scholarly journals Criminalization and Decriminalization as an Indicator of Individual / Authorities Relations

2019 ◽  
pp. 177-186
Author(s):  
Zinaida Neznamova
Keyword(s):  
Legal Protection ◽  
The State ◽  
Legal Interpretation ◽  
Negative Consequences ◽  
Fake News ◽  
Short Term ◽  
Social Nature ◽  
The Will ◽  
The Law ◽  
The Individual

In this paper, the author attempts to use various techniques and methods of legal interpretation and apply various types of interpretation of criminal law provisions to trace the trend of relations between the individual and the state through the lens of criminalization and decriminalization of socially dangerous acts. It is the procedures of criminalization and decriminalization that the law-maker uses to implement the will of the state and establish the vector and tension in relations between an individual / a citizen and the state authorities. To solve this task, the author traces, in the short-term, the legal and actual decriminalization of certain types of crimes – hooliganism, battery, libel and insult. Additionally, a review of legislative novelties associated with establishing liability for the so-called “insult of authority” and “fake news” is provided. The conducted analysis of the practice of decriminalizing certain socially dangerous acts leads to the conclusion that the state, represented by the law-maker, is consistently enforcing the policy that leads to reducing the level of individual’s legal protection and health, physical integrity, honor and dignity. Simultaneously, the legal protection of interests of the state, bodies of government and their individual representatives is evidently growing stronger, which is obviously misaligned with the policy of weakening the legal protection of certain constitutional human and citizen’s rights, as mentioned above. This trend can only be assessed ad negative, which in the nearest future may significantly increase the tension between the state and the individual, entailing negative consequences of both legal and social nature.

Urgensi Assesment Report Dalam Omnibus Law RUU Cipta Kerja

ADALAH ◽  
2020 ◽  
Vol 4 (3) ◽  
Author(s):  
Indra Rahmatullah
Keyword(s):  
Academic Research ◽  
Legal Protection ◽  
The State ◽  
The Law ◽  
Scientific Arguments

Abstract:A draft law must be able to answer and solve the main problem of the society so that with the existence of the law the community gets legal protection from the state. However, the draft of Cipta Kerja Law makes an endless controversy. In fact, the draft was allegedly containing some problems since its appearance. Therefore, academic research (Assesment Report) is needed so that the rules in the draft have basic scientific arguments that can be justified. Unfortunately, the draft does not conduct an assesment report to know whether the society need the law and urgent.Keywords: Legal Protection, Controversy and Assesment Report Abstrak:Sebuah rancangan undang-undang harus dapat menjawab dan menyentuh pokok permasalahan masyarakat sehingga dengan adanya undang-undang tersebut masyarakat mendapatkan sebuah perlindungan hukum dari negara. Namun, dalam RUU Cipta Kerja ini justru berakibat pada kontroversi yang tiada hentinya. Bahkan, disinyalir RUU ini mengandung kecacatan sejak awal pembentukannya. Oleh karena itu, dibutuhkan penelitian akademis sehingga aturan-aturan yang ada dalam RUU ini mempunyai basis argumentasi ilmiah yang dapat dipertanggungjawabkan yang salah satunya adalah dengan membuat Laporan Kelayakan. Sayangnya RUU ini belum melakukan laporan kelayakan apakah RUU ini dibutuhkan dan penting di masyarakat.Katakunci: Perlindungan Hukum, Kontroversi dan Laporan Kelayakan

Conscientious Objection (European and American approaches)

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 115-144
Keyword(s):  
Deep Understanding ◽  
Legal Protection ◽  
Legal Aspects ◽  
Conscientious Objection ◽  
State Regulation ◽  
Legal Responsibility ◽  
State Regulations ◽  
Conscientious Objectors ◽  
The Law ◽  
The Individual

The Article concerns the legal issues, connected with the situation, when a person (or group of people) disobey requirements of the Law or other State regulations on the basis of religious or nonreligious belief. The Author analyses almost all related issues – whether imposing certain obligation on individuals, to which the individual has a conscientious objection based on his/her religious beliefs, always represents interference with his/her religion rights, and if it does, then what is subject of the interference – forum integrum or forum externum; whether neutral regulation, which does not refer to religion issues at all, could ever be regarded as interference into someone’s religious rights; whether opinion or belief, on which the individual’s objection and the corresponding conduct is based, must necesserily represent the clear “manifest” of the same religion or belief in order to gain legal protection; what is regarded as “manifest” of the religion or other belief in general and whether a close and direct link must exist between personal conduct and requirements of the religious or nonreligious belief; what are the criteria of the “legitimacy” of the belief; to what extent the following factors should be taken into consideration : whether the personal conduct of the individual represents the official requirements of corresponding religion or belief, what is the burden which was imposed on the believer’s religious or moral feelings by the State regulation, also, proportionality and degree of sincerity of the individual who thinks that his disobidience to the Law is required by his/her religious of philosofical belief. The effects (direct or non direct) of the nonfulfilment of the law requirement (legal responsibility, lost of the job, certain discomfort, etc..) are relevant factors as well. By the Author, all these circumstances and factors are essencial while estimating, whether it arises, actually, a real necessity and relevant obligation before a state for making some exemptions from the law to the benefi t of the conscientious objectors, in cases, if to predict such an objection was possible at all. So, the issues are discussed in the prism of the negative and positive obligations of a State. Corresponding precedents of the US Supreme Court and European Human Rights Court have been presented and analysed comparatively by the Author in the Article. The Article contains an important resume, in which the main points, principal issues and conclusion remarks are delivered. The Author shows, that due analysis of the legal aspects typical to “Conscientious objection” is very important for deep understanding religious rights, not absolute ones, and facilitates finding a correct answer on the question – how far do their boundaries go?

Hobbes among the Classic Jurists

2018 ◽  
Author(s):  
David Boucher
Keyword(s):  
International Relations ◽  
International Law ◽  
The State ◽  
Law Of Nature ◽  
Law Of Nations ◽  
Complete Identification ◽  
The Law ◽  
The Individual ◽  
Hedley Bull ◽  
Hans Morgenthau

The classic foundational status that Hobbes has been afforded by contemporary international relations theorists is largely the work of Hans Morgenthau, Martin Wight, and Hedley Bull. They were not unaware that they were to some extent creating a convenient fiction, an emblematic realist, a shorthand for all of the features encapsulated in the term. The detachment of international law from the law of nature by nineteenth-century positivists opened Hobbes up, even among international jurists, to be portrayed as almost exclusively a mechanistic theorist of absolute state sovereignty. If we are to endow him with a foundational place at all it is not because he was an uncompromising realist equating might with right, on the analogy of the state of nature, but instead to his complete identification of natural law with the law of nations. It was simply a matter of subject that distinguished them, the individual and the state.

Perlindungan Hukum Harta Bawaan Debitur Pasca Perceraian

2021 ◽  
Vol 1 (1) ◽  
pp. 68-77
Author(s):  
Puspa Fitriyah
Keyword(s):  
Legal Protection ◽  
Legal Liability ◽  
Legal Certainty ◽  
Citizenship Status ◽  
Credit Guarantees ◽  
Personal Status ◽  
The Will ◽  
The Law ◽  
Joint Property ◽  
Husband And Wife

The problem of debt is included in the field of personal status, where marriages are carried out between spouses, which as a result of the law of debt become a burden to be borne together from marriage agreements between citizens, especially related to the distribution of joint assets. How is the legal liability of debtors to creditors in the final period of marriage? and How is the legal protection for the debtor's innate property? Regarding the marriage agreement, it is regulated in Article 29 of Law Number 1 of 1974 concerning Marriage. This is because of the agreement made between the husband and wife both regarding joint property after marriage and the child's guardianship rights as well as the citizenship status of the child and each party. The method used in this research is normative juridical and empirical juridical research which is analyzed using legal certainty theory and legal liability theory. From the results of the research. Events that often occur in the field of debt, debt repayments that must be paid by the debtor are often not as agreed. In the legal certainty of customer credit guarantees on objects of land and building mortgages, there is a decrease in the appraisal value by the bank, but the binding of credit guarantees with mortgages is carried out if a customer or debtor obtains credit facilities from the bank. Divorce is an abolition of marriage accompanied by a judge's decision. or at the will of one of the parties, both husband and wife, through the submission of a claim by one of the parties to the marriage. Keywords: Legal Liability, Debt, Creditors, Wife.

scholarly journals Variety of theoretical approaches to legal interpretation

2021 ◽  
pp. 109-114
Author(s):  
A. Yе. Shevchenko ◽  
S. V. Kudin
Keyword(s):  
Social Relations ◽  
Theoretical Approach ◽  
Special Kind ◽  
Integrative Approach ◽  
Legal Interpretation ◽  
True Nature ◽  
Theoretical Approaches ◽  
The Will ◽  
The Subject ◽  
The Law

The article explores the variety of theoretical approaches to legal interpretation. It has been determined that the variety of approaches to legal interpretation is due to the complexity of the nature of the origin of this phenomenon, the conditions for the development of post-non-classical science, and the recent influence of the paradigm of comparism, which assumes pluralism of opinions and ideas in legal research. It was found that in modern science there are four traditional theoretical approaches to the essence of legal interpretation. It has been determined that the content of the first approach is revealed within the framework of legal hermeneutics through a number of categories. The essence of the second approach (formal dogmatic or static) is expressed in the fact that the subject of interpretation must strictly and rigorously follow the letter of the law, establish only the meaning of the normative legal act, which the lawmaking body enshrined in it at the time of the publication of the act. That is why normative legal acts cannot, through interpretation, adapt to the changing economic, social, political, cultural internal and external conditions of public life. It is proved that the essence of the dynamic theoretical approach lies in the fact that the subject of legal interpretation adapts the normative legal act to the changes that occur in various social relations. It was found that there is a contradiction between the dynamic and static approaches in legal interpretation, which is reflected in the traditionally called objective and subjective theories of interpretation. According to the subjective theory, the purpose of legal interpretation is to establish the «will of the legislator», and according to the objective theory – to establish the «will of the law». It has been substantiated that the essence of the activity approach is that interpretation is considered as a special kind of legal activity aimed at understanding and clarifying the content of legal texts. The authors of this article point out that in order to establish the true nature of legal interpretation, the methodological foundations of the study should be presented much broader and more diverse, and not be limited only to traditional approaches. When studying it, a comprehensive, integrative approach is needed, which, based on the relevance of interdisciplinary relationships, would include logical, language (linguistic), philosophical, sociological, psychological, axiological (value), ethical, legal, historical, economic, political, mathematical and other substantiation of legal interpretation. Keywords: diversity, theoretical approach, legal interpretation, interpretive practice, integrative approach

Zmiany w ustawach małżeńskich Augusta za panowania dynastii julijsko-klaudyjskiej

1987 ◽  
Vol 30 (1-2) ◽  
pp. 151-178
Author(s):  
Maria Zabłocka
Keyword(s):  
The State ◽  
Negative Consequences ◽  
Men And Women ◽  
Age Limit ◽  
The Law

Under the reign of Augustus’ successors both lex Iulia et Papia as well as lex Iulia de adulteriis coercendis were subject to changes. Lex Iulia et Papia imposed an obligation to remain in the state of matrimony for men and women until a certain age limit; if the men were past this age limit negative consequences of avoiding the binding orders came no longer into consideration. SC Pernicianum extended the said consequences over people well advanced in years who earlier had not met the requirements of the law. SC Claudianum attempted at softening the sternness of the changes but only in relation to men since according to SC Calvisianum women were excluded from it. However, the reasons for enacting these SC seem to have departed from the intensions propagated by Augustus. New regulations aimed at only fiscal reasons and partially (SC Claudianum) personal situation of the Princeps. Application of lex Iulia de adulteriis was also gradually changed. Tiberius increased the punishability of facts recognized as crimes by the act and extended its application over new facts. Whereas Caligula abrogated punishability of facts falling under the notion of lenocinium and imposed taxes on them instead.

THE ROLE OF THE JUDICIARY IN THE CONSTITUTIONAL AND LEGAL MECHANISM FOR THE PROTECTION OF HUMAN RIGHTS AND FREEDOMS

2018 ◽  
Author(s):  
Mariana Khmyz ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Legal Aspect ◽  
Legal Protection ◽  
The State ◽  
Time Dynamic ◽  
Protection Of Human Rights ◽  
The Law ◽  
Judicial Protection

The article reveals the role of the judiciary in the context of ensuring the protection of human rights and freedoms in terms of practical approach. It was found that ensuring the protection of human rights and freedoms in Ukraine is regulated by the Constitution of Ukraine, the Law of Ukraine «On the Commissioner for Human Rights of the Verkhovna Rada of Ukraine» and the Law of Ukraine «On Citizens' Appeals». It is established that in Ukraine judicial protection is enshrined in the Constitution of Ukraine, in particular in Article 55, according to which the rights and freedoms of man and citizen in particular are protected by the court. It is proved that the functioning of the constitutional mechanism for the protection of human rights and freedoms can occur only if the state actively participates in ensuring such rights and freedoms. It is determined that an important component of subjective human rights is the right to judicial protection, which should be realized not only in the direct dimension, but also through the activities of state bodies or bodies or organizations authorized by the state. It is established that the concept of «protection» from the standpoint of the legal aspect is interpreted as a legal obligation of the state in the face of bodies, organizations or officials authorized by it, and as the ability of a person to exercise personal subjective right. It was clarified that the concept of «protection of human rights and freedoms» should be interpreted as a set of measures of organizational and legal nature to ensure legal protection or remove obstacles that arise in the context of the exercise of subjective rights and rights to restore such rights, if they were violated with the application of measures on this basis in the form of punishment of the offenders. It is proposed under the mechanism of protection of human and civil rights and freedoms, in particular, to define a holistic, legally enshrined and at the same time dynamic system, which includes subjects, objects, methods and means of protection of human and civil rights and freedoms. to neutralize illegal obstacles, as well as to prevent the emergence of new obstacles. It is proved that the mechanism of protection of human and civil rights and freedoms in particular should consist of institutional and functional systems. It is noted that the prospects for further research in this area are to determine the requirements for the incompatibility of the position of a judge with other activities in a comparative constitutional and legal aspect.

The Child’s Right to Be Vaccinated

2021 ◽  
Vol 29 (4) ◽  
pp. 897-919
Author(s):  
Katherine Hunt Federle
Keyword(s):  
Public Safety ◽  
The State ◽  
Parental Choice ◽  
Vaccine Hesitancy ◽  
Individual Welfare ◽  
The Law ◽  
The Individual

Abstract Vaccine hesitancy highlights a problem within current rights constructs under US law. Refusal to vaccinate is ineluctably cast as a contest between parental choice, to which the law traditionally defers, and state concerns for public safety and the individual welfare of children. But rarely is the discussion cast in terms of the child’s right to be vaccinated because our rights talk revolves around the capacity (or lack thereof) of the rights holder. If, however, we recast rights in terms of empowerment, then we can see that rights flow to the child, not because she has the requisite capacity but because she is less powerful. In this sense, rights exist for children because they are children. The authority of the state to mandate immunisation under US law also may be reconsidered because the state is acting to protect the rights of those less powerful – the children who cannot be vaccinated.

From Liberties to Liberty

2020 ◽  
pp. 105-130
Author(s):  
Charlotte Epstein
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
The State ◽  
Natural Rights ◽  
The Political ◽  
Habeas Corpus ◽  
House Church ◽  
The Law ◽  
The Individual ◽  
Individual Body

This chapter studies how liberty in the law evolved from being attached to a collective, metaphorical body—the medieval corporation—to being rooted instead in the individual body across a range of practices in seventeenth century Europe. It analyses the early modern forms of toleration that developed from the ground-up in Protestant Europe (Holland and Germany in particular), including the practices of ‘walking out’ (auslauf) to worship one’s God, and the house church (schuilkerk). These practices were key to delinking liberty from place, and thus to paving the way to attaching it instead to territory and the state. The chapter also considers the first common law of naturalisation, known as Calvin’s Case (1608), which wrote into the law the process of becoming an English subject—of subjection. This law decisively rooted the state-subject relation in the bodies of monarch and subject coextensively. Both of these bodies were deeply implicated in the process of territorialisation that begat the modern state in seventeenth-century England, and in shifting the political bond from local authorities to the sovereign. The chapter then examines the corporeal processes underwriting the centralisation of authority, and shows how the subject’s body also became—via an increasingly important habeas corpus—the centre point of the legal revolution that yielded the natural rights of the modern political subject. Edward Coke plays a central role in the chapter.

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