scholarly journals La primauté du droit. L'origine du principe et son évolution dans le contexte de la Charte canadienne des droits et libertés

2005 ◽  
Vol 27 (3) ◽  
pp. 685-710
Author(s):  
Sonia Pratte
Keyword(s):  
Human Rights ◽  
19Th Century ◽  
Rule Of Law ◽  
Canadian Charter ◽  
The Rule Of Law ◽  
Royal Power ◽  
Parliamentary Supremacy ◽  
To Come ◽  
The 19Th Century ◽  
Unwritten Law

The rule of law is one of the foundations of our society. In England where it first developed, it symbolized the subjection of royal power to new parliamentary supremacy. Towards the end of the 19th century, A.V. Dicey provided the concept with a description expressed in three well-known premisses. As a component of unwritten law in Canada, the rule of law was to experience many interpretations until finally it was enshrined in the preambule of the Canadian Charter. Henceforth a part of the Constitution, it would now acquire a more formal meaning in its applications to parliaments, administrative acts in general and even to royal prerogatives. Furthermore, the rule also carries with it a content that will be more precisely defined by the courts in years to come. The rule of law now is a dynamic concept that can be placed in the service of protecting and promoting human rights.

Theoretical and methodological determinants of the Robert von Mol’s concept of the social state

2020 ◽  
Vol 2020 (1) ◽  
pp. 37-45
Author(s):  
Svetlana Pirozhok
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
Social Protection ◽  
The State ◽  
Scientific Article ◽  
Social State ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Social ◽  
The 19Th Century

The relevance of determining the theoretical and methodological determinants of the Robert von Moll’s concept of the social state is due to the need to determine the patterns of evolution of ideas about the state and law, as well as the need to assess the ability to use the potential of the Robert von Moll’s theoretical and legal heritage, his predecessors and contemporaries to identify the optimal model of the social state. Modern Russia attempts to build such state. The proclamation and consolidation of Russia as a social state governed by the rule of law at the constitutional level requires attention both to the experiments carried out in social and legal development, and to the practices of social reform, and also to those ideas that have not yet been embodied. The ideas of European scholars regarding the evolution of the state-legal organization of society in the early modern period, based on which Robert von Mohl (1799–1875) developed original concepts of a social state and a state governed by the rule of law are discussed in the article. An analysis of the state of European political and legal thought and identification of the factors that have a significant impact on the development of Robert von Mohl’s doctrine of a social state governed by the rule of law are the purposes of the scientific article. The methodological basis of the study was the dialectical-materialistic, general scientific (historical, systemic) and special (historical-legal, comparativelegal) methods of legal research. The method of reconstruction and interpretation of legal ideas had great importance. As a result of the study, it was concluded that in the first half of the 19th century in European political and legal thought various approaches was formed to consider the problems of social protection and how to resolve them. The development trend of European political science became the transition from ideas and principles formed in the conditions of police states and enlightened absolutism to the ideas of a state governed by the rule of law (constitutional) that protects the rights and freedoms of a citizen. At the same time, it was a question of the rights and freedoms of only a part of the population: the proletariat growing in number and significance was not always evaluated as an independent social stratum. The axiological principles of state justification have also changed. Rights and utility principle became dominant principles. In the first half of the 19th century the social issue as an independent scientific problem of the European political and legal thought was not posed and not systematically developed. Questions about the social essence of the state, the specifics of the implementation of the state social function, the features of public administration in the new stage of socio-economic development of society predetermined the emergence of the idea of a social state. This idea was comprehensively characterized in the Robert von Mohl’s works. He went down in the history of political and legal thought as founder of the concepts of social and governed by the rule of law state.

scholarly journals Orzecznictwo sądów amerykańskich w sprawach niewolnictwa – pomiędzy formalizmem a subwersją

2018 ◽  
Vol 3 (2) ◽  
pp. 70-96
Author(s):  
Jerzy Zajadło
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
Point Of View ◽  
Theoretical Point ◽  
The Rule Of Law ◽  
The 19Th Century

Article discusses a dilemma of judge facing a possibility (or necessity) of applying judicial disobedience. From the philosophical as well as theoretical point of view, the most intriguing would be an instance of judicial disobedience when applied to a state of democracy and the rule of law. In order to (re-)construct such an instance, the article traces the reader back to the middle of the 19th Century, when the moral conscience of (at least) some of American judges drove them to searching for the sound justification of judicial disobedience when faced with problem of slavery.

Mr. Mothercountry: The Rule of Law as Practice

2015 ◽  
Vol 13 (3) ◽  
pp. 320-334 ◽  
Author(s):  
Keally McBride
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
International Politics ◽  
The Rule Of Law ◽  
Or Practice ◽  
British Colonial ◽  
The 19Th Century

The rule of law is understood as a clear benchmark or achievement in contemporary international politics. But the rule of law is better understood as an invariably messy, contingent, and incomplete process or practice. This article examines how one man, Sir James Stephen, oversaw the rule of law in British colonial territories in the first half of the 19th century. He offers clear lessons in why the rule of law can never be definitively achieved, and the importance of approaching law’s administration with humility.

Rule of Law in India

2018 ◽  
Author(s):  
Harish Narasappa
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Theory And Practice ◽  
The Rule Of Law ◽  
Social Challenges ◽  
Application Of Law ◽  
Primary Element ◽  
The Status ◽  
Dispute Resolution Mechanism

Rule of law is the foundation of modern democracies. It envisages, inter alia, participatory lawmaking, just and certain laws, a bouquet of human rights, certainty and equality in the application of law, accountability to law, an impartial and non-arbitrary government, and an accessible and fair dispute resolution mechanism. This work’s primary goal is to understand and explain the obvious dichotomy that exists between theory and practice in India’s rule of law structure. The book discusses the contours of the rule of law in India, the values and aspirations in its evolution, and its meaning as understood by the various institutions, identifying reason as the primary element in the rule of law mechanism. It later examines the institutional, political, and social challenges to the concepts of equality and certainty, through which it evaluates the status of the rule of law in India.

In Search of a Standard: References to the Rule of Law in the Case-law of the European Court of Human Rights

ICL Journal ◽  
2020 ◽  
Vol 14 (1) ◽  
pp. 43-69
Author(s):  
Eszter Polgári
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Case Law ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Working Definition ◽  
European Court ◽  
Structured Analysis ◽  
Definition Of ◽  
Grand Chamber

AbstractThe present article maps the explicit references to the rule of law in the jurisprudence of the ECtHR by examining the judgments of the Grand Chamber and the Plenary Court. On the basis of the structured analysis it seeks to identify the constitutive elements of the Court’s rule of law concept and contrast it with the author’s working definition and the position of other Council of Europe organs. The review of the case-law indicates that the Court primarily associates the rule of law with access to court, judicial safeguards, legality and democracy, and it follows a moderately thick definition of the concept including formal, procedural and some substantive elements. The rule of law references are predominantly ancillary arguments giving weight to other Convention-based considerations and it is not applied as a self-standing standard.

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