxist float. I propose to look at the issue within the context of the Marxist politico-philosophical tradition.

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