scholarly journals The Rule of Law and Legal Pluralism in Malaysia

ICR Journal ◽  
2010 ◽  
Vol 2 (1) ◽  
pp. 90-108
Author(s):  
Constance Chevallier-Govers
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Islamic Law ◽  
Common Law ◽  
Legal Pluralism ◽  
The Rule Of Law ◽  
Federal States ◽  
Definition Of ◽  
Historical Developments ◽  
Rights Issues

In Malaysia, Islam is the religion of the state, although other religions may be practised in peace and harmony. Having inherited the English common law tradition at its independence in 1957, Malaysia is neither a secular state nor an Islamic theocracy. As a matter of fact, the Malaysian Constitution has brought Islamic law under the legislative powers of the federal States. Historical developments have thus led to the existence of two sets of law: common law and shari'ah law. Legal pluralism in Malaysia applies foremost to personal status, but also to some aspects of criminal law. The shari'ah as well as legal pluralism seem to question the rule of law in Malaysia. This two-fold aspect of the rule of law will be analysed in this article. The formal definition of the ‘rule of law’ implies the respect for the hierarchical principle and the Constitution’s supremacy. It will be explained to what extent legal pluralism in Malaysia is challenging the supremacy of the Constitution. Nevertheless, the hierarchical principle is not a goal in itself, and the material definition of the ‘rule of law’ will also be discussed. The second part of this article will focus on potential human rights issues that are implied by the notion of legal pluralism and by shari'ah law in Malaysia.

20. Conspiracy

2020 ◽  
pp. 580-610
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Common Law ◽  
Mens Rea ◽  
The Rule Of Law

This chapter examines the ways in which criminal law treats conspiracies. Some of the controversies examined include: whether it is necessary and/or desirable to criminalize conspiracies; the extent to which there can be a conspiracy under the Criminal Law Act 1977 if the parties have only agreed to commit the substantive offence subject to some condition; what must be agreed and who must intend what to happen for a crime of conspiracy; the mens rea of statutory conspiracies; and whether common law conspiracies are so vague as to infringe the rule of law.

Risk, Populism, and Criminal Law

2019 ◽  
Vol 22 (4) ◽  
pp. 391-433 ◽  
Author(s):  
John Pratt ◽  
Michelle Miao
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Asylum Seekers ◽  
Due Process ◽  
Separation Of Powers ◽  
Risk Control ◽  
Risk Society ◽  
The Rule Of Law ◽  
Social Restructuring ◽  
Rights Issues

Criminal law is being broadened from its normative and moral response to wrongdoing to include the capacity to act as a preventive force. As well as reacting to crime that has been committed, it also attempts to control the risk of future crime. In so doing, preventive criminal law makes use of hybrid and retrospective legislation, while reversing or lowering burdens of proof if these are thought to unfairly advantage offenders/defendants, raising important human rights issues. We argue that this emphasis on controlling risk was the response to issues of uncertainty and insecurity generated by post-1970s economic and social restructuring. Where, though, do these criminal law characteristics of “risk society” now sit, given the contemporary rise of populist politics? Populism promises an end to risk and its attendant uncertainties and anxieties, but it is already extending rather than reversing the preventive capacity of criminal law. This is because populism continuously needs to find new victims that it embraces and pledges to defend against their assailants, law-breakers or otherwise, real or imagined. The focus of risk control thus embraces new populations—refugees, asylum seekers, immigrants of all kinds, legal or otherwise. Conventions such as the rule of law and the separation of powers that might previously have limited such interventions are brushed aside as outmoded examples of elitist thinking. Instead, security is prioritized over residual concerns about due process, while also prioritizing public protection over individual rights.

scholarly journals STUDI ISLAM DALAM KAJIAN HUKUM KELUARGA ISLAM DI INDONESIA

2016 ◽  
Vol 1 (1) ◽  
pp. 63
Author(s):  
Sadari Sadari
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Rule Of Law ◽  
Islamic Law ◽  
Family Law ◽  
Nation State ◽  
The Rule Of Law ◽  
Islamic Family Law ◽  
Rights Issues

This article offers a study of h}udu>di> (limit) in Islamic family law contained in the Indonesian Compilation of Islamic Law (KHI). The study of h}udu>di is nothing other than the process of desacralization that KHI becomes progressive in line with the development of modernity and in the context of Indonesian-ness. To that end, this article makes two efforts, firstly, by rejecting the idea that gives no attention to limit in one hand, and secondly, by strengthening the thoughts of scholars who offer new ijtihad both in its concept until to methodology. Thought that strengthens it came from Syrian figure, namely Muh}ammad Shah}ru>r, through a plausibility structure. His study of hududsupported Nurcholish Madjid idea about the de-sacralization, so as to perform the coherence between KHI to human rights issues, democracy, nation-state, civil society, and constitutionalism. So this article supports the spirit of de-sacralization - in addition to not abandon its sacralization - initiated by Nurcholish Madjid. The source of this study is KHI, by using the hududparadigm, that based on a maxim of sabat al-naswa harakah al-muhtawa, meaning that the text is permanent , but the content moves. So that the rule of law is always rooted in liminality based on the text, which is the pivot of study centered on the text toward the context, not vice versa.

Siyasah Shar'iyah or the Policies of Islamic Government

1989 ◽  
Vol 6 (1) ◽  
pp. 59-80
Author(s):  
Mohamad Hashim Kamali
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Islamic Law ◽  
Effective Means ◽  
Public Affairs ◽  
Effective Control ◽  
The Rule Of Law ◽  
Arbitrary Power ◽  
The Individual ◽  
Substantive Law

IntroductionSiyasah shar'iyah is a broad doctrine of Islamic law which authorizesthe ruler to determine the manner in which the Shari'ah should be administered.The ruler may accordingly take discretionary measures, enact rules and initiatepolicies as he deems are in the interest of good government, providedthat no substantive principle of the Shari'ah is violated thereby. The discretionarypowers of the ruler under siyasah shar'iyah are particularly extensivein the field of criminal law. The head of state and those who are incharge of public affairs, the 'ulu al amr, may thus decide on rules and proceduresas they deem appropriate in order to discover truth and to determineguilt. With regard to the substantive law of crimes, too, the 'ulu al amr havepowers to determine what behavior constitutes an offense and what punishmentis to be applied in each case.Many observers have expressed concern over the wide discretionarypowers that rulers and judges enjoy under siyasah shar'iyah. It is suggestedthat siyasah, as such, defies effective control, and it is open to abuse, whichwould ultimately undermine the ideals of justice under the rule of law. Oneobserver has thus considered siyasah as "direct negation of what may be regardedas the second essential implication of the idea of the rule of law in asecular system- namely, the principle that the sovereign must not possessany arbitrary power over the subject."According to another critic, siyasah has enabled the Islamic ruler to enactlegislation, especially in the field of criminal law, under the guise of "administrativeregulations." But in effect, the ruler enacted independent legislationin such areas as taxation, police matters, and the administration of justice,in general, which often interferred with, or severely circumscribed, theShari'ah.Penalties imposed at the discretion of the ruler or the judge are knownas ra'z'irat. As a branch of siyasah, ta'zir (lit. deterence) must differ accordingto the nature of the offense and the particular circumstances of the offender.The judge may thus determine the punishment of ta'zir in each caseaccording to his own observations and personal ijtihad. It has been suggestedthat the individual in such a system is exposed to official abuse against whichhe has no effective means of protecting himself ...

Medico-legal liability in critical care

2016 ◽  
Author(s):  
Michael A. Rie
Keyword(s):  
Critical Care ◽  
Rule Of Law ◽  
English Language ◽  
Common Law ◽  
Professional Group ◽  
Patient Trust ◽  
The Rule Of Law ◽  
Case Examples ◽  
Care Services ◽  
Definition Of

The Oxford Textbook of Critical Care is an English language international text that recognizes the English Common Law as the foundation of contemporary judicial precedents governing obligations and responsibilities within the patient–doctor relationship. Although medical ethics and their recognition are generally known, Common Law interpretation of resource consumption and entitlement limits to critical care services has varied widely. Case examples of enduring professional negligence are offered. While legal systems may have differing origins, the imbalance between resource allocation and lawful definition of entitlement limitations requires further clarity within the law. Preserving professional integrity requires active public education and professional group dialogue with governments and the courts. Such patient advocacy will both preserve the rule of law and patient trust in all critical care professionals.

scholarly journals Intelligibility of a criminal law: Theoretical and practical aspects

2021 ◽  
Vol 10 (44) ◽  
pp. 92-102
Author(s):  
Olha Musychenko ◽  
Yevgen Streltsov ◽  
Oleksandr Kozachenko ◽  
Olesya Vasyliaka ◽  
Larysa Chornozub
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Qualitative Property ◽  
Main Task ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
European Court ◽  
Legal Nature ◽  
The Law ◽  
Definition Of

The main task of the article is to study a separate qualitative property criminal law its intelligibility. When solving the problem the definition of intelligibility of the criminal law taking into account genesis is formulated this concept and different approaches to its content, which have developed in modern law doctrine. In order to substantiate the author's approach to the definition of intelligibility of the criminal law the monitoring of normative-legal acts, decisions of national and international judicial authorities is carried out. It is shown that the term ‘intelligibility of law’ and related terms ‘clear’, ‘precise’, ‘simple’ law are actively used both in regulations and in decisions of national and international judicial authorities. However, the terminology is diverse, thereby it has been suggested in the decisions of the European Court of Human Rights to use the term ‘intelligibility’of the law, which is the most accurate and adequately reflects the assessment of the legal certainty of national laws. The general conclusion is substantiated that in modern doctrine there are three approaches to determining the legal nature of the intelligibility of the law: as a component of the rule of law, as a requirement for the language of law, as a qualitative property of law. The absence of antagonistic features in each of the approaches allowed to use the positive gains of different perceptions of the intelligibility of the criminal law and to define it.

scholarly journals Criminal Influence and Feasibility of its Preservation in New Criminal Code of Ukraine

2021 ◽  
Vol 7 ◽  
pp. 44-51
Author(s):  
Artem Nikitin
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Working Group ◽  
Scientific Community ◽  
Criminal Liability ◽  
Criminal Code ◽  
Original Form ◽  
Legal Certainty ◽  
The Rule Of Law ◽  
Definition Of

The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.

21. Conspiracy

2017 ◽  
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Common Law ◽  
Mens Rea ◽  
The Rule Of Law

This chapter examines the ways in which criminal law treats conspiracies. Some of the controversies examined include: whether it is necessary and/or desirable to criminalize conspiracies; the extent to which there can be a conspiracy under the Criminal Law Act 1977 if the parties have only agreed to commit the substantive offence subject to some condition; what must be agreed and who must intend what to happen for a crime of conspiracy; the mens rea of statutory conspiracies; and whether common law conspiracies are so vague as to infringe the rule of law.

scholarly journals Hukuman Tindak Pidana Pornografi dalam Hukum Pidana Islam

2019 ◽  
Vol 21 (2) ◽  
pp. 241-254
Author(s):  
Said Firdaus ◽  
Mohd. Din ◽  
Iman Jauhari
Keyword(s):  
Rule Of Law ◽  
Criminal Law ◽  
Islamic Law ◽  
Negative Impact ◽  
Criminal Prosecution ◽  
The Rule Of Law ◽  
Criminal Sanctions ◽  
The Law ◽  
Normative Aspect ◽  
Laws And Regulations

Tujuan penelitian ini adalah untuk menelaah aturan hukum serta alasan mengapa bentuk dan kriteria tindak pidana pornografi dalam hukum pidana Islam, penerapan sanksi tindak pidana pornografi menurut Undang-Undang Nomor 44 Tahun 2008 dan Hukum Islam, dan dampak positif dan negatif tindak pidana pornografi. Pornografi dilarang menurut hukum nasional. Penelitian ini adalah penelitian hukum yuridis normatif, dengan mengkaji peraturan perundang-undangan, dengan melihat hukum dari aspek normatif. Data yang digunakan dalam penelitian ini adalah bahan hukum. Hasil penelitian menunjukan bahwa bentuk dan kriteria dalam hukum pidana Islam yang dapat dikategorikan sebagai tindak pidana pornografi adanya bentuk tingkah laku, sifat melawan hukum, kesalahan, akibat konstitutif, keadaan menyertai, syarat tambahan untuk dapatnya dituntut pidana, dan syarat tambahan untuk dapat dipidana. Penerapan sanksi tindak pidana dalam hukum Islam hukuman bagi pelaku tindak pidana pornografi bisa dihukum dengan hukuman zina, ta’zir, dan qisas. The Pornographic Criminal Sanctions In Islamic Crime This research aims to examine the rule of law, the forms and criteria of pornography in Islamic criminal law, the pornographic criminal sanctions in accordance with Law No. 44 Year 2008 and Islamic Law, as well as positive and negative impact of pornography. Based on National law Pornography is prohibited. This is a normative juridical research, not only by studying the laws and regulations but also by looking at the law from the normative aspect. The data used in this reasearch is legal material. The results show that the forms and criteria in Islamic criminal law that categorized as pornographic crimes were forms of behavior, unlawful act, misconduct, constitutive consequences, certain circumstances, additional conditions for criminal prosecution, and additional conditions for punishment. The application of criminal sanctions in Islamic law penalties for those who commit pornography can be punished by Adultery, Ta'zir, and Qisas.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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