scholarly journals Methods, principles and presumptions of constitutional and conflict diagnostics

2021 ◽  
Vol 7 (2) ◽  
pp. 34-41
Author(s):  
I. A. Tretyak
Keyword(s):  
Law Enforcement ◽  
Causal Relationship ◽  
Statistical Methods ◽  
Rule Of Law ◽  
Systematic Study ◽  
Constitutional Law ◽  
Formal Logic ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Legal Method

The article examines the main elements of constitutional and conflict diagnostics, which is a system of consistently applied methods, legal principles and presumptions, aimed at obtaining information about the causes, content, consequences and methods of preventing and resolving a constitutional conflict. Constitutional and conflict diagnostics is theoretically justified by the author as a new method of the science of constitutional law, which allows lawyers to study constitutional conflicts and constitutional norms of the conflictological type. The use of constitutional and conflict diagnostics will allow to establish and investigate the causal relationship between the formation of law, its normative expression and subsequent law enforcement, which will reflect the constitutional conflict. The author believes that the following methods are used in the course of diagnosing a constitutional conflict: dialectical, systematic, historical, statistical, methods of formal logic, formal-legal method, method of legal modeling, and other methods. The author also proposes to consider as the principles of such diagnostics: the principle of taking into account the specific historical situation, dialectical unity, systematic study of the conflict and the principle of the rule of law. The author suggests considering the following presuppositions used in the course of constitutional and conflict diagnostics: the presumption of the inevitability of constitutional conflicts, the presumption of the solvability of constitutional conflicts, and the presumption of the prevention of conflicts.

scholarly journals Penyelesaian Tindak Pidana Pencurian Hewan Ternak Menurut Hukum Adat Masyarakat Kecamatan Alas Kota Madya Manufahi

2021 ◽  
Vol 7 (1) ◽  
pp. 143
Author(s):  
Acacio Fernandes Vassalo
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Positive Response ◽  
East Timor ◽  
Customary Law ◽  
Modes Of Operation ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Article 59

Theft is related to the possession of other property without the permission of the owner, with various ways and modes of operation. The role of customary law in the settlement of criminal theft (livestock) is the implementation of state duties in combating criminal acts. This is a manifestation of Article 2 paragraph (3) and Article 59 paragraph (4) of the RDTL Constitution. The application of customary law in the Alas District (Posto Administrativo) is a positive response to the high desire of the community about a peaceful and serene life in their environment. Therefore, the term law enforcement is closely related to the idea of the rule of law or legal principles as the supreme power in the rule of law and democracy in East Timor.

scholarly journals LEGAL DEFINITION IN THE CONTEXT OF THE PROTECTION OF HUMAN CONSTITUTIONAL RIGHTS

2020 ◽  
Vol 17 (1) ◽  
pp. 59-68
Author(s):  
Ellada Balayan
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Scientific Methods ◽  
The Rule Of Law ◽  
Res Judicata ◽  
Legal Science

Introduction. In modern legal science, the category of “legal certainty” is understood and interpreted in different ways. Opinions and approaches of scientists differ in designating the type, nature, elements, regulatory burden and the full content of the idea of legal certainty. The significance of the principle of legal certainty in the context of the protection of human rights cannot be considered without taking into account the influence of Roman law on it. The idea of establishing the rule of law for the “expulsion of all injustice” and contradictions is relevant in modern law. Without a broad interpretation of the principle of res judicata, human rights violations cannot be avoided. Purpose. The purpose of the research is to analyze the nature, content of the normative burden of the category “legal certainty”, various theories and approaches to determining its place in the doctrine of constitutional law, in general, in the context of protecting human rights and freedoms, in particular. Methodology. The methodological basis of the study is scientifically developed and applied in practice, the main scientific methods, such as the dialectical method of cognition, which allows you to analyze all phenomena and processes in their development, the relationship and interdependence, as well as general scientific and private scientific methods, analysis, specific historical, logical historical, systemic, comparative legal and other methods. The theoretical basis of the study is the work of domestic and foreign experts of constitutional law, the theory of state and law, international law, as well as other areas of legal science. The material of a scientific article is based on the study of various scientific sources: monographs, dissertations, scientific articles, materials of scientific and practical conferences, etc. Results. The category of “legal certainty” in the doctrine is considered in different contexts. The unity of opinion in the legal doctrine exists solely to indicate the important role and significant place of the principle of legal certainty in law-making and law enforcement activities of the state. The normative burden of legal certainty is interpreted more meaningfully, since it covers not only the elements of the supposed stability and clarity of the current legal regulation or the essence of the principle of res judicata, but also the consistency, clarity of the entire system of law, the constancy of law enforcement, the practice of the activities of the judiciary, the integrity and compliance of prescriptions law and legal culture and consciousness of all subjects of legal relations to these requirements. Conclusion. To avoid violations of the constitutional rights and freedoms of man and citizen, as well as non-compliance with the constitutional guarantees of their state, including judicial, defense, to ensure the most harmonious state of legal stability of the individual, society and the rule of law is possible only with the application of this approach.

scholarly journals Postkomunisticki sudski sistemi - dubokoukorenjene teskoce prevazilazenja socijalistickog nasledja - sa posebnim osvrtom na Hrvatsku

2005 ◽  
Vol 50 (165) ◽  
pp. 9-32
Author(s):  
Bruno Schoenfelder
Keyword(s):  
Law Enforcement ◽  
Public Choice ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Judicial Remedies ◽  
Considerable Concern ◽  
Common Misconceptions

Postcommunist lawlessness has caused considerable concern and resulted in much misguided theorizing. The paper criticizes some of the more common misconceptions. Among them are the disregard for private law enforcement, the failure to realize the interdependence between the range of rights to be enforced and the costs of enforcement, the mistaken view that the rule of law is basically a matter of public choice, and the preference for administrative remedies over judicial remedies. After discarding such attempts at explanation, the paper proposes that the analysis should instead focus on other issues. All of them happen to be related to communist legacies. These are the downgrading of civil and constitutional law, the instability of legal rules, the underdeveloped separation of powers, and the very peculiar causes of court congestion.

scholarly journals The role of constitutional policy in the formation of a democratic society and the rule of law in the conditions of the Russian legal system

2021 ◽  
Author(s):  
Eduard Eremyan ◽  
Eduard Galitsky ◽  
Ruslan Chermit
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Constitutional Law ◽  
Practical Importance ◽  
The Rule Of Law ◽  
Legal Method ◽  
Foreign Countries ◽  
Relationship Of ◽  
System Characteristics

The study purpose is to estimate the direct relationship of constitutional provisions and other sources of constitutional law with the rule of law concept, law and democracy effectiveness, to compare and determine the priorities of Russia’s constitutional values. Through a comparative legal method, issues related to the constitutional provisions interpretation and legal system characteristics at specific stages of its development in Russia and foreign countries are examined. The results of this study reveal the essence of the genesis and evolution of sources of Russian constitutional law and are of practical importance for subjects of the formation of state policy in the field of constitutional law.

scholarly journals Canadian Constitutional Law in a Nutshell

1969 ◽  
pp. 605
Author(s):  
David Beatty
Keyword(s):  
Rule Of Law ◽  
Constitutional Law ◽  
Supreme Court Of Canada ◽  
Legal Decisions ◽  
The Rule Of Law ◽  
Legal Principles ◽  
Political Views ◽  
Law And Justice ◽  
The Individual ◽  
Oriented Approach

This article examines two recent Supreme Court of Canada decisions and provides an analysis of the reasons employed by the court. The author argues that the two cases illustrate the inadequate and subjective reasoning employed by the court to reach what they consider to be a just decision. This "results oriented" approach is criticized by the author and used to examine how cases with similar legal principles can be decided in diametrically opposed ways so as to reach the desired result. While the author does not disagree with the results reached in the two cases, he does take exception to the reasoning used. Using the Hydro-Quebec case the author argues the correct legal decision could have been reached without invoking new subjective tests of constitutionality. Specifically, he argues that the use of the provincial inability test could have led to the same result. Further, he asserts that the reasoning invoked in the decisions reinstates the old rigid categories that have long been discarded. These categories, he feels, can be used to allow judges to make purely subjective decisions more easily. He argues, jurisprudentially, that Hydro- Quebec establishes a dangerous precedent, one that could threaten the rule of law and our federal structure. The Eldridge case, according to the author, also makes false distinctions and categorizations in order to reach the results desired by the court. The author criticizes this as leading to legal decisions based on the personal and political views of the individual judges. Further, he argues that the judges ignored their own pronouncements and precedent in reaching their decision. The author asserts that new categorical distinctions were used merely as a means to an end. He concludes that although the reasoning employed in the cases is flawed, they still prove that the law and justice can coincide. Finally, the author asserts that just and equitable decisions can be reached by an impartial judiciary using sound legal principles

scholarly journals Law Enforcement and Justice: Perspective of Authority and Responsibility of the President towards the Judicial System

2020 ◽  
Vol 9 (1) ◽  
pp. 1
Author(s):  
Zulkarnain Ridlwan ◽  
Ade Arif Firmansyah
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Justice System ◽  
Selection Model ◽  
Judicial System ◽  
Constitutional Court ◽  
The Rule Of Law ◽  
The People ◽  
The Supreme Court

An independent judicial power is very important as one of the main characteristics of the rule of law, therefore its position must be maintained in Indonesia. The purpose of this paper confirms that any attempt to intervene in the authority of the Supreme Court and the Constitutional Court in the justice system, including intervention from the President, must be considered an unconstitutional act and violates the ideals of the Indonesian rule of law. A review of the President's position in the statutory regulations found the fact that there was still a gap in the infiltration of the President's power over judicial authority. Specifically in two cases, the first relates to the ambivalence of the prosecutor's position that is not as firm as the Police. Second, the constitutional judge selection model. The need to re-arrange the mechanism for selecting constitutional judges derived from the President's proposal so that it can be more aligned with efforts to distance the President's power from the power of the judiciary. In addition to the recommendations to the formers to reorganize the two potential infiltrations, this paper also recommends the institutionalization of public petitions based on Mark Tushnet's ideas about populist constitutional law. The existence of a public petition institution becomes a forum for gathering input and advice in law enforcement and justice. The opening of the President to accept public petitions makes it easier for the people to submit law enforcement issues which, in a sense of people's justice, must be addressed.

scholarly journals RETURNS OF ASSETS IN CORRUPTION CRIMINAL ACTS AS ALTERNATIVE RESTORING STATE LOSSES

2020 ◽  
Vol 2 (1) ◽  
pp. 27-34
Author(s):  
Komang Ekayana
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Criminal Procedure ◽  
The State ◽  
Recovery Model ◽  
Formal Approach ◽  
The Rule Of Law ◽  
Asset Recovery ◽  
Criminal Procedure Law ◽  
The Law

Corrupted state assets certainly hurt the country narrowly, but also broadly where it harms the country and its people. However, the formal approach through the current criminal procedure law has not been able to recover the losses suffered by the state. In fact, state losses resulting from corruption are state assets that must be saved. Then there needs to be a new breakthrough to recover state losses through the asset recovery model. When looking at the country from the perspective of the victims, the state must obtain protection, in this case recovery from the losses suffered due to corruption. This paper examines the model of returning assets resulting from corruption in the law enforcement process that focuses on the rule of law in the 2003 UNCAC Convention and the mechanism of returning state assets in terms of Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning Eradication of Corruption Crimes. 

Sign in / Sign up

Export Citation Format

Share Document