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1
Guéna, Yves, and Marie-Christine Henry-Meininger. "Entretien avec Yves GUÉNA, vice-président du Sénat, sénateur-maire de Périgueux." Revue française d'administration publique 68, no. 1 (1993): 597–99. http://dx.doi.org/10.3406/rfap.1993.2749.
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Members of Parliament’s Views. Interviews with Yves Guena and Alain Richard. Two french MPs tell their views about the means provided to the Houses of Parliament. In the french concept, the legislative’s work consists in amending, correcting and adjusting the Government bills. In this sense, Parliament has the necessary means to accomplish its mission. But in the field of counter-expertise and counter-proposals these means are more limited. The administrative services have a determining role in the management of the Houses and in the organisation of their work. The french interpretation of the separation of powers leads to a kind of isolation of Parliament’s officials and probably to a limitation of their career perspectives.
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Afifulloh, Afifulloh, Sudarsono Sudarsono, and Shinta Hadiyantina. "COMPARISON OF THE TRIASSIC LEGAL SYSTEM OF INDONESIA WITH THE FRENCH STATE." Trunojoyo Law Review 4, no. 1 (March 2, 2022): 69–83. http://dx.doi.org/10.21107/tlr.v4i1.18130.
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State law in Constitutional Law, there is an object of regulation in which the system of the Triassic Concept of Politica, which is a normative principle that powers should not be handed over to the same person in order to prevent abuse of power by the ruling party. Polotical triad offers a concept of state life by separating powers that are expected to be separated from each other in equal positions, so that they can control each other and balance each other (checks and balances), besides that the hope is that it can limit power so that there is no concentration of power on one hand which will later give birth to arbitrariness . The State of Indonesia with the State of France as a State of law (Civil Law), has similarities and differences in the application of the concept of Polotical triad. Similarities and differences in the application of the Polotical triad concept are material in comparing the systems applied in the Polotical triad concept. Comparison with the concept of Polotical triad between the State of Indonesia and the State of France, based on the 1945 Constitution of the Republic of Indonesia as the Constitution of the State of Indonesia and the Constitution of Ocktober 4, 1958 as the Constitution of the State of France.
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Ziller, Jacques. "National Constitutional Concepts in the New Constitution for Europe." European Constitutional Law Review 1, no. 2 (May 19, 2005): 247–71. http://dx.doi.org/10.1017/s1574019605002476.
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Notion of constitutional concept varies over time and space. Constitution for Europe as a further step in guaranteeing rights and separating powers. Amongst others French, Italian, German and Swedish national concepts in the Treaties of the European Communities and of the European Union. Several causes for difficult tracing of national concepts in the Constitution for Europe. Convention method: instead of by diplomats and EU experts, drafting by members of Parliament and (former) members of Government. More room for national concepts. The Intergovernmental Conference: the Empire strikes back, but with mixed impact. Parallels with other constitution making procedures. Concept of constitution: structure and size no argument for denying constitutional character; Constitution octroyée v. contrat social; Franco-American revolution v. British tradition.
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Monod, Paul. "Pietro Giannone and the Nonjuring Contribution to the Separation of Church and State." Journal of British Studies 59, no. 4 (October 2020): 713–36. http://dx.doi.org/10.1017/jbr.2020.124.
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AbstractWhy did the English Nonjuror Richard Rawlinson promote the 1729–30 English translation of Pietro Giannone's Civil History of Naples? The Nonjurors in England espoused ecclesiastical independency from the state, which they derived from the thought of Restoration High Churchmen and from the French Gallican Louis Ellies Du Pin. Giannone, a Neapolitan lawyer, proposed a similar “two powers” model of strict autonomy for both church and state. Giannone's concept was later rejected by enlightened writers like Viscount Bolingbroke and Edward Gibbon, who associated it with high church prejudices. It was defended by the Dissenter Joseph Priestley, who combined it with his own theory of religious sociability. The impact of Giannone on the Nonjurors and on Priestley illuminates the complex religious background to what is often seen as a fundamentally secular doctrine: the separation of church and state.
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Çela, Evelina. "Judicial institutions, ADR reform and their necessity in the Albanian reality." Jus & Justicia 16, no. 1 (2022): 128–38. http://dx.doi.org/10.58944/ovro1288.
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The concept of separation of powers was put forward by one of the most prominent representatives of the French Enlightenment, a prominent jurist and political thinker Charles Louis Montesquieu (1689-1755) to prevent the abuse of power and create conditions which “different authorities can mutually restrain each other. So, the topic of this paper it is the evidence of the current situation in Albania in terms of judicial institutions, legality, functional and practical importance in a democratic state and the functions they perform. The separation of powers has political and natural preconditions. The political reason for the separation of powers lies in the danger of the concentration of power by one body, in the need to control three independent powers over each other. Natural preconditions are necessary for the adoption of laws, their implementation, and the administration of justice. Thus, the legislature (Parliament) produces laws while the executive (government) implements the laws. Courts (Constitutional Court, courts of general jurisdiction, courts of arbitration) deal with specific cases to which other government bodies and citizens are parties. The article analyzes the main criteria, legal bases, and necessary conditions, consequences of the lack of judicial institutions and finally recommends the emergence need of the creation of an arbitration court as an alternative dispute resolution ADR, a tool widely used in developed democracies. A good justice system, both in the legal and organizational framework, in the civil field is an essential guarantee for the rule of law and respect for human rights. These rights take on legal value when the individual goes to a court that administers justice in a short period of time and in this way it creates trust in the public. A state with a well-organized justice system (where there are alternative means of resolving ADR disputes) for all spheres, be they civil, administrative, criminal or family, etc., is the main indicator for institutional reform, distribution of the burden enabling the delivery of justice on time and without delay. Above all, the individual has the opportunity to choose the means by which he will solve his problem. On the other hand, such a good organization would also enable the increase of work efficiency and the quality of the given judgments.
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Swann, Julian. "Roi de guerre ou Roi de paix? Louis XV and the French monarchy, 1740–1748." French History 34, no. 2 (May 11, 2020): 161–90. http://dx.doi.org/10.1093/fh/craa021.
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Abstract This article examines debate about the nature of the French monarchy during the early years of Louis XV’s personal rule. It argues that the king, his ministers and advisers as well as the wider French public were torn between traditional models of monarchy based upon the concept of a ‘roi de guerre’ and the diplomatic and human consequences of military conflict that had caused many to urge a more restrained, pacific projection of French power. In 1748, Louis XV offered a peace that reflected the desire to avoid a repetition of his predecessor’s errors, but France lacked the strength needed to impose a Pax Francia. The subsequent separation between the Bourbon dynasty and active military service did much to undermine the monarchy in the eyes of an increasingly patriotic public opinion.
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Krawczyk, Mariusz. "The Idea and Essence of Court-Administrative Control (Selected Issues)." Przegląd Prawa Administracyjnego 7 (August 30, 2024): 129–42. http://dx.doi.org/10.17951/ppa.2024.7.129-142.
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The article discusses selected issues regarding court-administrative control. The Polish perspective has been chosen as a reference point for the deliberations. The main problem is the concept of court-administrative control. It seems that this category determines the functioning of the administrative justice system. The essence of court-administrative control was presented based on Polish regulations: the Constitution of the Republic of Poland, the Law on the System of Administrative Courts and the Law on Proceedings before Administrative Courts. The essay also presents the idea of court-administrative control – also from a comparative perspective, with reference to the German and French models. The principle of separation of powers has become a critical point of reference. It turned out that it does not contradict the presented understanding of the concept of court-administrative control. The approach to control was compared with possible models of adjudication: cassatory and reformatory adjudication. Thinking about a certain idea of administrative justice, this is probably the most basic determinant of the role and functions of this branch of the justice system. The right to a court – its understanding and possible scope – is also important for the conducted considerations.
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Ariskina, Yulia. "“Merit to Admire”: European Political Experience in the Private Committee’s Practice." ISTORIYA 12, no. 6 (104) (2021): 0. http://dx.doi.org/10.18254/s207987840016070-6.
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The article examines ideological interaction between the Russian Empire and Europe in the 18th — 19th centuries basing on the analysis of extensive historical and theoretical material. The reforms of the early reign of Alexander I were developed within the framework of the Private Committee using European political experience and philosophical concepts of the Enlightenment. The theories of the “philosopher king”, “social contract”, “separation of powers” and others were used while discussing reforms, but in a rather truncated or distorted form. The experience of the French revolution was the reason for the selective and careful application of enlightened terms and concepts by Alexander I and his entourage. Nevertheless, the preparation of reforms within the framework of the Private Committee combined quite harmoniously their enlightened context and monarchical character.
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Khalaf, Sarab Husian, and Rudaina Abdulrazzaq M. Saeed. "A FOUCAULTIAN READING OF RESISTANCE IN CHINUA ACHEBE’S NOVEL "THINGS FALL APART "." JOURNAL OF LANGUAGE STUDIES 7, no. 2 (December 31, 2023): 306–21. http://dx.doi.org/10.25130/lang.7.2.15.
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The field of cultural, human and literature has taken the entire study of the concept of resistance, as this concept is linked to the French theorist Michel Foucault. He asserts that power is what caused us to be in the place where we are now. There is no separation between resistance and power, both come through the other. Chinua Achebe is the greatest and most famous writer in African literature. He attempts to find an escape from the colonial turn that invaded African literature, The goal of Achebe's writings is to enable the African people to have pride in their history. His novel "Things Fall Apart" focused on showing the tragic situation of the people of Africa, the impact of colonialism on Africa, its history and culture, and how the colonialists tried to obliterate the African identity. The study aims to analyze the novel "Things Fall Apart" in the light of the Foucauldian concept of resistance and how the characters demonstrated the rejection of colonialism and its resistance in the novel.
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Mohamedameen, Mohammed Shahab, and Ibrahim Mohammad Haje. "Proportionality as a judicial tool in striking a balance between management discretion and citizens' rights (a comparative study)." Twejer 4, no. 1 (May 2021): 745–806. http://dx.doi.org/10.31918/twejer.2141.17.
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This study deals with clarifying the issue of (proportionality or suitability) administrative decisions and the possibility of supervising the administrative judiciary on administrative decisions in terms of proportionality, through an analytical comparative study between the French, the Egyptian and the Iraqi at the jurisprudential and judicial level. The practical importance of this topic lies in knowing the modern role that the administrative judge plays in the area of his control over administrative decisions that went beyond the abstract control of the internal project, which was stopped at the limit of the control of the legal adaptation of facts towards the element of cause - as this control went beyond the control of the administration’s assessment of the importance of Realistic reasons and an assessment of the proportionality between their importance and seriousness and the action taken in their regard. The purpose of this study is to clarify the concept of proportionality control in the administrative judiciary, to clarify the issue of the contradiction between discretionary authority and proportionality, between separation of powers and proportionality, and to clarify the position of the judiciary and administrative jurisprudence on the control of proportionality in the administrative judiciary, to clarify the comparative jurisprudential trends from monitoring proportionality in the administrative judiciary And to clarify the limits of control over the cause of the administrative decision and the authority of the judge between legality and suitability, and to indicate the modern means upon which the administrative judge relies upon examining the decision. The problem of the study is: that the administrative judge, within the framework of his control over proportionality, examines and searches for the latter within the elements of the internal legality of the decision; For what is this censorship focused? That is, what is the element that the administrative judge examines? And does the administrative judge, by using the means of controlling proportionality, remain a judge of legality, or does this control include it within the scope of convenience, as it is one of the issues that the administration is independent of when issuing its decisions? What are the limits of judicial oversight on The authority of proportionality? To what extent is the proportionality audit inconsistent with the discretionary authority and the principle of separation of powers? What is the legal basis for the proportionality audit according to the comparative jurisprudential and judicial debate? Does oversight differ in proportion to oversight, legal conditioning? What are the modern techniques or methods that an administrative judge uses when examining an administrative decision to discover proportionality?
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Anisimov, Oleg V. "The House of Bourbon and Сonstitutional Revolutions in Southern Europe." Vestnik of Saint Petersburg University. History 68, no. 1 (2023): 190–209. http://dx.doi.org/10.21638/spbu02.2023.111.
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The article examines the transfer of ideas and practices of constitutionalism from Spain to the Kingdom of the Two Sicilies in 1812–1820. On the basis of dispatches of the Russian envoy in Naples Gustav Stackelberg, the author analyses the features of the revolutionary events of the summer — autumn of 1820. The immediate objects of Count Stackelberg’s observation in Naples were the situation of the Bourbon monarchy and the new constitutional government; their relations with the Carbonari society; relations within the diplomatic corps and among representatives of the great powers. The article also examines texts of constitutional acts that formed the main milestones of the development of constitutionalism in Southern Europe: the Bayonne Statute of 1808, the Cadiz Constitution of 1812, the Sicilian Constitution of 1812, the French Charter of 1814, and the “constitution of Murat” of 1815. An attempt is made to compare the constitutional revolutions in Spain and Italy in 1820–1823: contradictions of domestic politics, the struggle of the Liberal Party and the opposition, support for the army, parliamentary activity, the fight against separatist movements, complications in foreign policy and opposition to the Holy Alliance, the role of Kings Ferdinand VII of Spain and Ferdinand I of Naples in the development of constitutional practice. This approach corresponds to modern trends in the history of the Restoration era, in which the concept of the “liberal international” is tested against Russian diplomatic sources. G. Stackelberg did not just observe the Neapolitan Revolution; he noted obvious parallels with the Spanish Revolution and reported on any attempts of covert contacts of revolutionaries from all over Europe. His political ideal was the French Charter of 1814, the application of which to the Neapolitan political situation he wanted to see in order to avoid the worst consequences of the intervention of the Austrian Empire. The author concludes that the borrowing of the Spanish constitution by the Neapolitans took place within the prepared framework, becoming a logical stage in the development of constitutionalism in countries close to each other not only in spirit, but being for a long time in the orbit of the French revolutionary and Napoleonic despotic influence. The article also shows that Stackelberg modernized the pattern of the era about the “pan-European conspiracy” and created its more moderate version based on his observations of the development of the constitutional revolution in Naples.
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Jore, Mari Kristine. "Fortellinger om 1814: Forestillingen om det eksepsjonelle norske demokrati." Nordic Journal of Comparative and International Education (NJCIE) 2, no. 1 (June 11, 2018): 72–86. http://dx.doi.org/10.7577/njcie.2270.
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The focus of this article is an educational encounter during a social science project at a junior high school in Norway. The topic of the school project was the Norwegian Constitution of 1814. In this Constitution, many of the ideas of the French and American revolutions had been adopted, e.g. popular sovereignty and the separation of power. Nevertheless, the Constitution also reflected intolerant ideas, especially with regards to the so-called Jews-paragraph, whereby Protestantism was proclaimed, and Jews were excluded from the Norwegian state. In the educational encounter analyzed in this article, I argue that the notion of an exceptional Norwegian democracy affects the narrative constructed about the Norwegian Constitution. This notion serves to exclude the Jews-paragraph from the narrative. The postcolonial concept of Nordic exceptionalism constitutes an important theoretical framework for the analyses of the educational encounter. In the contemporary Norwegian society, immigration regulation by laws again has relevance. This article, therefore, discusses the critical classroom conversations thematizing the Jews-paragraph could have led to, by pointing at different historical and present-day topics of relevance. The discussion implicates the importance of recognizing the role and impact state-led control, violations and exclusion of minorities have in Norwegian history. Not recognizing these aspects of history can lead to the production and reproduction of idealized and exceptional national narratives.
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Debrot, Anik, Liliane Efinger, Maya Kheyar, Valentino Pomini, and Laurent Berthoud. "A French-Language Web-Based Intervention Targeting Prolonged Grief Symptoms in People Who Are Bereaved and Separated: Randomized Controlled Trial." JMIR Formative Research 8 (October 16, 2024): e57294. http://dx.doi.org/10.2196/57294.
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Background Losing a loved one, through death or separation, counts among the most stressful life events and is detrimental to health and well-being. About 15% of people show clinically significant difficulties coping with such an event. Web-based interventions (WBIs) are effective for a variety of mental health disorders, including prolonged grief. However, no validated WBI is available in French for treating prolonged grief symptoms. Objective This study aimed to compare the efficacy and adherence rates of 2 WBIs for prolonged grief symptoms following the loss of a loved one through death or romantic separation. Methods LIVIA 2.0 was developed relying on theoretical and empirical findings on bereavement processes and WBIs, and is compared with LIVIA 1, which has already demonstrated its efficacy. We conducted a randomized controlled trial and provided on-demand guidance to participants. Outcomes were assessed through web-based questionnaires before the intervention, after the intervention (12 weeks later), and at follow-up (24 weeks later). Primary outcomes were grief symptoms, depressive symptoms, and well-being. Secondary outcomes were anxiety symptoms, grief coping strategies, aspects related to self-identity, and program satisfaction. Results In total, 62 participants were randomized (intent-to-treat [ITT] sample), 29 (47%) in LIVIA 2.0 (active arm) and 33 (53%) in LIVIA 1 (control arm). The dropout rate was 40% (37/62), and 10 participants were removed due to exclusion criteria, leading to a final per-protocol sample of 27 (44%) completers who differed from noncompleters only based on reporting fewer anxiety symptoms (t60=3.03; P=.004). Participants who are separated reported more grief symptoms (t60=2.22; P=.03) and attachment anxiety (t60=2.26; P=.03), compared to participants who are bereaved. There were pre-post within-group differences for both programs in the ITT sample, with significant reductions in grief (Cohen d=−0.90), depressive symptoms (Cohen d=−0.31), and centrality of the loss (Cohen d=−0.45). The same pattern was observed in the per-protocol sample, with the exception that anxiety symptoms also significantly diminished (Cohen d=−0.45). No difference was found in efficacy between the 2 programs (all P>.33). Participants (ITT sample) reported overall high levels of program satisfaction (mean 3.18, SD 0.54; over a maximum of 4). Effect stability was confirmed at the 6-month follow-up for all outcomes, with an improvement in self-concept clarity. Conclusions The 2 grief-related WBIs were effective in reducing grief, depressive and anxiety symptoms for participants who are bereaved or separated. The analyses did not reveal any pre-post between-group differences, suggesting that the innovations brought to LIVIA 2.0 did not significantly affect the outcome. However, caution is warranted with the interpretation of the results given the limited power of the sample, which only allows the detection of medium effect sizes. Trial Registration ClinicalTrials.gov NCT05219760; https://clinicaltrials.gov/study/NCT05219760 International Registered Report Identifier (IRRID) RR2-10.2196/39026
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Suchanecki, Przemysław. "Od woli wiedzy do troski o siebie. Filozofia podmiotu Michela Foucaulta w latach 1976–1982." Principia 68 (2021): 115–65. http://dx.doi.org/10.4467/20843887pi.21.006.18696.
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From the Will of Knowledge to the Care-of-the-Self. Michel Foucault’s Philosophy of the Subject 1976–1982 The following article is an exploration of the intellectual journey of the French philosopher Michel Foucault in its latest period, from the Will to Knowledge, first book of the History of Sexuality, up to the later idea of care-of-the-self. The idea of the care-of-the-self is treated here as the culmination of Foucault’s philosophy, as well as its most mature expression. Maturity here means that, according to this concept, the subject is not perceived as the passive outcome of games played between the forces of knowledge and power, as it was presented in the writings of Foucault from the 1960s and 1970s, but, thanks to his own actions, directed at himself, so called practices of the Self, the subject is able to create itself, in separation from the outside influences that bind him. In the context and in contrast to the idea of the care of self is the idea of self-knowledge, a solely intellectual perspective, for which – according to Foucault – the care of the self was abandoned by philosophers for many centuries. A part of the goal of this study is to demonstrate that the concept of the care of the self was introduced through a conceptual evolution, in which certain ideas, gradually changing their meanings, morphed into other ideas, to arrive at the point where the ancient Greek idea of epimeleia heautou, care of the self, was necessary to be introduced. The principal sources for Foucault’s analyses were the writings of Stoics and Epicureans from the 1st and 2nd centuries A.D., as well as the Plato’s dialogue The First Alcibiades. A method of close-reading of the published works of Foucault and the transcripts of his lectures from a period of 1976 to 1982 was used to prove the above mentioned argument. The central goal of this thesis was largely accomplished – it has been demonstrated that Foucault, by examining various Stoic and Epicurean practices of the Self, showed that the subject is not determined to be formed solely as a result of the games of knowledge and power. Thanks to the concept of care of the self, Foucault had drawn a much larger margin of freedom for the individual, than he did in his earlier works.
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Goldoni, Marco. "Montesquieu and the French Model of Separation of Powers." Jurisprudence 4, no. 1 (June 21, 2013): 20–47. http://dx.doi.org/10.5235/20403313.4.1.20.
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Abubakar, Yusuf Sani, Sulaiman Dorloh, and Rajali Haji Aji. "Concept of the Separation of Powers: A Look from the Shariah Point of View." International Journal of Scientific Research and Management (IJSRM) 12, no. 01 (January 30, 2024): 447–54. http://dx.doi.org/10.18535/ijsrm/v12i01.lla01.
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The separation of powers is the division of the government of a state into different branches, each with its own independent powers. The purpose of a system of separation of powers is to prevent the concentration of power by providing checks and balances. This paper aims to investigate this concept from the Shariah point of view. To achieve this, the research adopts a qualitative research methodology. It is found that the principle of the separation of powers in Islamic Shariah was not clearly present at the time of the Prophet (S.A.W), as he held all three powers. After the Prophet's (S.A.W) death, the principle became clearer in the era of the caliphate, especially in the era of Caliph Omar ibn al-Khattab, who separated the judicial authority from the other state powers. However, the books of Islamic history are full of examples showing that the judges throughout the territory of the Islamic caliphate worked without interference from the rulers, even the rulers themselves were appointed by the judges and appeared before the courts. From such examples, the idea of the separation of powers has been derived.
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Sarip, Sarip, and Nur Rahman. "SEPARATION OF POWER: BERPISAH UNTUK BERTEMU." Jurnal De Jure Muhammadiyah Cirebon 4, no. 2 (December 10, 2020): 15–30. http://dx.doi.org/10.32534/djmc.v4i2.3172.
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Theorists struggle to determine the nature of the separation of power. There are many objections to the tripartite separation (three powers) of the state in the form of the legislature, executive and judiciary by referring to Montesquieu in his Spirit of the Laws for the history of political theory originating in the French state. The separation of powers is a vital feature of western democracies, enshrined in various federal and state constitutions. As a broad principle, theorists struggle to determine its precise nature, and many argue that the tripartite separation of state power into legislative, executive and judicial branches has proved simple and impossible. I think we should understand the separation of powers as a strategy used to structure the relationship between separate institutions. This structuring process empowers the creation of new relationships between institutions, with the aim of enhancing their institutional integrity. In short, we split up just to reconnect. These strategies direct attention to inter-agency relationships highlighting the contribution of these relationships to keeping institutional integrity together.
Keywords: Separation of powers, Institutions, Authority, Meeting each other.
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Rahmat, Rahmat. "The Concept of Separation of Power in Indonesia Al-Zuhaili Priest Perspective." Journal of Economic and Islamic Research 2, no. 1 (November 16, 2023): 63–82. http://dx.doi.org/10.62730/journalofeconomicandislamicresearch.v2i1.73.
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Indonesia is one of the countries that adheres to the trias politica power separation system, the concept that is the reference to the power separation system in Indonesia has in common with the trias politica offered by John Jock who divides power into the legislative, executive and judiciary. But over time there is a group of people who say that the government system implemented in Indonesia is a pagan government system. And this opinion is indisputable because there are scholars 'who have the concept of separation of powers which is exactly the system of separation of powers in Indonesia, namely Wahbah al Zuhaili he divides power into legislative power (sultatu al-tasri’i), executive (sultatu al-tanfidhi) and the judiciary (sultatu al-qodo’i). This type of research is a normative legal research using two approaches: a comparative approach and a conceptual approach. The primary legal source is Fiqhu al-Islam Wa Adillatuhu, Restoration of Indonesian Constitutional Law Based on the 1945 Constitution, secondary legal sources are books and other scientific works related to the object of discussion in this study. The results of this study conclude: First, Indonesia adheres to the power separation system of trias politica by dividing the three powers, the legislature, the executive and the judiciary. Secondly, in the Islamic system of government there is also the term separation of powers which also divides the types of power that is, sultatu al-tasri’i', sultatu al-tanfidhi, sultatu al-qodo’i. Third, the Indonesian state in applying the separation of powers has similarities with the Islamic governance system from Wahbah al-Zuhaili's perspective, so that it answers that the Indonesian state in its government system does not adhere to a kafi government system
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Mbaku, John Mukum. "Judicial Independence, Constitutionalism and Governance in Cameroon." European Journal of Comparative Law and Governance 1, no. 4 (November 14, 2014): 357–91. http://dx.doi.org/10.1163/22134514-00104001.
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Countries incorporate the principle of the separation of powers, including judicial independence, into their constitutions in an effort to meet several goals, the most important of which is to minimise government-induced tyranny. Specifically, countries that make this principle part of their constitutional practice intend to limit public servants by national laws and institutions, enhance government accountability, minimise opportunistic behaviors by civil servants and politicians, provide for checks and balances, and generally improve government efficiency. Cameroon, part of which was colonised by France, has a constitution that is modeled closely on the French Constitution of 4 October 1958. As a consequence, the country has adopted France’s hybrid system of the separation of powers. Using French constitutional practice as a model, this paper examines constitutional developments in Cameroon to determine why the country’s governing process, which is based on the Constitution of the Fifth Republic, has failed to guarantee constitutional justice.
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Ahmad Abdullah. "Declassifying Theory of Separation of Powers and its Inherent System of Checks and Balances: A Comparative Study." Zakariya Journal of Social Science 2, no. 1 (June 30, 2023): 31–41. http://dx.doi.org/10.59075/zjss.v2i1.231.
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The main objective of this article is inspection of the development of the concept of separation of powers to highlight that the powers must not accumulate in one hand and they should be divided among the three main pillars of the state i.e., Executive, Legislature and Judiciary. If the powers accumulate and concentrate in one hand, then the chances of abuse or misuse of power increases which can be dangerous not only for the citizens but also for the integrity of the state. The major purpose of the principal of separation of powers is the betterment of mutual relation among the three branches so that the democracy remains intact and no institution should perform the functions of the other. This article provides in-depth critical analysis of doctrine of separation of powers. It critically inspects its application in America and compares it with other jurisdictions to provide a comparative study
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Goncharov, Vitaly Viktorovich, Iurii S. Shpinev, Diana I. Stepanova, Oleg N. Malinovsky, Sergey A. Balashenko, and Jacek Zalesny. "Separation of powers as a principle of organization and activities of executive authorities in the Russian Federation." LAPLAGE EM REVISTA 7, no. 2 (May 10, 2021): 510–18. http://dx.doi.org/10.24115/s2446-6220202172819p.510-518.
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This article is devoted to constitutional analysis of the most important principle of organization and activity of executive authorities in the Russian Federation - separation of powers. The authors developed and justified the concept of an expanded understanding of the principle of separation of powers, with its reduction not only to the functional separation of state power between various levels of government (including within the executive branch), but with the development of a mechanism of checks and balances and the need to change the constitutional balance of priorities of the branches of government.
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Taylor, Katherine Fischer. "Geometries of Power." Journal of the Society of Architectural Historians 72, no. 4 (December 1, 2013): 434–74. http://dx.doi.org/10.1525/jsah.2013.72.4.434.
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In the revolution of 1789, France set out to replace its absolute monarchy with a government based on a separation of legislative, judicial, and executive powers. In Geometries of Power: Royal, Revolutionary, and Postrevolutionary French Courtrooms, Katherine Fischer Taylor asks how the goal of separating powers affected the reform of French justice through its physical housing. Providing the first overview of French courtroom layout, Taylor identifies four geometric configurations that characterize in turn the late ancien régime, the revolutionary decade, and the Napoleonic era and beyond. While taking account of changes in the conduct of trials, the analysis emphasizes instead how the courtroom’s spatial arrangement expresses the political source and status of justice. The revolution’s hitherto-unstudied circular layout is placed in the context of the novel curvilinear legislative chamber and influential theater reform. It proposes that the Napoleonic replacement, a rectangular layout inspired by contemporaneous basilican church interiors, instead reframed justice as a sacral power distinct from the theatrical legislature.
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Trajkovska-Hristovska, Jelena. "The Features of the Modern Concept of Separation of Powers as an Element of Constitutionalism - “The Garden of Eden” or “The Dark Side of the Moon ”?" Khazar Journal of Humanities and Social Sciences 21, no. 2 (July 2018): 104–18. http://dx.doi.org/10.5782/2223-2621.2018.21.2.104.
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The focus of the contemporary constitutional law and the constitutionalism is the limitation of the government by the means of legal instruments and mechanisms. Therefore, the analysis of the relation between the concept of constitutionalism and the principle of separation of powers has the central position of this paper. The paper elaborates the concept of constitutionalism as an idea and ideology of limited and controlled power. At the same time it has been emphasised that the development of the constitutionalism as a doctrine is possible only with previous analysis of its basic elements. The principle of "separation of powers" is one of these elements. The second point of this paper refers to the principle of “separation of powers” as one of the basic principles and concepts of the contemporary constitutions. The principle of separation of powers is a basic idea, general objective and a constant of the contemporary legal order. However, the paper will point out that the new situation in the relations between the branches of the government and the adaptation of the principle of separation of powers to the new circumstances, in the constitutional literature is known as contemporary constitutionalism. The paper elaborates the concepts of judicial supremacy and judicial paramontcy as elements of the contemporary American constitutionalism, as well as the manners and attempts for their theoretical justification. On the other hand, the paper will elaborate the phenomenon of judicial juristocracy in the European continental systems for control of constitutionality. The paper highlights the implementation of the doctrine of review of the constitutionality of the constitutional norms (verfassungswidrigen Verfassungsrechts) in the practice of the European constitutional courts. It elaborates the dilemma does the interpretation of the “mischievous phrases” of the constitution, by introducing concepts for ,,symbolic constitution” and ,,constitution behind a constitution” on one hand, and the introduction of the doctrine of review of the constitutionality of the constitutional norms on other, overhangs the concept of separation of powers, as The Sword of Leviathan. Finally the paper sets the dilemma whether the tectonic shift of the focus of decision making towards the legislative – executive – judicial power, and the unhidden and manifested will, ambition and activity of the courts to control the action of political authorities as a feature of the contemporary constitutionalism, is the so-called “the garden of Eden” or its opposite “the Dark Side of the Moon”.
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Melnikov, Evgeny A. "The French Model of Pre-Trial Criminal Case Proceedings: Organizational and Procedural Mechanisms." International criminal law and international justice 2 (April 25, 2024): 27–31. http://dx.doi.org/10.18572/2071-1190-2024-2-27-31.
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The article analyzes the organizational and procedural mechanisms for constructing the French model of preliminary proceedings in a criminal case. Particular attention is paid to the organizational and procedural division of government bodies responsible for public litigation and judicial activities. The author emphasizes that the Russian model of pre-trial proceedings also originates from the French model of preliminary proceedings, many of whose institutions were significantly transformed to the detriment of the principle of separation of powers in the pre-trial stages of criminal proceedings.
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Munir, Bakht, Zaheer Iqbal Cheema, and Jawwad Riaz. "Separation of Powers and System of Checks and Balances: A Debate on the Functionalist and Formalist Theories in the Context of Pakistan." Global Political Review V, no. III (September 30, 2020): 11–23. http://dx.doi.org/10.31703/gpr.2020(v-iii).02.
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Modern-day democracies are constructed on the constitutional mechanism of separation of powers introduced in the U.S. Constitution where Pakistan stands with no exception. With qualitative research methodology, this paper aims to investigate the following issues: origin and evolution of the concept of separation of powers with reference to formalist and functionalist theories, application of tripartite government in the context of Pakistan, why the application of this concept could not receive its due appreciation in Pakistan, the role of the military as an additional unavoidable stakeholder in the evolution of trichotomy of powers in the democratic transition and judicial response to circumscribe unbridled military regimes in Pakistan. This article also explicates how the state organs can help identify their jurisdictional bounds to avoid the potential threat of confrontation and suggests how in the transition of institutional demarcations self-realisation of constraints can play a considerable role to comprehend the spirit of constitutionalism.
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Yani, Ahmad. "Sistem Pemerintahan Indonesia: Pendekatan Teori dan Praktik." Lentera Hukum 5, no. 2 (July 31, 2018): 248. http://dx.doi.org/10.19184/ejlh.v5i2.7004.
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Abstract
Indonesia’s presidential system requires the separation of powers (executive, legislative and judiciary) as it is based on checks and balances. It is stated in the Indonesian Constitution, but it still needs further reform, particularly on the limitation of such tripartite powers. This article uses legal research to analyse and discuss theoretical and practical issues on the governmental system of Indonesia. Theoretically, the authority of state institutions in Indonesia encourages an executive-centered government system. In fact, in carrying out functions and authorities, state institutions do not reflect that the Indonesian system of government embraces the separation of powers. In addition, this study recommends the need for refinement and improvement efforts, to enforce ideal concept and practice.
Keywords: Theory and Practice, Governmental System, Indonesia
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Miroshnychenko, Maria Ivanivna, and Vitaly Oleksandrovych Karpichkov. "The terminological problem of rulemaking in the constitutional law of Ukraine (on the example of Article 6 of the Constitution of Ukraine." Alʹmanah prava, no. 15 (September 1, 2024): 164–69. https://doi.org/10.33663/2524-017x-2024-15-164-169.
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In the article, on the example of the prescription of Art. 6 of the Constitution of Ukraine raised the problem of terminological conflicts, which is one of the main defects of law-making activity in Ukraine. Emphasis is placed on the special importance of constitutional terms in rulemaking, first of all, at the stage of rulemaking due to the leading importance of constitutional law as the only fundamental branch in the legal system that exerts a systemic influence on the improvement of legislation, the legal system as a whole and lays the legal foundations for the development of a sovereign and independent, a democratic, social, legal state of Ukraine. It is emphasized that the high requirements for the semantic ambiguity of concepts imply the obligation of their scientific study. The principle of scientificity directs a careful study of the nature and content of the concepts used in the rule-making process in correlation with the requirement to observe their semantic compliance with the norms and rules of the Ukrainian language. According to the subject of the scientific analysis, the methodological basis was chosen — the natural legal doctrine with the principles of the rule of law and the distribution of powers. he analysis was carried out within the framework of correlation of the concept of checks and balances, developed on the basis of the idea of legal equality of legislative, executive and judicial powers, with the concept of historical and logical in law. It was concluded that in order to prevent or eliminate terminological and stylistic errors, it is necessary to carry out linguistic examinations of draft laws, to develop language recommendations for the correct use of legal terms and concepts. The Constitution is a source of fundamental terms. Therefore, already at the stage of normative design in constitutional law, key scientifically verified concepts should be defined, since a concept is a concentrated expression of a separate concept, and the practical level of implementation of a concept or theory with positive or negative consequences for society depends on its semantic ambiguity. On the example of the prescription of Art. 6 of the Constitution of Ukraine, a theoretical and methodological substantiation of the content and meaning of the concepts «separation of powers» and «distribution of power» was carried out on the basis of a comprehensive analysis of their nature and content, which made it possible to clarify the essence of the separation of powers as a political and legal doctrine and the essence of the distribution of power as a constitutional principle. The authors came to the conclusion that the concept of «separation of powers» means divided government by interests based on the idea of mixed governance with the aim of ensuring the general interest — political and civil peace in society. The term «separation of power» denotes a mechanism of checks and balances that ensures the stability of the constitutional system, prevents the usurpation of state power and the usurpation of the people’s exclusive right to determine and change the constitutional system in Ukraine. This mechanism is not aimed at taking into account the interests of certain strata, classes, groups or persons in power, but at ensuring a balanced and full-fledged performance by state bodies of their functions and powers within the framework of the legal law. Key word: rulemaking, linguistic examination of bills, constitution, constitutional law, concept, theory, separation of powers, distribution of power, mechanism of checks and balances, mechanism of checks and balances.
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Olechowski, Thomas. "Kelsen és Monstequieu között." DÍKÉ 7, no. 1 (August 22, 2023): 90–97. http://dx.doi.org/10.15170/dike.2023.07.01.08.
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This paper is the written version of the Ordinary Professorial Inaugural Lecture „Zwischen Kelsen und Montesquieu. Gewaltenteilung und Demokratie im 21. Jahrhundert” delivered at the University of Vienna on 27 March 2023. In his writings on democracy, Hans Kelsen initially rejected Montesquieu’s concept of the separation of powers and later only hesitantly recognised it. In fact, however, in the democracy of the 21st century, both the rule of the majority and the separation of powers are indispensable to guarantee the freedom of the individual. Both elements, however, are facing new challenges and threats that need to be recognised.
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Babich, Nikita V. "SEPARATION OF POWERS BETWEEN PROSECUTOR AND THE HEAD OF THE INVESTIGATIVE BODY." RUDN Journal of Law 24, no. 3 (December 15, 2020): 760–79. http://dx.doi.org/10.22363/2313-2337-2020-24-3-760-779.
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Problems related to the delimitation of powers between the prosecutor and the head of the investigating body, as well as ways to resolve them, are in the constant focus of attention of representatives of legal science. The concept and model of differentiation of powers between such participants in criminal proceedings that was introduced in 2007, has led to serious problems, which are expressed in: - decrease in the quality of prosecutorial supervision of the preliminary investigation body in order to protect human and civil rights and freedoms at the stage of preliminary investigation; - lack of procedural independence of the investigator, priority of interdepartmental control over prosecutorial supervision; - duplication of prosecutors supervision; - large accusatory bias of the court, prosecution and investigation body and others. The negative side of such problems is that the rights and freedoms of man and citizen are violated in the first place at all stages of criminal proceedings. In this regard, the properly organized delineation of powers and functions between the prosecutor and the head of the investigating body will be standard for ensuring the rule of law; it will contribute to the fight against crime and speedy preliminary investigation in order to create the court basis to reduce the cases of incorrect court decision. The purpose of the scientific article is to analyze the provisions of the current concept and models of separation of powers between the prosecutor and the head of the investigating body, identify the main systemic problems in this area and formulate proposals for their elimination. To achieve this goal, the scientific article explores the features and problems of individual concepts and models for their implementation in organizing activities of prosecution body and preliminary investigation bodies to delimit the powers between the prosecutor and the head of the investigating body. In a scientific article, the author came to the conclusion that reforming the current concept and model of separation of powers between the prosecutor and the head of the investigating body in order to eliminate significant problems is not possible without a reform. A return to previous concepts and models is also unacceptable due to historical experience of their application. The necessity of reforming the foundations of the entire law enforcement system of criminal justice body as a whole and reviewing the legal status of the prosecutor at all stages of criminal proceedings is noted.
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Cottier, Thomas. "International Trade Law: the Impact of Justiciability and Separations of Powers in EC Law." European Constitutional Law Review 5, no. 2 (June 2009): 307–26. http://dx.doi.org/10.1017/s1574019609003071.
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Direct effect of international agreements – WTO – Current jurisprudence and theories – Implications for separation of powers and checks and balances – Justiciability – Criticism of current standards: precision and reciprocity – Reversal of dual concept in EU external relations
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Klíma, Karel. "The principles of the Constitution of the Czech Republic in development, or the metamorphosis of its division of power – the de facto constitution." Gubernaculum et Administratio 29, no. 2 (2024): 9–26. http://dx.doi.org/10.16926/gea.2024.01.02.01.
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The constitutional system of the Czech Republic presents a certain conceptual solution to the constitutionally based separation of powers. It thus conceptualizes the relations between legislative, executive, and judicial powers, while also regulating the position and powers of the Czech National Bank, the Supreme Audit Office, and the local self-government system. Competitive democracy based on the competition of political parties with the effect of this competition, which is entry into the parliament, leads to the fact of the establishment of the government in the elections by the winning political group. However, as a further consequence, it can also influence the judicial and territorial self-governing powers. The actual implementation of this model can therefore mean, even in a partial way, a more significant modification of the constitutionally set separation of powers. This can happen through the de facto political linking of legislative and executive power, the expansion of executive power into subordinate legislation, and through the influence of government power in transferred competence to the territorial self-government system. The subject of this study is therefore a criterion-referenced assessment of the constitutional solution to the separation of powers in the constitutional system of the Czech Republic, i.e., the textually and conceptually assumed concept and, on the other hand, the real one in the constitutional system and political environment in the Czech Republic.
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Pogorelova, Z. "Regulatory authorities of the president of Ukraine: concept and legal nature." Uzhhorod National University Herald. Series: Law 1, no. 72 (November 16, 2022): 67–72. http://dx.doi.org/10.24144/2307-3322.2022.72.11.
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The article is devoted to consideration of the concept and legal nature of the normative powers of the President of Ukraine through the prism of consideration of the history of the formation of the institution of the president in the world, the dependence of the key characteristics of these powers on the role and status of the president in the state, correlation between traditional spheres of responsibility (foreign policy and supreme representation of the state in international relations, national security and defense) and features determined by the form of government and separation of powers between the legislative and executive branches of government, the place of the president in the system of this distribution and the assignment of the appropriate amount of tasks and functions to manage the state.
The types of powers available to the President of Ukraine are outlined, among which domestic political, rule-making, legislative, representative, foreign policy, establishment, control, ceremonial and other powers are distinguished. The significance and place among them of rule-making powers is substantiated. The legal nature and interrelationship of rule-making powers with the constitutional and legal status of the President of Ukraine, and their use as a means of exercising state power, exclusively for the purpose of the President of Ukraine's performance of his functions, tasks and powers, are investigated.
The legal content of rule-making powers is revealed as powers to establish, change and cancel mandatory rules of conduct in the form of issuing normative acts of the President of Ukraine.
The conclusion is substantiated that the essence, meaning of rule-making powers, their role in the implementation of tasks and other powers of the President of Ukraine necessitate their implementation in a special legal form, namely in the form of rule-making activity, which creates opportunities for the formation of scientific foundations for the improvement of legal regulation of rule-making activity and its further effective implementation.
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Annisa, Sarah Nur. "KONSEP INDEPENDENSI KEJAKSAAN REPUBLIK INDONESIA DALAM PERSPEKTIF TEORI THE NEW SEPARATION OF POWER BRUCE ACKERMAN." JIL : Journal of Indonesian Law 2, no. 2 (December 30, 2021): 226–48. http://dx.doi.org/10.18326/jil.v2i2.226-248.
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Independence is a must in a state of law (rechtstaat) as stated in article 1 paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The independence is inseparable from the theory of separation of powers. The separation of powers theory was developed by Charles Louis de Secondat Baron Montesquieu or better known as the trias politica theory which divides power into three, namely executive power, legislative power, and judicial power. The 1945 Constitution does not explicitly explain the existence of the prosecutor's office, but in Law no. 16 of 2004 which regulates the Attorney General's Office of the Republic of Indonesia places this institution as a "government institution" so that the position of the prosecutor in the Indonesian constitutional system is part of the executive power. This may causes the prosecutor's office to be independent and carry out its duties and functions. This study is a qualitative research, while the research approach used is the legal approach and the conceptual approach. Both the primary and secondary data was collected. The data was obtained through the 1945 Constitution, Law no. 16 of 2004, journals and books related to topic of research. The theoretical framework was applied to examine the concept of the independence of the Indonesian Attorney General Office by using the theory of The New Separation of Powers, which was initiated by Bruce Ackerman. In his theory, Ackerman divides powers into five, one of which is Independent Agencies. The result of this study showed that the position of the prosecutor's office is institutionally under executive power as stated in the prosecutor's law and regarding the ideal concept of prosecutor's independence in the Indonesian constitutional system which is analyzed through the theory of The New Separation of Power, namely by placing the prosecutor's office as an independent state institution that free from executive influence, broadly speaking, the placement of independent state institutions (Independent Agencies) is a separate branch of power out of the trias politica concept.
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Platonov, Vladimir Mikhailovich. "Theoretical and methodological foundations for the study of federalism." SHS Web of Conferences 118 (2021): 01012. http://dx.doi.org/10.1051/shsconf/202111801012.
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The purpose of the research is to determine the basic methodological rules that allow to form a science-based concept of separation of powers between the levels of government, taking into account the cultural and historical conditions of development of Russian society, the establishment in it of stable principles of relations in the public sphere, standards and stereotypes of social interaction. The research conducted on the basis of the dialectical method, which was used in combination with the systematic method, the historical method and the socio-cultural vision of political and legal phenomena, showed the following results: a) there are only general guidelines that guide states in choosing a federal model, not any of its benchmarks; b) the problem of correlation of vertical separation of powers with responsibility and cultural and historical specificity in the implementation of powers in the sphere of joint jurisdiction of the federal center and the subjects of the federation is the key one; c) significant in the methodology of the study of federalism is the assessment of the weakness of political ambitions of the power elites in relation to the role of socio-economic factors that determine the degree of effectiveness of the implementation of their powers by the subjects of public authority; d) the separation of powers in a federal state is a dynamic process, the content and direction of which are conditioned by concrete and historical tasks; e) the centralization of federal relations in Russia is a factor in their evolution and dynamics. The novelty of the research is due to the author’s approach to the substantiation of the system of methodological rules, which will ensure a) the integrity of the state, b) the need for decentralization of power on the basis of the principles of federalism, c) the definition of the principles that determine the model of separation of powers.
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Arseni, Alexandru. "Separation of powers - the spirit of exercising national sovereignty through representation." Studia Universitatis Moldaviae. Seria Stiinte Sociale, no. 3 (June 2023): 22–29. http://dx.doi.org/10.59295/sum3(163)2023_03.
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The construction and strengthening of a democratic state governed by the rule of law, in which human dignity, human rights and freedoms, the free development of the human personality, justice and political pluralism represent the highest values and are constitutionally guaranteed, perhaps by ensuring the exercise of national sovereignty through representation, only through the application of the principle of separation of powers in the state, which represents the mechanism of degeneration towards despotism. In this article we would outline the essence of the etymology, as well as the normative concept of the ,,national sovereignty”, as well as its inherent properties. At the same time, we would argue about the dialectical connection between ,,national sovereignty” and the principle of ,,separation of powers”, which guarantees the exercise of national sovereignty through representation.
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Padot, Rebecca. "How Effective Public Managers Transform Separation of Powers into “Inseparable Powers” in United States Foster Care Administration Networks." Complexity, Governance & Networks 5, no. 1 (October 24, 2019): 121. http://dx.doi.org/10.20377/cgn-89.
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Results from a four state foster care administration field research study in the United States with over 55 key player interviews produced data on what particular networking practices public managers perform that contributes to foster care administration effectiveness. One of these practices was the concept of inseparable powers, whereby the traditional checks and balances roles of the judicial, executive, and legislative branches are slightly altered in eras of state-level foster care administration effectiveness. During a period of inseparable powers, effective public managers work across the state branch boundaries in the United States with partners from other branches to produce better foster care outcomes.
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ROMANOV, S. V. "CONCEPT OF AUTHORITY OF JUDICIARY IN CRIMINAL PROCEDURE." Ser-11_2023 64, no. 6, 2023 (June 20, 2024): 157–75. http://dx.doi.org/10.55959/msu0130-0113-11-64-6-9.
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The article deals with the de nition of the judiciary and its authority as one of its descriptions as they are presented in procedural science. Attention is paid to the constitutional basis of the independence of judiciary. It is shown that authority of the judiciary is one of its independence guarantees. The di erence between internal and external independence of judiciary as it has been treated in prerevolutionary science is examined, as well as a de nition of the authority of the judiciary as a su ciency of its powers that make it possible to judiciary to control all the criminal procedure, the de nition of the subsidiary bodies of judiciary and their role in provision of the authority of judiciary under the Judicial Reform of 1864. A conclusion is drawn that there are two aspects of the authority of the judiciary: judicial and procedural. Authority of the judiciary is also compared with the principle of equality of everyone under the law and in trial. The evolution of the de nition of the authority of the judiciary in soviet science, when the separation of powers has been rejected and subsidiary bodies of judiciary has been separated from it, and in modern procedural science is exposed. Justice as a key power of the judiciary is compared with its other powers including those administered not by courts.
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May, Michel. "Le régime financier des assemblées parlementaires en France." Revue française d'administration publique 68, no. 1 (1993): 537–46. http://dx.doi.org/10.3406/rfap.1993.2741.
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The Houses of Parliament’s Financial Settlement in France. The sovereignty of Parliament stems from the principle of separation of powers as stated in article 16 of the french Declaration of human rights of 1789. Giving due respect to this sovereignty demands a financial settlement which guarantees a truly autonomous management. From the Revolution to Fifth Republic, rules and practices have efficiently safeguarded the financial independence of the Houses. Conventions of the Constitution have an important role to play. Written law, in turn, is sometimes generating paradoxical procedures.
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Adegbite, Olusola Babatunde, Oreoluwa Omotayo Oduniyi, and Jubril Akinwunmi Farinde. "Separation of Powers Under the 1999 Nigerian Constitution: The Core Legal Dilemmas." Sriwijaya Law Review 3, no. 2 (July 30, 2019): 235. http://dx.doi.org/10.28946/slrev.vol3.iss2.281.pp235-252.
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At the core of Nigeria's constitutional practice lies the doctrine of separation of powers. The application of the principle is such that power under Nigeria's presidential cum federal system is delineated both horizontally and vertically. Even though the doctrine has a major feature of every constitution in the world, its implementation does not seem satisfactory given the insults that have been carried out by successive governments. This paper examines the doctrine of separation of powers and its complicatedness as regards to its practice in Nigeria's constitutional democracy. Reflecting on the history of Nigeria, this paper will discuss the eroded implementation of the principle of separation. As a result, it seems to be that the concept of "separation" is not going well and tends to fuse the function of executive and legislative institutions. In this situation, the principle is in a dilemma. This paper further offers a flicker of hope by pointing to the fact that all hopes do not appear lost, as the Judiciary still maintains some level of ‘separateness,' except that only time will tell as to how much this lasts.
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Akhtar, Zia. "Montesquieu’s Theory of the Separation of Powers, Legislative Flexibility and Judicial Restraint in an Unwritten Constitution." Amicus Curiae 4, no. 3 (June 24, 2023): 552–77. http://dx.doi.org/10.14296/ac.v4i3.5616.
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A constitution is a body of laws that is composed of various branches which exist as the legal source of its powers. These are designed to regulate by defining the role of the executive, legislature and the judiciary, which are the three organs of government that Baron Montesquieu defined as necessary in a constitution. The constitutional government can be evaluated on its capacity (i) to maintain the rule of law, (ii) to preserve an electoral mechanism for political democracy and (iii) to protect a morally and legally acceptable set of substantive rights. The conventions are the source of unwritten constitutions which preserve the balance of powers by relying on the concept of judicial restraint and deference to the executive. The contemporary relevance of Baron Montesquieu’s theory is in the context of a fused system, and the question is the extent to which the executive can override the judicial powers in matters of state.
Keywords: separation of powers; unwritten constitution; Westminster model; constitutionalism; juridical review; “one voice” principle; administrative deference.
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Szczepankiewicz-Rudzka, Ewa. "Zasada laickości V Republiki Francuskiej i jej implikacje prawno-polityczne." Politeja 17, no. 1(64) (February 26, 2020): 73–88. http://dx.doi.org/10.12797/politeja.17.2020.64.05.
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The Secularity Principle of the Fifth French Republic and Its Legal and Political Implications
The aim of this article is to analyze two aspects of the French principle of the secular state. The article outlines the characteristics of the normative legitimacy of the separation of church and state, focusing on the documents that introduce and specify this principle. It also presents political aspects of the separation of church and state, especially the evolution of its implementation, which has changed along with the dynamics of the social and political context. The presented argumentation will serve to prove the thesis that the French concept of laïcité is not a clear and uniform political principle since its versions may significantly differ.
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PATURET, Arnaud. "LA CURIEUSE DESTINÉE DE LA RES ROMAINE : DU CHAMP PROCESSUEL AUX MUTATIONS MODERNES." Comparative Legilinguistics 30 (October 29, 2017): 67–83. http://dx.doi.org/10.14746/cl.2017.30.4.
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Roman Law is often considered as an intellectual matrix of contemporary laws and in particular French civil law. However, even if the vocabulary persisted, some legal concepts went throught great changes across history as law was step by step related to a subject’s power. The notion of thing originally meant the trial, the case, the litigious situation managed by the legal process. In this way the thing was directly a res iuris. In contemporary law system, the thing ordinarily specifies some goods on which the subject applies his property power. This view is understandable considering the evolution due to the theorization of subjective law that leads to promote a strong and exclusive separation between persons and things while Roman law could imbricate these legal categories.
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Gülboy, Burak Samih. "Reassessing the Concept of Peace in the Concert of Europe: A European Model of Security Based upon Cooperation of States against People." Journal of Applied And Theoretical Social Sciences 4, no. 2 (June 27, 2022): 144–63. http://dx.doi.org/10.37241/jatss.2022.60.
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Concert of Europe was a system that was built for the purpose of maintaining the status quo between the European states and the means by which the system rested were constructed during the course of the Congress of Vienna. The Holy Alliance and the Quadruple Alliance (later Quintet) not only enabled Europe's Great Powers to cooperate in building and maintaining order, but also succeeded in creating common values that would keep cooperation alive.
While the liberal and nationalist ideas brought by the French Revolution and spread by Napoleon's campaigns were alive both in European societies and on the political map drawn by Napoleon in 1815, the victorious major powers were aware that the peace was to be established both by the suppression of these ideas and by reformation of the map. For this reason, the absolutist values and structure before the French Revolution formed the reference points that would form the basis of the new peace.
This article aims to analyze the peace on which the so-called European Harmony is based, within the framework of international relations literature.
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Alamova, Tatiana. "The principle of separation of powers in a constitutional state from a point of view of political risks." Moldoscopie, no. 3(94) (February 2022): 53–64. http://dx.doi.org/10.52388/1812-2566.2021.3(94).05.
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This article is dedicated to the review of political risks, its impact on the rule of law and the theory of separation of power. The article provides a definition of the concept of political risk. It reviews the influence of political risks on the theory of separation of power; how risks can affect one or another branch of government and which consequences they entail; what political risks can lead to, when influencing on human and civil rights within a state. The article provides an overview of the development of political and legal thoughts of different philosophers who influenced to the development of the theory of separation of power and to the risks that are associated with it. In conclusion, the article underlines that political risks play an important part in the practical implementation of the theory of separation of power in a constitutional state. The article discusses the relationship between the three branches of power: legislative, executive and judicial; that constantly strive to control each other, in order to avoid the creation of political risks. In the conclusion, the author makes an overview of the nature of political risks on the development of the rule of law and the principle of separation of powers; whether the political risks are a catalyst for the development of a legal basis for political relations, and for the rule of law. The fundamental doctrines are also mentioned, which fact emphasizes not only individual freedoms and human and citizenship rights, but also the establishment of a constitutional procedure for the separation of powers. The author touches upon the issue of the legislative system, which directly relates to the separation of powers.
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Alhajri, Abdulrahman F. S. H. "Separation of Powers in the Kuwaiti Criminal Justice System: A Case Study." European Journal of Interdisciplinary Studies 4, no. 2 (July 24, 2018): 59. http://dx.doi.org/10.26417/ejis.v4i2.p59-79.
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Discussions of the Separation of Powers (SOP) tend to be related to the administrative state, at the expense of the criminal state. This research addresses the question of separating powers within the criminal justice system of Kuwait, examining the function of this division and the structures that are designed to protect the rights of citizens. Despite being regulated according to democratic principles, the criminal justice system of Kuwait has been described as excessively controlled by executive bodies. Currently, there appears to be a lack of research explaining how numerous criminal justice bodies in Kuwait can effectively promote the principles of freedom, democracy, and equality before the law. The proposed research aims to provide insights into the SOP between institutions and to assess its effectiveness in addressing the principles stated in the Constitution of Kuwait. The origins of the modern Kuwaiti criminal justice system will also be explored, with a focus on British Jurisdiction (as a past influence) and French, Egyptian and Islamic law (as continuing influences). This development history makes Kuwait an excellent example of the diffusion of law, which, although it has been investigated widely, is still a topic of interest among modern researchers, alongside human rights and their protection through the criminal law system. This is one of the first studies to discuss the SOP in the Kuwaiti criminal justice system as a mixed phenomenon that can influence the protection of Kuwaiti citizens’ human rights at each stage of law enforcement and prosecution.
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Levin, V. V. "The Judicial System of the Russia: Concept and Legal Features." Sociology and Law, no. 2 (July 18, 2020): 106–13. http://dx.doi.org/10.35854/2219-6242-2020-2-106-113.
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The article is devoted to the description of the concept of the “Judicial System”, which is associated with the state judicial branch of government. In addition, the article discusses the features of the practical implementation of the principle of separation of powers and the independence of the judiciary. Based on the analysis, the author comes to the conclusion that human rights defenders and lawyers cannot influence the situation within the framework of the judiciary and that there is an urgent need for reforming the judicial system.
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Savelyev, D. B. "Collegially Shared Power: Definition and Criteria." Siberian Journal of Philosophy 19, no. 4 (May 18, 2022): 87–98. http://dx.doi.org/10.25205/2541-7517-2021-19-4-87-98.
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The article focuses on the development of R. Collins’ concept of collegially shared power (CSP). The author formulates a definition of CSP and four criteria associated with the formal separation of powers: 1) the right of parliament to participate in the formation of government; 2) the responsibility of government to parliament; 3) the lack of authority of the head of state to appoint proxies to the legislative institutions; 4) the observance of written law by all branches of powers and their subordinate structures. The obtained results will contribute to a further, more detailed study of the CSP as a key element of democracy.
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Monjal, P. Y. "Joint Exercise of Sovereign Powers of the Member States of the European Union. The French Approach to Legal Understanding of the European Union." Pravosudie / Justice 2, no. 4 (December 25, 2020): 77–108. http://dx.doi.org/10.37399/2686-9241.2020.4.77-108.
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Introduction. This article analyses the legal nature of the European Union (hereinafter referred to as the Union). The research presented in this article is based on two closely related theses. On the one hand, the Union is a legally qualifying entity, and on the other hand,the Unionists for a long time exercising legal (judicial) activism because they have been trying to form their own entity. Theoretical Basis. Methods. The object of the study is the legal identification of the Union and the semantic and conceptual category of ‘joint exercise of powers’. Taking into account the data from the analysis of doctrinal sources, Union law, applying the methodological tools of functionalism as a sociological and anthropological theory, which offers an explanation of the functioning of society based on elements that ensure stability, the author concludes that the stability manifest¬ed in the independence of the Union leads to the opposite effect – a break with the democratic foundations of states that united in the Union, yielding part of their sovereignty. Results. The author of the article concludes that the peculiarity of the Union lies in the particular way in which it exercises the state powers delegated to it. What distinguishes it from other categories of international governmental organisations is not so much the accumulation of powers, their scope and multipolarity, but rather how they are exercised. In this context, Member States are faced not so much with the deprivation of national powers as with a new manifestation of shared sovereignty embodied in the concept of shared exercise of powers. Discussion and Conclusion. From a legal point of view, the Union is a unique, distinctive legal and political entity. The Member States rejected the federal (state-legal) form of the Union. It cannot be reduced to an international intergovernmental organisation, although it borrows much from this legal category. The Union has many specific features in economic, political and legal terms that characterise it as a special subject of public international law. The concept of the Union reflects the legal traditions of the Member States. The author summarises in the article that French legal doctrine has been able to offer a theoretical vision of the Union in terms of the particularities of its political-legal culture. The author therefore believes that the joint exercise of powers is a tool that reveals the essence of the Union. This makes it difficult for France, which has a very developed concept of national sovereignty, to legal understanding of nature of the Union.
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Turkaeva, Laura. "Implementation problems and development trends of the principle of powers separation." Current Issues of the State and Law, no. 14 (2020): 180–86. http://dx.doi.org/10.20310/2587-9340-2020-4-14-180-186.
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An integral component of the rule of law, which acts as an important attribute of the functioning of Russian constitutionalism institution, is the presence of public authorities, which provides a mechanism for stable gov-ernance. The modern model of the state structure of our country is based on many principles, a special place among which is given to the principle of powers separation, which became a novel of the Constitution of 1993. The operation of this principle is reduced to a triad of the following functions: en-actment of laws, monitoring their implementation, and guaranteeing protec-tion in case of violation. All three branches of government belong to the rele-vant public authorities, and are implemented independently and equally. Un-fortunately, today there is no single concept regarding the ideological and po-litical essence of this theory, although scientific ideology is in search of the primacy definition of one of three branches of government. The relevance and novelty of the problem under consideration is based on objective histori-cal data, which are a fundamental part in the formation of the national legal system. We consider the legal basis of the principle of powers separation, various author’s points of view in determining its essence, including as a constitutional principle. The legal nature of the constitutional principle is ex-plained by the legislative regulation of power between various public authori-ties and officials, as well as general powers exercised within certain areas of state activity.
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Shablinsky, Anton. "Jean-Jacques Rousseau on the Separation of Powers in Federal Polity and “Wills of Nation”." Philosophy. Journal of the Higher School of Economics V, no. 4 (December 31, 2021): 201–26. http://dx.doi.org/10.17323/2587-8719-2021-4-201-226.
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The problem of this article is built around the tension between the concept of organ sovereignty and democracy theory. First of all, this vision of sovereignty fails to describe the diverse forms of popular participation in collective decision-making. It speaks very sparingly of the people as a political actor. Moreover, the concept of organ sovereignty does not provide the theoretical resources to describe the intermediary bodies in the space between the state and the individual. The tradition of liberal democracy emphasises the importance of such bodies for maintaining popular control over state. Also, the idea of organ sovereignty, by reducing all power to a single legislature, ignores the demand for self-government coming from communities located within the same state and yet united by a certain collective identity. Today, democracy theorists are turning to the concepts of federalism in order to overcome the above-mentioned limitations set by the concept of organ sovereignty. So far, however, the concepts of federalism have not been very convincing in describing the various forms of popular participation in collective decision-making. Above all, they have failed to consistently justify the existence of multiple decision-making centres within a single polity. The article argues that the model of the federal polity proposed by Jean-Jacques Rousseau in his later work “Considerations on the mode of government in Poland” explains how within one polity multiple centres of collective decision-making can coexist. The model also provides an understanding of how citizen participation in multiple decision-making centres can be organised.