scholarly journals Arbitrary Law Making and Unorderable Subjectivities in Legal Theoretical Approaches to Migration

2020 ◽  
pp. 71-88
Author(s):  
Enrica Rigo
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
Limited Capacity ◽  
The Rule Of Law ◽  
Theoretical Approaches ◽  
Migration Control ◽  
Legal Globalization ◽  
Different Order ◽  
Migration Regimes ◽  
Law Making

The article considers the changes that have affected European border regimes of migration control as a testcase for discussing arbitrariness. The argument highlights the limited capacity of notions of arbitrariness defined as a departure from the rule of law to capture the ongoing conflict at the borders of Europe and brings, instead,  to the foreground the ambivalent meaning of arbitrariness. By comparing Santi Romano’s classical theory of legal pluralism with recent analyses of legal globalization processes,  arbitrariness emerges either as an authoritative attempt to impose a different order on society or as a means to contrast acts of resistance to border regimes. In both cases, arbitrariness forcefully blurs the limits between the ordered and unordered, indicating the paradoxical impossibility of excluding the law’s outside from the legal order. On these premises, the article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of migration regimes. Indeed, arbitrariness is necessarily limited when the legal order recognizes, to an extent, the agency and the claims of subjectivities that resist the dichotomy between inclusion and exclusion. Keywords: migration, arbitrariness, borders, legal order

scholarly journals Struggles for Freedom within and against the Legal Order at the Borders of Europe

2020 ◽  
Vol 119 (1) ◽  
pp. 182-192 ◽  
Author(s):  
Enrica Rigo
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
The Rule Of Law ◽  
Open Borders ◽  
Different Order

The rescue of migrants at sea has recently been tackled by authoritative acts that have led to an increasing criminalization of solidarity between and toward migrants. By drawing on the case of the Mediterranea platform of activists, this article argues that the notion of arbitrariness defined as a departure from the rule of law fails to capture the ongoing conflict at the borders of Europe. By highlighting its ambivalent meaning, arbitrariness appears instead either as an authoritative attempt to impose a different order on society or as a means to contrast unorderable acts of resistance to border regimes. The article advocates the importance of reframing the demand for open borders as a call for freedom of those who challenge the pragmatic order of borders.

PURPOSE, PRINCIPLES AND SPECIFIC FEATURES OF PROSECUTOR’S OFFICE LEGAL CREATION ACTIVITY

2021 ◽  
Vol 6 (10) ◽  
pp. 53-62
Author(s):  
Shoxrukhkhon Saidov ◽  
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Legal Space ◽  
The Law ◽  
Law Making

This article describes the specifics of the law-making process conducted by the prosecutor's office. The purpose and principles of the prosecutor's office's participation in this process have been studied scientifically and theoretically. Taking into account the high relevance of ensuring legality in the law-making process, opinions were expressed about the need for adequate regulation and organization of solving this task by the prosecutor's office at the level of law and legality. The participation of the prosecutor's office in law-making activities contradicts the needs of the population, the protection of human and civil rights and freedoms, ensuring the rule of law, promoting the formation of a unified legal space and improving legislation, ensuring consistency legal instructions, systematization of legislation, scientifically based analysis are aimed at reducing the influence of bureaucratic interests and preventing the inclusion of factors that generate corruption in normative acts and their projects

Legal technique of normative and contractual legislation

2021 ◽  
pp. 55-64
Author(s):  
Ilya Shutak
Keyword(s):  
Rule Of Law ◽  
Practical Importance ◽  
Theoretical Understanding ◽  
The Rule Of Law ◽  
Functional Methods ◽  
Functional Nature ◽  
Internal Inconsistency ◽  
Law Making ◽  
State Functions

Purpose. The purpose of the study is to reveal the features of the legal technique of normative-contractual law-making of modern Ukraine. Methodology. First of all, the principles and techniques of formal-logical methodology are used. Elements of the structural-functional approach have been widely used. Thus, the identification of intersectoral relations in the normative-contractual form of state functions is based on the functional nature of law in general and contractual and regulatory means in particular, which allowed to distinguish two types of intersectoral relations in contractual and regulatory activities. In addition, dialectical, system-structural and functional methods, the method of interpretation (applied to regulations) were used in the work. The scientific novelty lies in the theoretical understanding and delineation of the legal technique of normative-contract law-making, which is interpreted as an integral harmonious part of the law-making system in a state governed by the rule of law. It is shown how with the help of means and methods of legal technique there is an optimization of contractual work and minimization of risks of disputes caused by vagueness and internal inconsistency of contracts. Results. As a result of research the inexpediency of identification of the contract with the regulatory legal act and its inclusion in the system of the legislation is argued. The regulatory role of the contract likens it to a legal act. A normative agreement can be both a consequence of a law and a cause of a normative legal act. Practical importance. The results of the study can be used in law-making activities in order to improve the design of the regulatory agreement, improve its quality and efficiency.

scholarly journals The Challenge of the Bad Man

2013 ◽  
Vol 58 (2) ◽  
pp. 451-480 ◽  
Author(s):  
Michael Plaxton
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Criminal Law ◽  
Legal Order ◽  
Recent Discussion ◽  
The Rule Of Law ◽  
Criminal Justice Systems ◽  
Moral Problems ◽  
Douglas Husak

H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

The General doctrine of the legal order. The rise of law and order

2019 ◽  
Author(s):  
Николай Черногор ◽  
Nikolay Chernogor ◽  
Дмитрий Пашенцев ◽  
Dmitriy Pashentsev ◽  
Максим Залоило ◽  
...  
Keyword(s):  
Graduate Students ◽  
Social Integration ◽  
Detailed Analysis ◽  
Rule Of Law ◽  
Legal Order ◽  
Law And Order ◽  
The Rule Of Law ◽  
New Type ◽  
Normative Foundations

The monograph opens a series of studies, which set out the General doctrine of the rule of law. The first book is devoted to the Genesis of the legal order, its foundations and properties. The rule of law is regarded as a civilizational phenomenon and its evolution is characterized in the context of a combination of different principles and interests, social integration and differentiation, legality and justice, sustainability and its weakening. The socio-economic, intellectual-volitional, subject-institutional, normative foundations of law and order are revealed, its new typology is proposed, a detailed analysis of the archaic, traditional and modern law and order is given, the preconditions are shown and the forecast of its new type formation is presented. For researchers, legal practitioners, employees of state and municipal authorities, teachers, graduate students.

Global Legal Pluralism and the Rule of Law

2020 ◽  
pp. 363-382
Author(s):  
David Lefkowitz
Keyword(s):  
Political Theory ◽  
Rule Of Law ◽  
Legal Pluralism ◽  
Legal Order ◽  
Individual Autonomy ◽  
The Rule Of Law ◽  
Regulatory Regimes ◽  
Legal Subjects ◽  
The Ideal

A vibrant debate has recently emerged among legal theorists regarding the desirability of legal pluralism: the existence of distinct regulatory regimes that make overlapping claims to authority. While Monists maintain that we should strive to forge a unitary legal order, Normative Legal Pluralists favour an approach that seeks to manage legal plurality without eliminating it. This chapter critically evaluates a common argument Monists level against Normative Legal Pluralism, namely that it conflicts with fidelity to the ideal of the rule of law.Advocates of Normative Legal Pluralism employ three strategies to respond to their rule-of-law critics. First, they attempt to show that a plural legal order fares no worse than a unitary one when measured against the standard of providing legal subjects with certainty and predictability. Second, they argue that increases in tolerance, or respect for the exercise of communal and individual autonomy, warrant whatever diminution in the rule of law Normative Legal Pluralism produces. Finally, they invoke an account of law’s distinctive normativity informed by sociolegal jurisprudence and constructivist political theory to disarm rule of law objections to normative legal pluralism, either by contesting the premises on which they rest or by providing reasons to conclude that the critics’ worries are seriously overdrawn. While the first two strategies fail, the critics underestimate or simply fail to notice Normative Legal Pluralists’ ability to leverage their conception of law’s legitimacy to address rule of law concerns.

Legality Without The Rule of Law? Scott Shapiro on Wicked Legal Systems

2012 ◽  
Vol 25 (1) ◽  
pp. 183-200
Author(s):  
David Dyzenhaus
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Natural Law ◽  
Legal Order ◽  
Legal Positivism ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Moral Quality ◽  
Legal Positivist

InLegality,Scott Shapiro – a leading legal positivist – analyses the problem of a wicked legal system in a way that brings him close to natural law positions. For he argues that a wicked legal system is botched as a legal system and I show that such an argument entails a prior argument that there is some set of standards or criteria internal to law which are both moral and legal. As a result, the more successful a legal order is legally speaking, the better the moral quality of its law, and the more it is a failure morally speaking, the worse the legal quality of its law. It is such moral features of law that Shapiro concedes make it plausible to account for law’s claim to justified authority over its subjects. However, Shapiro cannot, as a legal positivist, accept this entailment. His book thus brings to the surface and illuminates a central dilemma for legal positivism. If legal positivists wish to account for the authority of law they have to abandon legal positivism’s denial that law has such moral features. If they do not, they should revive a form of legal positivism that specifically abjures any claim to account for law’s normative nature.

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