Urgent Legislation Drafting Technique Tasks in the Rule of Law Making in Contemporary Russia

2014 ◽  
pp. 62-80
Author(s):  
Alexey Avtonomov
Keyword(s):  
Rule Of Law ◽  
The Rule Of Law ◽  
Law Making

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 Theoretical and Practical Aspects of the Development of the Rule of Law State in Ukraine

2020 ◽  
Vol 9 (26) ◽  
pp. 442-449
Author(s):  
Vasyl Ya. Tatsiy ◽  
Oleg G. Danilyan
Keyword(s):  
Rule Of Law ◽  
Civil Liability ◽  
Legal Aspects ◽  
Democratic Governance ◽  
The Rule Of Law ◽  
Process Implementation ◽  
European Tradition ◽  
Law Making

The article is devoted to the analysis of socio-cultural and institutional-legal features of the development of the rule of law state in Ukraine. It is noted that the development of the rule of law state in Ukraine involves the interaction of several socio-cultural, ideological and institutional-legal aspects, the implementation of which at present is burdened with various difficulties of an objective and subjective nature. In particular, the most significant problems that need to be addressed immediately are optimization of the Ukrainian government system and improvement of the quality of law-making, increasing the level of professionalism and civil liability of officials of all levels, overcoming imbalance in government and effective legal support of this process, implementation of the principles of the rule of law state taking into account the European tradition of democratic governance.

7 Conclusions

2007 ◽  
Author(s):  
Goldsworthy Jeffrey
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Constitutional Law ◽  
The United States ◽  
The Other ◽  
Judicial Discretion ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Descriptive Sense ◽  
Law Making

This book has identified substantial differences between the philosophies of the courts of Australia, Canada, Germany, India, South Africa, and the United States with respect to interpretations of their constitutions. The differences can be characterised mainly in terms of the stronger attraction of some courts to legalism. Legalism in constitutional law has been associated with various tendencies, including literalism, formalism, positivism, and originalism. Legalism is used in a purely descriptive sense, not to applaud or to denigrate, but merely to denote interpretive philosophies motivated by two main concerns. One is disapproval of judicial discretion — of decision-making based on judges' values and ideologies rather than objective legal norms. The other is disapproval of judicial law-making — of decision-making that changes law instead of merely applying it. Legalists disapprove of judicial discretion and law-making for various reasons, including equity among litigants, predictability, democracy and the rule of law.

Algorithmic models for analyzing judicial decisions (MAAD)

2021 ◽  
Vol 23 (4) ◽  
pp. 20-28
Author(s):  
LÊMY GODEFROY ◽  
Keyword(s):  
Rule Of Law ◽  
Professional Community ◽  
Case Law ◽  
Personal Injury ◽  
Judicial Decision ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Bodily Injury ◽  
Judicial Proceedings ◽  
Law Making

The article examines the introduction of digitalization into justice processes and the processing of judicial decisions in administrative and civil personal injury compensation disputes. The purpose of the implementation of the algorithms was an attempt to develop indicative criteria and ways to determine the amount of compensation for bodily injury. It is noted that the new rules were met ambiguously by the professional community. For example, delegations of lawyers from G7 countries expressed concerns about the future of justice. The reason for their discontent was the possibility of excluding adversarial discussion from judicial proceedings if artificial intelligence was used. In this context, the regulation of algorithms used in the justice sector, designated by the term “algorithmic models of judicial decision analysis” (MAAD) seems to be a priority for the preservation of democracy and the rule of law. The author believes that MAAD will promote greater openness of the judge, both to the plaintiffs and to the judicial institution, as well as – “coherence” of the case law, making it available for judges to examine. It is emphasized that the introduction of such algorithms is a form of digital judicial collegiality, not the standardization of judicial thinking.

Understanding Xi Jinping's “Rule of Law” Campaign

2015 ◽  
Vol 07 (02) ◽  
pp. 5-19 ◽  
Author(s):  
Yongnian ZHENG ◽  
Wei SHAN
Keyword(s):  
Communist Party ◽  
Rule Of Law ◽  
Chinese Communist Party ◽  
Legal Issues ◽  
Judicial System ◽  
Structural Factors ◽  
The Rule Of Law ◽  
Reform Plan ◽  
Local Officials ◽  
Law Making

The Chinese Communist Party passed a reform plan to build the “rule of law”, vowing to lessen local officials' authority over the legal system, promote legal professionalism and affirm the Party's domination in legal issues. These initiatives reflect Xi's effort to institutionalise his anti-corruption campaign. Yet the rule of law goes counter to the country's Confucian or Legalist traditions, the weak law-making and judicial system and other structural factors.

scholarly journals How has China formed its conception of the rule of law? A contextual analysis of legal instrumentalism in ROC and PRC law-making

2017 ◽  
Vol 13 (3) ◽  
pp. 277-294 ◽  
Author(s):  
Qianlan Wu
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Modern Society ◽  
Contextual Analysis ◽  
European Origin ◽  
The Rule Of Law ◽  
The World ◽  
The Common ◽  
The Law ◽  
Law Making

The rule of law as a globally recognised concept is multi-faceted (Chesterman, 2008). In the common-law tradition, it is conceived through a formal and substantive framework. In essence, it centres on the supremacy of the law over the arbitrary exercise of power and the formal legality of the law (Tamanaha, 2004, p. 115; Cotterrell, 1992, p. 157). The rule-of-law concept has been criticised as being of unique European origin, where plural social organisation and universal natural law constitute its two preconditions (Unger, 1977, pp. 80–110). It has, however, been advocated around the world as one essential principle leading to modernity, where the legitimacy of the law based on the formal and substantive rule of law serves as a strong symbol for a modern society (Deflem, 1996, p. 5).

scholarly journals The Dynamic Potential of European Union Health Law

2020 ◽  
Vol 11 (4) ◽  
pp. 726-735 ◽  
Author(s):  
Tamara HERVEY ◽  
Anniek DE RUIJTER
Keyword(s):  
European Union ◽  
Member State ◽  
Rule Of Law ◽  
Political System ◽  
Health Law ◽  
Legal Basis ◽  
Member States ◽  
The Rule Of Law ◽  
Dynamic Potential ◽  
Law Making

Some understandings of European Union health law are based on a presumption of law as a static and closed system. This approach to the Union as a legal entity has important ramifications. The Union is a political system created by and subject to the rule of law. Its successes (and failures) are attributable to the legalisation of solving externalities and ensuring Member State solidarity to gain benefits from integration. Member States, which create and sustain the Union by repeated acts of sovereign choice, choose to subject themselves to the rule of (Union) law. This protects both the Member States and the Union institutions (imperfectly, but nonetheless) from charges of illegitimacy. While recognising the benefits of such an approach to European Union integration and law-making, we take the view that law also has an important dynamic potential. That dynamic potential is inherent in all law, for law is embodied in text, and always open to interpretation, as the external contexts that give legal text meaning in the real-world change through time. We trace the dynamic potential of Union health law by looking at its legal basis to its foundational Treaties, and we plot its trajectory going forward.

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 Theory of lawmaking in classical general legal theory and in the anthropological approach of law

2019 ◽  
Vol 2019 (3) ◽  
pp. 43-48
Author(s):  
Вадим Павлов ◽  
Vadim Pavlov
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Soviet Period ◽  
Modern Theory ◽  
The Rule Of Law ◽  
Regulatory Impact ◽  
Anthropological Approach ◽  
Theory Of Law ◽  
Law Making

the article deals with the development of the modern theory of law-making process. The main changes that took place in the sphere of law-making in the post-Soviet period are analyzed. The importance of the use of such a modern law-making tool as regulatory impact assessment is considered. The analysis of the process of lawmaking from the perspective of anthropology of law is offered. The rule of law and its normativity in the anthropological approach do not precisely express the essence of law, but are only its substantive basis. The essence of law is necessarily expressed with the participation of a person in law, a subject involved in legal interaction. In addition to the rule of law and human rights in law, the third element of legal reality is significant – the fact of legal life, which reveals both the normative properties of the legal system, and reveals the legal properties of a person in law. Thus, in the anthropological approach, the rule of law and the normativity of law in comparison with the classical theory of law-making acquire a new meaning, characterized by the fact that in a General sense it can be called anthropologization of law, the acquisition of its human dimension. On this basis, the theory and practice of lawmaking should focus on the development of the doctrine of the interpretation of law, as well as on the practice of its implementation.

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