On the issue of constitutional amendments in conjunction with the validity of the law and the will of the State

Author(s):  
Mariam Isabaly kyzy ZEYNALOVA
Author(s):  
N.E. Simmonds

Theories of contract law seek to articulate general principles and values underpinning the complex rules of contract law. Some theorists view contract law as simply concerned to facilitate individual choices and enforce the will of the parties. A rival view holds that it is impossible to derive the content of contract law from such a sparse foundation: contract law is better viewed as one of the instruments whereby the state regulates markets and distributes resources and power. The debate addresses the detailed technicalities of the law, but seeks to relate these technicalities to broader questions of political philosophy.


Author(s):  
Jacques Bertrand

This chapter examines how Acehnese and Papuans negotiated the constitutional transition in Indonesia that led to the adoption of the Special Autonomy Law in 2001 for Papua and the Law on Aceh in 2006 for Aceh. Between 1998 and 2002, the People’s Consultative Assembly (Majelis Permusyawarahtan Rakyat) embarked on several constitutional amendments. In 2001, the state adopted two special autonomy laws to address grievances in Aceh and Papua. The chapter first provides a background on the territorial cleavages that have characterized Indonesian politics before turning to the period of constitutional engagement that culminated in the adoption of the Law on Aceh and the Special Autonomy Law. It then considers the outcomes of the constitutional transition, with particular reference to decentralization and territorial cleavages in Aceh and Papua, and concludes with an analysis of the lessons that can be learned from Indonesia’s incrementalist and responsive approach to constitutional change.


1970 ◽  
Vol 5 (3) ◽  
pp. 337-351
Author(s):  
Edoardo Vitta

The characteristic function of private international law is to declare the law applying to cases containing a foreign element, by pointing out the general principles upon which all the legislation on the matter is based and developed. The function of such principles is to help to specify the law considered appropriate in individual cases. Private international law knows several such principles such as domicile, nationality, the will of the parties, the place where a contract is concluded or where an immovable is situated, etc.Conflict of personal laws is also based on connecting principles, although of a different character. The main connecting principle is the ethnic or religious association of the parties. Nationality or domicile of the parties, the two connecting principles on which the main systems of private international law are based, may not be resorted to in the conflict of personal laws. Nationality may be taken as a basis for deciding which is the most appropriate law to be applied to the relationships between nationals of different States, but not for deciding which law is to be applied to parties who, being members of different legal systems, are nevertheless all nationals of the same State. As to domicile, it may help to solve a similar problem arising between persons domiciled in different countries or between persons domiciled in different parts of the same country within which different territorial laws are in force; but it can serve no useful purpose in relation to nationals of the same State to whom different laws apply by reason of their ethnic or religious origin and who live scattered throughout the whole of the territory of the State.


2021 ◽  
pp. 95-110
Author(s):  
Massimo Della Misericordia

On the basis of the recent monograph by C. Ginzburg and G. Pedullà’s review, it is possible to identify the word nondimanco/nondimeno (nonetheless) as an important element in Renaissance political writing. However, it does not only appear in the work of Machiavelli or Guicciardini and in the more conscious reflections by the intellectuals, but also in the huge amount of letters that constitute the government correspondence of the time. In these kinds of pragmatic texts, referring to the state of Milan in the Sforza age, it recurs as a key word of a dilemma: the friction between law and transgression (or exception considered legitimate) and also between law and practice. On one hand, it expresses an assumption invested in value: the duke must honor his promises and the contents of the chapters agreed on with his subjects; custom demands respect; factional divisions must be overcome. At the same time it reveals the concern that this principle could be trampled upon, or instead the will, if not the need, to attenuate the more general rule. This conjunction thus summarized the requirement to nuance the law, to adapt it to circumstance, and to conciliate potentially conflicting rights or reasons. In short, it stands as an indicator of one of the main causes of open tensions in the late medieval state, debated by a long tradition of scholars ranging from O. Brunner to R. Fubini: the opposition between the authority of the prince, as arbiter of the exception requested from time to time from the same variety of concrete situations, and the legalistic culture of the territorial bodies, which, referring to law and custom, tempted to stem the “extraordinary” powers that the duke was attributing to himself.


2019 ◽  
pp. 177-186
Author(s):  
Zinaida Neznamova

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.


2010 ◽  
Vol 10 (1) ◽  
Author(s):  
Trusto Subekti

Article 2 paragraph (2) Law No.1 of 1974 stated that every marriage must be recorded as evidence of the Marriage Certificate issued. Viewed from the aspect of history, marriage records still reflect the political classification of residents based on the Civil Ordinance for the European group No. S.1849. 25, Civil Ordinance for the Chinese S. No. 1917. 1919 No. 130 Jo. 81, Civil Ordinance for class citizen Christian Original S. No. 19,330. 1936 No. 75 Jo. 607. In Indonesia the law of political developments have led to no longer recognize classification population. Since 1966, has issued instructions of the Cabinet Presidium Ampera No. 31/U/IN/12/1966 and followed-up by the Presidential Decree No.12 Year 1983, and finally Law No. 23 Year 2006 concerning Population and Administrative and Regulation No.37 Year 2007 as its implementing regulations. Recording of marriage is a state of institutional behavior and decision or reflect the will of the state establishment, and the product of a decision or other form of establishment of the Marriage Act and Marriage Act quotation. If the Marriage Act's passage can be read law and political unknown and the state of institutional readiness in implementing its mission. This study aims to determine the development of the Marriage Act Excerpt substances, particularly applicable to non-Muslim population The approach used in research is a normative juridical and the results obtained is that the study of the development of the Marriage Act Excerpt substance for non-Muslims in touch with the historical aspects that show the existence of variation.Keywords: Growth, Quotes Marriage Act, Non-Muslims


1980 ◽  
Vol 11 (1) ◽  
pp. 1-29 ◽  
Author(s):  
Heather Sutherland

The relationship between law and politics is both close and ambiguous. Ideally, the law provides impartial justice, but at the same time it expresses—both actually and symbolically—the will of the state. Consequently, a legal system usually embodies the establishment idea of proper social order, and should provide a legitimate means of enforcing compliance to that idea. It follows then that different societies have different kinds of law: underlying principles, procedure, and the institutional framework vary considerably from place to place.


2007 ◽  
Vol 56 (3) ◽  
Author(s):  
Marina Casini ◽  
Maria Luisa Di Pietro ◽  
Carlo Casini

Il presente contributo muove dal considerare come i progetti e i disegni di legge che disciplinano le cosiddette “direttive anticipate di volontà”, ne sanciscono il carattere vincolante. Nella stessa direzione procede anche il parere elaborato dalla Commissione Giustizia. Quest’ultima rispetto a tale vincolatività ritiene addirittura “improponibile” e “non accettabile” l’istituto dell’obiezione di coscienza. Gli Autori, invece, sostengono l’importanza della previsione dell’obiezione di coscienza in una normativa sul testamento biologico che voglia “impegnare” il medico ad “ubbidire” alle volontà manifestate anteriormente. La questione si pone con riferimento alle azioni o alle omissioni che possono causare la morte. Il riconoscimento giuridico dell’obiezione di coscienza comporta che quando la legge prevede comportamenti che causano direttamente (ad esempio nel caso dell’aborto volontario) o possono concorrere a causare (ad esempio, per la sospensione/interruzione di trattamenti sanitari) la soppressione della vita umana, il medico può legittimamente non applicarla. D’altra parte non va dimenticata – ricordano gli Autori – la ratio dell’obiezione di coscienza. Poiché il fine dell’organizzazione statale è la difesa della vita umana, il riconoscimento dell’obiezione di coscienza implica anche il riconoscimento della coerenza dell’obiezione stessa con i fini ultimi dello Stato. In tale interpretazione l’esercizio dell’obiezione non è soltanto la salvaguardia della libertà di coscienza, di pensiero e di religione, ma anche lo strumento per mantenere il valore della vita umana. ---------- This contribution, starting from the evaluation of bills on “living will”, shows how such “will” confirm their obligatoriness. The opinion elaborated by the Commission of Justice goes on the same way. This one holds such obligatoriness as a solution that absolutely “cannot be proposed” and it holds the objection of conscience as “unacceptable”. On the contrary, the Authors support the importance of the provision of the objection of conscience within regulations, on living will, inclined to “bind” the physician to “obey” the will previously manifested. The kernel of the problem is the action or the omission that can cause the death. The legal recognition of the objection of conscience implies that, if the law provides behaviors that directly cause (voluntary abortion for example) or that can assist to cause the suppression of human life (the suspension/withdrawal of medical treatments for example), the physician can legally not to apply it. One should not forget, as the Authors remind us, the ratio of the objection of conscience. Since the aim of the public authority consists in the defense of the human life, the recognition of the objection of conscience implies the recognition of the coherence of this objection with the ultimate aims of the State too. In this interpretation, the use of the objection is not just the protection of the freedom of objection, of thought and religion, but also the instrument to preserve human life value.


Author(s):  
Ю. М. Оборотов

В современной методологии юриспруденции происходит переход от изучения состо­яний ее объекта, которыми выступают право и государство, к постижению этого объек­та в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяю­щее значение имеют методологические подходы, определяющие стратегию исследова­тельских поисков во взаимосвязи юриспруденции с правом и государством. Среди наи­более характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспру­денции.   In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.


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