scholarly journals Presidential Signing Statements and the Rule of Law as an “Unstructured Institution"

2018 ◽  
Author(s):  
Peter M. Shane

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.

2016 ◽  
Vol 1 (35) ◽  
Author(s):  
Mauricio Costa Mesurini

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


Author(s):  
Charles Manga Fombad

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.


2020 ◽  
Vol 6 (6) ◽  
pp. 244-251 ◽  
Author(s):  
G. Berdimuratova

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.


2021 ◽  
Vol 30 ◽  
pp. 194-207
Author(s):  
Patrick Praet

The paper examines the legality and legitimacy of Belgium’s COVID-19-related restrictions in light of national and international guidelines. Its discussion proceeds from the most vital characteristic of any law-based state: the government being subject to standards of substantive and procedural legality, even during a pandemic. After this, the effect of the crisis on the Belgian Rechtsstaat is examined, with special emphasis on the functioning of the separation of powers and on the unprecedented predominance of the executive power, alongside the legal basis for the latter’s actions. The author concludes that the Belgian measures against the virus’s spread have failed to meet the cumulative requirements of the rule-of-law test. Discussion then turns to the possibly huge ramifications for some wider debates in the field of philosophy of law, both for classic topoi ( such as law and morality or utilitarianism) and for contemporary current debates such as constitutionalism, sovereignty, and juristocracy. In its concluding remarks, the paper raises issues of the unspoken social contract between the people and the state: will the restrictions amid the pandemic go down in history as a singular, unique event or, instead, as a step on the slippery slope toward permanent crisis management in the name of a new sanitary order?


2016 ◽  
Vol 10 (1) ◽  
pp. 42
Author(s):  
Fereshteh Tavakoli Saadat ◽  
AbdoReza Beigi Nia ◽  
Mohsen Abedi ◽  
Akbar Rahnema

Good Governance has a long history of human thought and has proposed in the works of various thinkers. By examining the different theories, we are going the government agency, Required for sure non-infringement any community of human beings. The thought of Imam Ali also how the rule and governance in an appropriate manner, has been attending. This article has been extracted from Research on noble Nahjolbalaghe and to assess components of governance had paid from the sight of Imam Ali. Using content analysis, Statements related to governance derived from Nahjolbalaghe and then encrypt the data and using the software SPSS, the data have been analyzing. The final study Extraction and compilation of eleven components: The rule of law, Justice, and Anti-oppression, equality, participation, Self-regulatory Instead of monitoring people, preparing the groundwork to move people toward God, Clarifying public opinion, preparation for a healthy and dynamic economy, manage life’s value of a poor class of Society, Social security and accountability to God and the people. These are Indicators that Imam Ali believed are required for "Good governance" in the society.


2021 ◽  
pp. 197-220
Author(s):  
Ian Loveland

This chapter, which examines the so-called parliamentary privileges of the House of Commons and the House of Lords, begins by discussing Article 9 of the Bill of Rights 1689. It then explores over three hundred years of the history of parliamentary privilege in five general areas: (i) the houses’ power to regulate their own composition through the admission, retention, and expulsion of their members; (ii) the publication of details of house business; (iii) the admissibility before the courts of such published material; (iv) the concept of ‘contempt of the house’; and (v) the regulation of MPs’ ethical standards. The chapter also analyses several seminal cases in which the courts have adjudicated on both the nature and extent of parliamentary privilege and considers how case law in relation to this area of the constitution balances the sometimes competing concepts of the sovereignty of Parliament, the rule of law, and the separation of powers.


1990 ◽  
Vol 34 (2) ◽  
pp. 145-158 ◽  
Author(s):  
M. A. Ikhariale

One of the fundamental principles underlying the Nigerian constitutional process is that of the independence of the judiciary. The concept, in its basic form, embodies the entire philosophy of constitutional democracy especially as emphasised by the preamble to the Constitution which is for “promoting the good government and welfare of all persons … on the principles of Equality, Freedom and Justice”. In a country such as Nigeria which is presently characterised by political and economic underdevelopment, it is generally considered constitutionally desirable that a viable contrivance such as the institutional separation of the judiciary from the other arms of the government is a necessary bulwark against all forms of political and social tyranny, administrative victimisation and oppression. In other words, the freedom of the judicature from any influence, whether exerted by the legislature or the executive, or even from the judiciary itself, which is capable of leading to any form of injustice, abuse, miscarriage of justice, judicial insensitivity or other court-related vices is a condition sine qua non for the establishment of a durable political order based on the rule of law and constitutionalism.The notion of the independence of the judiciary has its philosophical ancestry in the time-honoured theory of the separation of powers, a doctrine which incidentally features prominently in the allocation of state powers under the Nigerian constitutional scheme.


2014 ◽  
Vol 3 (2) ◽  
pp. 38
Author(s):  
Alexandru Florin Magureanu

Delegating the sovereignty from the citizens to the Government is necessary, to a certain degree, in order to ensure the efficiency of the constitution and the separation of powers, as well as the process of lawmaking. However the complex structure that we now call a “state” and that already seems to have reached its limitations is often perceived as a cold, impersonal structure, in which citizens are becoming only an insignificant part, an interchangeable wheel in a grand design. Thus the decision tends to become more distant from the citizens, than it was in the Greek democracy for example. The new means of communication, especially the Internet, give the citizen the possibility to be closer to the decisions taken by the legislator. The building of a “virtual agora” in which citizens are asked to participate directly to their own governing seems an achievable dream. Main difficulties towards such an ambitious goal are no longer of a technological nature, but of transforming the traditional law making process, the somehow rigid essential characteristics that the rule of law must have, with the direct exercise of sovereignty, by the citizens, if not in all matters, at least at a local, administrative level.


2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.


Politeia ◽  
2018 ◽  
Vol 37 (1) ◽  
Author(s):  
Mbekezeli Comfort Mkhize ◽  
Kongko Louis Makau

This article argues that the 2015 xenophobic violence was allowed to spread due to persistent inaction by state officials. While the utterances of King Goodwill Zwelithini have in part fuelled the attacks, officials tend to perceive acts of xenophobia as ordinary crimes. This perception has resulted in ill-advised responses from the authorities, allowing this kind of hate crime against foreign nationals to engulf the whole country. In comparison with similar attacks in 2008, the violent spree in 2015 is characterised by a stronger surge in criminal activities. The militancy showcased fed a sense of insecurity amongst foreigners, creating a situation inconsistent with the country’s vaunted respect for human rights and the rule of law. Investors lost confidence in the country’s outlook, owing in part to determined denialism in government circles regarding the targeting of foreigners. While drawing from existing debates, the article’s principal objective is to critically examine the structural problems that enable xenophobia to proliferate and the (in)effectiveness of responses to the militancy involved in the 2015 attacks. Of particular interest are the suggested responses that could be effective in curbing future violence. The article concludes that xenophobia is systemic in post-apartheid South Africa. Strong cooperation between the government, national and international organisations could provide the basis for successful anti-xenophobia measures. The article further argues that the country is obliged to find a sustainable solution to the predicament for humanitarian reasons firstly, and in recognition of the support South Africans received from its African counterparts during the liberation struggle.


Sign in / Sign up

Export Citation Format

Share Document