constitutional state
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2021 ◽  
pp. 347-363
Author(s):  
Reza Eltiyami Nia ◽  
Reza Rezaei

Throughout the history, the formation of the constitutional state has been the first experience of the modern state in Iran. The change in power relations and the restriction of authoritarian power were among the most important issues of constitutional state. The current study aims at investigating the reasons for transition from Constitutional state to an authoritarian bureaucratic state by adopting Laclau and Mouffe’s framework to political discourse analysis. Research methodology is descriptive-analytical conducted by library–based data. The results showed that the constitutional revolution transformed the power structure and traditional state, but the constitutional revolution failed to create a new order. Despite legal provisions such as the formation of the parliamentary system and the constitution, the constitutional state was unable to exercise its legal power. The co-existence of traditional and reactionary components such as the Khānins, tribal leaders, tribal populations and owners in line with modern elements, intellectuals and the heterogeneity of the ruling political elites made the constitutional revolution incapable of producing profound politico-social changes. As a result, a number of internal and external factors such as financial crisis, tribal power, the imperialist treaty of 1907,disillusionment of political elites, the formation of centrifugal forces, insecurity and global chaos and development of neighboring countries, diversity of ideological in line with geopolitical points of view have been the most important factors in the transition to the authoritarian bureaucratic state of Pahlavi and the failure of the nation – building process and the collapse of politico-constitutional system in Iran.


Author(s):  
Sergey V. Stepanenko ◽  
Viktoriia D. Filippova ◽  
Valentina O. Boniak ◽  
Tatiana V. Malakhova ◽  
Olena V. Kravchenko

Issues related to the analysis of the current and possible future changes in the constitutional status of public authorities in Ukraine and the legal mechanisms of public administration in the country are considered. An essential feature of state bodies is that only they are endowed with state powers. They perform their functions on behalf of the state in clearly defined forms. An attempt is made to analyze the legally defined organizational structure of legal mechanisms of public administration in the state. The main purpose of a research consists in carrying out the theoretical analysis and system approach to legal mechanisms of public administration in Ukraine and the constitutional relations of branches of the power in the state, disclosure of features of the constituent elements of a system of the constitutional relations of the state power in Ukraine. In the constitutional state the law always must be the primary act of a statement of the state power, and people have to be the only source of a statement of the state power. The most enlightened rulers, in whose hands unlimited all webs of power were concentrated, sooner or later became wayward tyrants who recognized only their authority, that they neglected freedom and, did not consider inalienable human rights. Therefore, further transfer of powers of public administration from local public authorities to local self-government bodies should be the subject of further research in this direction


2021 ◽  
Vol 25 ◽  
pp. 1-23
Author(s):  
Prof Cornelis F Swanepoel

Drawing on both legal and political sources, this article scrutinises the policy of cadre deployment that the African National Congress (ANC), the ruling party in South Africa, has implemented, and continues to apply. The analysis begins by recalling and commenting on the only reported judgment in South African jurisprudence that dealt with the political influencing of municipalities' exercise of their public power to make appointments, namely, Mlokoti v Amathole District Municipality & another 2009 (6) SA 354 (ECD). What the Mlokoti case has confirmed is that the legal foundation for the exercise of public power is found in the Constitution and its enabling legislation, and not in party political policy, such as the ongoing practice of cadre deployment. In an investigation of cadre deployment, the article then demonstrates that this ANC policy, particularly judging by its stated purpose, is incompatible with the constitutional State and, instead, enables the rise of the shadow State. Unsurprisingly, therefore, political commentators increasingly observe that, apart from the revelations at the Zondo Commission of Inquiry, State capture in South Africa in fact commenced when the ANC assumed political power in pursuit of the National Democratic Revolution. It is argued that the pursuit of a National Democratic Revolution in South Africa is directly at odds with the vision and goals of the 1994 constitutional pact. Convening a bipartisan national convention on philosophical and other approaches to the fight against corruption may offer a solution. Here, a starting point would be to reconsider the country's anti-corruption strategies to pay proper attention to the ethical causes of this scourge.


Author(s):  
Наталья Алексеевна Макарова

Статья посвящена рассмотрению особенностей и формулированию практических рекомендаций по разрешению иерархических юридических коллизий в российском праве. Автор статьи предлагает трактовать иерархическую (субординационную) юридическую коллизию расширительно: не только как противоречие между двумя или более нормативно-правовыми актами, но и как возможное противоречие между правовыми актами разных типов, включая правоприменительные (индивидуальные) и интерпретационные акты. Подчеркивается, что базовым правилом разрешения любой иерархической юридической коллизии должно быть правило юридической силы. В то же время в настоящий момент в российском праве нормы, определяющие данное понятие, а равно устанавливающие четкие механизмы преодоления юридических коллизий, включая иерархические, отсутствуют. Под юридической силой предлагается понимать особое свойство правовых актов, благодаря наличию которого данные акты формируют иерархию, и нижестоящие акты вышестоящим противоречить не могут. Выдвигается тезис о том, что не типичные иерархические коллизии в праве (коллизии между нормативно-правовым актом, с одной стороны, и правоприменительным или интерпретационным актом, с другой, а равно несколькими правоприменительными и (или) интерпретационными актами между собой) как разновидность иерархической юридической коллизии должны разрешаться с обязательным использованием правила юридической силы. То есть акты нормативного толкования и правоприменения должны быть приравнены по юридической силе к интерпретируемым и применяемым актам. Именно такой путь позволит избежать остановок в работе механизма реализации права, которых, как известно, современное правовое государство позволить себе не может. The article is devoted to the consideration of the features and the development of practical recommendations for resolving hierarchical legal collisions in Russian law. The author of the article proposes to interpret the hierarchical legal collision broadly, not only as a contradiction between regulatory legal acts, but also as a possible contradiction between legal acts of different types. It is emphasized that the basic rule for resolving any hierarchical legal collision should be the rule of legal force. However, at the moment in Russian law there are no norms defining this concept, as well as establishing clear mechanisms for overcoming legal conflicts, including hierarchical ones. It is proposed to understand legal force as a special property of legal acts, due to the presence of which these acts form a hierarchy, and lower-level acts cannot contradict higher-level ones. The thesis is put forward that non-typical hierarchical collisions in law should also be resolved with the obligatory use of the rule of legal force. This means that the acts of normative interpretation and law enforcement should be equated in legal force with the interpreted and applied acts. This is the way to avoid stoppages in the work of the mechanism for the implementation of the law, which, as you know, the modern constitutional state cannot afford.


2021 ◽  
Vol 5 (3) ◽  
pp. 57-74
Author(s):  
O. A. Kozhevnikov ◽  
A. V. Bezrukov ◽  
A. N. Meshcheryakov

The subject of research is social relations concerning the constitutional transformation of the State Council of the Russian Federation into the format of a constitutional state body, it’s tasks and functions in the unified system of public power. The aim of the research is to confirm or disprove hypothesis that the Russian State Council is a constitutional state body that ensures the coordinated functioning and interaction of authorities in the unified system of public power.The methodological basis of the research includes historical, comparative legal, formal legal methods, legal modeling and forecasting. The research is based on existing and historical legal acts, materials of judicial practice, as well as on the works of leading national lawyers.The main results, scope of application. The authors substantiate concept of the constitutional status of the Russian State Council as a completely new constitutional state body, formed on the basis of modern national principles of state building, taking into account the existing constitutional practice. Main task of the State Council is exercising the constitutional powers of the Russian President to ensure the coordinated functioning and interaction of public authorities, the definition of the main directions of national and foreign policy of the state. The article provides a critical analysis of the goals, tasks, functions of the Russian State Council, the decisions it makes, as a result of which a number of conflicts in the regulation of its constitutional-legal status are revealed. Some proposals to improve legislation and law enforcement practice aimed at solving of the discovered contradictions are made. Current constitutional of the State Council is a result of the constitutional amendments of 2020 in the Russian Constitution and innovations in the Federal Law on the State Council of the Russian Federation. The authors substantiate the idea that the consolidation of a new constitutional position of the State Council can be considered as a process of forming a completely new state body, designed to ensure the coordinated functioning and interaction of bodies included in the unified public system. A comparative legal analysis of the constitutional legislation on State Councils in foreign countries showed that despite the same name the status and functions of these state institutions differ greatly in different countries, therefore any comparative study of them will be unreliable.Conclusions. The Russian State Council has competence, functions of a state power character, take decisions signed by the President of the Russian Federation and therefore have a generally binding character. So it has the characteristics of a public authority. The Russian State Council is a new constitutional and legal structure - a constitutional state body created in order to implement the constitutional powers of the Russian President to ensure the coordinated functioning and interaction of other bodies (that are part of the unified system of public authority) and to determine the main directions of domestic and foreign policy of the state.


2021 ◽  
pp. e20210048
Author(s):  
Philip Pettit

In recent times, the idea of popular sovereignty has figured prominently in the rhetoric of neo-populist thinkers and activists who argue that legal and political authority must be concentrated in one single body or individual elected by the people to act in its name. The thesis of this article is that, while the notion of popular sovereignty may seem to offer some support to the neo-populist image of democracy, it serves more persuasively to support the idea of a polycentric, constitutional democracy. The constitutional state can be polycentric and yet feature a sovereign. And if this constitutional state is democratic in the sense of distributing power relatively equally amongst individual citizens, thus empowering the people-several, then it will establish the people-corporate in the role of sovereign..


2021 ◽  
Author(s):  
Semirames Khattaa ◽  
Bárbara Laurindo da Silva ◽  
Manuela Pereira Gomes

The analyzes of public policies and their interface with the law are related to the effectiveness of fundamental rights. This article aims to analyze how the creation and execution of public policies aimed at the realization of fundamental social rights, especially those aimed at employment and income, as well as the judicial control of these public policies, are carried out. It seeks to identify the mechanisms and limits inherent to Public Administration to promote the realization of these rights in an equal way. The investigation of institutional designs, federative arrangements, and programs and the legal foundations and theoretical bases of public policies founded with the consolidation of the Constitutional State of Law seek to identify possible bottlenecks in the Brazilian Public Administration for the effectiveness of socialrights, such as those aimed at employment nationwide and the municipal administration, especially in Campos dos Goytacazes. The study will be based on a bibliographic research and analysis of the legislative and jurisprudential process on the subject, with data collection from the websites of the federal and municipal government of Campos, Ministério Público, Courts of Auditors, IPEA, IBGE, Federal Chamber of Deputies and well. as the Federal Supreme Court (STF). With the systematization of theoretical references on public policies and fundamental rights, a proposal to identify the articulation and dialogue between the powers in the area of realization of specific social rights related to work and income, and the elaboration of an article summarizing the results achieved by the analysis of effectiveness with the analysis of the importance of the effectiveness of fundamental rights with the identification and systematization of the main institutional obstacles to their implementation


2021 ◽  
pp. 255-274
Author(s):  
Robert Alexy

Contemporary discussions about practical reason or practical rationality invoke four competing views, which, by reference to their historical models, can be named as follows: Aristotelian, Hobbesian, Kantian, and Nietzschean. The subject matter of this chapter is a defence of the Kantian conception of practical rationality in the interpretation of discourse theory. At the core lies the justification and the application of the rules of discourse. An argument consisting of three parts is presented to justify the rules of discourse. The three parts are as follows: a transcendental-pragmatic argument, an argument that takes account of the maximization of individual utility, and an empirical premise addressing an interest in correctness. Within the framework of the problem of application, the chapter outlines a justification of human rights and of the basic institutions of the democratic constitutional state on the basis of discourse theory.


2021 ◽  
Author(s):  
Aleksey Osavelyuk ◽  
Valeriy Nevinskiy ◽  
Kirill Kononov ◽  
Aliya Budagova ◽  
Igor' Dudko ◽  
...  

The textbook summarizes the main features of the constitutional (State) law of foreign countries (General part) and the basics of the constitutional (state) law of individual countries — the United Kingdom of Great Britain and Northern Ireland, the United States of America, the French Republic, the Federal Republic of Germany and the People's Republic of China (Special Part). For undergraduate students in the direction of "Jurisprudence".


2021 ◽  
Vol 5 (2) ◽  
pp. 145-158
Author(s):  
D. A. Avdeev

The subject. The article is devoted to the legal analysis of the legitimacy of the activities of public authorities and the process of their legitimation in the Russian Federation, as well as other problems of national democracy. The legal understanding of the concept of "people" as the only source of power and the bearer of sovereignty is considered, a distinction is made between these properties.The purpose of the article is to identify its essential features the category of legitimacy, identify problems related to the reflection of the political will of Russian citizens in the organization and activities of state authorities and local self-government. The purpose of the article is to substantiate also the differences in the characteristics of the people as the only source of power and the bearer of sovereignty, which has a significant impact on the processes of legitimation of public authorities in the Russian Federation.The research methodology consists of general scientific methods (analysis, synthesis, dialectics) and legal methods (formal-logical, comparative-legal, historical-legal, forecasting method).The main results and their area of application. The author considers legitimacy not only as the consent of the people with the normative legal acts adopted by public authorities, but also as universal approval and recognition of their organizational activities, expressed by citizens through the institutions of direct democracy. The legitimacy of public authority is an attribute of a constitutional state with a social orientation. The article notes a few features characteristic of the domestic process of legitimizing public authority. The procedure for the formation of the Federation Council of the Federal Assembly, in which Russian citizens do not participate directly, starting from 1995 to the present. The cancellation and return of direct elections of heads of constituent entities of the Russian Federation, the impossibility of electing the heads of municipalities directly by the population (in many cases). A complicated procedure for the implementation of active and passive electoral rights in the Russian Federation, expressed in the establishment of several formal require ments. Constant changes in electoral legislation before election campaigns are among these characteristics.Conclusions. The results of research are summarized and conclusions are drawn about the current state of legitimacy in the Russian Federation. A few measures are proposed to improve the process of legitimizing public authority. The author proposes to distinguish between the legal characteristics of the people as the bearer of sovereignty, understanding by it all Russian citizens and as the only source of power, which is formed by the voters.


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