Journal articles on the topic 'Constitutional codification'
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1
Knyazev, Sergey D., Konstantin V. Aranovskiy, and Yuri M. Danilov. "Administrative offences law (constitutional prospects of codification)." Law Enforcement Review 4, no. 3 (October 5, 2020): 123–38. http://dx.doi.org/10.24147/2542-1514.2020.4(3).123-138.
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The subject of the research is the problems of constitutional law enforcement of administrative offences legislation, taking into account the prospects for its new codification. The purpose of the article is confirmation or confutation of the hypothesis that the effectiveness of the new Code of administrative offences depends on whether the legal positions of the Constitutional Court of the Russian Federation on the principles of administrative responsibility will be taken into account when drafting it. The authors use methods of complex analysis, synthesis, as well as formal-legal method of interpretation of Constitution, legislation on administrative offences and judicial decisions of Russian Constitutional Court. The main results and scope of their application. The administrative torts law in Russia is expected to pass through the total review up to the grounds of its codification in close future. The article presents initial positions of that changes within basic frames produced by Russian Constitutional Court. Its case-law has already invaded into many spheres and details in respective sphere of legal rules and also prescribed a lot for their future. This case-law yet is necessarily made within its inherent range for it is ever constrained procedurally by content of actions and cases to be settled. However Russian administrative torts law is destined for reformation in new code-making in view of constitutional case-law and in order to do better with neighbor spheres of legal responsibility. Disputable matters of administrative liability, the company’s responsibility with psychical fiction on its fault (corporative thinking, wishing, desire, diligence), substantial and procedural equity etc. are described and discussed in the article as to the administrative law of torts on in its constitutional dimension. Conclusions. The Code of administrative offences of the Russian Federation does not fully meet the legal needs of society. Work on real improvement of this code will continue, therefore, legal science should be more strongly and persistently to implement in legislative practice constitutional ideas about improvement of codification and ensuring unity of legal space of the country. In particular, it is necessary to settle the debatable aspects of tort liability, the guilt of legal entities when it is addressed by fiction to the phenomena of the psyche (thinking, goals, will, caution), the constitutional and legal foundations of justice in the field of administrative penalties, procedural enforcement of rights and freedoms, etc.
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Schmidt-Aßmann, Eberhard. "CODIFICATION OF ADMINISTRATIVE PROCEDURAL LAW: TRADITIONS AND MODELS." Administrative law and process, no. 3(26) (2019): 89–112. http://dx.doi.org/10.17721/2227-796x.2019.3.06.
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The contribution explains the underlying rationale, objectives and constitutional framework for administrative procedural law. Furthermore, the arguments for and against comprehensive codification of administrative procedural rules, as well as the most significant elements of administrative procedural law, are discussed. Lastly, possible models for codification are presented, namely the German Law on Administrative Procedure, the US Administrative Procedure Act and the ReNEUAL Model Rules on EU Administrative Procedure.
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van Biezen, Ingrid, and Gabriela Borz. "Models of party democracy: patterns of party regulation in post-war European constitutions." European Political Science Review 4, no. 3 (January 20, 2012): 327–59. http://dx.doi.org/10.1017/s1755773911000294.
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This article investigates the ways in which political parties are codified in modern democratic constitutions, providing a unique cross-sectional and longitudinal overview of the patterns of party constitutionalization in post-war Europe. Although the constitutions of western liberal democracies traditionally have paid little attention to the role of parties, evidence suggests that in contemporary democracies, both old and new, they are increasingly accorded a formal constitutional status. Little is known, however, about the substantive content of their constitutional position or about the normative connotations of their constitutional codification. In this article, we demonstrate that there is a clear correlation between the nature and the intensity of party constitutionalization and the newness and historical experience of democracy and that, with time, the constitutional regulation of the extra-parliamentary organization and the parties’ rights and duties has gained in importance at the expense of their parliamentary and electoral roles. The analysis furthermore suggests that three distinct models of party constitutionalization can be identified – Defending Democracy, Parties in Public Office, and Parties as Public Utilities – each of which is related to a particular conception of party democracy.
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Marmilova, Ekaterina. "EVALUATION OF THE STATEMENT OF TATIANA MASLOVSKAYA ABOUT THE NEW TRENDS IN ELECTORAL LAW IN THE CIS COUNTRIES IN THE PERIOD FROM 2017 TILL 2019." Proceedings of CBU in Social Sciences 2 (October 24, 2021): 253–56. http://dx.doi.org/10.12955/pss.v2.230.
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During the period from 2017 till 2019, there is a tendency of acceptance of new norms in Electoral Codes and Constitutional laws in the CIS countries. The author analyzed the hypothesis by Tatiana Maslovskaya about the evolution of electoral legislation in the CIS countries and new trends as codification, globalization, democratization in electoral law, by making the analysis of the amendments to the Electoral Codes and Constitutional Laws of the CIS countries in the period from 2017 to 2019. The globalization trend of electoral legislation in the CIS countries was not clearly expressed in those amendments, additions that were adopted in the research period.
Conclusions: There is a tendency for individual CIS countries to codify their electoral legislation in codification format since they haven't done it before. The democratization trend is clearly expressed in the amendments.
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Yurko, S. S. "Procedure for consideration of cases of constitutional jurisdiction in Ukraine." Uzhhorod National University Herald. Series: Law 1, no. 79 (October 9, 2023): 177–81. http://dx.doi.org/10.24144/2307-3322.2023.79.1.30.
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The article is devoted to the study of problems and prospects of legal regulation of the procedure for consideration of cases of constitutional jurisdiction in Ukraine. The author establishes that the tasks entrusted to the single body of constitutional jurisdiction by the Constitution and the Law «On the Constitutional Court of Ukraine» are implemented in the form of judicial constitutional proceedings, i.e., a special judicial procedure. Currently, such a procedure is generally provided for in Section 2 of the Law of Ukraine «On the Constitutional Court of Ukraine» and the Rules of Procedure of the Constitutional Court. Most of the judicial procedures for consideration of cases of constitutional jurisdiction are defined at the level of by-laws. The author believes that this approach is erroneous, since Article 19 of the Constitution of Ukraine provides that state and local self-government bodies and their officials are obliged to act only on the basis, within the limits of their powers and in the manner provided for by the Constitution and laws of Ukraine.
It is established that the Venice Commission has drawn its attention to the procedural problems of the Constitutional Court in terms of legislative regulation of the divergence of judicial practice, the need for legislative detail and specification of important parts of the procedural aspects of the court’s activities. It has been established that a number of European countries have special codes of constitutional jurisdiction or similar procedural laws.
For example, the Code of Constitutional Jurisdiction of the Republic of Moldova of 16 June 1995 has a much higher quality of legal technique than similar procedural provisions of the Law of Ukraine «On the Constitutional Court of Ukraine».
In order to address the above issues, the Draft Law on Constitutional Procedure No 4533 of 21 December 2020 is currently being considered by the Verkhovna Rada of Ukraine. While supporting the main objectives of this Draft Law, the author identifies its significant shortcomings which offset the positive novelties proposed by it. It is emphasised that the relevant legislative work should be based on the national doctrine of constitutional law, the experience of codification of procedural legislation of other branches of law and relevant foreign experience.
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Kovač, Polonca. "The Requirements and Limits of the Codification of Administrative Procedures in Slovenia According to European Trends." Review of Central and East European Law 41, no. 3-4 (November 11, 2016): 427–61. http://dx.doi.org/10.1163/15730352-04103007.
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In regulating administrative procedures, legislators at the national and European levels should devote special attention to the codification of procedural rights in administrative relations that are recognized as European principles of good administration. Furthermore, there is a normative issue to be addressed between a more or less centralized general codification, with common minimum standards applying in any kind of administrative relation, and the admissibility of special procedural rules adapted to the specifics of individual administrative areas. A comparative analysis of the Slovenian General Administrative Procedure Act and eu standards regarding principles of administrative procedures is conducted in order to identify the role of principles, such as the right to be heard, the right of access to information, and the right to legal protection, on the national level. An additional analysis of the case law of the Slovenian Constitutional Court shows that the general codification of respective procedural rights is indispensable in pursuing the principle of the equal protection of rights. The Slovenian case can serve as a model for other, especially Eastern European, countries. The author argues that there is a need for general codification, which should not be overly detailed, but which should still serve the basic objectives of administrative procedures, namely ensuring substantive rights and the most important legal interests of the parties, in addition to guaranteeing effective protection of the public interest. At the same time, special rules should be allowed as exceptions in order to regulate sector-specific aspects, while nonetheless ensuring that such rules remain in compliance with European and constitutional procedural principles.
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Cramér, Per. "Does the Codification of the Principle of Supremacy Matter?" Cambridge Yearbook of European Legal Studies 7 (2005): 57–79. http://dx.doi.org/10.5235/152888712802730828.
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A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
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Cramér, Per. "Does the Codification of the Principle of Supremacy Matter?" Cambridge Yearbook of European Legal Studies 7 (2005): 57–79. http://dx.doi.org/10.1017/s152888700000450x.
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A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
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Knyazev, Sergey D. "Codification of Laws on the Administrative Liability within the Framework of Legal Positions of the Constitutional Court of the Russian Federation Revisited." Administrative law and procedure 2 (February 24, 2022): 6–14. http://dx.doi.org/10.18572/2071-1166-2022-2-6-14.
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On the basis of detailed analysis of legal positions of the Constitutional Court of Russia the article presents research of key parameters of modern codification of legislation on administrative liability. The author believes that successful achieving the goals of such codification requires, as a matter of principle importance, definition of its scope within legal branches, clarification of distinction between federal and regional powers in the relevant sphere of legal regulation, introduction of necessary amendments to the whole set of institutes (norms) of General and Special parts of the Code on Administrative Offences of the Russian Federation, as well as ensuring development and adoption of a separate Procedural Code of the Russian Federation on Administrative Offences.
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Kovač, Polonca. "Inspection Regulation between General Procedural Codification and Field Specifics – a Case Study of Slovenia." DANUBE: Law and Economics Review 7, no. 1 (March 1, 2016): 1–17. http://dx.doi.org/10.1515/danb-2016-0001.
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Abstract Inspection, as the authoritative supervision of private liable persons to comply their activities with sector-specific laws, should ensure the full implementation of public policies. Slovenia adopted the Inspection Act (IA) in 2002, in order to conduct efficient inspection, and simultaneously guarantee the defence rights of the supervised parties pursuant to the fundamental principles of the EU, the national Constitution, and general Administrative Procedure Act. This article addresses the search for a balance between general codification and sector-related specifics as stipulated by the IA, applying normative, constitutional case law and comparative methods. Special attention is dedicated to the IA rules regarding participants, their legal protection and stages of respective proceedings. It has been concluded that the most of the IA specifics are justified in order to efficiently serve the public interest. This study reveals that the Slovene IA can represent a role model for efficient yet democratic supervision in other MS as well.
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Beck, Ulyana. "Features of the interaction of subjects of the codification of labor legislation in Ukraine." Visnik Nacional’nogo universitetu «Lvivska politehnika». Seria: Uridicni nauki 10, no. 39 (August 22, 2023): 119–27. http://dx.doi.org/10.23939/law2023.39.119.
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The article outlines the peculiarities of the development of the interaction between the subjects of the codification of national labor legislation. It is noted that the level of effective implementation of rights by employees and employers also determines the nature of the interaction between the subjects of the codification of labor legislation, which arises in connection with the process of implementation of the constitutional right to work by citizens. Therefore, in order to ensure equal opportunities for participation in the codification work of employees and employers, it is necessary to clearly define their basic rights in the Labor Code of Ukraine. In particular, the consolidation of the basic labor rights of employees and employers should take place in the aspect of expanding the application of international standards for the involvement of employees in making legally important decisions. The provision of equal rights for employees and employers and the focus of labor legislation on expanding the powers of employees and employers in the work process will allow optimizing labor relations as a whole. The following features of the interaction of subjects of the codification of labor legislation were determined: 1) involvement of public representatives, namely employees, employers and their associations in the process of adoption of the new Labor Code of Ukraine; 2) increasing the authority of codification in terms of expanding the labor rights of employees; 3) delegating the resolution of issues resolved at the centralized level to the local level; 4) coordinating the interaction of the subjects of the official codification of labor legislation in Ukraine and the Council of Europe, the European Commission as an institution of the European Union, which is entrusted with the functions of the executive body; 5) strengthening of collective agreement regulation within the framework of social dialogue, which affects the formation of new provisions of the draft Labor Code of Ukraine; 6) joint focus on harmonizing norms of the field of labor law and norms of labor legislation; 7) the need to create a single codification body in Ukraine – the Higher Codification Commission.
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Chatterjee, Anuparna, and Shubhank Patel. "Parliamentary Privileges and the Indian Inhibition." International Journal of Parliamentary Studies 2, no. 1 (February 15, 2022): 72–85. http://dx.doi.org/10.1163/26668912-bja10033.
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Abstract The parliamentary privileges extended to Indian parliamentarians have long remained a cumbersome power granted to the legislature at both Central and State level. However, this power raises a contentious issue in its current embodiment within the domain of India. Since this particular aspect of legislation is a souvenir of British influence on the Indian legislative system, it gives rise toa dichotomous train of thought. Initially, resistance to codification was justified on the basic of the uncertainty of the drafters of the Constitution with respect to the needs of the future legislations and the desire to keep it flexible. However, recent instances of the invocation of parliamentary privileges in the country have allowed these privileges to exert greater influence over Fundamental Rights, granting exemption to legislators found guilty of offences such as bribery and expediting the need to reach a conclusion on the topic of codification into a separate regulation which entails the existence of these privileges within the Indian definition of law. The aim of this paper is to determine the essence of what the two sides of the conflict are asserting and make a conclusive determination of the stance that will prove the most beneficial for governance in accordance with constitutional provisions of India.
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Shvets, Yurii Yur'evich. "International standards of the constitutional human right to health care and its consideration in the Constitution of Ukraine." Административное и муниципальное право, no. 6 (June 2021): 12–20. http://dx.doi.org/10.7256/2454-0595.2021.6.31549.
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The subject of this research is the analysis of international standards of the human right to health care and possibility of its codification in the Constitution of Ukraine. The author examines the standards of the human right to health in the basic international acts; determines their role in ensuring the implementation of the human right to health care; analyzes their implementation and entrenchment in the Constitution of Ukraine. The article employs the method of analogy and analysis for examination of the full scope of international health legislation and the feasibility of its implementation. It is proven that the level of implementation of international legislation is extremely low despite of all formal efforts. The author formulates recommendations for amending the Constitution of Ukraine that would allow accelerating the vector of changes in legislation for the purpose of protecting citizens.
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García Falconí, Ramiro. "The Codification of Crimes against Humanity in the Domestic Legislation of Latin American States." International Criminal Law Review 10, no. 4 (2010): 453–59. http://dx.doi.org/10.1163/157181210x518956.
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AbstractIn some Latin American States, genocide and crimes against humanity are now governed by constitutional law. Several countries have tried to incorporate the rules of the ICC Statute in the legal system, but others treat such crimes as common offences regulated by the Penal Code.
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Haddadi, Mahdi. "The Nature of Iranian Petroleum Contracts in Upstream Section." International Letters of Social and Humanistic Sciences 44 (December 2014): 45–52. http://dx.doi.org/10.18052/www.scipress.com/ilshs.44.45.
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Petroleum contracts are an important and sensitive issue in Iranian petroleum industry. Monitoring on petroleum contracts especially in upstream section is too important due to length of term and high financial volume. After Islamic revolution in Iran, a challenging discussion between the Parliament and Government was the supervision and approval of petroleum contracts by Parliament. Article 77 of Iranian Constitutional Law permits the Parliament to monitor on international agreements directly. Therefore, determining the nature of petroleum contracts would highly impact on this kind of supervision by the Parliament. However, Parliament can monitor on these contract properly by using its authorities mentioned in the Constitutional Law and by codification or modifying relevant laws including the Law to Modify Petroleum Law.
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Erk, Can, and Alain‐G Gagnon. "Constitutional ambiguity and federal trust: Codification of federalism in Canada, Spain and Belgium." Regional & Federal Studies 10, no. 1 (March 2000): 92–111. http://dx.doi.org/10.1080/13597560008421110.
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Ahmed, Faiz. "IN THE NAME OF A LAW: ISLAMIC LEGAL MODERNISM AND THE MAKING OF AFGHANISTAN'S 1923 CONSTITUTION." International Journal of Middle East Studies 48, no. 4 (September 30, 2016): 655–77. http://dx.doi.org/10.1017/s0020743816000817.
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AbstractIn 1919, a new amir in Afghanistan named Aman Allah Khan launched an ambitious campaign to reorder his government into a constitutional monarchy. By 1923, Afghanistan had ratified its first constitution, supplemented by scores of legal and administrative codes. Whereas the latter have long been attributed to European borrowings or Kemalist imitation, this article uncovers two neglected features of Aman Allah's reformist project to argue that the making of Afghanistan's 1923 Constitution presents a distinctive path of state building in the region: Islamic legal modernism. First, by upholding the Hanafi school of Islamic jurisprudence as the basis of Afghan substantive law, Amir Aman Allah sought a cohesive national judiciary through the codification offiqh, not European civil law. Second, by synthesizing the expertise of a diverse cast of Muslim scholars and professionals—from Afghan clerics to Ottoman and Indian technocrats recruited to Kabul—he attempted to avert a rift between “Islamic” and “secular” lawmaking.
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Nikolić, Dušan. "Two centuries of the civil law in the renewed Serbia 1804-2004." Glasnik Advokatske komore Vojvodine 77, no. 10 (2005): 151–85. http://dx.doi.org/10.5937/gakv0504151n.
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Ever since the renewal of the Serbian national sovereignty in the first decade of the 19th century until today there have been several attempts to completely regulate the field of the civil law through the unique codification, which would, by the virtue of its normative solutions, comply with the tradition, existing social environment and realistic evolutional possibilities. At the beginning there was a plan to partially take over the French Civil Code but this idea was abandoned due to the different level of social development. The conclusion was that the provisions that were drafted for one of the most progressive European states could not be applied in the culturally undeveloped and poor Serbia and that a unique codification should be made, which would be suitable for the Serbian society of that time. Following that idea, they began to work on the codification in the mid thirties of the 19th century. However, the Civil Code of the Principality of Serbia, which was adopted in 1844, was not unique. It basically represented a short and partially revised version of the Austrian Civil Code. In addition to that, some of its provisions were against the tradition of the Serbian people and against the requirements of the existing legal practice. Therefore, there was a proposal to start drafting the new codification. A Commission was established at the beginning of the 20th century, which carried out the work on the new codification until the First World War. This project was abandoned after the war. However, soon after the unification and establishment of the Kingdom of Serbs, Croats and Slovenians, they started working on the harmonization of the legislation. The draft for the Civil Code of the Kingdom of Yugoslavia was finished in 1934. This legal project was never officially adopted either. After the Second World War the new socialist system was introduced. The legal continuance with the legal system of the former Kingdom of Yugoslavia has been broken and the civil legislation from before the war ceased to apply. In order to avoid the entire legal vacuum the courts were allowed to apply the "old legal provisions" that were in compliance with the new political system. That solution introduced legal uncertainty. Therefore the preparatory work on the new civil code was intensified in the mid fifties of the 20th century. The authorities of that time decided to apply the method of partial codification. The idea was to adopt a systematic law for each branch of the civil law and to later join all the provisions in one legal act. The work on codification came to an end at the beginning of the seventies. But the normative competences were then divided between the federal state and the member states. Since there was no more constitutional base for adoption of the single civil code, they continued with a partial codification. The federation adopted laws that belonged to its competence. On the other hand the member states have never adopted the laws in the field of property law and law on contracts and torts. That is a reason why there are number of legal vacuums in this field, which are very often filled up by application of some old legal provisions that are constituent part of the laws of the Kingdom of Yugoslavia. Today, there are no constitutional obstacles to entirely regulate the substance of the civil law, but there is no clear idea and strategy on how to develop this branch of the legal system. Two hundred years after the First Serbian Uprising, Serbia is again at the beginning.
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Horváth, Edit. "Renascence of the administrative jurisdiction in Hungary." Bratislava Law Review 3, no. 1 (June 30, 2019): 92–102. http://dx.doi.org/10.46282/blr.2019.3.1.131.
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The administrative jurisdiction is one of the guarantees of the civil legal security. However, a state has to „grow up” to this as to every legal guaranties. Administrative jurisdiction, and within it the creation of an independent administrative procedural order has been cause for much excitement in the law-making community basically from the early 1990 s, when control over administrative rulings became genuinely possible again. It was thus unsurprising that the codification of the Act on the procedural code of public administration was followed with interest, and the professional and scientific community gave regular updates on the status of the codification. Therefore, the fact that the president did not sign the Act passed by the National Assembly, but sent it to the Constitutional Court for evaluation instead caused a major stir. Based on the decision 1/2017. (I. 17.) of the Constitutional Court, the National Assembly eventually modified a number of provisions in the Act on the administrative procedural code and passed the Act again, which was then promulgated on March 1, 2017 as Act I/2017 on the administrative procedural code, and became effective, as per initial plans, on January 1, 2018. The article is not an ode to the Hungarian administrative jurisdiction or to the new independent administrative procedural code, but a historical and mainly legal analysis.
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Amanullah, Muhammad, and Habibur Rahman. "The Origin and Evolution of Fiqh Codification: A Preliminary Analysis Asal-Usul dan Evolusi Kodifikasi Fiqh: Satu Analisis." Journal of Islam in Asia (E-ISSN: 2289-8077) 13, no. 1 (July 19, 2016): 194–219. http://dx.doi.org/10.31436/jia.v13i1.529.
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AbstractThroughout the history codification of Islamic law has been given intense attention because of its effect on practical life. Codification plays a positive role to produce appropriate solutions and fair judgments for litigation and disputation. Codification helps establish justice and equality, protect the rights and freedom, and extend security and stability. This paper intends to explore various efforts made to codify Islamic law in the past up to the present through analytical investigation into the related documents, books and literature. The study posits that all the sections of Islamic law, excluding the rituals (ÑibÉdÉt), such as civil, constitutional, judiciary, penal, international, etc. are eligible to be codified. Codification of Islamic law conforms to the legal policy (siyÉsah sharÑiyyah), public wellbeing and the fundamental ruling of permissibility. It is not just valid but rather indispensable as it begets facility for the mankind and removes hardship from them. Thus, codification of Islamic law actualizes the noble objectives of the SharÊÑah.Keywords: Codification, Islamic Law, Effort, SharÊÑah, al-FatÉwÉ al-Hindiyyah, Majallat al-AÍkÉm al-ÑAdliyyah.AbstrakSepanjang sejarah kodifikasi undang-undang Islam telah diberi lebih perhatian kerana kesannya terhadap kehidupan praktikal. Kodifikasi memainkan peranan positif untuk menghasilkan penyelesaian yang sesuai dan pertimbangan yang adil untuk guaman dan bantahan. Kodifikasi membantu mewujudkan keadilan dan kesaksamaan, melindungi hak-hak dan kebebasan, dan memperluaskan keselamatan dan kestabilan. Kajian ini bertujuan untuk menerokai pelbagai usaha dibuat untuk mengekodkan undang-undang Islam dari masa lalu hingga kini melalui penyiasatan analitikal dalam dokumen, buku dan kesusasteraan yang berkaitan. Kajian ini menegaskan bahawa semua bahagian undang-undang Islam, tidak termasuk ritual (ÑibÉdÉt), seperti sivil, perlembagaan, kehakiman, keseksaan, antarabangsa, dan lain-lain adalah layak untuk dikanunkan. Kodifikasi undang-undang Islam mematuhi dasar undang-undang (siyÉsah sharÑiyyah), kesejahteraan umum dan peraturan asas keizinan. Ia bukan sahaja sah tetapi amat diperlukan kerana ia memberi kemudahan kepada manusia dan menghilangkan kesusahan daripada mereka. Oleh itu, kodifikasi undang-undang Islam merealisasikan objektif mulia SharÊÑah.Kata Kunci: Kodifikasi, Undang-undang Islam, Usaha, SharÊÑah, al-FatÉwÉ al-Hindiyyah, Majallat al-AÍkÉm al-ÑAdliyyah.
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Kovač, Polonca. "Debureaucratization Limits in Administrative Procedures Codification: Lessons from Slovenia." Administrative Sciences 11, no. 1 (December 22, 2020): 1. http://dx.doi.org/10.3390/admsci11010001.
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This article explores bureaucratization and its boundaries in the framework of cutting red tape in the regulation of administrative procedures. Law is not an end in itself but should contribute to predictable and thus better relations in society. In this sense, the priority protection of public interest—which is characteristic of administrative relations between individual holders of rights and obligations and administrative bodies—presents certain limitations to simplification. Through qualitative research methods (dogmatic, normative, and comparative methods, as well as case studies), this article examines examples of debureaucratization in Slovenia provided by the amendments to the General Administrative Procedure Act. In most cases, e.g., in waiving the right to appeal or broad fiction of service, modifications were not appropriate since constitutional guarantees cannot be subject to “debureaucratization”. However, crises such as the COVID-19 pandemic call for even greater simplification. The approach to address bureaucratization as an obstacle to the economy should therefore be holistic and proportionate. Debureaucratization should be implemented in individual administrative areas rather than by an umbrella law that ensures fundamental administrative principles, and through process optimization rather than deregulation. The results of the analysis are useful for comparable, particularly Central European countries.
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Lewandowicz, Maria. "Kodeks cywilny kantonu Berna (1824–1830) i jego wpływ na przemiany społeczne i ustrojowe." Krakowskie Studia z Historii Państwa i Prawa 13, no. 2 (2020): 153–68. http://dx.doi.org/10.4467/20844131ks.20.014.12057.
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The Bernese Civil Code (1824–1830) and Its Impact on Socio-Political Development* The objective of this paper is to present the dynamics of events and dependencies, which resulted in the enactment of the Bernese Civil Code, as well as the importance and consequences of this work in the development of civil law and civil society in the canton of Bern. The paper addresses the issues concerning the question as to whether it is possible for an act of civil law to become a source of rules which, not finding sufficient protection in the existing constitutional system, cause changes in the latter. Did the codification of private law and the act of providing the ideas of freedom and equality with statutory protection result in the fall of the governance existing in Bern in the first half of the 19th century? Or was it perhaps the result of the accumulation of internal and external circumstances, leading to a formal sanctioning of systemic changes which had already occurred? The process of codification and systemic change in Bern constitutes an excellent example of the interdependence between private and publiclegal legislation and the fact that constitutional law does not always have to be the primary source of state protection covering basic social values. *Artykuł powstał w ramach realizacji projektu Narodowego Centrum Nauki pt. „Szwajcarski kodeks cywilny z 10 grudnia 1907 roku – cele i metody”, nr UMO-2017/26/D/HS5/00625.
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Hassan, Abida, Samza Fatima, and Muhammad Bilal. "THE ISSUE OF QAWAMAH IN TRADITIONAL AND MODERN LEGAL DISCOURSE." Scholar Islamic Academic Research Journal 8, no. 1 (June 3, 2022): 1–15. http://dx.doi.org/10.29370/siarj/issue14aren1.
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The present study discusses the concept of Qawamah (leadership in the family), in modern society and its legal discourse. The term ‘Qawamah’ which means males are protectors of females and they are also responsible to provide a peaceful environment in society. Family Law has been subject to a far greater degree of codification. This topic has been under discussion in different times and this research scans gender (husband and wife) roles and codification of family laws in Pakistan as a trail for protecting the rights of women as well as men. The conception of guardianship has provided the basis of gender (husband and wife) roles in Muslim societies. Women are often expected to be submissive and loyal wives and mothers, living within the family, and men are normally taken as to be defenders and custodians of the family. The fairness of this system lies in the fact that Allah favored the man with the necessary abilities and services for the 'guardianship' and also handed over him with the responsibility to provide for the arrangement's upkeep. This research validates the constitutional, Quar’anic, and global reference points. Following some diverse sources, and while legal codification in much of the Islamic world has introduced fundamentally male-controlled legal norms. This whole discussion provides a wider context of an organized and codified legal system in the Muslim world.
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Kenny, Susan. "The Law Commissions: Constitutional Arrangements and the Rule of Law†." Oxford Journal of Legal Studies 39, no. 3 (2019): 603–23. http://dx.doi.org/10.1093/ojls/gqz013.
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Abstract This review article considers two publications concerning the Law Commissions created under the Law Commissions Act 1965: Fifty Years of the Law Commissions: The Dynamics of Law Reform, a collection of essays edited by Dyson, Lee and Wilson Stark, and Wilson Stark’s monograph, The Work of the British Law Commissions: Law Reform … Now? The writers demonstrate how the Commissions’ law reform work has made a unique contribution to the improved operation of the legal system and how they must continue to adapt to changes in the constitutional arrangements within which they discharge their statutory duties. The review article focuses on key issues identified in Wilson Stark’s separate study—codification, project selection and legislative implementation, and the scope of judicial law reform. Attention is also drawn to the need for the Commissions to have effective capacity to discharge their rule of law function by promoting fair, intelligible, accessible and up-to-date law.
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Friedrich, Pierre. "Gierkes Protest gegen das BGB." Tijdschrift voor rechtsgeschiedenis 85, no. 1-2 (June 22, 2017): 325–61. http://dx.doi.org/10.1163/15718190-08512p11.
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The enactment of the German Civil Code (BGB) marked the triumph of the Romanists in the famous codification debate. However, the Germanists’ resistance endured and found new grounds and means of conflict. This essay throws light on the exploitation of the fine arts for the advancement of the Germanists’ legal policy. With the help of the prominent murals in the plenary hall of the court of appeal in Düsseldorf, executed in 1913, we will examine the continuing influence of the germanistic combat and the socio-political mores of the functionary elite of the late empire. It will be demonstrated that these murals were an expression of the ressentiment of a certain part of these ‘power elites’ towards the liberal constitutional state which had come into existence by the time of the codification of the BGB at the very latest. Nazi ideology was able to appeal to these political dispositions and values after the First World War. This was one of the major routes that led to the Nazi takeover and finally to the decline of the rule of law in Germany.
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Van Biezen, Ingrid. "Constitutionalizing Party Democracy: The Constitutive Codification of Political Parties in Post-war Europe." British Journal of Political Science 42, no. 1 (August 24, 2011): 187–212. http://dx.doi.org/10.1017/s0007123411000263.
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This article analyses the process of party constitutionalization in post-war Europe. It explores the temporal patterns of party constitutionalization and reveals their connection with moments of fundamental institutional restructuring. It discusses the different modes of party constitutionalization, and addresses what these convey about the underlying conceptions of party democracy. It argues that the constitutional codification of political parties has consolidated the empirical reality of modern party government as well as its normative foundations of modern party government, thereby transforming political parties from socio-political organizations into integral units of the democratic state. Finally, it suggests that the constitutionalization of the democratic importance of political parties might reflect an attempt to legitimize their existence in the face of their weakening as agents of democratic representation.
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Alpa, Guido. "European Community Resolutions and the Codification of ‘Private Law’." European Review of Private Law 8, Issue 2 (June 1, 2000): 321–34. http://dx.doi.org/10.54648/268927.
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Alpa provides an examination of the problems and prospects for the development of a European private law. As a protagonist of the harmonisation of private law through codification, he first identifies the work in progress and some of the broad issues that have had to be addressed (such as the need to develop rules that transcend national characterisations of sphere of private law and the distinction between civil and commercial laws). He then sets out the advantages of a unified private law: rules in conflict between themselves in the various countries of the European Union can develop as a real market hindrance, while uniform private law rules emerge as conditions precedent for the implementation of the single market. Projects directed towards the harmonisation of private law through codification have faced various criticisms. Alpa tries to address these. He notes first the trend towards convergence of (some aspects of) national laws that has been observed by comparative lawyers and the existence of unifying frameworks such as the constitutional law of the EU and the European Convention on Human Rights. He then briefly addresses three particular issues: (i) the problems allegedly created by the difference between common law and civil law structures, (ii) claims concerning value of legal pluralism and the undesirability of eliminating national cultural characteristics, and (iii) the argument that techniques of harmonisation other than the drafting of a Civil Code are more appropriate. The paper concludes with a note on issues of the drafting and structure of a possible future Code.
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Habibur Rahman, Md, and Muhammad Amanullah. "Dispute over the Legality of Codification of Islamic Law: A Critical Analysis (Perselisihan Tentang Kesahihan Kodifikasi Undang-Undang Islam: Analisa Kritikal)." Journal of Islam in Asia (E-ISSN: 2289-8077) 15, no. 2 (December 24, 2018): 430–52. http://dx.doi.org/10.31436/jia.v15i2.758.
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Codification of Islamic law is studied due to its positive role on practical life to produce appropriate solutions and fair judgments for litigation and disputation. Codification is a process which contributes to the reformation in political, social, financial and judiciary sectors, by drafting fair Islamic codes, pursuant to the principles, values and customs of the Muslim nations. However, there is a scholarly debate on whether Islamic law could be codified or not. A group of intellectuals validates it while another group invalidates it. Hence, this study aims to critically examine the intellectual dispute over the legality of codification of Islamic law. The study is accomplished through the critical analysis of related documents, books and literature. The study verifies that codification of Islamic law is not just valid but rather indispensable because it conforms to the legal policy (siyasah shariyyah), public wellbeing and fundamental ruling of permissibility. In addition, codification of Islamic law complies with the noble objectives of the Shariah (Maqasid al-Shariah). The study finds out that the merits and motives of codification are far higher than its perils as seen by some scholars. It posits that codification of Islamic law would be the timely solution to get back the unity and solidarity among the Muslim world. It concludes that all the sections of Islamic law, excluding the rituals (ibadat), such as civil, constitutional, judiciary, penal, international, etc. are eligible to be codified. Thus, codification in Islamic law refers to the codification of fiqh provisions and not to the Shariah in its wider sense and overall contents. Moreover, the study also provides required conditions to be observed in the codification of Islamic law. .
Keywords: Codification, Islamic Law, Legal Policy, Public Wellbeing, Fundamental permissibility, Maqasid al Shari'ah.
Abstrak
Kodifikasi undang-undang Islam diberi perhatian kerana peranan positifnya dalam kehidupan manusia dalam menghasilkan solusi yang sesuai dan pertimbangan yang adil dalam perbicaraan dan perselisihan. Kodifikasi undang-undang menyumbang kepada perubahan dalam sektor politik, sosial, kewangan dan kehakiman, dengan penyediaan kod syariah yang adil, berdasarkan prinsip, nilai dan budaya orang Islam. Walau bagaimanapun, terdapat perdebatan ilmiah tentang kodifikasi tersebut sama ada ianya boleh dilakukan atau sebaliknya. Sebahagian cendekiawan berpendapat ianya dibolehkan manakala sebahagian yang lain menafikannya. Oleh itu, kajian ini mengkaji secara kritis perselisihan intelektual mengenai kesahihan kodifikasi undang-undang Islam. Kajian ini dicapai melalui analisis kritikal terhadap dokumen, buku dan kesusasteraan yang berkaitan. Kajian ini mengesahkan bahawa kodifikasi undang-undang Islam bukan hanya sah tetapi diperlukan kerana ia mematuhi dasar undang-undang (siysah sharyariyyah), kesejahteraan awam dan ketetapan asas yang dibenarkan. Di samping itu, kodifikasi undang-undang Islam adalah mematuhi objektif Shariah (maqasid al shari’ah). Kajian ini mendapati bahawa merit dan motif kodifikasi ini lebih memberi kesan baik daripada bahaya sebagaimana difahami oleh beberapa ulama. Ia mengemukakan bahawa kodifikasi hukum Islam adalah penyelesaian bagi mengembalikan perpaduan di kalangan dunia Islam. Ia menyimpulkan bahawa semua bahagian undang-undang Islam, tidak termasuk ritual, seperti sivil, perlembagaan, kehakiman, hukuman, antarabangsa, dan lain-lain layak untuk dikodifikasikan. Oleh itu, kodifikasi dalam undang-undang Islam merujuk kepada kodifikasi fiqh dan bukannya Shariah secara keseluruhannya. Selain itu, kajian ini juga menyediakan syarat-syarat yang perlu dipatuhi dalam pengkodifikasi hukum Islam.
Kata Kunci: Kod Pengubahsuaian, Undang-undang Islam, Dasar Perundangan, Kesejahteraan Awam, Kebolehpercayaan asas, Maqasid al Shari'ah.
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Bonelli, Matteo. "Effective Judicial Protection in EU Law: an Evolving Principle of a Constitutional Nature." Review of European Administrative Law 12, no. 2 (December 31, 2019): 35–62. http://dx.doi.org/10.7590/187479819x15840066091240.
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Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.
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Sosenkov, Fedor Sergeevich. "Constitutional and legal principles of Soviet Federalism." Genesis: исторические исследования, no. 11 (November 2021): 30–45. http://dx.doi.org/10.25136/2409-868x.2021.11.36818.
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The subject of this research is establishment and development of the principles of Soviet federalism: ideocracy, class character, proletarian internationalism, party spirit, right of nations to self-determination, two-level nature, unity of legal space, dual sovereignty, inviolability of the territory of the republics, dual citizenship, etc. The goal lies in examination of the sources, peculiarities of constitutional layout, evolution of the principles of Soviet federalism, and their role in the crisis and downfall of the Soviet federalism. The author offers the definitions of such phenomena as the Soviet federalism and the Soviet federation, which defines the novelty of this work. Classification is given to the principles of Soviet federalism in accordance with the criteria outlined by the author: 1) by the time of emergence, the principles are divided into ideological (ideocracy, class character, proletarian internationalism, party spirit, right of nations to self-determination, etc.) and state-legal (single citizenship, inviolability of the territories of the republics, unity of legal system, supremacy of federal legislation, etc.); 2) by the method of codification, the principles are divided into constitutional (ideocracy, class character, right of nations to self-determination, etc.), and stemming from the essence of constitutional norms (asymmetry, party spirit, two-level nature). It is noted that some principles of Soviet federalism fade their significance over time (class character), while others are eliminated from the constitutional and legal practice (principle of mutual control over observance of the all-union and republican legislation). It is substantiated that Soviet federalism was jeopardized mostly by the fundamental interrelated ideological principles: ideocracy, party spirit, and right of nations to self-determination. The author’s special contribution consists in introducing archival documents into the scientific discourse.
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Князев, С. Д. "Административная ответственность в решениях Конституционного Суда Российской Федерации (к вопросу о концептуальном реформировании Кодекса Российской Федерации об административных правонарушениях)." Азиатско-Тихоокеанский регион: экономика, политика, право 3, no. 52 (2019): 82–99. http://dx.doi.org/10.24866/1813-3274/2019-3/82-99.
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. В статье на основе анализа конституционных принципов публично-правовой ответственности и сформулированных Конституционным Судом Российской Федерации правовых позиций, касающихся различных вопросов ответственности за административные правонарушения, рассматриваются приоритетные, по мнению автора, направления совершенствования законодательства об административной ответственности. При этом главное внимание уделяется проблемам обеспечения полномасштабной кодификации административной ответственности, разграничения нормотворческих полномочий Российской Федерации и её субъектов в административно-деликтной сфере, понятию административного правонарушения, в том числе в его соотношении с преступлением, административной ответственности юридических лиц, системе административных наказаний и правилам их применения. Based on an analysis of the constitutional principles of public liability and the legal positions formulated by the Constitutional Court of the Russian Federation, the article considers the priority areas for improving the legislation on administrative responsibility. The main attention is paid to the problems of ensuring the full-scale codification of administrative responsibility, delimitation of the legislative powers of the Russian Federation and its subjects in the administrative-tort sphere, the concept of an administrative offense, including in relation to crime, administrative liability of legal entities, the system of administrative penalties and application of their rules.
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Khastama, Iqbal, and Dodi Jaya Wardana. "Analisis Yuridis Terhadap Tingkat Efisiensi Penyelesaian Perselisihan Hasil Pemilukada oleh MK." UNES Law Review 6, no. 2 (December 24, 2023): 6093–104. http://dx.doi.org/10.31933/unesrev.v6i2.1448.
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The results of votes obtained in official legislative elections by the KPU often receive unsatisfactory responses from election participants. This was triggered by intent, negligence, technical errors, administrative weaknesses or human error. In order to realize democratic elections, the following principles should be applied; honest; independent; orderly, fair, legal certainty; prioritizing public interests; openness and transparency; proportionality; professionalism; accountability; efficiency; and effectiveness. The Constitutional Court should have credibility and professionalism as a decision maker in election disputes. In 2019, 676 PHPU cases were reported to the Constitutional Court and 1135 other cases related to Kada PHP. UU no. 7 of 2017" has been ratified as a codification of election law, in order to create consistency and legal certainty as well as effective and efficient elections. Brazil, as one of the countries with the title of an effective election system, has an institution called "the Electoral Judges for municipal elections", which can be used as a reference by Indonesia in resolving disputes over regional election results. The method used in this research is normative, with explanatory explanations, using various library sources.
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Williams, John. "Law Making in a Devolved Wales: Work in Progress." Legal Information Management 14, no. 4 (December 2014): 266–76. http://dx.doi.org/10.1017/s1472669614000577.
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AbstractDevolution for Northern Ireland, Scotland, and Wales resulted in an asymmetrical constitutional framework. The Welsh settlement was more limited than that for Northern Ireland and Scotland. However, since the Government of Wales Acts of 1998 and 2006, Wales has eventually achieved primary law-making powers. Regrettably, the stages leading to the present position resulted in an often confused and confusing body of law. Practitioners wishing to know the content of Welsh law on a subject may encounter a complex tapestry of different types of enactments. The next step for Wales must be improved accessibility and codification. The process of devolution continues. This paper by Professor John Williams was delivered at the BIALL Annual Conference in June 2014.
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Мarkush, Mariia. "Conceptual problems of construction of the constitutional and legal model of adversarial proceedings of the criminal process of Ukraine." Law Review of Kyiv University of Law, no. 4 (December 30, 2020): 96–102. http://dx.doi.org/10.36695/2219-5521.4.2020.17.
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The article is devoted to the conceptual problems of building a competitive model of the criminal process of Ukraine under thecurrent Criminal Procedure Code of Ukraine (the CPC of Ukraine).Scientific understanding of the constitutional and legal essence and functionality of the modern model of the criminal process ofUkraine can be essential only when its concept is unquestionably based on the provisions of the Constitution of Ukraine andinternational legal standards and is carried out in terms of constitutional principles: rule of law, independence of court, right toprotection. as well as the principles of adversarial and other principles of justice. In the context of reforming the legal system of Ukrainein the European integration process, there is a convergence of the domestic legal system with the EU legal system, so the relevance ofthe study of the conceptual framework of the criminal process of Ukraine on the basis of international human rights law objectivelyincreases.The Association of Ukraine to the EU necessitated the adoption of a number of legal principles, first of all the rule of law andadversarial principles, through international law, and not exclusively through national prism, because their modern understanding isgreatly influenced by such judgemental factors as: 1) codification of international law and its progressive development; 2) compliancewith the international legal obligations of Ukraine as a subject of international law in the field of human rights protection, arising fromboth international treaties and customary international law; 3) the responsibility of Ukraine as a subject of international law for theimplementation of international obligations.
The article analyzes the national experience of legal regulation of adversarial proceedings in criminal proceedings, explores va -rious scientific approaches to this problem and concludes on the actual inequality of the parties in criminal proceedings, as well asdefines the legislative model of the criminal process in Ukraine. The analysis of international legal acts, provisions of the Constitutionof Ukraine, CPC of Ukraine and positions of procedural scholars given in the article gives grounds to state that the tendencies of deve -lopment of criminal procedure legislation of Ukraine bring the criminal process of Ukraine closer to the public-competitive model withAnglo-Saxon elements on an international and constitutional conceptual basis.The conceptual foundations of the modern criminal process of Ukraine are a system of theoretical, legal and praxeological provisionsof general nature, enshrined in the provisions of international legal documents that define international standards in the field ofhuman rights and the Constitution of Ukraine, which directly affect the content and model of domestic criminal process. The basic basisof the concept of the criminal process of Ukraine is the Constitution of Ukraine, which determines the basis and form of any legal phenomenonin the state. Despite the fact that the concept primarily reflects the theoretical foundations, basic principles and prerequisitesof a particular activity, it forms the basic concepts, schemes and forms according to which this activity is implemented. Thus, changingthe conceptual basis of criminal procedure is its most radical reform, as it leads to the need to abandon previously substantiated postulatesand standards of thinking and action, to change the basic concepts that ensure a holistic perception of the system of this activity,and therefore should be based on Constitution of Ukraine, which will build a constitutional and legal model of adversarial criminal proceedingsin Ukraine.
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Vera Vélez, Génesis Valeria, Fernando Guillermo Garay Delgado, and Jorge Isaac Calle García. "Reflexiones sobre la adopción en Ecuador: consideraciones constitucionales y legales." Cuestiones Políticas 41, no. 76 (March 6, 2023): 792–807. http://dx.doi.org/10.46398/cuestpol.4176.47.
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The research aims to determine the constitutional and legal provisions that regulate the legal figure of adoption in the Republic of Ecuador, with special attention to the existing normative contradictions between them. The research is of a descriptive documentary type, with a focus on analytical and hermeneutic methods. The Constitution recognizes the figure of adoption in its article 68. The Ecuadorian legal system does not handle full adoption as stipulated in article 152 of the Childhood and Adolescence Code. In view of the fact that in the Civil Code there is a notable conservation of the kinship ties of the adoptee with his family of origin and the exceptions that segregate the adopted children in matters of inheritance with the adopter’s family. It is concluded that it is necessary that the National Assembly, at the moment of issuing or reforming a new law for the protection of minors, carry out an exhaustive normative analysis so that this new codification is related and complementary to the laws that are in force, this with the objective that there are no legal anomalies between two norms and that an effective application and enjoyment of the rights of the minors can be given.
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Fayziev, Shukhrat. "Legislative foundations of environmental policy of the state: system, classification and problems of codification." Jurisprudence 1, no. 6 (December 15, 2021): 96–106. http://dx.doi.org/10.51788/tsul.jurisprudence.1.6./xnto4700.
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This article examines the role and significance of legislative acts to ensure the environmental policy of the state. On the basis of scientific and legal judgments, the following main directions of the state environmental policy are substantiated: environmental protection, rational use of natural resources and ensuring the environmental safety of the population. The author pays special attention to the definition of such concepts as “environmental legislation”, “sources of environmental legislation”, “subject of environmental legislation. The paper analyzes the issues of systematization and classification of environmental legislation based on the specific features of environmental legislation, and also proposes a classification of environmental legal regulations in the field of ensuring the environmental policy of the state. The general and peculiarities of constitutional norms, laws of the Republic of Uzbekistan, by-laws of state authorities and management, as well as principles and norms of international law in the field of ecology are analyzed. The role and significance of the codification of environmental legislation is analyzed, and conclusions on the development of the Environmental Code of the Republic of Uzbekistan are formulated.
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Khan, Muhammad Mumtaz Ali, Muhammad Danyal Khan, and Imran Alam. "Interaction between Law and Morality: The Philosophical Construct." ANNALS OF SOCIAL SCIENCES AND PERSPECTIVE 2, no. 2 (December 22, 2021): 311–21. http://dx.doi.org/10.52700/assap.v2i2.110.
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This paper discusses the jurisprudential analysis of law and legislation in a modern state. The main objective of this analysis is to ascertain the role and status of morality in the modern constitutional setup. Various views of legal positivism will be probed in light of the role of morality in codification. The study will comprise upon doctrinal analysis of various positivist writers of the 20th century. Contemporary elements of law in the modern nation-state system are more pro-positivist in approach rather than moral. In the light of these elements, the reader will understand the scope of morality especially religious morality in the contemporary legal framework. A comparative analysis will explain the standards of both theories of legal positivism and naturalist interpretation of laws.
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Burkhardt, Julia. "Frictions and Fictions of Community." Medieval History Journal 19, no. 2 (September 16, 2016): 191–228. http://dx.doi.org/10.1177/0971945816651029.
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This article analyses structures and representations of power in late medieval Central Europe between 1350 and 1500. Using the examples of the medieval kingdoms of Poland, Bohemia, Hungary and Germany, the study describes and compares social structures and their political implementation, fora of political discourse, achievements in constitutional and theoretical writing as well as codification of laws and privileges. The focus on “community” as a key term in the political discourse allows shedding light on modes of distributing political powers, the reciprocity and interconnections of political players and the development of notions of political representation. Against this background, the article presents the formation of structures and representations of power in late medieval Central Europe as a highly dynamic process, revealing both fictions and frictions of community.
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Paramuzova, Ol'ga Gennad'evna, and Dmitrii Andreevich Yakovlev. "Conceptual analysis of the legal definitions of "sport citizenship" and "constitutional citizenship" (international legal aspects)." Международное право, no. 4 (April 2023): 92–103. http://dx.doi.org/10.25136/2644-5514.2023.4.69029.
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This article is devoted to the study of certain issues of international and domestic sports legal relations, and, above all, to the analysis of the concepts of "constitutional citizenship" and "sports citizenship". The issues of naturalization of athletes, compensation for the costs of their upbringing by the federation that naturalized them are very complicated. In the modern world, the role of sport in public relations continues to increase, which entails the need for high-quality legal regulation of this sphere of public relations. The study of the issues identified by the authors and the formulation of proposals with practical application is of particular relevance and, especially, in the context of the complication of these legal relations by the legally ambiguous geopolitical processes taking place in the interstate system. Through the methods of analysis, synthesis and a systematic approach, the process of studying normative legal acts and legal doctrines takes place. The use of the comparison method makes possible to assess the prospects of applying doctrinal judgments regarding the further codification of international law in the field of sports. The main conclusions of the study are the following: - currently there are significant gaps in the field of legal regulation of legal relations involving professional athletes; - in the field of national and international legal regulation of sports citizenship issues, there is a certain connection, as well as differences in the concepts of "constitutional citizenship" and "sports citizenship"; - it is necessary to implement a new codification of the norms of general international law, a more complete involvement of the mechanism of regional law-making; - a full and high-quality implementation of national rule-making activities in the field of sports legal relations, complicated by a foreign element, is required. The scientific novelty of the research consist in the fact that the authors of the article have made conceptual proposals that can be applied in real life during the implementation of the law enforcement process in the field of sports. Special emphasis was placed on the need to comply with the norms governing the issues of sports citizenship to modern realities, since mass migration in the world contributes to the growth of the number of people receiving new both constitutional and sports citizenship, which results in the events that we can observe in both the field of general state policy and in the field of professional sports.
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Slobozhnikova, V. S. "The Late M. M. Speransky's Intellectual Service to Russia: Between Ideals and Political Reality." Bulletin of Irkutsk State University. Series Political Science and Religion Studies 42 (2022): 51–60. http://dx.doi.org/10.26516/2073-3380.2022.42.51.
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M. M. Speransky (1772–1839) is widely regarded as a liberal of the Alexander era and a servant of the Nicholas era, who was engaged in the codification of the. The author has identified the worldview factors that influenced the change in his views: a deep faith in God and a creative revision of European intellectual developments in relation to Russia of his time. The experience of implementing the constitutional project in the social and political realities of Russia, the immersion into Russian reality during exile and the analysis of the prospects for the development of a pure monarchy have had a serious impact. On this basis the article shows the logic of the “late” Speransky's choice of the form of government in favor of autocracy in the form of a monarchy with deliberative establishments.
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Kudryashov, Evgenii Olegovich. "Instead of the Electoral Code of the Russian Federation." Право и политика, no. 2 (February 2023): 10–19. http://dx.doi.org/10.7256/2454-0706.2023.2.37207.
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The subject of the study is the legal norms regulating public relations regarding the functioning of institutions of direct democracy in the Russian Federation, as well as drafts of the electoral Code of the Russian Federation and the opinions of scientists on the need to develop and adopt a federal electoral code, as well as the definition of the codification of law as such. The author comes to the conclusion that the previously proposed draft codes are not inherently codification products, since they basically reproduce the norms of existing legislation instead of radically changing it. At the same time, similar problems exist not only with regard to the right to vote, but also in the legal regulation of other institutions of direct democracy.As a result of the conducted research, the author comes to the conclusion that in order to realize the democratic nature of the Russian state, increase the efficiency of the functioning of direct democracy institutions, reduce their dependence on the discretion of public authorities, increase the guarantees of citizens for access to them, it is possible and necessary to develop, widely discuss and adopt the Code of Democracy of the Russian Federation. In the work, the author sets out the original concept of the code, in particular, justifies its name, the form of the federal constitutional law, and also describes the proposed structure of the code, which should include general provisions, sections on subjects of direct democracy, on the functioning of individual democratic institutions, as well as a section on the infrastructure of democracy.
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Sonafist, H. Y., Yasni Efyanti, Ramlah Ramlah, Ali Hamzah, and Faizin Faizin. "Ibn Al-Muqaffa’s Proposal for Taqnīn and its Synchronization with Islamic Law Codification in Indonesia." Samarah: Jurnal Hukum Keluarga dan Hukum Islam 4, no. 2 (December 28, 2020): 504. http://dx.doi.org/10.22373/sjhk.v4i2.7864.
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The research problems addressed in the article are the background story behind Ibn al-Muqaffa’s proposal for taqnīn, the historical background of the creation of the Islamic law codification in Indonesia, and the synchronization of ibn al-Muqaffa’s idea for taqnīn with the codification of Islamic law in Indonesia. The current study aims to unravel the view of Ibn Al-Muqaffa, an Islamic figure, about taqnīn. A biographical study was conducted by doing library research, especially on Ibn Al-Muqaffa’s proposal for taqnīn. The data collection procedure was divided into three parts i.e., orientation, exploration, focus-oriented research. Biographical research is part of a qualitative study that uses data analysis techniques and literature study as the qualitative data analysis as well as content analysis through the historical and textual approach. The results of the study reveal the method of law implementation before and during the lifetime of Ibn Al-Muqaffa which could be described as chaotic, with one of the reasons was because, at the time, the court had not possessed the statute that governed the legal activities other than the Islamic jurisprudence (fiqh) which was used by the judges in accepting, examining, and deciding on cases addressed to them. Therefore, every judge took a decision based on their own ijtihad (an Islamic legal term referring to independent reasoning or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question). Ibn Al-Muqaffa advised the Khalifa Abu Jakfar Al-Manshur to compile the correlated legal reasonings in Islamic jurisprudence in which to be implemented and to be applied as the binding legal force in the form of statutory law which was regulated nationally and to be used as guidance by all the judges without no exception. The codification of Islamic law in Indonesia has received a constitutional status based on philosophical, sociological, and juridical reasons. The researchers closely examine three types of Islamic legal laws i.e., Act number 7 of 1989, Act number 3 of 2006, and Act number 50 of 2009 concerning Religious Courts, Act number 41 of 2004 concerning Waqf (Endowment), and Act number 21 of 2008 concerning Sharia (Islamic) Banking. Taqnīn (the codification of Islamic law) must be adjusted to demands of the present time in which it is implemented and in accordance with the specific fields of law, for example, taqnīn for Civil Law, Criminal Law, Family Law, Judicial Law, State Administrative Procedure Law, State Administrative Law, And State Finances.
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Cornelius, S. "Die matigende rol van die waardes onderliggend aan die grondwet in die Suid-Afrikaanse kontraktereg." Tydskrif vir die Suid-Afrikaanse Reg 2022, no. 4 (2022): 660–71. http://dx.doi.org/10.47348/tsar/2022/i4a3.
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With the adoption of the interim constitution in 1993, much was made of the transformative function which the new constitution, and more particularly, the bill of rights, would fulfil. There were calls to reform the law of contract, whether by means of codification, piecemeal legislation or judicial reform. This contribution focuses on judicial reform of the law of contract and the apparent lack of change since the advent of the new constitutional dispensation. The search for a means to mitigate the strict application of the law of contract is not new. The Romans found that strict application of the law of contract could sometimes lead to unfair results. Eventually, Roman law developed a remedy, known as the exceptio doli, to mitigate the strict application of the law of contract. The courts in South Africa, from the outset, had to deal with instances where strict application of the law of contract would apparently lead to harsh results. To this end, the courts also turned to the Roman exceptio doli, but eventually, the appellate division ruled in Bank of Lisbon and South Africa Ltd v De Ornelas (1988 3 SA 580 (A)) that the exceptio doli is not part of the South African law of contract. Since then, and particularly since the advent of the new constitutional dispensation, parties have sought to rely on the values underlying the constitution, good faith, reasonableness and equity, in an attempt to seek redress from what they viewed as the harsh effects of the law of contract. Some trends began to develop: firstly, in some instances, judges displayed a shocking lack of knowledge of the law of contract; secondly, parties or the courts sometimes unnecessarily invoked the constitution when the common law of contract would have produced the same result; thirdly, a clear pattern of conservative majority and liberal minority opinions emerged in judgments of the courts; and lastly, the courts have tended to follow an all-or-nothing approach to matters dealing with contracts. However, in a minority opinion in Beadica 231 CC v Trustees, Oregon Trust (2020 5 SA 247 (CC)), Froneman J proposed a more nuanced approach in terms of which contractual matters can be resolved by proportionate adjustment of the contract. This kind of approach has been followed in Germany and it is proposed that the German concept of ergänzende Vertragsauslegung can guide the courts in South Africa to give greater effect to the values underlying the constitution, good faith, reasonableness and equity.
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Veress, Emőd. "A román Polgári törvénykönyvről, hatálybalépésének tizedik évfordulóján." Erdélyi Jogélet 2, no. 2 (November 2021): 27–39. http://dx.doi.org/10.47745/erjog.2021.02.02.
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Romania’s Civil Code, which entered into force in 2011, is ten years old. It is essential to evaluate the codification results to assess the impact of the reform and the possible directions for its correction. The study reviews the circumstances and the objectives of the drafting of the Code. It draws attention to the positive aspects of the drafting of the Code and its innovative characteristics and points out several potential problems. It also indicates that the time is ripe for the first significant amendment following the entry into force of the Code. The Constitutional Court has declared unconstitutional the rule that a person who, because of mental retardation or insanity, lacks the capacity of discernment necessary to pursue his or her interests must be subject to a judicial interdiction. Instead of a judicial interdiction, a more equitable and gradual protection system for persons lacking the capacity to reason should be devised.
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van Gerven, Walter. "A Common Law for Europe: The Future Meeting the Past?" European Review of Private Law 9, Issue 4 (December 1, 2001): 485–503. http://dx.doi.org/10.54648/393231.
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We are witness today, within a context of an increasingly integrated European Union, to the making of a new common legal order which is that of the European Community but also, and intertwined therewith, that of the ECHR. For lawyers that entails the necessity to work towards a ius commune that must be based as much as possible on legal foundations which the cooperating States have in common. Because of the limited competences attributed by the EC Treaty to the Community legislature and the Community courts, it will not be possible to achieve that goal only by means of EC legislative instruments and related case law. For indeed, whereas those instruments and case law will lead to harmonisation of national rules (the bright side of harmonisation), as a result of the limited attribution of competences, that harmonisation will only occur in limited sectors and, therefore, cause new disparities to arise, within each national legal system, between rules affected by European harmonisation and rules in the same area of law which are not affected so (the dark side of harmonisation). In consequence, in order to bring about overall convergence in those sectors of societal life which are to benefit from harmonisation (which is for private law mainly in the areas of contract and tort law), it will be indispensable to uncover, by all means, commonalities in concepts, principles and solutions between the domestic legal systems of the Member States. Only then will it be possible to build the emerging ius commune on common ground, and not to be perceived as a Fremdkörper in the participating States. That is a task of 'strategic importance' which comparative law research in the broadest sense, and by all those involved, must fulfill now and in the future. In the author's view comprehensive binding codification of relevant areas of the law can be achieved only, for reasons of legal basis, democratic legitimacy and acceptability, by way of a multilateral treaty. Obviously, such Treaty must be prepared by experts from all Member States but on the basis of guidelines as to underlying policy questions and value judgments which have been discussed in European and national parliamentary assemblies in consultation with representative professional and non-professional interest groups. It would then be adopted by the Member States in accordance with constitutional procedures and, once ratified by, e.g. half of the Member States, the codification contained therein, or attached thereto, would enter into force in the ratifying States. In order to maintain uniformity, the Treaty should provide in a preliminary ruling procedure with an existing or a newly established Community court. To avoid the codification work to be carried out, and once in force to prevent it from operating, in the abstract, there is an urgent need to combine the 'top-down' approach inherent in codification, with the 'bottom-up' approach inherent in Source and Casebooks in which materials from all legal systems involved in the codification enterprise are collected. Only by making such materials available, at an early stage, will it be possible to make lawyers of all vintage familiar with each others' legal system and with the legal heritage which they share, and with the underlying societal developments and internal 'moralities'.
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Osman, Fatima. "The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–24. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7592.
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In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has – and perhaps inevitably so – ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof.
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Mirow, M. C. "The Age of Constitutions in the Americas." Law and History Review 32, no. 2 (May 2014): 229–35. http://dx.doi.org/10.1017/s0738248014000054.
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The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and to consolidate state power. The study of these processes becomes national narratives, often in conversation with the former colonial power, which are disconnected from more general or regional trends. As Linda Colley's article in this issue illustrates, it is important to step back to view the constitution-making process from an Atlantic perspective that ties the Americas, North and South, into the area of study. The Age of Constitutions in the Americas must include Latin America and the Caribbean.
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Krausenboeck, Maria. "DER RENEUAL MODEL DRAFT FOR AN ADMINISTRATIVE PROCEDURE LAW – BACKGROUNDS AND CURRENT SITUATION." Administrative law and process, no. 3(26) (2019): 72–76. http://dx.doi.org/10.17721/2227-796x.2019.3.04.
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The paper focuses on administrative law reform within the European Union and raises this problem in the Central Asia countries: as EU advances with its codification and structuring on the existing principles and institutions, the countries of Central Asia start from scratch. A group of academics within the Research Network on European Administrative Law (ReNEUAL), starting with comparative law method, tries to use national administrative procedural laws, case law and principles of the administrative procedure of the European and national courts, as well as the relevant soft law, especially the “Ombudsprudence” aims, taking into account new communication technologies, at developing a relevant draft law. In its independent work between 2009 to 2014 the ReNEUAL network specified the constitutional principles for administrative procedures, naming proposed draft “self-administration law”. It deals with institutions, bodies, offices and agencies of the European Union in their relations with the public as well as various cross-cutting issues: rules on the consequences of procedural errors, use of undefined legal terms, optimization of the rules for complex processes. European Parliament’s legal committee made some reference to the ReNEUAL draft and also sought advice from members of the network. Later draft from Parliament, seen as less ambitious, stays within the basis of the currently applicable EU treaties, whereby the ReNEUAL draft would sometimes require changes to the treaty. The proposed ReNEUAL builds transparent basis for exercising human and citizen rights, helps ensure transparency and consistency of the EU administrative institutions. It could also serve as a catalyst for the reform of national administrative procedural laws. The European Commission not convinced that EU administrative law could be summarized in a single legal document, asked for a cost-benefit analysis and impact assessment and publicly consulted on the codification of EU administrative procedure from 15.12.2017 to 09.03.2018, publishing results in July 2018.
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Longtin, Marie-José, and Mario Bouchard. "Vers une révision du processus et du cadre d'élaboration de la décision administrative au Québec." Articles 22, no. 1 (April 12, 2005): 159–210. http://dx.doi.org/10.7202/042425ar.
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In this study, the authors examine various models for reviewing the system and procedural framework of administrative action in Québec. Firstly, they explore the solutions previously advanced as far as Québec is concerned, then those that have been adopted in other jurisdictions. Next, after identifying the principle decision-making agents of the administration, they enumerate the other factors to be considered in devising a model system, such as the assigned powers of the decision-makers, their procedure, the rules controlling their decision-making, and the establishement by the decision-makers of norms governing the exercise of their discretionary powers. These parameters having been determined the authors go on to evaluate, from various aspects, those solutions that have already been proposed and also others which offer themselves for consideration. In that regard, after discussing the classification of administrative bodies, they analyse the merits of a single or dual jurisdictional authority from the structural and constitutional perspective ; they pause to examine the very notion of administrative authority before going on to deal with the issue of an overall control of administrative bodies, such control being exercised by means of an Administrative Council. Then, after discussing the power given to an administrative body or agency to review its own decisions, they analyse the controversial issue of administrative procedure ant the codification of those rules, and go on to propose, as a possible solution, a flexible codification that is restrictive in part yet adaptable to the individual circumstances of the bodies concerned. In concluding that the existing patchwork of administrative decisionmaking must be satisfactorily resolved, and before indicating what corrective action should be studied, they attempt to identify the questions that have to be answered before undertaking review of the system and procedural framework of administrative action, the need for which review having been seen as imperative right from the outset.
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Alkahfi setiawan, Sidi. "Ambiguitas Putusan Mahkamah Konstitusi Republik Indonesia Dalam Perkara Nomor 91/PUU/MK-VXIII/2020." WELFARE STATE Jurnal Hukum 1, no. 1 (April 25, 2022): 1–16. http://dx.doi.org/10.56013/welfarestate.v1i1.1549.
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The Constitutional Court is a new institution in Indonesia that also handles dispute resolution on judicial review in Indonesia. This is related to the new order era, there was no official institution authorized to examine the formation of legislation. One form of testing the legislation is to examine the implementation of Law Number 11 of 2020 concerning Job Creation which uses the omnibus law system in the preparation of the legislation. Whereas in the legal system in Indonesia as regulated in Law Number 15 of 2019 concerning the Establishment of Legislation, it does not recognize the omnibus law system but rather on the codification of laws such as the Civil Code and Law Number 7 of 2017 concerning Elections. The emergence of this work copyright law cannot be separated from the many laws and regulations that apply in Indonesia which actually hinder investment. This over-regulation is caused by every institution and every problem, laws and regulations can be formed, which in the end actually creates a synchrony between the laws and regulations.