Hierarchy Of Legal Norms Research Articles

SHARIAH’S POSITION IN AFGHAN 2004 CONSTITUTION: A LEGAL ANALYSIS

The legal position of Shariah in the 2004 Afghan constitution has been considerably debated due to the full involvement of the international community in the constitution-making process. Though Article 3 of the 2004 constitution of Afghanistan states that “no law shall contravene the beliefs and principles of Islam”, considering this provision and others, the position of Shariah in the constitution seems ambiguous. Some legal experts at national and international levels consider the 2004 constitution to be one of the most Islamic constitutions, recognising the supremacy of Shariah. Contrary to this, some scholars think that a set of constitutional provisions predicate a limited applicability of Shariah by referring to Hanafi Fiqh as a gap-filling law in Article 130. Keeping this problem in mind, this research paper examines the supremacy of Shariah in light of all provisions in the 2004 constitution. It aims to outline the actual role of Shariah within the 2004 constitution by elaborating on the different concepts of Shariah and law in the Afghan legal system. The study which follows qualitative research methodology is conducted through major library research and an empirical study, employing comparative and analytical approaches per doctrinal and non-doctrinal methods. It exposes the conceptual and applied aspects of the legal provisions relating to the applicability of the Shariah in the 2004 constitution. The research generally relied on primary sources such as the constitution of Afghanistan and the Quran and Sunnah for the Shariah. The researcher considered the connection between the various constitutional provisions on Shariah in conjunction with the hierarchy of legal norms and found that Shariah has a weak position under the 2004 constitutional setup up as a judicial review attests. The 2004 constitution provides a limited applicability of Shariah in the sense that no law shall contravene the Shariah while at the same time, the term law does not include the constitution- itself and the term Shariah generally refers to Hanafi Fiqh as a subsidiary source of law. The constitutional provisions on Shariah are not amendable, as the 2004 constitution declares them irrevocable. To strengthen the position of Shariah, it is proposed that the primary step is to define the term law comprehensively to include the constitution. However, the best alternative is that Afghans enact a new constitution that provides the supremacy of Shariah.

Ação Direta de Inconstitucionalidade nº 5.779: a preponderância da efetividade do direito à saúde sobre a hierarquia das normas jurídicas

Objective: To reflect on whether the hierarchy of legal norms should be used as an infallible method of solution even when an apparent conflict between legal norms involving health law can be better resolved through a technical decision by the competent regulatory agency. Methodology: data was collected. In particular, Resolução de Diretoria Colegiada nº 52/2011, Law nº 13.454/2017 and Ação Direta de Inconstitucionalidade nº 5.779-DF. Specialized legal doctrine was sought on the central and peripheral themes. The data collected was analyzed using the critical-narrative review technique. Results: In Brazil, the adoption of regulatory agencies as normative agents and regulators of economic activities has made it possible to make decisions based less on political criteria than on technical criteria. The legislator, anchored in political criteria, according to the judiciary, cannot go beyond technical criteria. Conclusion: the judgment in Ação Direta de Inconstitucionalidade nº 5.779 shows that today's concept and the legal nature of the right to health impose new legal paradigms that validate the role of regulatory agencies (making technical decisions in favor of maximum effectiveness of the right to health), even to the detriment of politically legitimized decisions by the legislature. The formal paradigm cannot prevent the materialization of the right. Submission: 03/18/24| Review: 08/16/24| Approval: 08/16/24

Hierarchy of legal norms and the use of new technologies for their consultation in the Electoral Court

This article aims to present theoretical and conceptual elements essential to the understanding of the hierarchical structure of the norms within the scope of the Brazilian legal system, to demonstrate the need for the use of technological resources to improve the jurisdictional activity within the scope of the Electoral Justice through system modeling resources that enable the consultation of legislation and normative acts in an efficient and systematized manner. At the methodological level, deductive reasoning was used in the development of theoretical aspects and inductive reasoning in the proposition of the application of a technological nature. The approach was qualitative and interdisciplinary in nature, enabling the analysis of the objects under study and the various dimensions involved in the research. The article was developed in five sections. In the first, the introduction was presented; in the second, theoretical aspects related to the structure of the Brazilian normative order and the hierarchy of legal norms were addressed; in the third session, the normative structure of Brazilian Electoral Law and the challenges for the exercise of jurisdictional activity in the electoral sphere were presented; in the fourth section, a technological application of legislative consultation capable of providing efficiency and systematicity to the jurisdictional action within the scope of the Electoral Justice was proposed; In the fifth section, the final considerations were presented with specific reflections on the theme developed.

Public Participation in the Law-Making Process in Indonesia

Participation from the general public is an essential component that must be taken into account during the legislative process. It is essential to the operation of laws in a country and includes the participation of society in the legislative process. This is particularly important in terms of the rule of law, the hierarchy of legal norms, and the operation of the law in its entirety. The purpose of this research is to evaluate the significance of public participation in the legislative process in Indonesia as well as the potential repercussions of excluding this procedure from the legislative process. For the purpose of carrying out this research, normative legal research that takes both a statutory and conceptual strategy was utilized. According to the findings, public participation offers a variety of possibilities for involvement, in accordance with the requirements of Article 96 of Law Number 11 of 2012 on the Formation of Regulations (UU P3). Due to this, the importance of public participation cannot be overstated, despite the restricted channels through which members of the public can communicate their thoughts and goals.

Die juristische Argumentation in den böhmischen Robotpatenten 1680–1738

The article discusses the legal reasoning in the “Robotpatente”, which were issued for serfs in Bohemia between 1680 and 1738. Of special interest is the position of ‘natural equity’ (natürliche Billigkeit) in the hierarchy of legal norms within the text and the position of the whole “Robotpatente” within the hierarchy of norms in Habsburg Bohemia. Reflections on natural equity were based on Roman law, rather than on secular natural law theories. I argue that the “Robotpatente” were not aimed at changing present customary law and practical rules, their aim was to step in when laws and customs were silent. In the hierarchy of legal norms in the “Robotpatente” of 1680, 1717 and 1738 itself, ‘natural equity’ always came last. Its role was not to change or exclude the current rules, but to fill in the gaps between them. It is only in the great “Restored Robotpatent” of 1738 that the role of natural equity is differentiated. It is divided into four sections – while natural equity is used in the traditional way in the sections one and two, which regulate the relations between peasants and their landlords, it is almost missing in the section three, which is on the relations to the sovereign. Moreover, it is differentiated in section four, which discusses the implementation. Here, the role of ʺnatural equity” is foreseen only in chaotic accidental cases which defy all known rules. All written laws, urbaria and customary rules took precedence over natural equity. Even though the “Robotpatente” adjudicated all “ancient privileges” to be cancelled, it put forward “legal urbaria”’ as the best safeguard of justice for the peasants.

Establishment of National Legislation of the State of the Democratic Republic of Timor-Leste in Accordance with the Legal Ideals in the Constitution of 2002

The writing of this Dissertation, examines the "Establishment of National Legislation of the State of the Democratic Republic of Timor-Leste in accordance with the Legal Ideals in the Constitution of 2002". Which outlines the issues of statehood in the State of Timor-Leste, The establishment of legislation is essentially aimed at realizing legal certainty and justice in accordance with the legal mind (rechtsidee). The legal ideal as stated in the opening of the RDTL constitution in 2002. The establishment of the RDTL State Legislation is derived from the provisions of Article 1 paragraph (1) and Article 2 paragraph (2) of the RDTL Constitution of 2002. It explicitly states that Timor-Leste is a State of Law and Democracy, thus resolving legal issues by ensuring legal certainty to the public. And produce views / thoughts in order to produce laws that guarantee legal certainty. In Timor-Leste there is no hierarchy of legal norms, so there is a conflict of norms vertically and horizontal, besides not yet a philosophy of the nation that can be used as a source of all legal sources, and also the absence of a National Legislative Body to produce a good and responsive legislation. There are formulated three There are formulated three main formulations of the problem, namely: (1) The Essence of the Establishment of National Legislation of the Democratic Republic of Timor-Leste related to the Legal Mind in the Constitution of 2002. (2) Establishment of National Legislation of the State of the Democratic Republic of Timor-Leste related to the Ideal of Law. (3) Criteria of Laws and Regulations under the Responsive Act. Of the three problems presented, the general objective to be achieved is to study and understand analyzing the Establishment of National Legislation of the Democratic Republic of Timor-Leste from the philosophical and philosophical perspective of the Timor-Leste nation, which is in accordance with theoretical conceptual thinking based on the 2002 Constitution, and to analyze the Criteria of Legislation / Regulations under a responsive Law. This research includes a type of normative legal research, with a statutory approach, a conceptual approach, a comparative approach and a historical approach. The legal materials used are primary legal materials, secondary legal materials and tertiary legal materials. This research yielded several conclusions, namely, the Essence of the Establishment of National Legislature in Timor-Leste related to the Legal Mind (recht idee) then can use the Philosophy of Uma Lulik, as a basic norm (Groundnorm) and legal ideal, can be used as a basis, source and guideline or philosophy of Uma Lulik as the source of all legal sources, must be spelled out in the laws and regulations of the State of the Democratic Republic of Timor-Leste. The two Timor-Leste do not yet have Hierarchy of Legal Norms which so there is still a conflict of norms both vertical and horizontal, thus the need for a Hierarchy of Legal Norms to avoid legal disputes. The three good laws and regulations are laws and regulations whose contents meet the expectations of the affected communities with laws and regulations that ensure legal certainty and justice, the need for the role of the National Legislation Agency in Timor-Leste, fourth, using ROCCIPI approach in designing a law. Keywords : Legislation, The Mind of the Law, philosophy of the nation. DOI: 10.7176/JLPG/118-10 Publication date: February 28 th 2022

Law and Identity in the European Integration

The successful continuation of the European integration process depends, to a large extent, on the restoring the equilibrium among the various dimensions, such as the economic, the political and the cultural dimension of the process. This rebalancing should primarily focus upon the upgrading of the relatively neglected cultural area of the European construction. The qualitative upgrading of the cultural dimension must be based upon the strengthening of the European identity, which itself is an indispensable precondition of the development of a stronger Europe. Law is not only the main instrument of the economic, political and institutional integration but also a core element of European identity based upon Roman law and on the legacy of European history. Rule of law is universal and it has to be respected on all levels, international, European and national. The traditional strict, ‘kelsenian’ hierarchy of legal norms has been substantially loosened but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This refers equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European law and the constitutional identity of the Member States aim at protecting the core principles of the European, respectively, the laws of the Member States. The rule of law does not presuppose a neat hierarchy of legal norms. However, it requires an orderly structure, where the precise area covered by the core principles taking precedence over the rules of international or of European law are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately rule of law, a core element of European identity, could be substantially strengthened by mutual empathy and understanding as well as by continuous and effective dialogue, consultation and concertation between the various levels of rule making and, in particular, of judiciaries.

PARTISIPASI MASYARAKAT DALAM PEMBENTUKAN PERUNDANG-UNDANGAN UNTUK MEWUJUDKAN INDONESIA SEJAHTERA DALAM PANDANGAN TEORI NEGARA KESEJAHTERAAN

In the country of law, the law is one form of legal norms formulation in the life of the state. The existence of laws in a country has a strategic and important position, regardless of the conception of the law, hierarchy of legal norms, as well as from the function of law in general. People's welfare is one of the goals of the state. In the realization of the necessary mechanisms are reflected in the public policy that is made. This study aims to examine and examine the public participation in the formation of legislation to create the welfare state of Indonesia. The research of this scientific work, the type of normative legal research. The understanding of the welfare state can be applied in the formulation of legislation. Welfare is the dream of every society, and laws and regulations function as regulators and means of achievement. To realize the formation of responsive legislation in Indonesia, the formation of legislation in Indonesia must be subject to Article 5 and Article 6 of Law Number 12 Year 2011 on the Establishment of Legislation, And this is related to the formation of Legislation and adheres to the principles of the establishment of good legislation. So the welfare state can be realized.

The controversial aspects of resolving of normoconflicts in cases of formal priority of codes

««Вестник Санкт-Петербургского университета. Право» — международный научно-теоретический рецензируемый журнал, публикующий материалы в следующих рубриках: Публичное и частное право: прикладные исследования Криминология Криминалистика Судебная экспертиза Исследования права с позиций социальных и гуманитарных (неюридических) наук Правовая жизнь: научно-практические заключения, комментарии и обзоры Сравнительное право Зарубежное право

Regulation in Swiss Cantons: Data for One Century

We present and illustrate novel data on more than a century of regulation in Switzerland. We provide quantitative measures for Swiss cantons on the annual stock of legally binding rules from 2006-2013 and on regulatory activity as reflected in the annual changes to such regulation from 1908-2013. We measure the stock of regulation by the number of enactments and characters, and the regulatory activity by the number of changed enactments and pages. We break down the measures by the level in the hierarchy of legal norms and by the issuing authority. The data reveal substantial cantonal heterogeneity in the stock of regulation and the extent and development of regulatory activity. Regulatory activity generally increased over the century, though in a non-monotonic and volatile manner. Quantitatively, regulation at the level of decrees and regulation by the executive dominate. We also construct our measures for the federal level from 2006-2013 (stock) and 1848-2013 (activity).

Government Transparency in Albania and the Role of the European Union

The recognition of transparency as an essential element of good governance is very important for new democracies because it leads to greater public support for their governments' economic and political decisions. This has been clearly understood by the countries in the Western Balkans which following the fall of communism entered a path of rapid democratization struggling to be opened and transparent. This paper explores transparency and open government in Albania looking at how the Albanian legal administrative framework and practices guarantee the principle of transparency in decision-making and the role the EU in complying with this principle. It introduces the concept of 'transparency through integration' as a model which encapsulates the transparency developments in Albania and Western Balkans and looks at how transparency can be transformed from a principle of good governance to a legalistic instrument holding a place in the hierarchy of legal norms. This research focuses on how transparency becomes part of a policy paradigm which can transform a country's politics from secretive and authoritarian to transparent and democratic. In addition, it suggests that the EU has a role to play as a transformative power to induce positive reforms and improve transparency in the decision-making in Albania.

Composite Decision-Making and Accountability Networks: Some Deductions from a Saga

this paper sets out to explore the impact of multi-level decision-making on accountability machinery through a case study of asset-freezing decisions taken in response to UN resolutions ordering 'smart sanctions' against persons and bodies suspected of involvement in terrorism. A wide literature already sorrounds UN counter-terrorism measures and their implementations. this attacks the issue from two main standpoints: first, the concern of lawyers with the hierarchy of legal norms and the questions of the 'primacy' of international law as posed in the Kadi decisions of the Luxembourg Courts; secondly, the due process rights of individuals, with the consequential intervention of coirts, again notably the Luxembourg Courts, to redress this omission. This article adopts a different standpoint. Using asset-freezing as a paradigme of multi-level or composite decision-making, it explores the effectiveness of traditional accountability machineryin dealing with this phenomenon, concluding that cooperative 'accountability networks' or networks of entities specializing in accountability such as courts, parliaments, and ombudsmen, should be developed to fill the serious accountability gaps that have emerged. The article has three parts. Part I deals at a theoretical level with the evolution of composite decision-making and with theories of accountability aimed at the consequential problems. Part II deals with the structure of asset-freezing decision-making at UN, EU, and UK levels and the operation of accountability machinery at these levels. Part III evaluates existing accountability machinery, suggesting that change is necessary to redress shortcomings.

The Influence of the Human Rights Convention on Austrian Law

The purpose of this study is to examine the impact of the European Convention for the Protection of Human Rights and Fundamental Freedoms on the Austrian legal system. This subject awakened great interest among theorists from the moment when the Convention was ratified, and was exhaustively discussed in legal literature.' From this discussion, there emerged with greatest prominence certain questions raised by the reception of an international treaty into the internal law of a State. These questions include the place of the Convention in the domestic hierarchy of legal norms; whether the provisions of the Convention are self-executing; and, finally, what are the obligations that a State incurs by reason of the Convention. For several years much less attention was paid to the more practical problems of how the Convention affects the application of Austrian legal norms.2 But now, after ten years of experience under the Convention, it is time to draw up a balance, and measure the influence of the Convention. The focal point of such an accounting must be the applica-