Legal technique of normative and contractual legislation

2021 ◽  
pp. 55-64
Author(s):  
Ilya Shutak
Keyword(s):  
Rule Of Law ◽  
Practical Importance ◽  
Theoretical Understanding ◽  
The Rule Of Law ◽  
Functional Methods ◽  
Functional Nature ◽  
Internal Inconsistency ◽  
Law Making ◽  
State Functions

Purpose. The purpose of the study is to reveal the features of the legal technique of normative-contractual law-making of modern Ukraine. Methodology. First of all, the principles and techniques of formal-logical methodology are used. Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral relations in the normative-contractual form of state functions is based on the functional nature of law in general and contractual and regulatory means in particular, which allowed to distinguish two types of intersectoral relations in contractual and regulatory activities. In addition, dialectical, system-structural and functional methods, the method of interpretation (applied to regulations) were used in the work. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of normative-contract law-making, which is interpreted as an integral harmonious part of the law-making system in a state governed by the rule of law. It is shown how with the help of means and methods of legal technique there is an optimization of contractual work and minimization of risks of disputes caused by vagueness and internal inconsistency of contracts. Results. As a result of research the inexpediency of identification of the contract with the regulatory legal act and its inclusion in the system of the legislation is argued. The regulatory role of the contract likens it to a legal act. A normative agreement can be both a consequence of a law and a cause of a normative legal act. Practical importance. The results of the study can be used in law-making activities in order to improve the design of the regulatory agreement, improve its quality and efficiency.

Rule of Law and Common Law

2020 ◽  
pp. 166-188
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Policy Making ◽  
Common Law ◽  
The Rule Of Law ◽  
History Of ◽  
The Common ◽  
Locus Classicus ◽  
Law Making

This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.

scholarly journals The role of constitutional policy in the formation of a democratic society and the rule of law in the conditions of the Russian legal system

2021 ◽  
Author(s):  
Eduard Eremyan ◽  
Eduard Galitsky ◽  
Ruslan Chermit
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Constitutional Law ◽  
Practical Importance ◽  
The Rule Of Law ◽  
Legal Method ◽  
Foreign Countries ◽  
Relationship Of ◽  
System Characteristics

The study purpose is to estimate the direct relationship of constitutional provisions and other sources of constitutional law with the rule of law concept, law and democracy effectiveness, to compare and determine the priorities of Russia’s constitutional values. Through a comparative legal method, issues related to the constitutional provisions interpretation and legal system characteristics at specific stages of its development in Russia and foreign countries are examined. The results of this study reveal the essence of the genesis and evolution of sources of Russian constitutional law and are of practical importance for subjects of the formation of state policy in the field of constitutional law.

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

International Arbitration as a Tool of Global Governance

2019 ◽  
Author(s):  
Sophie Nappert
Keyword(s):  
Global Governance ◽  
Rule Of Law ◽  
International Arbitration ◽  
The Rule Of Law ◽  
Arbitration Process ◽  
Fact Finding ◽  
Exercise Of Discretion ◽  
The Impact

It has been posited that the international arbitration process carries with it not only fact-finding and lawmaking functions but also a governance function insofar as “arbitrators … can and do engage in autonomous normative action while still adhering to the rule of law.” This contribution explores the role and ambit of the exercise of discretion by international arbitration tribunals and its interplay with the tribunals’ governance function, as arbitrators must consider “the impact of their rulings on states, persons or entities not directly represented in the case before them.” It questions whether the use of discretion is suited to the governance role of arbitral tribunals and serves, rather than compromises, the effective exercise of that role. It asks what measures ought to be considered to make arbitrators better prepared for the exercise of their governance function.

THE ROLE OF PSYCHIATRY IN THE RULE OF LAW

1974 ◽  
Vol 4 (8) ◽  
pp. 16-31
Author(s):  
Seymour Pollack
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law

PURPOSE, PRINCIPLES AND SPECIFIC FEATURES OF PROSECUTOR’S OFFICE LEGAL CREATION ACTIVITY

2021 ◽  
Vol 6 (10) ◽  
pp. 53-62
Author(s):  
Shoxrukhkhon Saidov ◽  
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Legal Space ◽  
The Law ◽  
Law Making

This article describes the specifics of the law-making process conducted by the prosecutor's office. The purpose and principles of the prosecutor's office's participation in this process have been studied scientifically and theoretically. Taking into account the high relevance of ensuring legality in the law-making process, opinions were expressed about the need for adequate regulation and organization of solving this task by the prosecutor's office at the level of law and legality. The participation of the prosecutor's office in law-making activities contradicts the needs of the population, the protection of human and civil rights and freedoms, ensuring the rule of law, promoting the formation of a unified legal space and improving legislation, ensuring consistency legal instructions, systematization of legislation, scientifically based analysis are aimed at reducing the influence of bureaucratic interests and preventing the inclusion of factors that generate corruption in normative acts and their projects

The Role of the Constitutional Court in the Development of the Rule of Law in Kosovo

2018 ◽  
Vol 43 (3) ◽  
pp. 274-313
Author(s):  
Enver Hasani
Keyword(s):  
Material Culture ◽  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional History ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
The Past ◽  
History Of ◽  
Communist Countries

Kosovo’s Constitutional Court has played a role of paramount importance in the country’s recent history. The author uses a comparative analysis to discuss the role of the Court in light of the work and history of other European constitutional courts. This approach sheds light on the Court’s current role by analyzing Kosovo’s constitutional history, which shows that there has been a radical break with the past. This approach reveals the fact that Kosovo’s current Constitution does not reflect the material culture of the society of Kosovo. This radical break with the past is a result of the country’s tragic history, in which case the fight for constitutionalism means a fight for human dignity. In this battle for constitutionalism, the Court has been given very broad jurisdiction and a role to play in paving the way for Kosovo to move toward Euro-Atlantic integration in all spheres of life. Before reaching this conclusion, the author discusses the specificities of Kosovo’s transition, comparing it with other former communist countries. Among the specific features of constitutionalism in Kosovo are the role and position of the international community in the process of constitution-making and the overall design of constitutional justice in Kosovo. Throughout the article, a conclusion emerges that puts Kosovo’s Constitutional Court at the forefront of the fight for the rule of law and constitutionalism of liberal Western provenance.

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