Legitimacy Of Law Research Articles

A/the Common Good

Abstract The emerging school of “common good constitutionalism” takes a classical natural law approach of identifying the central case of law and constitutionalism, recognizing that a state may make positive law in part based on circumstance, convenience, or a need for social coordination. While law under the classical approach is rooted in realizing the common good of the complete community, this ideal does not dictate all of law’s specifics. Nevertheless, there is a difficulty within the emerging school of common good constitutionalism in the way it seeks to respect the diversity of constitutional orders while retaining a single reference point of the common good. Adrian Vermeule and others appeal to positive law as the determinatio through which public authorities make concrete the state’s pursuit of the common good. But there is often a gulf between common good principles and the determinatio of law. The move from principles to the legitimacy or justness of positive law lies, for Vermeule, in joining-up the central case method of natural law with a singular notion of the common good. The article criticizes this reliance, arguing that the central case method cannot be used to determine law in the sense of the determinatio of positive law. In his articulation of central case methodology, John Finnis is, by contrast, careful to leave space for varieties of coordination and forms of justice, such that the central case method plays a limited role in establishing what counts as common goods. Rather, the central case method identifies what law is. The same delicacy is present in Aquinas, who does not in fact define law as an ordinance of reason for the common good in the way that common good constitutionalists so far would like it to mean, because there are no articles in Latin grammar. In this regard, common good constitutionalism’s mistake is unfortunately in keeping with the majority of jurisprudence, which commits the logical fallacy that an internally consistent account of law is externally authoritative—in other words, that harmony in the way in which laws and legal principles relate to themselves can act as a basis to the body politic’s prioritization of some goods over others.

Islam Objectives and lessons from its legitimacy in Islamic law

The study aimed to clarify the rule of expiation and the aim of its legitimacy in Islamic law, with identification of how to achieve the Islamic ritual when a Muslim commits a mistake that requires expiation, in addition to the challenges facing the Muslim community in achieving this act of worship. Where the study relied on the descriptive approach and the inductive approach to achieve the objectives of that study, and therefore through the use of the questionnaire tool that was designed through Google models in the period from (2022-2023 AD), the study sample consisted of a number of social media audiences who are on the Internet randomly representing the study population .Thus, the study found that there are a number of Muslims who represent the study community perform this worship according to what was prescribed. key words: Expiation for oath - expiation for zihaar expiation for accidental killing - expiation for fasting - expiation for pilgrimage

Pemetaan Wacana Berbasis Korpus di Media Sosial

The #MeToo hashtag grew into digital activism among the Twitter users. This activity was becoming the networking space which increased the communication power and collaboration. This research using counter public and the fifth estate as a frame for thinking with a method of social media analyses and critical discourse based on corpus. The object of this research is 631,897 tweets of #MeToo from October 15, 2017 until March 31, 2020. The result shows there is no counter public through this hashtag for the Indonesian context. Nevertheless, users applied the social control for legitimacy of laws and sexual abuse legal cases.

How do perceptions of procedural justice, police legitimacy, and legitimacy of laws influence intentions to drug drive?

Introduction: There is a need for improved drug driving enforcement to promote greater driver compliance with drug driving laws. In Australia, Roadside Drug Testing (RDT) suffers from operational challenges that undermine its effectiveness in reducing drug driving. Objective: To identify potential improvements to RDT, this study investigated the extent to which drivers perceive RDT to be procedurally just and that the policing of drug driving and the associated laws are legitimate. These perceptions were then compared with those applying to Random Breath Testing (RBT) and examined in relation to their respective influence on intentions to drug and drink drive in the future. Method: A sample of 1,483 licensed drivers from three Australian states completed an online survey. Results: Those participants who reported engaging in drug driving perceived RDT to be less procedurally just than non-drug drivers. Similarly, drug drivers perceived the police and associated drug driving laws to be less legitimate than non-drug drivers. Furthermore, drug drivers who had been tested at an RDT operation in the past perceived RDT to be less procedurally just and considered drug driving policing and laws to be less legitimate, compared with the corresponding perceptions of drink drivers who had been tested at an RBT operation. A regression analysis indicated that stronger intentions to drug drive in the future were associated with lower perceptions of police legitimacy and the legitimacy of drug driving laws, but not with the elements of procedural justice. However, follow-up analyses indicated that the influence of procedural justice on intentions was mediated by the two legitimacy variables, thus weakening its direct impact on intentions. Practical applications: The results highlight the need for road safety authorities to enhance the perceived legitimacy of drug driving enforcement and associated laws. Changes to current police practices and/or drug-driving laws may also be needed to enhance the effectiveness of RDT.

The East China Sea: A Case of Ocean Geopolitics and Maritime Conflict

This article analyzes ECS maritime disputes through two lenses: as a globally comparable case study mediated through LOS and as a distinct regional case that differs in several respects from disputes outside East Asia. This study focuses on the Senkaku/Diaoyu island dispute but also examines broader EEZ and ADIZ disputes between China, Japan, and South Korea and the Ieodo dispute between China and South Korea. It finds that global dynamics are applicable to the ECS disputes, as countries depend on LOS rules even while attempting to interpret them for unilateral advantage whenever possible, and parties avoid formal arbitration, when possible, in favor of bilateral agreements. However, regional factors impact these dynamics. The sudden and sometimes violent transition from the Sino-Centric tributary system to the Westphalian system has undermined the legitimacy of LOS and western international law regionally. Finally, the presence of China as a party to almost all ECS disputes limits the application of LOS because China’s position as a near-peer competitor with the US gives it additional options to unilaterally impose its will. Unlike relatively weaker parties to these disputes, China may be less concerned about flouting LOS that it does not see as necessary for protecting its maritime claims.

The Legitimacy of Tax Law in Europe and the United States: Comparing Decision-Making Processes in Domestic Tax Law

This article examines the tax legislation decision-making processes in European countries and the United States, noting similarities and differences in legislative initiative, constitutional review and citizen participation. These aspects of the legislative processes and other characteristics are analysed to assess their effect on the legitimacy of the tax system.

Democracy, Undeluded?

ABSTRACT This article critically examines Busk's Democracy in Spite of the Demos, which critiques the “categorical imperative of democracy.” Although Busk effectively challenges the commitment to value-neutral democratic procedures as the foundation for legitimate law, his alternative, curtailing powerful interests ability to manipulate voters using “socially necessary delusions,” risks establishing elite rule. This article instead proposes basic liberal rights as the normative foundation for legitimate public order and militant democracy as its most effective institutional safeguard, arguing that this combination better realizes human emancipation.

Constitutional regulation of the legislative competence of provincial councils in Iraq

This study aims to highlight the constitutional legitimacy of local laws issued by the governorate councils under Law No. 21 of 2008, which are not related to a specific region. These entities began to issue local laws after the recent amendments under the 2005 Constitution, based on the principle of separation of powers and using the analytical approach. Through analyzing the legal texts of the Iraqi Constitution and the laws of the governorates, the study concluded that these legislations issued by these councils are unconstitutional. The study provides recommendations aimed at correcting the course of legislators and addressing the defects that may affect democracy regarding the work of those councils and their response to the legislative process. The Iraqi Parliament should handle the legislation since the purpose of these councils is to satisfy the local needs of the governorates that are not organized into regions, as stipulated by the Iraqi Constitution for the year 2005, especially after the transformation of the Iraqi state into a democratic system. The study concluded that the local councils need to amend their law to keep up with the political developments that Iraq and the world are witnessing, in particular.

Editorial: Legitimacy and validity of tax law in an international context

Editorial: Legitimacy and validity of tax law in an international context

Beyond the Grundnorm:

This contribution aims to add arguments to the hypothesis that the basic norm of Hans Kelsen's Pure Theory of Law is inapplicable as the sole foundation of the legitimacy of international law. Legitimacy is understood here as the property of the norm to attract international actors (Subjects of International Law) toward fulfilling the normative command. The basic norm of Hans Kelsen's Pure Theory of Law can be seen as a static element of the legitimacy of norms of international law. The fragmentation and interdependence between norms of international law can be seen as dynamic legitimacy elements. These arguments make up a theoretical set that seeks to explain why and how subjects of international law obey rules of law at the international level. The methodology of this contribution consists of qualitative theoretical research using primary sources referring to the issue of legitimacy in international law.

The Adaptive learning between the legitimacy of laws and procedural Application Educational integration of Autistic children in primary school

The development of the human abilities is one of the most topical issues that imposed by development of knowledge, locally and globally. It necessary to include all of the segments of society with their differences .Especially، those with a special needs، including autistic children ;as a part of society weaving is growing significantly، it faces many problems، including educational integration within the educational institutions and it imposes a pattern of special education، to apply the principles of differentiated pedagogy.
 Hence the importance of research as a field study، in which we will try to monitor the actual application of adaptive learning in one of its manifestations -the educational integration of autistic children- by using the descriptive، analytical and statistical method، with a samples from the primary schools in El Oued .It has shown that the educational community welcomed the adaptive learning، and educational integration of the autistic children ; to improve the yield of integrated samples، as well as the social integration، but it depends on the provision of materials and human conditions، and it explains the fear of generalization.

LEGITIMASI HUKUM ZAKAT DI INDONESIA

This article discusses the legal legitimacy of zakat in Indonesia. In the history of Islam, zakat has been implemented effectively and successfully, even until no more poor people are found entitled to zakat. The teaching of Islam makes zakat a worship of maliyah ijtima’iyah, which has a social goal of building an economic system, has a goal of worldly well-being and the Hereafter. The Zakat is for the poor and the needy. Indonesia as one of the countries with a Muslim majority also accommodates various zakat provisions through several rites of law. This research is a normative law study with a conceptual approach. The results of this study show that the Basic Law of Zakat originates from the Quran, Hadith and National Law, Act No. 38 of 1999 on Zakat Management. Then the presence of BAZNAS, LAZ, and UPZ as part of the implementation of the legitimacy of zakat law in Indonesia.

The legitimacy of international law: challenges and the emerging issues

Within academic conversations surrounding traditional international relations inquiry exists an ongoing debate around whether or not we can consider international law legitimate given certain challenges it faces as an operational system. Despite playing vital roles in promoting cooperative relationships between states while also providing frameworks for dispute resolution strategies which sustain global stability over time, issues surrounding authority often call into question its capacity as a legit kindred institution. Enforcement mechanisms simply aren't as centralized or standardized as it is in other legal systems, while other arguments deal with state sovereignty limitations. Supporters argue that legitimacy stems from state consent and supportive treaty obligations, combined with legal precedent set by former decisions. This reliance on factors such as "opinio juris" (shared belief both within and outside of state power circles) is considered an important part of creating enforceable norms on equal footing. The paper aims at understanding the legitimacy of international laws especially considering the emerging issues in the international relations. With this objective, the paper adopts the theory of liberal institutionalism, where it states that the international system requires the existence of a system that will governs its affairs. With states as the main actors in the international system, international law is seen as a product of collective decision-making, where states voluntarily agree to abide by certain rules and obligations. The paper concludes that apart from the challenges to the legitimacy of international law, there are emerging issues like cybersecurity, climate change, evolving nature of the international law which are seeing as factors that pose difficulties to the legitimacy of international law.

Local Wisdom in Indonesia: Assessing its Legal Status and Role in Forest Protection

This study delves into an examination of the role played by local wisdom in the protection of forests. The recognition and acknowledgment of local wisdom, enshrined in customary law within the environments of indigenous peoples, encounters challenges, particularly when the legitimacy of customary law itself is in question, especially concerning forest protection. In addressing these concerns, a normative juridical approach was employed to scrutinize legal source materials. The findings of this research affirm that the recognition of indigenous peoples as legal entities, particularly under international law, necessitates collective consideration. Through this conceptual framework, indigenous peoples can assert their aspirations autonomously and even advocate for international policies aimed at safeguarding and upholding the rights of indigenous peoples globally, with predetermined terms and conditions. The study underscores the contribution of local wisdom to forest protection, exemplified by the formulation of customary forest concepts applicable to indigenous communities. Local wisdom has demonstrated efficacy in averting and mitigating forest damage, particularly within customary forest areas, owing to the steadfast adherence of indigenous peoples to the principles encapsulated in their customary law. Moreover, the effectiveness of local wisdom in forest preservation is bolstered by the intrinsic characteristics of traditional indigenous communities, fostering wise and sustainable forest management practices. The study posits that the normative nature of customary law, as a living legal entity, may face ineffectiveness, potentially jeopardizing its own existence. Nonetheless, it contends that the state should formally recognize the exclusivity of customary law through constitutional and legal frameworks, thereby fortifying the application and viability of customary law within predetermined geographical areas and communities designated by the government

Relevance of International Law in Preventing International Conflict: A Case Study of Russia-Ukraine

Russian invasion of Ukraine in 2022 raises the question of the relevance of international law which is supposed to preserve international peace. In the context of the current Russia-Ukraine war, the legitimacy and applicability of international law are being questioned, as it has not been able to protect human rights, which are grossly violated in such a war. In this context, it becomes very pertinent to revisit the idea and practice of international law to find out where the fault lies, why it fails to provide the solution to international conflict, and what can be done to make the body of international law serve its purpose in the true sense. In light of these questions, this article attempts to examine the limitations of international law in relation to addressing the Russia-Ukraine conflict and to reflect on how international law can become an instrument of protecting human rights by preventing international conflict and ensuring international peace.

The Dark Knowledge Problem: Why Public Justifications are Not Arguments

Abstract According to the Public Justification Principle, legitimate laws must be justifiable to all reasonable citizens. Proponents of this principle assume that its satisfaction requires speakers to offer justifications that are representable as arguments that feature premises which reasonable listeners would accept. I develop the concept of dark knowledge to show that this assumption is false. Laws are often justified on the basis of premises that many reasonable listeners know, even though they would reject these premises on the basis of the further considerations that speakers implicitly rely on for their support. Accommodating the fact of dark knowledge requires us to consider the civic virtue of speakers to be more important for public justification than the acceptability of their arguments to reasonable citizens. I sketch an alternative conception of public justification that incorporates these results and argue that it provides a rationale for ignoring the otherwise sound contributions of some participants in political deliberation.

Free Black Witnesses in the Antebellum Upper South

AbstractWhile every slave state except Louisiana limited free Black testimony in cases involving whites, and most barred it completely, several jurisdictions with slavery, including three in the Upper South—Delaware, Maryland, and D.C.—allowed at least some free Black testimony in cases involving whites at least some of the time. Historians and legal scholars have largely overlooked the phenomenon of free Black testimony in the South, outside of Louisiana. In this article, I argue that courts in the Upper South allowed some free Black testimony in cases involving whites in part because allowing (limited) Black testimony enabled courts to access the truth (slightly) more freely, thereby increasing the law's legitimacy. The exceptions to the general bar against Black testimony in cases involving whites also demonstrate the diversity of legal trends in the antebellum Upper South. In Maryland, the space for free Black testimony shrank. In D.C. and Delaware, it grew. But Southerners long contested the relationship between race and law. Competing pressures to administer a well-functioning legal system and to maintain racial hierarchy exerted force on the white elite. Southern elites, even before the great convulsion of the Civil War, sometimes divided on how best to administer a white supremacist legal regime.

The Dialogic Nature of Legal Communication and the Problem of Measuring the Legitimacy of Law

Communication can be monologic or dialogical. Only the latter forms are an essential characteristic of legal reality. At the same time, dialogue is conceived as an immanent feature of sociality as such. In the process of identity formation and personality socialization, dialogue is necessary and inevitable. The process of dialogic socialization ensures the reproduction of any society. Society exists only in case if there is recognition of mutual legal claims, i.e., legitimacy of law. The principle of universal trust as a constitutive foundation of sociality is at the same time the fundamental principle of a legal system. These initial philosophical and legal provisions require explication in the actual legal refraction. Designation of social situations as legal, attributing legal features to them, involves correlation of personal intention with the legal status of the Self and the counterparty in a legal relationship or in a simple form of realization of law. Thus, the relation I-You is mediated by the legal instance of It. However, it is quite difficult to measure the reciprocity of recognition of the Other as a bearer of legal status in empirical reality, especially in the field of public law. The criteria of “extreme injustice” (G. Radbruch’s formula) and “aggressive violence” (in the terminology of V.A. Chetvernin) can be used to explicate the legitimacy of law and can be specified in sociological and legal studies. This paper states the paradox of measuring of the legitimacy of law, which consists in the difference between trust in an empirically given countersubject in a legal relationship, and impersonal status of a legal institution. Trust in the institution, according to the authors, extends, among other things, to a critical attitude towards it, however, with the condition if there is a recognition of the need for its existence. Another paradox of the legitimacy of law, considered in the article, is associated with the antinomy “the ideal — the real.” Violations (non-observance) of legal norms, if they are not widespread, do not put into question the legitimacy of the legal system as a whole. In general, the recognition of law is determined not by the average result of a sociological survey, but by the understanding of the necessity and the inevitability of the Other as a carrier of a typified legal status (for example, in criminal proceedings: in recognizing the interdependence of the Self from Others as carriers of the status of subjects of law).

The birth of modern Norwegian police law


 
 
 In the article ‘Norwegian police law, crime prevention and its (need for more) democratic legitimacy’ John Reidar Nilsen argues that Norwegian police law has lacked democratic legitimacy, and in some respects still does. According to Nilsen the patriarchal form of police law in the Danish-Norwegian absolute monarchy continued to make its mark on police law in the Norwegian constitutional state, resulting in a lack of democratic legitimacy. Although questions concerning the democratic legitimacy and legality of police law should be discussed, and Nilsen on several points makes interesting contributions to such a discussion, his historical narrative does not give an accurate description of the features of police law in the transition from autocracy to the Norwegian constitutional state. Police law and the legal understanding of it changed throughout the autocracy and from the latter part of the 18th century, it was shaped in line with new European ideas about state, popular government, and legal order. Instead of seeing the first understanding of police law in the Norwegian constitutional state as a legacy from the autocracy, it should rather be seen as the birth of modern Norwegian police law.
 
 

The effect of Urf (common law) on family laws in Islamic Jurisprudence

Common law as something accepted by the rule of wisdom found in the very self of humans formed the earliest type of the legal systems of societies. In most of the legal systems of the world, common law is known as one of the most important resources and is of high significance. Most of the Islamic jurisprudents agree on the authority of common law as an independent or dependent reason or proof. In this regard, the jurisprudents have referred to reasons of the Book (Holy Quran), the Tradition (Sunna), and wisdom. Family laws are included as the most potential fields for the common law to play a significant role in updating the rules and placing them in the right path of recognizing the required components. Thus, by applying a descriptive-analytical method, the present study attempts at studying the function of common law in laws related to the family through investigating the nature, range of inclusion, and legitimacy of common law among the jurisprudents of different Islamic schools and sects as well as studying the opponents’ reasons for its documentary authority