scholarly journals KORUPSI LEGISLASI DALAM PEMBENTUKAN PERATURAN PERUNDANG-UNDANGAN

2014 ◽  
Vol 3 (3) ◽  
pp. 347
Author(s):  
Akhmad Adi Purawan
Keyword(s):  
Public Participation ◽  
Forming Mechanism ◽  
The Law ◽  
Law Making

<p>Meskipun Indonesia telah memiliki Undang-Undang Nomor 10 Tahun 2004 tentang Pembentukan Peraturan Perundang- undangan yang selanjutnya disempurnakan dengan Undang-Undang Nomor 12 Tahun 2011, tetapi kerawanan dalam proses pembentukan peraturan peraturan perundang-undangan yang mengarah pada bentuk perilaku koruptif masih terjadi. Dengan menggunakan metode yuridis normatif, studi ini mencari jawaban atas pertanyaan apakah pengaturan dalam Undang-Undang Nomor 12 Tahun 2011 telah mengantisipasi terjadinya korupsi legislasi dalam pembentukan peraturan perundang-undangan. Studi ini menyimpulkan bahwa secara normatif Undang-Undang Nomor 12 Tahun 2011 sudah cukup antisipatif dalam menciptakan mekanisme pembentukan peraturan perundang-undangan yang mengarah pada bentuk pencegahan terhadap praktik korupsi legislasi. Namun, perwujudan pembentukan peraturan perundang- undangan yang baik dan bersih sangat tergantung pada kualitas pelaksanaannya. Dari lima tahapan pembentukan peraturan perundang-undangan, studi ini menemukan tahap perencanaan dan pembahasan mengandung kerawanan yang cukup tinggi, sedangkan pada tahap penyusunan, penetapan/pengesahan, dan pengundangan kecil kemungkinan terjadi. Untuk meminimalisasi peluang terjadinya korupsi legislasi, studi ini mengusulkan empat prinsip yang dapat diterapkan, meliputi ketatalaksanaan, profesionalitas, justifikasi, dan partisipasi publik.</p><p>Indonesia has Law Number 10 year 2004 on drafting of the laws then its superseded by Law Number 12 year 2011 but the vulnerability in the law making process that lead to corruptive behaviour remain happens. By using juridical normative methods, this study seeks answers whether the regulation in the Law Number 12 year 2011 have been anticipating for the vulnerability of legislative corruption in law making process. This study conclude that normatively Law Number 12 year 2011 has been quite anticipative in forming mechanism of law making process which is lead to prevent legislative corruption practices. However, the embodiment of clean and good establishment of legislation is depend on the quality of its implementation. Among the stages of law making process , this study found that planning and discussion stages are quite vulnerable to legislative corruption, while preparation, enactment, and promulgation less likely occured. In order to minimize possibility of legislative corruption, this study proposes four principles can be applied icluded the management, professionalism, justification, and public participation.</p>

scholarly journals The role of legal intellection in the lawmaking mechanism

2020 ◽  
Vol 6 (3) ◽  
pp. 67-73
Author(s):  
Ekaterina A. Petrova
Keyword(s):  
Special Kind ◽  
Thinking Style ◽  
Legal Traditions ◽  
Methods And Techniques ◽  
Legal Thinking ◽  
The Law ◽  
Legal Understanding ◽  
Law Making

The article gives the authors interpretation of legal intellection as a special kind of professional thinking. It is underlined that legal intellection is directly connected with lawmaking, since the law is a result of both of these processes. The main directions of its influence on the elements of the lawmaking mechanism are considered. The author interprets lawmaking mechanism as a set of interrelated and interdependent technical and legal elements that support law creation. These elements include the law-makers; law-making methods and techniques; the rules of claw; forms (sources) of law. It is noted that the lawyers belonging to a particular type of legal understanding determines the understanding of lawmaking process. The author analyzes the influence of legal thinking style, determined by legal traditions of various legal families, on application of various forms of law as a result of lawmaking. The examples from Russian and American legal reality are given. The problem of legal intellection level of lawmakers is discussed, because of its influence on the quality of sources of law. It is concluded that legal intellection as a special kind of professional thinking permeates all types of legal activities and, first of all, directly affects the specifics of the lawmaking mechanism, determining the content of its main elements: the law-makers are the holders of legal intellection; methods, techniques of law-making are determined by the stylistic features of legal thinking; the quality of the forms of law created in the lawmaking process directly depends on the legal thinking level of their creators.

scholarly journals An assessment of the constitutionality of the COVID-19 regulations against the requirement to facilitate public participation in the law-making and/or administrative processes in South Africa

2021 ◽  
Vol 25 ◽  
pp. 1-36
Author(s):  
Ntokozo Sobikwa ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Public Participation ◽  
Legal Framework ◽  
Constitutional Democracy ◽  
The Core ◽  
The Law ◽  
The Government ◽  
Law Making

The purpose of this article is to critically assess the constitutionality of the COVID-19 regulations against the backdrop of the constitutional mandate to facilitate public participation in the law-making process in South Africa. This assessment is conducted by outlining the scope and content of public participation. This will be followed by an exposition of the legal framework that provides for the duty to facilitate public participation in South Africa. Thereafter, the scope and content of the duty to facilitate public participation is assessed against the conduct of the government in promulgating the COVID-19 regulations. The authors argue that the disregard for and limited nature of public participation during the process leading up to the enactment of the COVID-19 regulations amount to a material subversion of the core tenets of our constitutional democracy and largely renders the COVID-19 regulations unconstitutional for lack of procedural compliance with the demands of the Constitution. The authors provide a few recommendations to remedy the unconstitutionality of the regulations and further propose guidelines to facilitate public participation in cases of future pandemics and/or disasters of this nature.

Prospects for the development of law-formation in Ukraine through the prism of the application of the prognostic method of research

2021 ◽  
pp. 29-36
Author(s):  
Taras Didych
Keyword(s):  
Public Relations ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Temporal Properties ◽  
Qualitative State ◽  
The Law ◽  
The One ◽  
Cognitive Perspectives ◽  
Law Making

The author analyzes doctrinal approaches to characterizing the prospects for the development of law-formation in Ukraine. The methodological inadequacy of ensuring the study of the prospects of development of legal phenomena, including lawmaking, is noted. It is noted that law-formation as a socio-legal phenomenon is due to various factors of its development, is influenced by the peculiarities of society as a sphere of its existence, and the state as a central subject of law-making. This conditionality of the process of law formation characterizes such dialectical regularities as the presence of prospects for development and the ability to improve legally significant activities, including activities in the field of law enforcement. Prospects for the development of law-formation as its integral property, reflects the relevant qualitative changes in the process and content of the law-formation, occurring within the temporal boundaries and characterize the law-formation as a phenomenon that has the dynamics of its development. These characteristics of the law-formation are most thoroughly and comprehensively disclosed in terms of prognostic method of scientific research, because, on the one hand, based on temporal properties and due to relations between subjects, changes in their content that form the basis of law, and on the other hand, they are manifested at the level of legal institutions (the process of law-formation, norms of law, legal regulation, the subjective composition of law-making, etc.). In this regard, the issue of prospects for the development of lawmaking and ways to improve it in terms of improving the process of law formation, identification and consideration of objective laws of its development, improving the quality of law, the quality of its expression, the effectiveness of public relations is important. scientific rethinking in order to develop scientific knowledge about the prospects of law, ways to improve both the process of its formation and improve the quality of law itself. Based on the analysis of scholars' views on the problem of studying law-formation in modern conditions of development of Ukrainian society, the cognitive perspectives of application of the prognostic method of studying law-making in Ukraine are established. Prospects for the development and ways to improve law-formation as independent theoretical and legal aspects of knowledge of law education require the isolation and further application of the prognostic method of research, which is potentially able to: first, to reveal lawmaking through the prism of its development; secondly, to reveal in the most comprehensive way the objective and subjective aspects that determine the future qualitative state of the law-formation, to determine the ways of influencing the formation of law to increase its level; thirdly, to structure the development of law-formation in separate directions.

scholarly journals WHAT SHOULD BE THE FORM OF PUBLIC PARTICIPATION IN THE LAWMAKING PROCESS? AN ANALYSIS OF SOUTH AFRICAN CASES

Obiter ◽  
2014 ◽  
Vol 35 (1) ◽  
Author(s):  
Moses Retselisitsoe Phooko
Keyword(s):  
Public Participation ◽  
South African ◽  
Public Involvement ◽  
Participatory Democracy ◽  
Representative Democracy ◽  
Constitutional Court ◽  
The Public ◽  
The People ◽  
The Law ◽  
Law Making

South Africa’s new constitutional democracy places a duty on various legislators to facilitate public participation in the law-making process as mandated by the principles of participatory democracy provided for in the Constitution of South Africa, 1996. This has resulted in a series of court cases wherein the electorate, inter alia, challenged the legislation on the basis that the results did not reflect the views of the people. The courts’ earlier jurisprudence seemed to be placing more emphasis on participatory democracy as opposed to representative democracy. However, recent court decisions indicate a shift towards representative democracy. The central question presented in this paper is whether the consideration of the views of the public by the provincial and national legislatures is merely a matter of procedure, or that those views are indeed considered in the law-making process. In an attempt to answer this question, the paper will evaluate and critique some of the Constitutional Court and the Supreme Court of Appeal decisions on public involvement in either the legislative or law-making process. The argument presented in this discourse is that, if the public’s wishes are considered by the legislature, then the outcome would be influenced by the people’s demands. An otherwise negative outcome shows that public participation in the law-making process is a procedural matter and has no substantive value.

Deliberative Democracy and the Japanese Saiban-in (Lay Judge) Trial System

2016 ◽  
Vol 3 (2) ◽  
pp. 327-349 ◽  
Author(s):  
Noboru YANASE
Keyword(s):  
Criminal Justice ◽  
Public Participation ◽  
Criminal Justice System ◽  
Deliberative Democracy ◽  
Justice System ◽  
Jury Trial ◽  
The Law ◽  
Law Making

AbstractSince May 2009, public participation in the criminal justice system, known as saiban-in seido (trial system by lay judges), has been implemented in Japan. The purpose of this paper is to analyze the law-making process of the saiban-in system and present an evaluation of the system from the perspective of deliberative democracy. This paper concludes that, contrary to criticism from those who want to introduce a purer form of jury trial dominated by lay jurors, the current saiban-in system, which mixes three professional judges with six saiban-ins, should be viewed positively from the perspective of deliberative democracy.

scholarly journals QUALIFICATION OF CONTESTED FAMILY LEGAL ACTIONS IN THE BANKRUPTCY CASE OF A CITIZEN

2021 ◽  
pp. 34-38
Author(s):  
A. S. Salimov ◽  
S.V. Voronina
Keyword(s):  
Law Enforcement ◽  
Citizen Science ◽  
Common Property ◽  
Family Law ◽  
Legal Norms ◽  
The Family ◽  
The Law ◽  
Family Code ◽  
Law Making

Ransactions and fulfillment of obligations and obligations arising in accordance with family law arethe subject of judicial challenge at the request of a financial manager acting in the interests of creditors inthe bankruptcy of a citizen. Science and the law do not consider the grounds for the invalidity of actions forthe execution of transactions. The family-legal actions of a debtor-citizen based on an agreement between spouses, parents and judicial acts on the division of common property and the recovery of alimony are subjectto challenge on the grounds provided for by the norms of the Civil Code of the law and the bankruptcy lawon the invalidity of transactions only for the convenience of law enforcement. The actions of spouses andparents to dispose of their property rights and obligations arising from family legislation are either familylaw contracts (agreements) or actions to fulfill the obligations provided for by the Family Code. The correctqualification of the debtor’s family legal actions determines the quality of law-making, understanding of theactual meaning of legal norms and the exact fulfillment of their prescriptions.

scholarly journals Między polityką a prawem. Problem „upolitycznienia” tworzenia prawa

2017 ◽  
Vol 110 ◽  
pp. 115-132
Author(s):  
Tadeusz Biernat
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
The Rule Of Law ◽  
The Creation ◽  
The Law ◽  
Politics And Law ◽  
Law Making

BETWEEN POLITICS AND LAW. THE PROBLEM OF “POLITICIZATION” THE CREATION OF LAWThe purpose of this article is to analyze the phenomenon of “politicization” of the law making process. Astrong form of politicization is the political instrumentalization of law when the law is treated as the implementation of particular interests of the political power; when is created in violation of the legality of the law-making activities; when it violates the rights of individuals human rights. The weaker but more common form of politicization the creation of law is related to the violation by apolitical authority, legislative body, additional restrictions imposed on it, which are supposed to guarantee ahigh level quality of the law. Three of the most characteristic limitations will be the basis for analyzing the phenomenon of politicization of law making. They are related to: the legitimization of law-making, the democratization of law-making process, and the standards of legislation that are characteristic of lawmaking in ademocratic state under the rule of law. To some extent, these phenomena are interconnected, one can say that they are involved in shaping the pat­tern of the proper legislation by preventing or reducing the politicization of the lawmaking process and its key decisions.

scholarly journals THE LAW AS A SOURCE OF LAW OF MODERN LEGAL RUSSIAN STATE

2019 ◽  
Vol 29 (6) ◽  
pp. 911-916
Author(s):  
N.G. Yakusheva
Keyword(s):  
Social Relations ◽  
Point Of View ◽  
Modern Development ◽  
Democratic State ◽  
Federal Constitutional ◽  
The Law ◽  
Theory Of Law ◽  
Many Sources ◽  
Law Making

Among the many sources of modern law, the author considers the law as the main source of law for most modern states. The nature of this source of law in modern Russia is investigated, its main features are highlighted. A specific feature of the modern development of Russian legislation is noted - the adoption of laws is aimed at transformations, reforms, and the introduction of new legal decisions. A comparative description of legislation and law is presented. It is concluded that the legislation is characterized by systemic properties derived from the quality and dynamics of social relations, their values and priorities. An assessment of different views of scientists on the problem under study is given from the point of view of the historical stages of society development. The necessity of observing the principle of the hierarchy of sources of law (the Constitution - the Federal Constitutional Law - the law - the decree, etc.) in the framework of a legal democratic state is emphasized. Priorities are identified in relation to the direction and purpose of legal reform in modern Russia, ensuring the supremacy of citizens' interests over the interests of the power system. Due to the low quality of laws adopted in the Russian Federation, it is concluded that it is necessary to provide scientific and methodological assistance to legislative bodies to improve the quality of laws. Measures to improve existing legislation are proposed. Conclusions are drawn about the need to develop a unified theory of law-making and law-enforcement mistakes and to take into account the objective needs of public life in the subjective law-making activity of the legislator.

scholarly journals CONFLICT BETWEEN PARTICIPATORY AND REPRESENTATIVE DEMOCRACY: A CALL FOR MODEL LEGISLATION ON PUBLIC PARTICIPATION IN THE LAW-MAKING PROCESS IN SOUTH AFRICA

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Moses Retselisitsoe Phooko
Keyword(s):  
South Africa ◽  
Public Participation ◽  
Representative Democracy ◽  
Court Cases ◽  
Consultation Process ◽  
The People ◽  
The Law ◽  
The Republic ◽  
Elected Representatives ◽  
Law Making

The Constitution of the Republic of South Africa, 19961 mandates legislatures at various levels of government to ensure public participation in the law-making process. The Constitution, however, does not map out the parameters of public participation as far as the law-making process is concerned. Thus, a number of questions remain largely unanswered. For instance, does public participation merely constitute consulting with the people? Does it, perhaps, go as far as to require the legislature to consider the views of the people? Supposing the views of the people are considered, does public participation suggest that the end results of the consultation process should reflect the views of the people? As the answers to the foregoing questions are far from conclusive, the aim of this paper is to critically examine the nature of the relationship between participatory and representative democracy in the law-making process in order to ascertain how the courts have resolved conflicts that involve the previously mentioned forms of democracy. This will be done through examining various court cases in which their own elected representatives disregarded the views of the electorate. The argument presented in this paper is that participatory and representative democracies are in conflict with each other. The paper further advocates for the adoption of model legislation on public participation in the law-making process.

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