Exemptions for Religion or Conscience under the Canopy of the Rule of Law

2017 ◽  
Vol 5 (3) ◽  
pp. 185-213 ◽  
Author(s):  
Rex Ahdar
Keyword(s):  
Rule Of Law ◽  
Freedom Of Conscience ◽  
Religious Minorities ◽  
The Rule Of Law ◽  
Default Position ◽  
The Law ◽  
The Individual ◽  
The Right

This essay endeavours to restate the case for the right to freedom of conscience and religion. Specifically, it seeks to make the case for exemptions from the law of the land for religious believers and similarly-situated citizens who hold sincere conscientious beliefs. The rule of law is not something to be ignored, and carving out exemptions for conscience has been criticized as unfair, anomalous, potentially open-ended in scope, and difficult to administer. I attempt to assuage these legitimate concerns by underscoring the importance of the dignity of the individual and the virtue of protecting religious minorities (and dissenters of all stripes), who challenge the conventions of the day. If the default position is the rule of law, believers face an uphill task. Ultimately, only a truly liberal polity can offer protection to what, in every age, is a fragile liberty.

Against the Witness: Hindu Nationalism and the Law in India

2016 ◽  
Vol 15 (1) ◽  
pp. 172-189
Author(s):  
Moyukh Chatterjee
Keyword(s):  
Rule Of Law ◽  
Political Regime ◽  
Hindu Nationalism ◽  
Mass Violence ◽  
Legal Form ◽  
Religious Minorities ◽  
The Rule Of Law ◽  
Lower Courts ◽  
The Law ◽  
Ethnographic Analysis

In the aftermath of anti-Muslim violence in Gujarat, India, in 2002, NGOs and activists encouraged survivors to testify against Hindu perpetrators in court. Through an ethnographic analysis of a criminal trial in the lower courts of Ahmedabad, I show how state officials and perpetrators used legal procedures to transform Muslim survivors into unreliable witnesses in the courtroom. These formal and informal techniques to destabilize Muslim witnesses are best understood not as byproducts of the law’s failure to address mass violence, but as a legal performance of Hindu supremacy. Procedural and positivistic approaches to the rule of law failed to address the law as a performance embedded in the context of Hindu nationalism in Gujarat. Not only do such trials discredit witnesses of mass violence, but they also give a legal form to the subordinate status of religious minorities within a majoritarian political regime.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought

2019 ◽  
Vol 52 (3) ◽  
pp. 427-454
Author(s):  
Hassan Jabareen
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Review Essay ◽  
Constitutional Law ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Law ◽  
The Right ◽  
Normative Justification

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

Violent Rejection of Law and Democratic Principles

2018 ◽  
Author(s):  
Kees Van Den Bos
Keyword(s):  
Political Violence ◽  
Rule Of Law ◽  
Religious Violence ◽  
The Rule Of Law ◽  
Red Flag ◽  
The Law ◽  
Democratic Principles ◽  
The Right

Chapter 9 discusses when radical thoughts and associated feelings shift to radical and extremist behaviors. The chapter aims to delineate the ontogenesis of radical behavior by arguing that the active rejection of democratic principles and the rule of law is an important phase in various radicalization processes. This usually takes place via processes of delegitimization. Thus, when people put their own right before the right of others in open societies, this may well serve as a red flag for those interested in trying to prevent the onset of violent and illegal extremism. When people are willing to break the law to obtain their goals, possibly by violent means, this is an important signal that something is seriously going wrong. Evil as a motive and the justification of violence are important antecedents of political violence, religious violence, and terrorism. These insights can be used for the prevention of extreme radicalization.

16. Equality before the law—the right to a fair trial

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
United Nations ◽  
Rule Of Law ◽  
Fair Trial ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The United Nations ◽  
The Law ◽  
The Right

This chapter discusses the right to be recognized as a person before the law; the equality of persons before the law; the prohibition on retroactive penal legislation; the position of courts under the law; the presumption of innocence; and those rights that accrue primarily to accused persons. It argues that the right to equality before the law is one of the major embodiments of the freedom from discrimination advocated by the United Nations. The right to a fair trial and the equality of arms of parties to a legal dispute are fundamental to the operation of the rule of law.

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

scholarly journals Penyadapan oleh KPK dalam Perspektif Due Process of Law

2019 ◽  
Vol 12 (2) ◽  
pp. 122
Author(s):  
Tamara Laurencia
Keyword(s):  
Rule Of Law ◽  
Due Process ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The Right To Privacy ◽  
Due Process Of Law ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Law ◽  
The Right

<em>Corruption is very detrimental. KPK was established to eradicate corruption and is given extensive duties and authority. KPK is given the authority to conduct investigation and prosecution, and in the implementation, KPK has the authority to conduct wiretapping. However, the authority given to KPK in conducting wiretapping seems to be too broad and was given without any clear boundaries in terms of the time limit for example. It should also require permission to conduct wiretapping in order to uphold the law. Wiretapping has been a violation of privacy towards citizen rights. The right can only be limited by the Law, but it cannot be removed from existence. One of the principles of criminal procedure in Indonesia is due process of law that consist of three important aspects, namely presumption of innocence, equality before the law, and the rule of law. This principle basically requires the protection of the rights of the suspects or defendants in terms of the substance of the law that regulates or the implementation, which in this case is not to be considered guilty during criminal justice process, equality before the law regarding the right to privacy that can only be limited, not removed from existence.</em>

scholarly journals How Much Law Does the School System Need?

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Miro Cerar
Keyword(s):  
Rule Of Law ◽  
School System ◽  
Legal Regulation ◽  
Educational Process ◽  
The Rule Of Law ◽  
Responsible Attitude ◽  
The Law ◽  
Legal Administration ◽  
The Right

In its ideal form, the law is a guardian of the freedom and autonomy of the school system. On the other hand, the school system must, as part of its responsibility, establish a respectful and responsible attitude toward the rule of law. In Slovenia, practice deviates from such ideal to too great an extent. Excessive and inappropriate legal regulation reduces the freedom and autonomy of the school system. The consequences within this system are: partly ignored legal regulations, and the resulting ineffectiveness; excessive legal administration in schools; increased teachers’ opposition to the law; a lack of teachers’ motivation; and, as a consequence, worsened quality of the educational process. The law, however, is only a part of the problem. The latter has its roots mainly in a general disorientation of society with regard to its values. In order to establish the right measure and manner of the legal regulation of the school system, the moral and common sense basis of society must first be healed and strengthened.

scholarly journals The slow and hidden road to serfdom

2021 ◽  
pp. 201-237
Author(s):  
Peter Bernholz
Keyword(s):  
Immanuel Kant ◽  
Rule Of Law ◽  
Alexis De Tocqueville ◽  
Individual Freedom ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
General Rules ◽  
The Law ◽  
The Right ◽  
Discretionary Powers

Without the rule of law limiting the discretionary powers of government agencies, but also of other organizations and in-dividuals no individual freedom is possible. If government re-presentatives or private persons can order at their discretion individuals to behave in certain ways, no individual liberty is guaranteed. As Immanuel Kant expressed it «man is free if he needs to obey no person but solely the law.» And even if indi-viduals are only obliged to follow the law, their freedom is al-ways threatened if these laws can be changed arbitrarily by any individuals or government authorities. This is even true for de-mocracies in which duly elected parliamentary majorities (that is minorities) are allowed to introduce new laws or change old ones relating to any sphere of human activities. The problem has been clearly stated by Alexis de Tocqueville (1945, vol. I, p.270): When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws. Similar ideas are expressed by Friedrich v. Hayek (1944, p. 62): The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination.

THE PRINCIPLE OF THE RULE OF LAW IN THE JUDICIAL PRACTICE OF UKRAINE

2021 ◽  
Author(s):  
Ruslan Skrynkovskyy ◽  
◽  
Yaroslav Skoromnyy ◽  
Yuriy Mazur ◽  
Valentyn Serdiuk ◽  
...  
Keyword(s):  
Rule Of Law ◽  
Limit State ◽  
Transitional Period ◽  
Complex Nature ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Judicial Practice ◽  
The Status ◽  
The Law ◽  
The Right

The article reveals the peculiarities of the observance and implementation of the principle of the rule of law in the judicial practice of Ukraine. It was established that the implementation of the rule of law is regulated by the Resolution of the Plenum of the Supreme Court of Ukraine «On a Court Decision in a Civil Case», the Law of Ukraine «On the Judiciary and the Status of Judges» and the Constitution of Ukraine. It has been established that the principle of the rule of law is one of the main principles of a democratic society. It has been established that the problem of observance of the principle of the rule of law in the judicial practice of Ukraine is of a complex nature, and it can be solved only through the implementation of a comprehensive judicial and legal reform. It has been established that in the context of observing the rule of law in Ukraine, the experience of the European Court of Human Rights should be implemented. It has been established that the implementation of the principle of the rule of law occurs through the implementation of the principle of legal certainty, the principle of juridical certainty, the principle of justice, the principle of equality, the principle of clarity and unambiguity of the legal norm, the principle of proportionality, the principle of predictability. It has been proven that in the context of the administration of justice, the court must comply with the principle of the rule of law, as well as ensure the right of everyone to a fair trial, to ensure respect for everyone, as well as other rights and freedoms defined by legislative and regulatory documents. It has been established that one of the main principles for the implementation of the principle of the rule of law is the implementation of changes in legislation in order to establish an appropriate transitional period (that is, a reasonable period between the date of the official promulgation of the law and the date of entry into force of the law). It was determined that the implementation of the principle of the rule of law indicates the limited nature of public authorities in actions, primarily those regulated by law, and the main goal of the principle of the rule of law is to limit state power over everyone, as a result of which the rights of everyone should be properly ensured against arbitrary (and at the same time inappropriate) interference of the state or public authorities, in particular, in the relevant spheres of life of everyone. It is noted that the prospects for further research in this direction are the study of the legal foundations of other principles that guide the activities of the judicial authorities of Ukraine.

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