The Rule of Law

2017 ◽  
Author(s):  
J. M. Bernstein
Keyword(s):  
Coercive Force ◽  
Rule Of Law ◽  
Necessary Conditions ◽  
The State ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The One ◽  
Formal Features

This chapter analyzes the concept of rule of law. It examines Gustav Radbruch's theory since his argument against the extremes of Nazi law was a pivotal moment in the re-emergence of antipositivist conceptions of legality. It then elaborates Lon L. Fuller's account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” Next, the chapter offers a version of Caesar Beccaria's argument that the formal and procedural elements constituting the rule of law should be conceived as, on the one hand, generating the necessary conditions for relations between the citizen and the state and, on the other hand, among citizens themselves that will be sufficient to free individuals from coercive, force-based relations both among themselves and between themselves and the state.

scholarly journals Breaking Up the Unity of the World: Peter Fitzpatrick’s Conception of Responsive Law

2020 ◽  
pp. 174387212097533
Author(s):  
Johan van der Walt
Keyword(s):  
Rule Of Law ◽  
The Other ◽  
Short Article ◽  
The Rule Of Law ◽  
Other Hand ◽  
The World ◽  
The Law ◽  
The One ◽  
The Ideal

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully present and therefore already and completely contained in itself. This aspect of law reflects the law’s claim to “immanence,” that is, its claim of always being able to rely strictly on its own operational terms without having to take recourse to any consideration not already contained within itself. It is this aspect of law that renders the ideal of the “rule of law” feasible. On the other hand, the law’s claim to doing justice to every unique and therefore every new case also demands that it takes leave of that which is already settled within it. This aspect of law can be called its “imminence.” The imminence of the law concerns the reality that law always finds itself on the threshold of that which has not yet been said and must still be said. The article shows how Fitzpatrick relied on Freud’s concept of the totem to explain the “wondrous” unity of its immanence and imminence.

Vergaberechtsschutz im Spannungsfeld zwischen Beschleunigungsgebot und Gewährung effektiven Rechtsschutzes

2019 ◽  
Author(s):  
Hsi-Ping Chen
Keyword(s):  
Rule Of Law ◽  
Public Procurement ◽  
German Law ◽  
Legal Protection ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The One ◽  
Substantive Law ◽  
The Eu

The German Law on public procurement remedies, implementing the EU Remedies Directives into national law, has to engage in a balancing act between effective legal protection of bidders and the necessary acceleration of the award procedure. The book develops solutions for conflicts between the abovementioned opposing interests, which are consistent with the pluralistic paradigm of the European legal area, and the standards of assessment of the EU primary substantive law on public procurement. The Europeanisation of the German Law on public procurement remedies is analysed in detail. The work deals with the establishment and improvement of effective legal protection of bidders on the one hand and, on the other hand, shows that the acceleration of the award procedure within the framework of the procedural system is bounded by the rule of law. The book carves out strengths and deficits of the German Law on public procurement remedies.

scholarly journals Opinions on the Legal Significance of the Right to Health

2021 ◽  
Vol 27 (2) ◽  
pp. 116-120
Author(s):  
Teodora Aurelia Drăghici ◽  
Gabriel Cătălin Predescu
Keyword(s):  
Health Care ◽  
Rule Of Law ◽  
Right To Health ◽  
Fundamental Rights ◽  
The Other ◽  
The Rule Of Law ◽  
Right To Health Care ◽  
Other Hand ◽  
The One ◽  
The Right

Abstract The legal significance of the right to health care, in particular and of other fundamental rights in general, on the one hand unknown to citizens and on the other hand known, minimized or ignored by state authorities and institutions, will certainly lead to abuses of law coming from the latter, abuses that cannot be tolerated by the rule of law.

Europe

2020 ◽  
Keyword(s):  
Rule Of Law ◽  
Security Policy ◽  
The Other ◽  
The Rule Of Law ◽  
Other Hand ◽  
The World ◽  
Foreign And Security Policy ◽  
The One ◽  
Two Sides ◽  
The Eu

In the years before the Covid-19 crisis confronted the world with unprecedented challenges, the EU showed two sides of itself: On the one hand, it gave cause for hope, having overcome several crises and presenting itself to the world as a defender of multilateralism and a stronghold of democracy. On the other hand, however, its weaknesses remained visible: its lack of coherence in foreign and security policy; its insufficient influence in its neighbouring regions; and its internal contradictions with regard to upholding the rule of law among its member states. The essays gathered here offer a review of two years of EU politics. With contributions by Laurent Baechler, Anna Dimitrova, Mohamed Ane, Sebastian Franzkowiak, András Inotai, Gabriel N. Toggenburg, Arnaud Leconte, Kyriakos Revelas, Hartmut Marhold, Jean-Claude Vérez, Jean-Marie Rousseau, Susann Heinecke, Florent Marciacq, Tobias Flessenkemper, Magda Stumvoll, Marta-Claudia Cliza, Laura-Cristiana Spataru-Negura, Claude Nigoul, Pinar Selek, Yvan Gastaut.

scholarly journals The Chinese Advantage in Emergency Law

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Ugo Mattei ◽  
Liu Guanghua ◽  
Emanuele Ariano
Keyword(s):  
Rule Of Law ◽  
Population Surveillance ◽  
The Other ◽  
State Of Exception ◽  
Critical Event ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Legal Response ◽  
Other Hand ◽  
The One

AbstractThis Article has a twofold purpose. On the one hand, it offers comparative materials for an informed discussion of COVID-determined emergency law in China and Italy by assessing its normative implications and political genealogy. On the other hand, it explores the essential contiguity between the ‘state of exception’ triggered by the pandemic and the possible geopolitical shifts in global legal hegemony in the actual phase of surveillance capitalism which is witnessing a decline of law as a form of social organization and its replacement by the predictive models elaborated by technology. In this respect, the traditional Western iconography has long described the Chinese legal tradition as a “law without law”, a despotic regime with intrusive population surveillance whose distance from the Western paradigm is deemed almost unbridgeable. And yet the legal response to coronavirus both in Europe and in the U.S. somewhat replicates the allegedly distant Chinese model in terms of restrictions and surveillance mechanisms which are being deployed to counter the crisis in the face of a formal commitment to the rule of law. This Article concludes that the emerging pre-eminence of the “rule of technology” over the “rule of law” in a critical event of historic proportions like a pandemic should and will set the future agenda of comparative studies in a double direction. On the one hand it calls for a truly critical reconsideration of role of law in society which in turn impels to rethink the hold of the liberal constitutional model and the obsolescence of traditional legal taxonomies. On the other hand, it might point to the emergence of an unexpected Chinese legal leadership, determined by the progressive undoing of the Western legal and political narratives whose backbone has been relentlessly eroded by decades of neoliberalism and populism.

7. Citizenship, legal status, and proof of identity

2019 ◽  
pp. 77-88
Author(s):  
Florian Coulmas
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Identity Theft ◽  
The State ◽  
The Other ◽  
Individual Identity ◽  
Legal Concept ◽  
The Rule Of Law ◽  
Legal Identity ◽  
The One

‘Citizenship, legal status, and proof of identity: identity as a legal concept’ explains that individual identity is the cornerstone of the rule of law and the relation of state and citizen. In law, it has to do with that which makes a person (or thing) distinct from any other person (or thing). It means that a subject is the same as it claims, or is charged, to be. The digital turn has added a new aspect to our legal identity, and protecting us against identity theft is a new obligation of the state, while we have no choice but to learn to protect ourselves against profit-seeking corporations, on the one hand, and a surveillance state, on the other.

scholarly journals Macintyre on identity of ethics and politics

2006 ◽  
pp. 29-56
Author(s):  
Michal Sládecek
Keyword(s):  
Political Theory ◽  
Critical Review ◽  
The State ◽  
The Other ◽  
Individual Rights ◽  
Ethical Life ◽  
Other Hand ◽  
The One ◽  
Ethics And Politics

In first chapters of this article MacIntyre?s view of ethics is analyzed, together with his critics of liberalism as philosophical and political theory, as well as dominant ideological conception. In last chapters MacIntyre?s view of the relation between politics and ethics is considered, along with the critical review of his theoretical positions. Macintyre?s conception is regarded on the one hand as very broad, because the entire morality is identified with ethical life, while on the other hand it is regarded as too narrow since it excludes certain essential aspects of deliberation which refers to the sphere of individual rights, the relations between communities, as well as distribution of goods within the state.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

Vergaberecht als Digitalisierungsfolgenrecht

2019 ◽  
Vol 52 (1) ◽  
pp. 65-98
Author(s):  
Christoph Krönke
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Information Technologies ◽  
Public Procurement ◽  
The State ◽  
Effective Control ◽  
Legal Requirements ◽  
The Rule Of Law ◽  
Margin Of Appreciation ◽  
The One

Abstract The State bears a certain responsibility for the consequences of digitalizing public administration and services. The principles of democracy and the rule of law demand that the state retains effective control over the digitalized performance of ist tasks. This “digital responsibility” of the State also has an impact on the application of public procurement rules governing the procurement of information technologies and services (IT). On the one hand, ensuring digital responsibility will often mean that the contracting authority needs a broad margin of appreciation when interpreting the rules of procurementlaw – for examplewith regard to the legal requirements for choosing special procurement procedures enabling a particulary flexible IT procurement. On the other hand, the contracting authority’s digital responsibility can also be turned against it: When involving, for instance, private parties in the preparation of substantial decisions concerning the procurement of IT, the authority must keep itself well informed and may not simply take over prepared decisions. This way, the digital responsibility of the State can be (and should be) used as a distinct legal argument under public procurement law.

Part III Regimes and Doctrines, Ch.38 Theories of Transitional Justice: Cashing in the Blue Chips

2016 ◽  
Author(s):  
Nesiah Vasuki
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Transitional Justice ◽  
The Other ◽  
Practical Significance ◽  
Political Society ◽  
Political Imagination ◽  
The Rule Of Law ◽  
The One

This chapter examines the utopias called forth by the marriage of human rights accountability mechanisms on the one hand, and, on the other, arguments about the practical significance of these initiatives as preconditions for development, democracy, and political society. Transitional justice is seen to marry the ethical charge of the human rights field’s march against impunity, with an instrumental potential facilitating transition from the rule of violence into the rule of law. If the normative theories and agendas implicated by this marriage are advanced as being in the interests of justice, the accompanying instrumental theories and agendas are advanced in the interests of transition. Justice and transition operate here as allied and mutually reinforcing aspirations of and rationales for transitional justice institutions. Thus, this chapter identifies and analyses the stakes that attend this marriage of ‘ethics’ and ‘expertise’ in constituting the utopian political imagination of transitional justice.

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