scholarly journals THE DEFINITION AND IMPORTANCE OF LOCAL GOVERNANCE

2016 ◽  
Vol 10 (1) ◽  
Author(s):  
Aurora Ndreu
Keyword(s):  
Local Governance ◽  
Administrative Law ◽  
Legal Positivism ◽  
Public Authorities ◽  
Moral Principles ◽  
Political Morality ◽  
Positive Law ◽  
Administrative Policy ◽  
Social Fact ◽  
Universal Definition

There is no precise and universal definition about what is administrative law, but rationally it can be determined that covers the organization, functions, duties and responsibilities of public authorities of all kinds who take part in the administration, relations between them and citizens or between them and non-governmental bodies. It defines legal methods for controlling public administration as well as the rights and duties of officials. We must say that administrative law theory  over time has slipped into a legitimate model that underlies the political control of the administrative policy. It must be admitted that the role played by political decision making in administrative ones has greatly increased, viewed from the perspective of a very questionable democratic theory. According to legal positivism or Hart defined by Kant, the most important moral principles between standarts are identified as governing laws. So we first have the social fact, and this fact can be then a law. Thus was born the administrative law as a social fact. So a rule, can be turned into a law, welcomed by all the society. From the administrative law it was defined the local governance definition. The existence of modern already legal positivism, which enables morality or political morality to return to positive law through several methods become an inclusive part of a set of naturally beliefs.

scholarly journals About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism

2021 ◽  
Vol 21 (1) ◽  
pp. 242-261
Author(s):  
Damir Banović
Keyword(s):  
Legal Positivism ◽  
Contemporary Theory ◽  
Moral Principles ◽  
Positive Law ◽  
General Utility ◽  
Theoretical Approaches ◽  
Theory Of Law ◽  
The 19Th Century ◽  
Further Development ◽  
Descriptive Method

Summary This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.

scholarly journals Where The Sidewalk Ends: The Governance Of Waterfront Toronto’s Sidewalk Labs Deal

2020 ◽  
Vol 36 ◽  
pp. 263-283
Author(s):  
Alexandra Flynn ◽  
Mariana Valverde
Keyword(s):  
Smart City ◽  
Local Governance ◽  
Administrative Law ◽  
Good Time ◽  
Public Authorities ◽  
Municipal Governments ◽  
The Public ◽  
Whole Process ◽  
The Future

In May 2020 Sidewalk Labs, the Google-affiliated ‘urban innovation’ company, announced that it was abandoning its ambition to build a ‘smart city’ on Toronto’s waterfront and thus ending its three-year relationship with Waterfront Toronto. This is thus a good time to look back and examine the whole process, with a view to drawing lessons both for the future of Canadian smart city projects and the future of public sector agencies with appointed boards. This article leaves to one side the gadgets and sensors that drew much attention to the proposed project, and instead focuses on the governance aspects, especially the role of the public ‘partner’ in the contemplated public-private partnership. We find that the multi-government agency, Waterfront Toronto, had transparency and accountability deficiencies, and failed to consistently defend the public interest from the beginning (the Request for Proposals issued in May of 2017).  Because the public partner in the proposed ‘deal’ was not, as is usually the case in smart city projects, a municipal corporation, our research allows us to address an important question in administrative law, namely: what powers should administrative bodies outside of government have in crafting smart city policies? In Canada, the comparatively limited Canadian scholarly work regarding urban law and governance has mainly focused on municipal governments themselves, and this scholarly void has contributed to the fact that the public is largely unaware of the numerous local bodies that oversee local matters beyond municipal governments.  This paper hones into the details of the WT-Sidewalk Labs partnership to understand the powers and limitations of WT in assuming a governmental role in establishing and overseeing ‘smart city’ relationships. It ultimately argues that WT has not been – nor should it be – empowered to create a smart city along Toronto’s post-industrial waterfront. Such tasks, we argue, belong to democratic bodies like municipalities. An important contribution of this paper is to situate the evolving role of public authorities in the local governance literature and in the context of administrative law.

Legal positivism, inclusive versus exclusive

2018 ◽  
Author(s):  
Wilfrid Waluchow
Keyword(s):  
Moral Worth ◽  
Social Institution ◽  
Legal Positivism ◽  
Legal Validity ◽  
Moral Principles ◽  
Social Fact ◽  
Separation Thesis ◽  
The Social ◽  
Shared Commitment ◽  
Open Question

Modern legal positivism views law as a human creation; the existence and content of law are, fundamentally, matters of social fact. This is usually termed ‘the social thesis’. A second thesis integral to the positivist tradition is John Austin’s famous ‘separation thesis’: ‘the existence of law is one thing, its merit or demerit another…’ – there is nothing in the nature of law as a social institution that guarantees its moral worth. Despite a shared commitment to the social and separation theses, defenders of legal positivism differ significantly in their understanding of these fundamental tenets. In response to Ronald Dworkin’s claim that moral principles partly determine the content of legal systems, positivists have divided into two major camps. Inclusive positivists assert that it is conceptually possible, but not necessary, that the legal validity of a norm should depend on its consistency with moral principles or values. Exclusive positivists assert the opposite: the legal validity of a norm can never be a function of its consistency with moral principles or values. Recent debates among positivists have focused on whether inclusive positivism is consistent with the law’s claim to authority and with the role it purports to play in guiding our conduct. Where these debates will lead is, at this stage, an open question.

Unconstitutionality, Invalidity, and Charter Challenges

2002 ◽  
Vol 15 (1) ◽  
pp. 69-83 ◽  
Author(s):  
Michael Giudice
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Legal Positivism ◽  
Moral Reasons ◽  
Political Morality ◽  
Social Fact ◽  
Form Part ◽  
Law Making ◽  
Do So

Inclusive legal positivism maintains that the existence and content of laws may, but need not, depend on standards of morality. As Wil Waluchow argues, inclusive positivism derives much of its plausibility through its explanation of Charter societies such as Canada. On his account, the fundamental rights of political morality contained in the Canadian Charter of Rights and Freedoms serve as ultimate criteria of the existence or validity of all laws in Canada, and thus form part of Canada’s rule of recognition. In this paper I challenge Waluchow’s inclusive positivist picture of Charter challenges. I argue instead that exclusive legal positivism, which maintains that resort to moral reasons may never figure in determinations of the existence or content of laws, better captures our ordinary understanding of the authoritative role of judges, constitutionality, and the traditional positivist conception of legal validity as a matter of social fact. Specifically, I argue that Joseph Raz’s notion of a directed law-making power, and not reliance on an inclusive positivist rule of recognition, best explains the duty of judicial review in Charter cases. Further, the fundamental rights of political morality recognized in the Charter are best understood as constitutional objectives, and not criteria of validity, which all subordinate laws in Canada ought to respect, yet may fail to do so in practice.

scholarly journals Emancipatory Of Legal Transendency In Indonesia: Study Of Moral Aspects In The Making Of Laws And Regulations In Indonesia

2019 ◽  
Vol 1 (2) ◽  
pp. 124-146
Author(s):  
Triwahyuningsih Triwahyuningsih
Keyword(s):  
Human Life ◽  
Moral Values ◽  
Legal Positivism ◽  
Philosophical Approach ◽  
Moral Principles ◽  
Positive Law ◽  
The Law ◽  
The Relationship ◽  
Laws And Regulations ◽  
John Austin

ABSTRACT Objectives: This paper aims to answer the question of how the relationship between law and moralism, as well as how to internalize moral principles in making laws and regulations in Indonesia. Methodology: This study used a philosophical approach that aimed to explore the relationship between law and morals from the perspective of John Austin, Kelsen, and H. L. A Hart. It also used the transcendental perspectives in exploring the importance of internalizing moral principles in making laws and regulations in Indonesia. The research method in the article used descriptive normative research methods, with interpretative data processing techniques regarding the importance of moral aspects in making laws and regulations in Indonesia. Findings: The dominance of the philosophy of positivism has broad implications. The closure of the law to morality raised by adherents of legalism, legal positivism, or reinerechtslehre does not only raise injustice everywhere but also appear with a face of totalitarian or repressive law. Law and moral relations, according to John Austin (1790-1859), are diametrically separated and tend to favor the law (the law negates morals), while Hans Kelsen and Austin place religious and moral inferiority while favoring positive law. According to Kelsen, the law deals with the form (formal), not the content (material); then, Hart tries to offer the principle of morality as a minimum legal requirement in which the pattern of the relationship is cooperative or independent dialogue. Whereas in the transcendent perspective, law and morals are in a dialogue-integrative relationship. The legislators should have spiritual intelligence; that is, they do not want to be bound and limited by existing standards but want to go beyond and transcend the existing situations (transcendental).  With spirituality, the legislators, who are in accordance with the principle, can produce laws that show the emancipatory of legal transcendency. The laws do not only humanize humans but are also oriented to moral values that originate from God. Benefit: The benefit of this paper is to be the basis for guarding moral values in making the Law, starting from the preparation and initiative for the submission of the draft law, discussion of the draft law, and approval of the draft law. Originality/novelty: Internalization of moral principles in law can produce laws that can make people happy and answer the problems of human life. At least three elements are fulfilled, namely justice, efficacy, and legal certainty. Keywords: transcendency, morals, the formation of laws

Fiduciary Principles and Public Offices

2019 ◽  
pp. 302-322
Author(s):  
Ethan J. Leib ◽  
Stephen R. Galoob
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
Public Institutions ◽  
Policy Implications ◽  
Public Officials ◽  
Public Office ◽  
Public And Private ◽  
Normative Structure ◽  
The Public ◽  
Positive Law

This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.

Transnational Law and Legal Positivism

2021 ◽  
pp. 970-986
Author(s):  
Michael Giudice ◽  
Eric Scarffe
Keyword(s):  
Legal Positivism ◽  
Original Form ◽  
State Law ◽  
Transnational Law ◽  
Social Fact ◽  
Separation Thesis ◽  
The Social ◽  
Philosophical Account ◽  
Theory Of Law ◽  
Eighteenth And Nineteenth Centuries

This chapter assesses the theoretical adequacy of legal positivism in explanation of several forms and features of transnational law. We suggest that while legal positivism emerged as a philosophical account of state law in the seventeenth, eighteenth, and nineteenth centuries, its connection to state law is best viewed as historical and contingent rather than conceptual and necessary. Among the two core commitments of legal positivism, while the separation thesis requires no modification from its original form, the social fact thesis must be revised and developed to explain the character of transnational law. We also show how the exercise of revising a philosophical theory of law such as legal positivism provides an opportunity to illustrate the continuity between conceptual, empirical, and evaluative studies of transnational law.

scholarly journals The impact of governance on the outcomes of contracting out

2017 ◽  
Vol 3 (4) ◽  
pp. 215-233
Author(s):  
Jacob Torfing ◽  
Eva Sørensen ◽  
Lena Brogaard
Keyword(s):  
Systematic Review ◽  
Economic Efficiency ◽  
Local Governance ◽  
Impact Factors ◽  
International Studies ◽  
Value For Money ◽  
Public Authorities ◽  
Contracting Out ◽  
Private Actors ◽  
The Impact

Whether contracting out to private actors results in value for money depends on how public authorities govern, organize and manage service contracting. However, only a few studies have attempted to investigate how local governing practices can help to ensure that the contracting out of public services enhances economic efficiency and service quality. To further advance our knowledge on this topic, we present the results of a systematic review of 21 international studies, published between 2000 and 2018, on the impact of governance on the outcomes of contracting out. We combine insights from the reviewed studies to develop a theoretical framework of use to both practitioners and researchers that posits how eight impact factors mediate the influence of local governance on the outcomes of contracting out.

scholarly journals DEVELOPMENT OF THE ADMINISTRATIVE LAW IN THE KYRGYZ REPUBLIC

2020 ◽  
pp. 92-104
Author(s):  
Rustam Madaliev
Keyword(s):  
Administrative Law ◽  
Kyrgyz Republic ◽  
Public Authorities ◽  
Legal Norms ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Administrative Legislation ◽  
Administrative Procedures ◽  
Law And Legislation ◽  
Administrative Justice

The article provides an overview and stages of the development of law and legislation on administrative procedures and administrative justice in the Kyrgyz Republic. The article discusses the adoption, implementation, content and the application of the new Law on Administrative Procedure and the Administrative Procedure Code of the Kyrgyz Republic. At the beginning, the socio-political background and the rationale for the ongoing judicial reforms and the efforts of the state to strengthen the rule of law in the Kyrgyz Republic are described. A significant part of article considers steps for developing a law on administrative procedures of the Kyrgyz Republic and the problems associated with its development. Then, the content and issues of implementation and the problems of the practical application of the new law on administrative procedures of the Kyrgyz Republic are disclosed. A separate part is devoted to the development, content, implementation and practice of the application of the new Administrative Procedure Code of the Kyrgyz Republic. The article also outlines the problems and shortcomings in the practice of applying legal norms on administrative procedures and administrative justice in the Kyrgyz Republic. In general, the article summarizes that a new system of administrative law has been formed in Kyrgyzstan to replace “Soviet” administrative law, but there are still problems in understanding and applying the new administrative legislation: not all the regulatory framework and practice of administrative agencies are brought into line with the new legislation; there are facts of not understanding, ignoring and not applying the new legislation by public authorities; not all curricula of higher legal education are brought in line with a new understanding of administrative law. It is necessary to continue the implementation measures to put into practice the new administrative legislation through organizational measures to educate and train law applicators, as well as the development of judicial practice in administrative cases.

Sign in / Sign up

Export Citation Format

Share Document