scholarly journals „Dobre” społeczeństwo i państwo prawa. Prolegomena do konstytucji

2007 ◽  
Vol 10 ◽  
pp. 29-42
Author(s):  
Paweł Kaczorowski
Keyword(s):  
Social Relationships ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Legal Protection ◽  
The State ◽  
The Rule Of Law ◽  
Legal Standards ◽  
The Law ◽  
The Right ◽  
Legal Character

The idea of a law-governed state, which is referred to so commonly, exists as a synonym of the principle of the supreme meaning and standing of the constitution in the state system. The law-governed state in its pure form is one where the law provides not only the framework and barriers for the state and the actions of the authorities, but a state wherein its beginning and foundations are rooted in the law. The concept of the law-governed state has many highly detailed elements (the very existence of the constitution, the separation of powers, the independence of the courts, the legal character of administrative actions, legal protection against decisions made by the authorities, the right to appeal, etc.); its essence, however, is the recognition of the law as a particular means and a yardstick with which both the state’s system and the recognition of the legal standards vested with the power to shape social relationships, the regulatory power, are moulded. It is the prestige of the law – nomos basileus – which should be the source of state order. The supremacy of the law provides the premise on which the introduction of every detailed solution which turns the idea of the law-governed state into specifics, is based. If the rule of law, rather than that of the authorities is to exist, this must be a law wherein each citizen may contribute to its shape; ideally it will be one established directly by the citizens rather than by the established authorities, democratic in an indirect way. This must be a law binding upon everyone equally, observed by everyone, operating effectively and surely. It must also be a law made for society’s sake rather than for that of an idea, and it must be fitting to those realities, standards and common practices that exist in that society. It must also be a law not too rigorous and imposing neither excessive requirements nor strange measures.

scholarly journals PECULIARITIES OF THE USE OF NORMS OF CASE LAW IN THE SYSTEM OF DOMESTIC JUSTICE

2020 ◽  
pp. 71-75
Author(s):  
Ye. A. Zherobkina
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Armed Forces ◽  
Case Law ◽  
The State ◽  
Judicial Reform ◽  
Court Decisions ◽  
Basic Law ◽  
The Law ◽  
The Right

Taking into account the basic principles of a democratic, rule of law, social state, the key of which is the principle of separation of powers in the state, Ukraine is building a state apparatus. Declaring such a principle in the Constitution of Ukraine and building on it the basis of the functioning of all branches of government have become a prerequisite for the acquisition of judicial branch of power signs of independence and independence. LA Lutz argues that the functioning of the judiciary as an independent is accompanied by its development and the introduction of rulemaking functions. This fact is related to the involvement of the judiciary in the settlement and resolution of national cases. As a result, throughout the years of Ukraine's independence, the courts have recognized the right not only to the application and interpretation of legal rules, but also to their creation. As of today, the law does not formally enshrine the functions of rulemaking, but in legal science there are discussions about the possibility of the existence of case law in the state. The analysis of court decisions suggests that the precedent is not only those of the courts of Ukraine that have a rule of law, but also those that contain appropriate explanations of the content of the rule, or of judgments that contain criteria for the similarity of the application of the rules. The provisions of the basic law − the Law of Ukraine “On Judiciaryand Status of Judges” of 02.06.2016, № 1402-VIII have been analyzed due to the possibility of recognizing judicial precedent as anofficial source of law in accordance with the requirements of the current domestic legislation. In this article, we conducted a detailedanalysis of the peculiarities of the use of case law in the system of domestic justice. Particular attention was paid to updating the system of enforcement of court decisions, including the decisions of the ArmedForces. It is stated that the institute of enforcement of judgments is based on the functioning of the Laws of Ukraine “On EnforcementProceedings” and “On Bodies and Persons who Enforce Enforcement of Judgments and Decisions of Other Bodies”. A separate novelty of judicial reform − the creation of new higher specialized courts as courts of first instance for the considerationof certain categories of cases: the High Court for Intellectual Property and the Supreme Anti-Corruption Court, whose review will bevested in the Armed Forces, has been investigated.

scholarly journals Parliamentarianism: concept, signs, and problems of development in Russia

2019 ◽  
Vol 4 (22) ◽  
pp. 208-221
Author(s):  
Lyudmila Konovalova
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
Separation Of Powers ◽  
The State ◽  
Executive Power ◽  
Political Opposition ◽  
Legal Literature ◽  
The Law ◽  
The Right

The article analyzes various ideas about the concept and features of parliamentarism. On the basis of the generalization of the legal literature, the following set of features of parliamentarism is denoted: 1) rule of law; 2) separation of powers; 3) participation of the parliament in bodies of executive, judicial and other branches of power; 4) accountability of the executive power to the parliament; 5) multiparty nature, the right to political opposition and ensuring the connection of the population with the state mechanism; 6) special status of the deputy with a free mandate and responsibility before the law; 7) independence of the parliament; 8) special status of the deputy with a free mandate and responsibility before the law. The concept of parliamentarism proposed to counteract state bureaucratization. We connected the idea of parliamentarism with the possibility of mitigating authoritarian tendencies in Russian political system.

scholarly journals Anak dan Kejahatan (Faktor Penyebab dan Perlindungan Hukum)

Jurnal Selat ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 225-234
Author(s):  
Ria Juliana ◽  
Ridwan Arifin
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Children's Rights ◽  
The State ◽  
Children’S Rights ◽  
Applicable Law ◽  
Rights Of The Child ◽  
The Law ◽  
The Right ◽  
Rule Out

The State of Indonesia has never been separated from existing regulations, given that the State of Indonesia is a rule of law and all actions taken refer to the applicable law. The problem of a law lies in the procedure for the application of the law and the implementation of the law, in legal protection for children in Indonesia, both victims and perpetrators have the right to be protected, for this reason a rule of law has been set against the child’s own misconduct applicable. Problematics of arrest and detention and punishment of crimes committed by children enactment of article 43 of Act No. 3 of 1997 which explains that child detainees are basically still in effect the provisions of the Criminal Procedure Code (KUHAP) are the loss of children's rights and protection against applicable law. The development of the rights of the child is a public concern because at this time child perseverance has spread and the application of the law continues to apply to that the rights of children must also be considered to see that children's rights must also be fought for. Above everything discussed above that neglected the rights of children and their protection was due to the lack of attention from parents and families and a small part of this resulted from an environment that was not good for the character of the child himself. To create high peace and stability then the basis of the change is parents. Improvements made to the guidance of children that are carried out fundamentally with love and love, it does not rule out the possibility of child delinquency or criminal acts that are done less, other things if the child is allowed to grow without attention then does not rule out the greater the crime that will be committed.

scholarly journals RETURNS OF ASSETS IN CORRUPTION CRIMINAL ACTS AS ALTERNATIVE RESTORING STATE LOSSES

2020 ◽  
Vol 2 (1) ◽  
pp. 27-34
Author(s):  
Komang Ekayana
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The State ◽  
Recovery Model ◽  
Formal Approach ◽  
The Rule Of Law ◽  
Asset Recovery ◽  
Criminal Procedure Law ◽  
The Law

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 

scholarly journals Applied aspects of accounting the principle of the rule of law in system analysis and simulation of the state system of Ukraine

2021 ◽  
Vol 66 ◽  
pp. 14-18
Author(s):  
V.F. Obolentsev
Keyword(s):  
Rule Of Law ◽  
Systems Engineering ◽  
System Analysis ◽  
Civil Liberties ◽  
System Engineering ◽  
The State ◽  
State System ◽  
The Rule Of Law ◽  
Stage Of Development ◽  
The Law

The rule of law is a fundamental principle of the legal sphere. Its assertion in the state institutions of democratic countries is an outstanding achievement of mankind. The implementation of this principle is the basis of civil society and civil liberties. The rule of law is the supremacy of law in society. The rule of law provides for its implementation in law-making and law enforcement activities. The manifestation of the rule of law is that the law is not limited to legislation as one of its forms, but also includes other social regulators (norms of morality, traditions, customs, etc., which are legitimized by society). All these elements of law are united by a quality that corresponds to ideology of justice – the idea of law, which is largely implemented in the Constitution of Ukraine. The first problem for the implementation of the principle of law in Ukraine is that this principle has not yet received the proper normative consolidation and official interpretation. The second problem is its extension to socio-economic rights and social benefits. The third problem is the insufficient level of legality in our state. The aim of the paper is to establish the peculiarities of implementation of the principle of the rule of law at the present stage of development of scientific and technological progress. The task of the paper is to investigate the peculiarities of implementation of the rule of law in the application of information and analytical technologies of system engineering in the legal sphere. In accordance with the experience of using information-analytical technologies of system engineering in the legal sphere, the paper outlines the peculiarities of implementation of the principle of the rule of law in the system analysis and modeling of the state system of Ukraine. The principle of the rule of law must be taken into account in such modeling as "governing circumstance". That is the resource according to which the state system of Ukraine functions. Our preliminary works give grounds to assert that information and analytical technologies of systems engineering are also a promising methodological tool for studying the principles of state building. The principle of the rule of law is the cornerstone of building a democratic state governed by the rule of law in Ukraine. Three years ago, scholars moved away from identifying the rule of law with the law-creating instruments.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

The Rule of Law

2018 ◽  
Author(s):  
N. W. Barber
Keyword(s):  
Social Context ◽  
Rule Of Law ◽  
The State ◽  
Successful Operation ◽  
The Rule Of Law ◽  
The Social ◽  
The Law

The rule of law requires that law make the differences it purports to make; linking the formal demands of law and the reality of the rules that structure power within a community. The chapter begins by outlining the rule of law. There are two aspects to the principle: first, the rule of law requires that laws be expressed in a way that enable people to obey the law; secondly, the rule of law requires that the social context is such that people are led to obey these rules. The second part of the chapter examines the connection between the rule of law and the state. First, it will be contended that states need to comply—to a degree—with the rule of law in order to exist. Secondly, in societies such as ours, non-state legal orders require the existence of the state, and state legal orders, for their successful operation.

The Paradox of “Just War” in Rousseau's Theory of Interstate Relations

2015 ◽  
Vol 109 (2) ◽  
pp. 314-325 ◽  
Author(s):  
BLAISE BACHOFEN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Just War ◽  
The State ◽  
Interstate Relations ◽  
Law Of War ◽  
The Rule Of Law ◽  
External Relations ◽  
The Law ◽  
Utopian Theory

In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

scholarly journals Perlindungan Hukum Terhadap Hak Masyarakat Dalam Perjanjian Kerjasama Perkebunan Kelapa Sawit

2019 ◽  
Vol 2 (2) ◽  
pp. 175
Author(s):  
Hamdan Siregar
Keyword(s):  
Rule Of Law ◽  
Oil Palm ◽  
Legal Protection ◽  
Cooperation Agreement ◽  
The Rule Of Law ◽  
Oil Palm Plantation ◽  
Public Property ◽  
The Republic ◽  
The Government ◽  
The Right

The State of the Republic of Indonesia is a legal state which is contained in Article 1 Paragraph (3) of the 1945 Constitution, in the rule of law, the power in running the Government based on the rule of law, in Indonesia there have been many cooperation agreements in the field of plantation, in the establishment of plantation based on the principle legal certainty to protect the parties in the cooperation agreement between BUMD and PT.MTL where in the plantation management agreement is not running smoothly, causing conflict between the community with PT.MTL party. Based on the above issues, what is the legal relationship between the parties in the oil palm plantation cooperation agreement, how is the legal effect on the community rights in the oil palm plantation cooperation agreement, how is the legal protection of the community within the palm oil plantation agreement. This research is juridical sociological with the nature of research is descriptive analytical. Processing is done by editing and then analyzed by using qualitative analysis methode. From the result of the research, it can be concluded that (1) the occurrence of civil relation between the parties based on the cooperation agreement between BUMD and PT.MTL and letter of land delivery between the community and BUMD (2) due to law on community land in this cooperation agreement the transition of rights, from public property rights to State land. (3) the absence of legal protection of community land that has been submitted to the BUMD to be granted the Right to Use Enterprises

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