scholarly journals CONSTITUTIONALIZATION OF THE LEGAL ORDER THROUGH THE PRISM OF FORMATION OF THE DOMESTIC SOCIO-NORMATIVE SYSTEM

2021 ◽  
Vol 1 (2) ◽  
Author(s):  
Tatyana S. Podorozhna ◽  
Keyword(s):  
Social Services ◽  
Rule Of Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Necessary Condition ◽  
General Context ◽  
Law And Order ◽  
The Rule Of Law ◽  
Normative System ◽  
Legal Method

Today, the concept of law and order is reproduced through close attention in the scientific literature. This integrated interest, first of all, requires a precise definition of this category in the theory of law, its detailed and comprehensive review and determination according to practical necessity. Law and order is a necessary condition for the functioning of all social services, the stabilization of sociopolitical processes and the formation of true democracy. Legal order is a complex formation, its research should be carried out using a system of methods. In this case, the analysis of law cannot be limited to the �legal method� developed by analytical jurisprudence, which consists of a dogmatic in nature qualification of legally significant situations. The study of the problem of law and order, their unambiguous interpretation is extremely important due to the fact that all without exception, the branch of legal sciences, within which various aspects of law and law enforcement process are studied with its provision. The legal culture of the population is manifested in respect laws, their knowledge, observance and implementation. It provides citizens with the ability to defend their rights and be accountable for their responsibilities. The relevance of the study is due to the fact that today there are virtually no scientifically sound mechanisms for automatic extrapolation of constitutional and legal knowledge into the content of legal norms. In view of this, it is necessary to scientifically comprehend and generalize the practice of the Constitutional Court of Ukraine, which is the legal basis for developing mechanisms of constitutionalization. The modern interpretation of the rule of law is a combination of the provisions of the theory of legal positivism and the ideology of natural law. The legal order in the general context is considered, first of all, as a reflection of legal existence, one of the means of functioning and reproduction of the existing law. The phenomenon of constitutionalization is the most important means of ensuring the rule of law and is a characteristic (condition, requirement) of activities related to lawmaking, due to the formation of the domestic socio-normative system. It is expedient to consider the rule of law as a supra-sectoral (inter-sectoral) phenomenon that cements the leading branches of national law. The problems raised are quite complex, multifaceted and cannot be studied within a single scientific investigation and require further scientific research, which will result in new scientific knowledge about the rule of law and the process of its constitutionalization. The vast majority of these problems were outlined by the author of the article in a single monograph. However, the declared provisions may be the subject of new scientific discussions, contribute to qualitative changes in general theoretical jurisprudence and constitutional law, and thus be a guide in the constitutional, judicial and other reforms currently underway in Ukraine.

The General doctrine of the legal order. The rise of law and order

2019 ◽  
Author(s):  
Николай Черногор ◽  
Nikolay Chernogor ◽  
Дмитрий Пашенцев ◽  
Dmitriy Pashentsev ◽  
Максим Залоило ◽  
...  
Keyword(s):  
Graduate Students ◽  
Social Integration ◽  
Detailed Analysis ◽  
Rule Of Law ◽  
Legal Order ◽  
Law And Order ◽  
The Rule Of Law ◽  
New Type ◽  
Normative Foundations

The monograph opens a series of studies, which set out the General doctrine of the rule of law. The first book is devoted to the Genesis of the legal order, its foundations and properties. The rule of law is regarded as a civilizational phenomenon and its evolution is characterized in the context of a combination of different principles and interests, social integration and differentiation, legality and justice, sustainability and its weakening. The socio-economic, intellectual-volitional, subject-institutional, normative foundations of law and order are revealed, its new typology is proposed, a detailed analysis of the archaic, traditional and modern law and order is given, the preconditions are shown and the forecast of its new type formation is presented. For researchers, legal practitioners, employees of state and municipal authorities, teachers, graduate students.

Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems

2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Natural Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Moral Quality ◽  
Legal Positivist

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.

scholarly journals The Role of the State in Preservation of the Law in the Works of Police Scientists

2020 ◽  
Vol 17 (3) ◽  
pp. 5-16
Author(s):  
Nadezhda Biyushkina
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Scientific Article ◽  
Law And Order ◽  
Protective Function ◽  
Scientific Methods ◽  
The Rule Of Law ◽  
Legal Method ◽  
Role Of The State

Introduction. The relevance of this scientific article is due to the fact that the problem of law enforcement is directly related to the protection of the rights and freedoms of the individual, the successful development of individual social groups and society as a whole. Purpose. The authors set a goal to analyze the views of such researchers as R. von Mol, N. Delamar, I.T. Tarasov, I.E. Andreevsky, V.F. Deryuzhinsky, N.N. Belyavsky, V.M. Hesse and others on a number of major problems: the tasks of the police in law enforcement, the correlation of concepts: “law and order” and “deanery”, measures of police control and supervision, issues of combating criminal and political crime. Methodology. In preparing the scientific article, a system of methods for studying legal reality was used (general scientific methods: synthesis, analysis, deduction, induction, system-structural method; private scientific methods: dogmatic method, historical and legal method, comparative legal method, chronological method, retrospective analysis method). Results. In the course of the research, it turned out that for police scientists, the idea of the decisive role of the state in protecting the rule of law is characteristic. Conclusion. In their writings, police scientists emphasize the idea that the role of the state in the protection of the rule of law lies in the multifaceted activities of the police authorities, performing the protective function of the state. The concept of law and order during the study period was inseparable from the term “deanery” and constituted its legal basis. The goal of the state in the representation of power and society XVIII – beg. XX centuries there was an idea of a common good, repeatedly proclaimed both in legislative acts and in the writings of police researchers.

scholarly journals Methods, principles and presumptions of constitutional and conflict diagnostics

2021 ◽  
Vol 7 (2) ◽  
pp. 34-41
Author(s):  
I. A. Tretyak
Keyword(s):  
Law Enforcement ◽  
Causal Relationship ◽  
Statistical Methods ◽  
Rule Of Law ◽  
Systematic Study ◽  
Constitutional Law ◽  
Formal Logic ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Legal Method

The article examines the main elements of constitutional and conflict diagnostics, which is a system of consistently applied methods, legal principles and presumptions, aimed at obtaining information about the causes, content, consequences and methods of preventing and resolving a constitutional conflict. Constitutional and conflict diagnostics is theoretically justified by the author as a new method of the science of constitutional law, which allows lawyers to study constitutional conflicts and constitutional norms of the conflictological type. The use of constitutional and conflict diagnostics will allow to establish and investigate the causal relationship between the formation of law, its normative expression and subsequent law enforcement, which will reflect the constitutional conflict. The author believes that the following methods are used in the course of diagnosing a constitutional conflict: dialectical, systematic, historical, statistical, methods of formal logic, formal-legal method, method of legal modeling, and other methods. The author also proposes to consider as the principles of such diagnostics: the principle of taking into account the specific historical situation, dialectical unity, systematic study of the conflict and the principle of the rule of law. The author suggests considering the following presuppositions used in the course of constitutional and conflict diagnostics: the presumption of the inevitability of constitutional conflicts, the presumption of the solvability of constitutional conflicts, and the presumption of the prevention of conflicts.

scholarly journals Correlation of Law and Order in Society

2020 ◽  
Vol 37 (64) ◽  
pp. 53-61
Author(s):  
Gabdrakhman H. Valiev ◽  
Sergey V. Kondratyuk ◽  
Natalia A. Prodanova ◽  
Irina A. Babalikova ◽  
Kermen I. Makaeva ◽  
...  
Keyword(s):  
Rule Of Law ◽  
Justice System ◽  
Modern Society ◽  
Legal Regulation ◽  
Law And Order ◽  
The Rule Of Law ◽  
Human Rights Organizations ◽  
Relationship Of ◽  
The Relationship ◽  
Concrete Reality

The problem of the relationship of law and order is relevant to any modern society. The article tries to analyze this relationship, taking into account judicial, police and other activities. The named concepts are closely interconnected, but are not identical. They are correlated as cause and effect: there is a rule of law, there is no rule of law. One suggests the other. The rule of law as concrete reality logically precedes the rule of law as a doctrine, the connection here is hard, causal. The process is one. Law and order: a real indicator of the state of legality, reflects the degree of compliance with the laws, the requirements of all legal regulations. It is concluded that the rule of law is the end result of the implementation of legal requirements and, at the same time, the objective of legal regulation, since it is for the formation and maintenance of the rule of law that laws are issued, thus like other regulatory legal acts, various institutions and bodies and, above all, the justice system, the control system, various human rights organizations and social movements.

The Politics of Public Order, 1795–1802

2014 ◽  
Author(s):  
Howard G. Brown
Keyword(s):  
Rule Of Law ◽  
Transitional Justice ◽  
Liberal Democracy ◽  
Public Order ◽  
Law And Order ◽  
The Rule Of Law ◽  
The Road ◽  
Basic Law ◽  
National Convention ◽  
New System

The Thermidorian National Convention, despite some efforts at ‘transitional justice’, failed to master the legacies of the Terror. Therefore, the fledgling regime needed to impose the new republican political order while also restoring basic law and order—two tightly entwined tasks. The Constitution of 1795 articulated a liberal democracy based on the rule of law, but political instability and endemic lawlessness led first to multiple violations of the constitution, especially in the wake of elections, and a steady shift from democratic republicanism toward ‘liberal authoritarianism’. This shift received added impetus during waves of repression intended to restore order on strictly republican terms. The result was the creation a new ‘security state’, one that combined coercive policing, administrative surveillance, exceptional justice, and militarized repression. The emergence of the new system helped to restore order, and thereby to legitimize the Consulate, but it also paved the road to personal dictatorship in 1802.

The state of emergency in the Weimar Republic Legal disputes over Article 48 of the Weimar Constitution

2010 ◽  
Vol 78 (1-2) ◽  
pp. 135-158 ◽  
Author(s):  
Marc de Wilde
Keyword(s):  
Rule Of Law ◽  
Weimar Republic ◽  
The State ◽  
Legal Positivism ◽  
Carl Schmitt ◽  
Annual Conference ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Legal Norms

AbstractThe article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution authorized the President of the Reich to derogate from the rule-of-law provisions of the constitution if this was necessary to save its 'political substance'. Advocating a 'doctrine of derogation', they implicitly criticized one of the main methodological assumptions of legal positivism, i.e., that legal norms and politics, law and power, had to remain strictly separated. They thereby set the stage for the emerging 'conflict of methods and directions' that was to haunt German jurisprudence in subsequent years.

scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

Sign in / Sign up

Export Citation Format

Share Document