scholarly journals The slow and hidden road to serfdom

2021 ◽  
pp. 201-237
Author(s):  
Peter Bernholz
Keyword(s):  
Immanuel Kant ◽  
Rule Of Law ◽  
Alexis De Tocqueville ◽  
Individual Freedom ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
General Rules ◽  
The Law ◽  
The Right ◽  
Discretionary Powers

Without the rule of law limiting the discretionary powers of government agencies, but also of other organizations and in-dividuals no individual freedom is possible. If government re-presentatives or private persons can order at their discretion individuals to behave in certain ways, no individual liberty is guaranteed. As Immanuel Kant expressed it «man is free if he needs to obey no person but solely the law.» And even if indi-viduals are only obliged to follow the law, their freedom is al-ways threatened if these laws can be changed arbitrarily by any individuals or government authorities. This is even true for de-mocracies in which duly elected parliamentary majorities (that is minorities) are allowed to introduce new laws or change old ones relating to any sphere of human activities. The problem has been clearly stated by Alexis de Tocqueville (1945, vol. I, p.270): When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws. Similar ideas are expressed by Friedrich v. Hayek (1944, p. 62): The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination.

The Concept of the Rule-of-Law State in Carl Schmitt’s Verfassungslehre

2014 ◽  
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Political Power ◽  
The Political ◽  
Constitutional Theory ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Liberal Tradition ◽  
Oral Argument ◽  
The Law

This chapter focuses on Schmitt’s critique of the rule of law in his Constitutional Theory. Schmitt argues that liberalism, which once tied the rule of law to the protection of individual liberty, has deteriorated into an account in which any valid law is considered legitimate just because it is valid. This critique is driven by Schmitt’s conception of politics, and, as his oral argument in a crucial constitutional case of 1932 illustrates, his position affirms that law cannot be more than a mere instrument of political power and that it can stabilize politics only if the political power is exercised to bring about a substantive homogeneity in the population subject to the law. In conclusion, it is suggested that Schmitt points to genuine weaknesses in the liberal tradition that require an elaboration of a secular conception of authority in which principles of legality play a central role.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought

2019 ◽  
Vol 52 (3) ◽  
pp. 427-454
Author(s):  
Hassan Jabareen
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Review Essay ◽  
Constitutional Law ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Law ◽  
The Right ◽  
Normative Justification

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

Violent Rejection of Law and Democratic Principles

2018 ◽  
Author(s):  
Kees Van Den Bos
Keyword(s):  
Political Violence ◽  
Rule Of Law ◽  
Religious Violence ◽  
The Rule Of Law ◽  
Red Flag ◽  
The Law ◽  
Democratic Principles ◽  
The Right

Chapter 9 discusses when radical thoughts and associated feelings shift to radical and extremist behaviors. The chapter aims to delineate the ontogenesis of radical behavior by arguing that the active rejection of democratic principles and the rule of law is an important phase in various radicalization processes. This usually takes place via processes of delegitimization. Thus, when people put their own right before the right of others in open societies, this may well serve as a red flag for those interested in trying to prevent the onset of violent and illegal extremism. When people are willing to break the law to obtain their goals, possibly by violent means, this is an important signal that something is seriously going wrong. Evil as a motive and the justification of violence are important antecedents of political violence, religious violence, and terrorism. These insights can be used for the prevention of extreme radicalization.

16. Equality before the law—the right to a fair trial

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
United Nations ◽  
Rule Of Law ◽  
Fair Trial ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The United Nations ◽  
The Law ◽  
The Right

This chapter discusses the right to be recognized as a person before the law; the equality of persons before the law; the prohibition on retroactive penal legislation; the position of courts under the law; the presumption of innocence; and those rights that accrue primarily to accused persons. It argues that the right to equality before the law is one of the major embodiments of the freedom from discrimination advocated by the United Nations. The right to a fair trial and the equality of arms of parties to a legal dispute are fundamental to the operation of the rule of law.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

scholarly journals Penyadapan oleh KPK dalam Perspektif Due Process of Law

2019 ◽  
Vol 12 (2) ◽  
pp. 122
Author(s):  
Tamara Laurencia
Keyword(s):  
Rule Of Law ◽  
Due Process ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The Right To Privacy ◽  
Due Process Of Law ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Law ◽  
The Right

<em>Corruption is very detrimental. KPK was established to eradicate corruption and is given extensive duties and authority. KPK is given the authority to conduct investigation and prosecution, and in the implementation, KPK has the authority to conduct wiretapping. However, the authority given to KPK in conducting wiretapping seems to be too broad and was given without any clear boundaries in terms of the time limit for example. It should also require permission to conduct wiretapping in order to uphold the law. Wiretapping has been a violation of privacy towards citizen rights. The right can only be limited by the Law, but it cannot be removed from existence. One of the principles of criminal procedure in Indonesia is due process of law that consist of three important aspects, namely presumption of innocence, equality before the law, and the rule of law. This principle basically requires the protection of the rights of the suspects or defendants in terms of the substance of the law that regulates or the implementation, which in this case is not to be considered guilty during criminal justice process, equality before the law regarding the right to privacy that can only be limited, not removed from existence.</em>

scholarly journals How Much Law Does the School System Need?

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Miro Cerar
Keyword(s):  
Rule Of Law ◽  
School System ◽  
Legal Regulation ◽  
Educational Process ◽  
The Rule Of Law ◽  
Responsible Attitude ◽  
The Law ◽  
Legal Administration ◽  
The Right

In its ideal form, the law is a guardian of the freedom and autonomy of the school system. On the other hand, the school system must, as part of its responsibility, establish a respectful and responsible attitude toward the rule of law. In Slovenia, practice deviates from such ideal to too great an extent. Excessive and inappropriate legal regulation reduces the freedom and autonomy of the school system. The consequences within this system are: partly ignored legal regulations, and the resulting ineffectiveness; excessive legal administration in schools; increased teachers’ opposition to the law; a lack of teachers’ motivation; and, as a consequence, worsened quality of the educational process. The law, however, is only a part of the problem. The latter has its roots mainly in a general disorientation of society with regard to its values. In order to establish the right measure and manner of the legal regulation of the school system, the moral and common sense basis of society must first be healed and strengthened.

THE PRINCIPLE OF THE RULE OF LAW IN THE JUDICIAL PRACTICE OF UKRAINE

2021 ◽  
Author(s):  
Ruslan Skrynkovskyy ◽  
◽  
Yaroslav Skoromnyy ◽  
Yuriy Mazur ◽  
Valentyn Serdiuk ◽  
...  
Keyword(s):  
Rule Of Law ◽  
Limit State ◽  
Transitional Period ◽  
Complex Nature ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
The Status ◽  
The Law ◽  
The Right

The article reveals the peculiarities of the observance and implementation of the principle of the rule of law in the judicial practice of Ukraine. It was established that the implementation of the rule of law is regulated by the Resolution of the Plenum of the Supreme Court of Ukraine «On a Court Decision in a Civil Case», the Law of Ukraine «On the Judiciary and the Status of Judges» and the Constitution of Ukraine. It has been established that the principle of the rule of law is one of the main principles of a democratic society. It has been established that the problem of observance of the principle of the rule of law in the judicial practice of Ukraine is of a complex nature, and it can be solved only through the implementation of a comprehensive judicial and legal reform. It has been established that in the context of observing the rule of law in Ukraine, the experience of the European Court of Human Rights should be implemented. It has been established that the implementation of the principle of the rule of law occurs through the implementation of the principle of legal certainty, the principle of juridical certainty, the principle of justice, the principle of equality, the principle of clarity and unambiguity of the legal norm, the principle of proportionality, the principle of predictability. It has been proven that in the context of the administration of justice, the court must comply with the principle of the rule of law, as well as ensure the right of everyone to a fair trial, to ensure respect for everyone, as well as other rights and freedoms defined by legislative and regulatory documents. It has been established that one of the main principles for the implementation of the principle of the rule of law is the implementation of changes in legislation in order to establish an appropriate transitional period (that is, a reasonable period between the date of the official promulgation of the law and the date of entry into force of the law). It was determined that the implementation of the principle of the rule of law indicates the limited nature of public authorities in actions, primarily those regulated by law, and the main goal of the principle of the rule of law is to limit state power over everyone, as a result of which the rights of everyone should be properly ensured against arbitrary (and at the same time inappropriate) interference of the state or public authorities, in particular, in the relevant spheres of life of everyone. It is noted that the prospects for further research in this direction are the study of the legal foundations of other principles that guide the activities of the judicial authorities of Ukraine.

scholarly journals PROBLEMS IN THE IMPLEMENTATION OF PROSECUTORIAL SUPERVISION IN THE FIELD OF LAND USE

2020 ◽  
Vol 34 (2) ◽  
pp. 140-144
Author(s):  
V.T. Azizova ◽  
◽  
A.A. Abdullatipova ◽  
Keyword(s):  
Land Use ◽  
Rule Of Law ◽  
Significant Role ◽  
Public Prosecutor ◽  
The Rule Of Law ◽  
The Public ◽  
Legal Documents ◽  
The Law ◽  
The Right

The relevance of the issues discussed in this article is due to the importance of ensuring the preservation of land, the legality of its use and the protection of land in various ways. The Public Prosecutor 's Office has a significant role to play in this process, which has the right to detect violations of the law in this area, to contribute to their prevention, as well as to bring the perpetrators to various types of responsibility. The purpose of the article is to consider the activities of the Public Prosecutor 's Office in this area, to identify difficulties in this activity and to develop proposals to overcome the identified problems. In conclusion, the following conclusions are made: 1) in addition to prosecutors, the rule of law process in the field of land use should involve all bodies whose activities are related to this area to some extent; 2) the relevant activities of the Public Prosecutor 's Office in the field of land use are to verify the legality of legal documents in this sphere, the activities of supervisory bodies with powers in the field of land use, compliance with the legislation by all parties to land legal relations; 3) the most common types of offences identified by prosecutors in this sphere are the absence of documents for land plots, self-capture of land plots, violation of procedure and legality of allocation of land plots

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