Law Commons^™

The Authoritative Text As Imperative To Comprehensibility Of Legislation, James Maxeiner

All Faculty Scholarship

The most understandable of texts is of little use as law if it is not clear that it is authoritative. This is the comparative lesson of this essay. American law is—Americans say—indeterminate. American law is indeterminate because American texts, clear as they may be in wording, often are not authoritative; other texts apply too and may be inconsistent. German law is rarely indeterminate in this sense.

This essay identifies in bullet-points some comparative aspects of clarity of American and German law. Why is American law indeterminate? Why is German law not? What, if anything, do these differences …

Implikasi Undang-Undang Nomor 30 Tahun 2014 Tentang Administrasi Pemerintahan Terhadap Upaya Hukum Luar Biasa Dalam Sengketa Pertanahan, Rini Wulandari

"Dharmasisya” Jurnal Program Magister Hukum FHUI

As stated in the Constitution of the Republic of Indonesia that the Indonesian state is a state based on the rule of law (rechtstaat). Indonesia as a state of law tends to be positivist, by creating laws and regulations as one of the fundamental instruments in running the country. The government regulates and restricts officials as well as citizens to act through legislation in order to materialize the country's goals. These restrictions are intended so that the authorities do not act arbitrarily because it has the potential in causing legal uncertainty and threats to justice acquired by the citizens. Meanwhile, …

Polish Road Toward An Illiberal State: Methods And Resistance, Adam Bodnar

Indiana Law Journal

Since 2015, Poland has experienced a backsliding in democratic and rule of law standards. The ruling party, “Law and Justice,” has adopted a series of legislative changes affecting the independence of courts and checks and balances mechanisms. Some reforms were copied from Hungary, which, as the first Member State of the European Union, started the way toward illiberal democracy in contemporary Europe. Despite pressure from international organizations, the process of changes in Poland did not stop. However, it is important to look at methods implemented to dismantling democracy, as they can be used in other countries. This paper also analyzes …

Republicanism: Philosophical Aspects | Republicanismo: Aspectos Filosóficos, Mortimer N.S. Sellers

All Faculty Scholarship

Republicanism is the doctrine that public power should always serve the common good of all those subject to its rule. This raises the question how to do so most effectively, either through particular policies or through constitutional structure (“the republican form of government”). The republican philosophical tradition began with Plato and Aristotle, flowered in the writings of Marcus Tullius Cicero, and reappeared with the revival of learning in such authors as Machiavelli, James Harrington, John Adams, and Immanuel Kant. More recently Philip Pettit, Jürgen Habermas, and others have returned to the republican conception of liberty as nondomination, and how to …

Who Constrains Presidential Exercise Of Delegated Powers?, Rebecca L. Brown

William & Mary Bill of Rights Journal

Building on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the …

Is A South China Sea Code Of Conduct Viable?, Raul (Pete) Pedrozo

International Law Studies

For over twenty years, the People’s Republic of China (PRC) has stonewalled efforts by the Association of Southeast Asian Nations (ASEAN) to negotiate a binding Code of Conduct that would form the basis for a peaceful and durable solution to the territorial and maritime disputes in the South China Sea (SCS). At the same time, the PRC engaged in a series of malign activities, to include the militarization of several reclaimed artificial islands, that have forever changed the landscape and status quo of the SCS. In 2020, the PRC unexpectedly called on ASEAN to resume the negotiations as soon as …

Ifis Contribution To Egypt’S Underdevelopment: The Rule Of Law And The Laws Of Poverty, Kareem Younes

Theses and Dissertations

In 2019 CAPMAS released a report estimating the percentage of extreme poverty amongst the Egyptian public at 32.5%; one in every three Egyptian lives on 1.45$ a day. In 2017 a United Nations report highlighted that on average 40,000 Egyptian died because of pollution. Those figures represent the consequences of a cumulative “development” process that encompassed the economic, political and legal fields. In particular, the thesis focuses on the role of the New Commercial Law in disadvantaging vulnerable segments of the population and leading them to prison. I argue that the use of law as a tool of development in …

Rise Of Illiberal Democracy, Weakening Of The Rule Of Law, & Implementation Of Human Rights In The Philippines, Gemmo Bautista Fernandez

American University International Law Review

No abstract provided.

Limits Of The Rule Of Law: Negotiating Afghan “Traditional” Law In The International Civil Trials In The Czech Republic, Tomas Ledvinka, James M. Donovan

Law Faculty Scholarly Articles

Drawing on ethnographic research of judicial cases in the Czech Republic which involve the law in migrants' countries of origin, this Article outlines how multiple strategies handle encounters with the legal-cultural differences of Afghanistan in order to neutralize what may be called the “alterity” of law. The Article suggests that far from being analytical tools, concepts such as “context,” “culture,” and “customary” are strategically used by courts to neutralize unsettling aspects of foreign Afghan legalities. Further, it applies Leopold Pospíšil´s ethnological concept of legal authority as a vehicle for reinterpreting the contextual differentiation of Afghan “traditional” law as an alternative …