Law Of Republic Research Articles

Mutual recognition across generations

‘Sovereignty’, Arendt says, ‘is contradictory to’ the human condition. It is not, in any event, the kind of thing that can be shared across generations. Subsequent generations lack sovereignty to the precise degree that they are bound by the decisions of their predecessors. It is no answer to say that contemporary citizens participate in the sovereignty of a whole, transgenerational people. To paraphrase de Tocqueville, later generations are not free because they are not entirely equal, and they are not equal because they are not entirely free. Where ‘sovereignty’ is a metaphysical concept that transcends time, recognition is an act of the imagination that extends empathy diachronically in both directions. An earlier generation treats its successors with recognition and respect by bequeathing the best system it can manage and entrusting later generations to exercise the same freedom that it enjoyed. Democratic law can exist across generations only through negation. Later citizens may accept as valid the law made by their predecessors. But, in doing so, they implicitly affirm their right to alter, amend, or abolish what came before. Only by freely affirming the choices of their predecessors can current citizens participate in something approaching freedom.

Stare Decisis and Constitutional Guarantees: Commonwealth v Yunupingu

In Commonwealth v Yunupingu, the High Court of Australia will consider, inter alia, whether the requirement in s 51(xxxi) of the Australian Constitution that acquisitions of property must be on just terms applies to a Commonwealth law that is supported by the territories power in s 122 and no other head of power in s 51. Whether the just terms requirement applies to laws made under the territories power is a question of enormous significance. This question is in part answered by whether either Wurridjal v Commonwealth or Teori Tau v Commonwealth is good law, and whether either or both of those cases should be reopened and overruled. This column analyses this question in light of novel insights into the Court’s current approach to stare decisis in the constitutional setting drawn from the Court’s recent application of the doctrine in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Vanderstock v Victoria and Vunilagi v The Queen.

A Critique of Conqueror South Africa, Post-1994 Liberal Democracy and Liberal Democratic Law

Violence and oppression in the form of conquest and colonialism, racism, patriarchy, heteronormativity and in terms of class are all inevitable effects of Western culture. This is due to the reason that Western culture is fundamentally highly materialistic, competitive, narcissistic, individualistic and takes aggressive and domineering stances towards innerworldly entities. Therefore, a Western concept of law based on such a culture is fundamentally ineffective to eradicate such violence and oppression, but rather perpetuates it. These characteristics of Western culture and the Western concept of law have their roots in the Western conception of “Being,” particularly in the conception of “Being-with.” This article argues that liberal democratic law and liberal democracy rooted in an individual, competitive, hierarchical and amensalist Western ontological framework fundamentally perpetuate group-based oppression. Therefore, the 1996 constitution and post-1994 South African constitutionalism secure and perpetuate the oppression of the indigenous conquered people under the guise of transformation and reconciliation.

Political Mentality and Its Transformation (In the Case of Post–Communist Uzbekistan)

The article analyzes the transformational processes under the influence of universal democratic values (human rights and freedoms, pluralism, justice, democracy, democratic political governance) in the political mentality of ethnic Uzbeks, who make up the majority of the population, on the example of Uzbekistan, one of the post–communist young independent states of Central Asia. Adoption of democratic laws is not enough for the political transformation of society. The democratic political transformation in the spiritual life of the society cannot be achieved without changing the communist values that have been forcefully instilled in the human mind by the communist political regime for 70 years, without completely removing them from the life of the person and the society. Today, the post–Soviet Uzbek society is undergoing a complex and difficult process of spiritual transformation.

 Democratic Civic Education and Democratic Law (Abstract)

 Democratic Civic Education and Democratic Law (Abstract)

Problematic issues of machine learning technology in law enforcement

Law enforcement agencies increasingly use predictive and automation technologies where the core technology is often a machine learning (ML) model. The article considers the problem of accountability and responsibility of law enforcement agencies and officials connected with using of ML models. The authors point out that accountability is a key element of democratic law enforcement, but using of the predictive software can create challenges in ensuring that accountability. The article discusses how the application of ML can lead to obfuscation of responsibility and complicating accountability in «multi-agent structures» that combine humans and computational tools. Special attention is paid to the opacity of predictive algorithms and automated decision-making systems. It becomes a source of misunderstandings and caution regarding their use. The authors raise questions about how effective oversight and full reporting can be ensured when key components of the decision-making systems remain unknown to the general public, officials, and even developers of the models. The paper argues that important questions related to ML decision models can be solved without detailed knowledge of the machine learning algorithms, allowing non-ML law enforcement experts to study them in a form of intelligent control. Non-ML experts can and should review trained ML models. The authors provide a «toolkit» in the form of questions about three elements of the ML-based decision models that can be qualitatively explored by non-machine learning experts: training data, training goal, and anticipatory outcome evaluation. This approach expands the capabilities of these experts in the form of an objective assessment of the use of ML models in law enforcement tasks. This will allow them to evaluate effectiveness of the models through the prism of their own experience. The basic idea is that even without deep technical knowledge, law enforcement experts can analyze and review ML models. This approach promotes understanding of the use of machine learning technologies in law enforcement, expanding the potential of non-ML law enforcement experts.

일선 경찰관의 민주적 법집행의지에 대한 구조방정식 모형분석

Numerous studies have identified the impact of police self-legitimacy on support for democratic policing. In Korea, a study exploring legitimacy has been underway from the law enforcement's perspective since 2022. This study introduced the concept of police self-legitimacy, which employed a structural equation model analysis to evaluate whether a linear relationship could be predicted in a single model, with self-legitimacy as a mediator, between independent variables and dependent variables.
 Among the independent variables only the relationship with citizens significantly affected the support for democratic policing. The impact of organizational justice and the relationship with superiors, however, was not exist. Among the mediator, it was evident that only self-assesed legitimacy influenced the support for democratic policing, whereas the effect of external legitimacy was not exist. Additionally, the study found that self-assessed legitimacy mediated the influence of citizen relationships on the commitment to support democratic law enforcement. Theoretically, it was anticipated that external legitimacy would exhibit a stronger connection with citizens. So, further exploration should be needed to understand the outcomes via indirect effects mediated by self-assessed legitimacy. This study offers the opportunity to shift the focus towards the normative aspects of law enforcement. By contrasting other viewpoints of both citizens and police police legitimacy, police legitimacy can be comprehended more systematically.

The juridification of social accounting and the transposition process of the non-financial reporting directive 2014/95/EU

PurposeThis paper aims to critically analyse the transposition implications of Union Directive 2014/95. This Directive identified the need to raise the transparency of the social and environmental information provided by the undertakings to a similarly high level across all Member States.Design/methodology/approachThe paper considers how the European Member States of the European Union (EU) have transposed Directive 2014/95 into their regulations. The focus is on the juridification of social accounting in the pursuit of creating an overlapping consensus through Habermas’s concept of internal colonisation. The paper uses qualitative content analysis to scrutinise the national laws that transpose Directive 2014/95, discussing both what has been accomplished and what can be achieved by the release of future legislative provisions.FindingsDespite the aim of Directive 2014/95 to create a common language for disclosing non-financial information, this study shows an implementation gap among and between Member States and an inconsistent picture of the employment of this Directive. Its implementation in the 28 European countries was considered a process of colonisation in implementing Union directives among European undertakings. However, the implementation process, which exemplifies Habermas’s juridification, has failed due to the lack of balance between moral discourse and actions.Originality/valueThis paper contributes to the ongoing debates concerning the implementation of mandatory disclosure of environmental and social information in the EU Member States, promoting new directions for the EU’s democratic laws on social accounting. In addition, it offers an example of how internal colonisation only catalyses effects when moral laws are legitimised through the provision of procedures.

Hear Their Voices: Australia’s First Nations Women and the Legal Recognition of Their Rights to Water

ABSTRACT This article aims to highlight the expertise of First Nations women in water management and use, and the necessity of having their voices heard in this space, as their voices have not received the attention or respect, yindyamarra, they deserve in Australian water law and policy. Before critically examining the articulation of a right to water in the international human rights framework as it applies to First Nations women, this article opens by introducing the nature and importance of First Nations women’s water rights. The article then turns to Australia, outlining the emergence of First Nations rights generally, before turning its attention to water rights. In that respect, Commonwealth law and policy is analysed, given that it is the nation-state with legal personality in international law. Two contrasting case studies follow, illustrating the importance and fragility of First Nations women’s water rights. The article concludes that international law evidences a deficit discourse, providing little basis for nation-states to recognise the holistic nature of water rights of First Nations women, and that Commonwealth law and policy, although showing promising signs, has yet to provide any meaningful scope for First Nations women to use and manage water according to First Nations law.

Reliance arguments, democratic law, and inequity

ABSTRACT The reversal of Roe v. Wade raises the prospect that other due process guarantees upon which individuals have organised their lives, including the constitutional rights to same-sex intimacy and marriage, will be overturned. These potential upheavals in the hard-won legal infrastructure of basic social status call for a careful look at reliance arguments for sustaining constitutional precedent. When does reliance on a judicial decision provide reason for a court to sustain a precedent in the face of substantial doubts or convictions that the original decision was importantly mistaken? Our commitments to democratic law pose distinctive challenges for reliance arguments in the public law domain that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance would justify honouring a prior (mistaken) decision and honouring it prospectively, into the future. I detail the challenges and offer a democratic account to identify when overturning a mistaken decision would impose an unfair and inequitable hardship. On this account, abortion, contraception, and same-sex intimacy rights warrant continued affirmation given reliance behaviours, but not other rights, including rights to gun ownership and freedom of contract.

Authority, Democracy, and Legislative Intent

On one account, courts ought to enforce legislative intent only when the public meaning of the text of the statute is unclear, and on another account, they should enforce the intent even when the public meaning is clear. In this paper, I argue against both approaches. My argument rests on considerations related to the moral authority of the democratically made law. More specifically, I argue that those considerations which make democratic law morally authoritative entail that judges ought to enforce the public meaning, when this is clear, and that interpretation of the public meaning which is closest to the balance of moral reasons, when the public meaning is unclear.

Local Government Policies in Formulating Harmonious and Democratic Regional Regulations

Regional Regulation is one of the legal products in the region that greatly affects the welfare of the people, therefore the formation of regional regulations by the Regional Government should be participatory. The purpose of this research is to see how democratic laws and regulations are used to make local regulations. Components of the legal framework, especially the local government and DPRD, do not provide space for the community to express their aspirations, resulting in local regulations that are only ceremonial in nature. Similarly, the principle of democracy outlined in the Law on the Formation of Legislation is still a formality due to the fact that the publication of local regulations to the public is not an obligation and the legal culture of the community and the role of democratization of formation have not been implemented. The problems in this research are 1) How is the implementation of democratic legislation in accordance with the needs of society? 2) Has the formation of local regulations involved public participation? The results of this research show that relevant institutions need to oversee how bureaucrats' participation works, in line with the mandate of Law Number 12/2011 on the Formation of Legislation, the formation of local regulations that are not participatory has resulted in several local regulations that are not in accordance with the demands of the community so that revisions need to be made. To ensure that local regulations are participatory and meet the needs of the community, the government must involve the community, accommodate aspirations, and capture as much community input as possible.

On the reasonability of reasoning with the religiously unreasonable

ABSTRACT Political liberals argue that religious citizens should exercise religious restraint: they ought, at least as a rule, not to rely directly on religious reasons in public political debates, and should instead draw only from the contents of a ‘reasonable’, secular political conception of justice. Political liberals hold that direct religious reasoners’ who fail to follow this rule fail to be ‘reasonable’ (in a technical sense) and contend that liberal polities may thus dismiss their religiously-motivated objections to otherwise justified democratic laws. However, I argue that political liberals’ own principles of ‘reasonability’ forbid such a dismissal. Those principles themselves, I argue, require liberal polities to offer direct religious reasoners who are reasonable in the basic, colloquial sense of being fair-minded and reciprocitous, deep reasons—that speak to their comprehensive religious doctrines—for why they should accept and reason from a ‘reasonable’, political conception of justice. I call the position which requires such deep justification of a ‘reasonable’, political conception of justice Deep Inclusivism, and draw on the work of Sayyid Qutb, an Islamic political thinker, to help illustrate what a fair-minded, reciprocitous religious reasoner might look like.

Rawls, Habermas and Liberal Democratic Law

The theoretical undertakings of both Rawls and Habermas pivot on an aspiration to explain (and surely to promote through explanation) the Enlightenment ideal of reason reflected in the idea of liberal democracy. The thoughts developed in my book The Concept of Liberal Democratic Law (2020, CLDL hereafter) pivot on the same aspiration. What obviously distinguishes the theoretical undertaking in CLDL from those of Habermas and Rawls, is the greater emphasis in CLDL on the precariousness of this ideal of reason. This article first gives a short exposition of some of the main lines of thought developed in CLDL. It then moves on to an analysis of Rawls’ theory of political liberalism and Habermas’ discourse-theoretical explanation of the legitimacy of modern law through the prism of the key elements of CLDL highlighted in the first part of the article.

Liberal Democratic Law, the Ethics of Civility, and Agonistic Politics between Hegemony and Compromise

This article brings Van der Walt’s argument on the importance of an ‘ethics of civility’ in liberal democracies into dialogue with agonistic democratic theory. While agonists agree with Van der Walt that democracy requires citizens’ readiness to live with views that they do not consider ‘reasonable enough,’ they focus on the political processing of conflicts among political actors with opposing views of what is reasonable. The article argues that agonism may be a suitable complement to Van der Walt’s argument, because it shows how politics can help foster citizens’ willingness to act according to the demands of an ‘ethics of civility.’ It refers to Chantal Mouffe’s and James Tully’s agonistic theories and shows that both describe forms of conflict processing that prevent situations in which an ‘ethics of civility’ would demand too unequally distributed sacrifices: continued hegemonic struggle in the case of Mouffe and compromise in the case of Tully.

The Fragility of Liberal Democratic Law

The Fragility of Liberal Democratic Law

Remarks on Johan van der Walt’s Concept of Liberal Democratic Law

This article engages with Van der Walt’s concept of liberal democratic law. Firstly, it shows that his concept is significantly influenced by Hans Kelsen’s theory, mainly by Kelsen’s democratic political theory but also by Kelsen’s legal theory (insofar as the latter is considered to be related to the former). Secondly, it demonstrates that he goes also beyond Kelsen’s theory by considering necessary for the sustainability of liberal democratic law an adequate social state. Given this, I argue that there is, to an extent, a proximity to Hermann Heller’s social Rechtsstaat theory. Thirdly, it shows that – although the socio-economic level is, to an extent, considered – he leaves unexplored the rise of independent technocratic institutions in the economic governance framework of contemporary liberal democracies (the independent central banks, like the European Central Bank, being the main example). I argue that this issue needs to be explored in order to reach a realistic understanding of liberal democratic law (an understanding that Van der Walt aims at).

Enduring Contingency

Van der Walt, in my reading, suggests that enduring contingency, in the twofold sense of an enduring state of contingency and of contingency as what needs to be endured, justifies the central role of the majority/minority principle in liberal democratic law. Does this endorsement of the principle go far enough in addressing the radical challenge of contingency? What about those cases in which a group refuses to understand itself as a disaffected minority in conflict with a majority, hence as part of a unity, even if only the unity of a legal order? At issue is a group that demands exclusion from a polity rather than demanding its recognition and inclusion as a minority entitled to be treated as equal to, even if different from, the majority. I suggest that, in the end, Van der Walt justification of the majority/minority principle espouses an agonistic defence of political and legal unity.

How Do We Make Liberal Democratic Law Together?

How Do We Make Liberal Democratic Law Together?

Gender parity versus equity in the 21st century: The Crisis of Modern Societies

The position of women today is a recurrent and differentiating theme. One of the pillars of democratic renewal and the legitimacy of democratic law considers gender parity. However, theoretically it undermines the fundamental key to democracy: the principle of equality. Because this is the first and last architectural link of any demo-cratic structure, it requires a series of instruments and other established principles - such as freedom - to become the principle of Equity. We show how equity introduces a set of remedial measures that contribute to the realization of a fairer society.