scholarly journals South Africa: A Diceyan Rechtsstaat?

2012 ◽  
Vol 57 (4) ◽  
pp. 721-747 ◽  
Author(s):  
Francois Venter
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Legal System ◽  
Judicial Process ◽  
Constitutional Design ◽  
Liberal Democratic ◽  
Constitutional State ◽  
The Creation

South Africa’s transformation to constitutionalism in 1994 saw the addition to a mixed legal system of a supreme constitution that requires all law to conform to its provisions, principles, and values. This new constitutional design was developed for the circumstances and modeled on existing liberal democratic constitutions, the most influential of which were Canadian and German. Adopted in 1993, the first constitution introduced the notion of the “constitutional state” but being only a transitional document, it provided for the creation of a “final” constitution crafted in conformity with prescribed principles. The final constitution, adopted in 1996, made no mention of the “constitutional state”, including instead the expression “rule of law”. Since the constitutional principles laid down in 1993 referred to neither the German “Rechtsstaat”, nor Diceyan “rule of law”, the replacement of the former term by the latter was permissible. The two constitutional texts did not, however, elaborate on these two terms. It was left to constitutional interpreters, especially the judiciary, to give meaning to these historically disconnected but conceptually related ideas. The result was a completely novel and pervasive constitutional doctrine. The judicial process of merging these notions may be described as “comparison by global assimilation”.

Democratic Experimentalism or Capitalist Synchronization? Critical Reflections on Directly-Deliberative Polyarchy

2004 ◽  
Vol 17 (1) ◽  
pp. 101-127 ◽  
Author(s):  
William E. Scheuerman
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
High Speed ◽  
Legal Regulation ◽  
Liberal Democratic ◽  
Regulatory Law ◽  
Democratic Rule ◽  
Joshua Cohen ◽  
Democratic Experimentalism ◽  
Critical Reflections

Contemporary “flexible capitalism” requires novel forms of legal regulation. In this vein, Joshua Cohen, Michael Dorf, Archon Fung, and Charles Sabel have developed a provocative set of proposals for a new mode of regulatory law, what they describe as “democratic experimentalism” or, alternately, “directly deliberative polyarchy.” Their proposal are criticized: they not only fail to take traditional liberal democratic rule of law virtues seriously enough, but it remains unclear whether they can effectively tame and humanize capitalism. Instead, some evidence suggests that their proposals simply amount to a normatively problematic synchronization of the legal system with contemporary high-speed capitalism.

scholarly journals THE REVITALIZATION OF THE INDONESIAN LEGAL SYSTEM IN THE ORDER OF REALIZING THE IDEAL STATE LAW

2021 ◽  
Vol 3 (01) ◽  
pp. 12-25
Author(s):  
Ana Fauzia ◽  
Fathul Hamdani ◽  
Deva Octavia
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Culture ◽  
Judicial Process ◽  
Legal Structure ◽  
System A ◽  
Judicial Corruption ◽  
Law Enforcement Officials ◽  
Corrupt Behavior ◽  
The Ideal

It can be called that the dynamics of national and state life in Indonesia are increasingly being tested by the same problem. For example, an outbreak of judicial corruption from the time to time, which was never ending. Law enforcers who are echoed as honorable professions, but on the other hand, these are exacerbated by the corrupt behavior of those professions. The sale and purchase of a case is no longer viewed as taboo, indeed it just looks like proper. Which means, it is a kind of a sign that the various legal regulations that normatively regulate the entire judicial process are ultimately unable to overcome the judicial corruption. The main objective of this research focuses on analysis related to efforts to revitalize the legal system in order to create an ideal rule of law as stated by Lawrance Friedman in his book namely "The Legal System: A Social Science Perspective". In this research, the method used is normative juridical using statutory, conceptual and historical approaches. The results of the research present an idea which is divided into three according to the three elements in the formation of a rule of law according to Lawrance Friedman, namely legal substance, legal structure, and legal culture. With regard to legal substance, the author provides the idea of a judicial preview as a method of validating the constitutionality of laws. Then related to the legal structure, the author provides ideas related to efforts to build morality and professionalism of law enforcement officials. Meanwhile, in terms of legal culture, the author provides ideas related to efforts to build a legal culture in society that is aware of the law and the constitution.

scholarly journals PROBLEMS RELATED TO THE DEVELOPMENT OF ADMINISTRATIVE JURISDICTION IN UZBEKISTAN

2020 ◽  
pp. 58-77
Author(s):  
Azamat Egamberdiev
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Asian Country ◽  
Judicial Process ◽  
The Rule Of Law ◽  
Central Asian ◽  
Constitutional State ◽  
Legal Foundations ◽  
The Republic ◽  
Administrative Jurisdiction

The article deals with the development of the system of judicial administrative control in the Republic of Uzbekistan in the context of the modernization of the post-Soviet Central Asian country under the rule of law. The author discusses the legal foundations of the Uzbek administrative judiciary and deals with the problems of developing basic legal terms as well as the fundamental principles of an administrative judicial process that meets the requirements of the rule of law. In addition, the author comments on the legal policy requirements for successful administrative reform in Uzbekistan. He points out the need to change the general legal awareness in his country and considers the current Uzbek legal protection system in need of improvement. In the author’s opinion, German experience in the field of legal protection should be taken into account when transforming Uzbekistan into a democratic constitutional state. In this context, he recommends close cooperation between Uzbek and German legal scholars and legal practitioners.

scholarly journals Harmonization of Regulation Based on Pancasila Values Through the Constitutional Court of Indonesia

2018 ◽  
Vol 4 (2) ◽  
pp. 301
Author(s):  
Tedi Sudrajat
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
Constitutional Court ◽  
Founding Fathers ◽  
Legal Development ◽  
The People ◽  
Constitutional State ◽  
Paradigm Development ◽  
Community Conflicts

The legal system which is adopted and applied in Indonesia was based on the formation from the founding fathers which is adjusted to the condition and the spirit of Indonesia as a nation known for its legal system as Pancasila. Ideally, Pancasila serves as the philosophy for the nation of Indonesia, as state's ideology and as the basis of the state. However, in reality, vertical conflicts (government and society) and horizontal conflict (inter-society) have created a variety of concerns, in which the sense of nationalism and diversity has diminished. The trigger is because Pancasila can only be understood as the ideology and the basis of the state, without saturating the meaning contained therein. The paradigm development of Pancasila based on legal state should demand the development of a democratic constitutional state, which juxtaposes the principles of a rule-of-law (nomocracy) with harmonious and complementary principles of the sovereignty of the people (democracy). This role can be solved by the Constitutional Court to harmonize the ideology of Pancasila in the Indonesia legal substance. When the legal development is integrated into meaning, the legal development which characterized by Pancasila can be realized to resolve the variety of community conflicts.

scholarly journals Legal Information on the Web: the Case of Italy

2006 ◽  
Vol 34 (2) ◽  
pp. 327-357
Author(s):  
Ginevra Peruginelli
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Economic Conditions ◽  
Democratic Institutions ◽  
Legal Information ◽  
The Rule Of Law ◽  
The Creation ◽  
The Web ◽  
Ordinary Citizens

Accessing legal information is a primary requirement for a variety of communities: ordinary citizens, scholars, and professionals. The dissemination of legal information contributes to the rule of law and to the overall ideals of democracy in a number of ways. Many are the benefits of accessing legal information, such as the awareness of the applicable rule of law, the creation of conditions necessary to the equality and fairness of a legal system, while improving the functioning of democratic institutions, the development and improvement of social and economic conditions.

scholarly journals Rizaeddin Fakhraddin (1859‒1936) on Model of State of the Modern Epoch

2021 ◽  
Vol 17 (3) ◽  
pp. 107-120
Author(s):  
A. Yu. Khabutdinov
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
Legal System ◽  
Social Issues ◽  
Point Of View ◽  
The Political ◽  
The Rule Of Law ◽  
The Creation ◽  
Late Modern

This article is devoted to the ideas of Rizaetdin Fakhretdin (1859‒1936) concerning the statehood of the Late Modern (19th century) period. His main theological work “Dini ve ijtimagy meseleler” (“Religious and Social Issues” (1914)) was devoted to the justification of the modernization reforms as well as to ways of their understanding from the Muslim point of view. R. Fakhraddin analyzed reforms of the political and legal system, the introduction of the Constitution, the construction of the rule of law, the creation of Parliament. He justified the necessity and legitimacy of these reforms from the point of view of the Qur’an and the Sunnah.

Is Xenophobic Violence and Criminality Systemic in Post-Apartheid South Africa? A Critical Analysis of Growing Denialism to 2015 Incidents

Politeia ◽  
2018 ◽  
Vol 37 (1) ◽  
Author(s):  
Mbekezeli Comfort Mkhize ◽  
Kongko Louis Makau
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Critical Analysis ◽  
Hate Crime ◽  
International Organisations ◽  
Foreign Nationals ◽  
The Rule Of Law ◽  
South Africans ◽  
Structural Problems ◽  
The Government

This article argues that the 2015 xenophobic violence was allowed to spread due to persistent inaction by state officials. While the utterances of King Goodwill Zwelithini have in part fuelled the attacks, officials tend to perceive acts of xenophobia as ordinary crimes. This perception has resulted in ill-advised responses from the authorities, allowing this kind of hate crime against foreign nationals to engulf the whole country. In comparison with similar attacks in 2008, the violent spree in 2015 is characterised by a stronger surge in criminal activities. The militancy showcased fed a sense of insecurity amongst foreigners, creating a situation inconsistent with the country’s vaunted respect for human rights and the rule of law. Investors lost confidence in the country’s outlook, owing in part to determined denialism in government circles regarding the targeting of foreigners. While drawing from existing debates, the article’s principal objective is to critically examine the structural problems that enable xenophobia to proliferate and the (in)effectiveness of responses to the militancy involved in the 2015 attacks. Of particular interest are the suggested responses that could be effective in curbing future violence. The article concludes that xenophobia is systemic in post-apartheid South Africa. Strong cooperation between the government, national and international organisations could provide the basis for successful anti-xenophobia measures. The article further argues that the country is obliged to find a sustainable solution to the predicament for humanitarian reasons firstly, and in recognition of the support South Africans received from its African counterparts during the liberation struggle.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

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