Legitimacy Of Law Research Articles

Voice, power and legitimacy: the role of the legal person in river management in New Zealand, Chile and Australia

ABSTRACT In 2017, rivers in New Zealand, India and Colombia received legal rights and were granted the status of legal persons. The increased legal powers, often a result of groundbreaking agreements or settlements with Indigenous peoples, may improve environmental protection and river management, but they can also challenge the legitimacy of laws and regulations that protect the rivers. In this paper, we compare the new legal rights with two long-standing uses of legal personality in river management, to explore the effects of legal personality in terms of environmental resource management. We argue that governments must ensure that they get the right balance between giving rivers a voice (and the power to be heard), and creating collaborative governance arrangements that strengthen and maintain community support overtime.

Critical Junctures and the Future of International Courts

Central elements of the international liberal order include political commitments to multilateralism, human rights, democracy, free trade, and the rule of law. These central commitments–which are also the core legal issues that international courts are regularly called upon to adjudicate–are now being called into question. This book chapter explains how I see the future of international courts given the current political moment. Using the historical institutionalist concept of a critical juncture, I explain how the current critical juncture is very different from past critical junctures, but this difference does not necessarily portend a bleak future for international courts. Institutions are sticky, and they tend to endure. In the past, ICs sustained long periods of limited political support in “sleeping beauty mode,” a repose that endured until compliance constituencies seeking legal enforcement embraced litigation as a tool to promote their objectives. More problematic, however, is that international court’s legitimacy and authority are co-dependent on the legitimacy and authority of international law and of the rule of law more generally. The fate of international courts depends to a large extent on whether the political commitment to legality as a key source of political legitimation, and to a rules-based international order endures. The new challenge for international judges is, therefore, that ICs are actors that uphold the political system that is now being contested, and international judges will be asked to uphold this political system at a moment when their key domestic compliance partners are under siege.

PENGUATAN RESTORATIVE JUSTICE MELALUI PENDEKATAN ADAT DAN KEARIFAN LOKAL SEBAGAI ALTERNATIF PENYELESAIAN PERKARA PIDANA ANAK

The child is the future and the next generation of the ideals of the nation, therefore the best interests of the child must be the responsibility of all parties. The Including the interests of children who are faced with the law. In the Criminal Justice System Law No. 11 of 2012 recognizes Justice's restorative approach in the settlement of child criminal cases. Restorative justice approach is intended to prevent children from the impression of criminal and psychological trauma due to the judicial process and also besides that restorative justice approach is an effort to restore the balance between the perpetrator and the victim, as well as the perpetrator with the community to the original state. One of the most important approaches to restorative justice is the traditional approach and local wisdom. Customary law and local wisdom should be an alternative solution in the realization of restorative justice. Therefore this paper intends to examine the legitimacy of customary law in the legal system in Indonesia and the extent to which it exists within the Criminal Justice System law. The method used in this paper is the normative approach. Based on the results of the study it was found that restorative justice through indigenous approaches and local wisdom has not been seriously accommodated in the Criminal Justice System Law. Customary law in the form of fulfillment of customary obligations is only considered as an additional criminal. The additional criminal principle is not independently dependent on the principal penalty. Should the state seriously apply the principle of restorative justice in the settlement of child criminal cases, the customary approach should be regarded as one of the main forms of the crime.

O direito à cidade sob uma perspectiva jurídico-sociológica

Resumo O artigo propõe um conceito jurídico de direito à cidade sob uma perspectiva jurídico-sociológica. O conceito de cidade “justa e sustentável” é desenvolvido a partir da concepção do direito à cidade como utopia, proposta por Henri Lefebvre, e dos estudos sobre práticas urbanas de mobilização social, realizados por Manuel Castells. Com base no método do humanismo dialético apresentado por Roberto Lyra Filho, a legitimidade do Direito é construída dialeticamente a partir do processo de libertação do indivíduo à medida em que ele afirma histórica e socialmente novos direitos em contradição com as liberdades já estabelecidas. Assim, o conteúdo jurídico do direito à cidade é definido a partir das lutas dos movimentos sociais urbanos que buscam afirmar seus direitos em cada etapa histórica. O direito a uma cidade justa é concebido, neste momento histórico, como o direito político de interferir nas decisões acerca do uso do território e de participar da produção do espaço urbano no sistema capitalista de produção.

Constitutional Legitimacy of Media Law and Policy in the 21st Century: Bridging the Ideological Divide of Free Speech Jurisprudence

This Article aims to supply policymakers and jurists with an ideologically-neutral framework for evaluating the legitimacy of imposing public-interest duties on today's dominant communicative technologies, such as Netflix, YouTube or Facebook. In contrast to current literature which often advocates for adopting either a libertarian or a distributive position about communication policy and free speech values, this Article suggests an ideologically-neutral, fact-based examination rules for understanding and evaluating the various sources of legitimacy with regard to both 'old' and 'new' media regulation. The first part of the Article begins by adopting a socio-historical perspective to taxonomize the consensual sources for legitimizing media regulation within the public interest framework. By unraveling the various rationales and justification, it further examines their theoretical and practical applicability to contemporary debates about the constitutional permissibility of regulating internet-based content providers and platforms. The second part suggests that although both utilitarian-economic and egalitarian-democratic justifications for traditional media regulation can generally apply to new forms of commercial media, free speech jurisprudence lacks sufficient consensus about the conditions for the legitimacy of such regulation; as it suffers from two primary flaws: (a) lack of rationality or basis in social facts; and (b) lack of sensitivity to the hidden constitutional costs of media regulation within the public interest framework (liberty and equality compromise diversity; liberty and diversity compromise equality; equality and diversity compromise liberty). The third part of the Article offers a consensual framework to bridges today's ideological divides – over media regulation and free speech jurisprudence alike – by suggesting common grounds for evaluating the legitimacy of media law and policy, which both libertarian and egalitarian ends of the liberal-democratic spectrum can support.

Tożsamość kultury prawnej a legitymizacja prawa

The paper analyses some elements which create the identity of legal culture. These elements are determined by Greek philosophy, Roman law (the Mediterranean culture) and Christian solidarity. These included positive law (legem ponere), jurisprudence, academic teaching, legal text, axiological autonomy of law, Roman law as origin of civil law and its reception, legitimization of law. The paper focuses particularly on problematic aspects of legitimization of law. In the literature of jurisprudence the problem of the legitimacy (justifying) of law is presented as the justification for the external validity of law or as a justification for the absolute validity. The history of philosophy of law demonstrates that we can talk about same arguments, which may be referred to as transcendental. Those are ultimate conditions of justifying any kind of being – here this particular being is the law. Firstly, this paper presents two trends (traditions) in the literature of philosophy that have developed the concept of transcendental method, and thus the content of the concept of transcendentalism. Secondly, it presents four arguments which justify the existence of law and which can be called the transcendental arguments.

The Contested Authority and Legitimacy of International Law: The State Strikes Back

Written to engage IR theory debates, this chapter argues that the crafting, invocation, interpretation and application of international law are a primary means through which states collectively rule and contest politics in international relations today. Yet since international law (IL) draws its legitimacy and authority from public affirmations of and diffuse support for the rule of law, public support for the rule of law is a permissive condition for IL to be politically constraining. After explaining how national and transnational legal practices constitute international law’s de facto authority, the chapter explores both ordinary and extraordinary contestations of IL authority. Ordinary contestation takes place within a legal field, when lawyers, stakeholders, judges and government officials debate and contest over the meaning of international law. Political tactics are also part of ordinary contestation, but because the curators of IL authority are transnational, a state may be unable to impose its preferred IL interpretation. Where states fail to impose a preferred interpretation, three extra-ordinary contestation strategies can be used to escape IL authority: 1) states can seek to replace international law’s authority with domestic law’s authority; 2) states can pit different international laws against each other by maneuvering within and around international regime complexes; and (3) states can attack the legitimacy and authority of international law altogether. Where authority challenges enhance IL accountability, they are to be welcome. But each strategy can also be used to tear at the fabric of IL authority, potentially undermining the permissive conditions that make IL both constraining and effective.

An Analysis of the Mandate Regime and Colonialism in International Law

Colonialism is the policy or method whereby one state or race governs and dominates other states or races. In the process of developing international law, colonialism is involved with the domination of non-European states by European states in the first half of the twentieth century. Since colonialism was a policy of European nations, they had special rights by which they could participate in the process of making international law; today, their orders gradually developed into a universal regime of international law. The main issue is that the contemporary international law of this universal regime derives from European empires and reflects hierarchic and Eurocentric thinking. This raises the question of whether current international law has been formed only by those European nations that have policies of colonialism. The question could be answered by analyzing the mandate system under Article 22 of the Covenant of the League of Nations. At first, the regime was designed to address the matters of the colonies and their native peoples and was organized with the legitimacy of international law. However, the Mandatory Powers utilized the mandate system to secure their control over colonial areas rather than organize them, as United States President Wilson intended. First, this paper examines the matter of the conflict between the general principle of the mandate system and Article 22, paragraph 6 of the Covenant of the League of Nations which regulates the territories of “C” mandate. Second, the reality of mandate system was that the mandatory powers of the “C” mandate committed economic and cultural exploitation under the regime similar to colonial policies. This was demonstrated by exploration of the phosphate exploitation in the Mandate over Nauru Island, the Apartheid perpetrated by South Africa against South-West Africa and the mandate system of Japan. As a result, the powers of the day utilized the regime as a method of bolstering their colonial holdings, and these colonial features were particularly apparent in “C” mandates. Indeed, by analyzing how the regime was regulated by international law and examining the two general principles from the system, the international law of the day can be traced. Since the establishment of the mandate system was about one hundred years ago, it seems that it was not relevant to the modern international law. However, as modern international law has been developed from the early twentieth century, identifying the system under international law at the time can be helpful for understanding it.

Is Blockchain the Death of Antitrust Law? The Blockchain Antitrust Paradox

Western legal systems have historically helped establish trust between parties and reduce transactional uncertainty by providing recourse to legal procedures. Nonetheless, establishing trust still imposes significant transactional costs and blockchain may reduce them to a smaller level. In the meantime, the very nature of the technology raises fundamental questions about antitrust law and how individuals conduct transactions. This article intends to contribute to the literature by describing the challenges that blockchain presents for analyses of unilateral anticompetitive practices and proposing some changes to antitrust law and regulations that address those challenges. It proceeds in three sections to this end. First, this article argues that, because blockchain is decentralized, anonymous, and immutable, questions arise regarding the ability to detect anticompetitive practices and their perpetrators. We show that some practices are de facto more likely to be implemented. Next, this article discusses current antitrust laws and how antitrust authorities should tackle these issues. On the one hand, regulators must avoid using their unfamiliarity with a new technology to justify over-regulating a potentially beneficial advancement or employing what this article calls the “blockchain excuse” for regulation. On the other hand, antitrust enforcement must adapt to stay relevant, and this article suggests that regulators adopt a new methodology of “regulatory infiltration” using a “law is code” approach. Third, even if this new regulatory scheme is adopted, some ultimate questions demand resolution. This article seeks to address them in part three: is blockchain the death of antitrust law as we know it? Should it be? Answering those questions is not easy because blockchain continues to evolve. Nevertheless, the decentralized nature of blockchain forces us to consider the legitimacy of antitrust law, which rests on centralized legal structures and enforcement that are inconsistent with blockchain’s trustless nature; although, antitrust is still needed. This is the blockchain antitrust paradox.

Trialogical Subsidiarity in International and Comparative Law: Engagement with International Treaties by Sub-State Entities as Resistance or Innovation

AbstractThis article proposes a new model for the engagement of sub-state units with the international legal order. “Trialogical subsidiarity” acknowledges that some areas are best regulated locally, but it also argues that international law has an increasing say in areas traditionally reserved for local law. The implementation of an international cultural heritage treaty by constituent units (CUs) in federal states, despite objections of the federal authorities, is a case study for the possibilities and implications of the use of international law by CUs without the filtering of the central state. This use enhances the legitimacy of international law and can lead to better outcomes for local populations, moving international law closer to its promise of being a law of peoples rather than of states.

Legitimacy and Effectiveness of Law:to the Question of Concepts, Their Content and Relation

The article deals with the problems of approaches of the modern doctrine to the concept of «legitimacy of law», the ambiguity of which is dictated by the variety of existing types of law, the multiplicity of factors that determine the content of law. At the same time, the search for legitimacy criteria in the future should become the basis for the formation of a constructive model of interaction between the state and society, ensuring the proper state of public order. The most preferable approach to the assessment of law is the use of the concept of «efficiency», which in the domestic science is devoted to a lot of scientific work. The analysis of approaches to the essence of the effectiveness of law, allows to determine its criteria, quality certainty, which include the following: the expression and consistency of social interests in the legislation, the quality of normative legal acts and legal norms and normative activities, the achievement of the objectives of legal regulation, including in the form of desired changes in the social sphere, the feasibility of legislative decisions through multi-option and proportionality of social goals, norms and legal means to achieve them, provision of the right to an effective system of justice and other law enforcement agencies. In addition, the factors that inf luence the effectiveness of law are important: the economic development of society and its cultural development, internal and foreign policy, national and ideological, social and psychological. Of particular importance is the study of factors affecting the effectiveness of the legislation of the Federal state. It is emphasized that the combination of factors with their constant changing ratio (by prerogative and scope of inf luence) largely determines the development, including the rule-making of the Russian Federation.

Legitimacy as a Legal Category: Justification of the Concept

The article analyzes the category of legitimacy as a term of legal science. The main approaches to the legitimacy of legal norms are revealed. The author of the article substantiates the approach to legitimacy as an essential characteristic of law. The legitimacy and legitimacy of law are characterized as distinct from the legitimacy of political institutions. The legitimacy of law characterizes the essence and effectiveness of law, so it cannot be reduced to legality. In legal science it is necessary to allocate traditional and rational legitimacy. Keywords: legitimacy of law, legality, essence of law, effectiveness of legal regulation, formal equality, legitimacy of law.

Legitimacy, Recognition, Validity and Abolition of Legal Norms in Legal Usage

The present paper has as its object the investigation into meanings of propositions about legitimacy of law and their possible conceptual interconnection with propositions about validity of law. The paper analyzes the genesis of the legitimacy discourse in law, the criteria of recognition in law and their significance for defeasibility of particular norms of law as a way of «delegitimating» these norms. The author examines whether and under which circumstances binding force of law can be dependent on legitimacy of law and on recognition of law by its addressees. The author points out at some conceptual problems that arise in the connection with discussions about the recognition of law considered as a foundation of its binding force. Different meanings of the concepts of legitimacy and recognition in legal parlance are analyzed, as well as various situations in which a proposition about legitimacy of a legal norm or of a legal system might have effect on validity of such a norm or a system. It is underscored that an indiscriminate use of the concept “legitimacy” in propositions about validity of legal norms can result in violations of such norms by their addressees because of the alleged illegitimacy of these norms. The variety of meanings of the expression «legitimacy of law» requires from lawyers to be critical and to assume responsibility against attempts to deny validity of legal norms because of their supposed illegitimacy, what is not a rare situation in such branches of law as international or constitutional law. Otherwise, language games with ambiguous notions might result in unjustified denial of binding force of norms of public law and, consequently, in undermining the rule of law.

Exceptions to Law as a Means of Ensuring Its Legitimacy

The article reveals the relations between two phenomena of legal reality: the legitimacy of law and exceptions to the law. The author agrees that the legitimacy is the most important feature of the right, indicating the recognition of both the right itself and its regulatory impact by the majority of the population. The legitimacy of the law is achieved through its effectiveness, especially speed and differentiation. But the main quality that contributes to the legitimacy of law is the possibility of coordination of different-vector interests of numerous and heterogeneous subjects of social relations. The main role in solving this problem is played by exceptions to the law, which offer a different, compared with the General version of regulation, without destroying the standardizing effect of legal regulation.

Legitimacy of Law: Design and Measurement

Legitimacy is the ground of society. However today in all world founded crisis of society confidence. It connected with social world uncertainty. Problem of legitimacy of law is very actual in jury science. Legitimacy like recognition is the essential basis of the rights. Legitimacy of law is social construct, produced by government. Measure of legitimacy of law possible only by illegitimacy of legal relations, legal institutions, legal system indicator.

Legitimacy of Law in the Context of Competition of Identities and Multiculturalism

The article analyses the factors and preconditions that complicate the law legitimation processesin the context of global migration and the modern states’ multiculturalism policies based on the statist- paternalistic approach, which gives rise to social parasitism and conf licts, as well as to the identities competition, particularly the one of the religious-ethnical and legal identities. The legal identity differs from the religious one in the fact that the former is oriented to the legal system and society as a whole, and the latter - to a part of the society, which may give rise to a social conf lict and confrontation of different communities and the whole society. In order to overcome this kind of competition, the author substantiates the necessity of methodology and practices based on the recognition of a person’s ability to develop and assimilate the values and senses inherent to the law, to use them for self-understanding, personal fulf illment and achieving his o her legal identity - that is, the legal characteristic which excludes the criminal misbehavior as a factor infringing upon a person’s integrity and self hood, and, at the same time, a factor which provides the legal order stability and legitimacy of the law.

Legitimation, Legitimacy and Legality of Law in the Chinese Legal System

The article analyzes the problems of legitimation, legitimacy and legality of law in the light of the Chinese legal system. It is noted that the above theoretical and legal categories, which have been developed in the framework of various types of legal understanding, need serious clarification, taking into account the peculiarities of the Chinese political and legal reality. From the historical point of view attention is being paid to Confucianism and Legalism, which have laid the foundations of the Chinese legal tradition and are influencing China’s law system until now. The author is examining the possibility of further updating the ancient Chinese concept of the «Heaven mandate» in modern conditions. A significant place in the article is devoted to analyzing the role of the Chinese Communist Party in giving legitimacy to the legal norms established by the legislator. The author analyses the legal nature of the program documents of the Communist Party of China, emphasizes the existence of the suggestive elements of legitimization of laws being adopted in China. In conclusion the article focuses on the process of legitimization of one of the Constellations of the Constitution of the People’s Republic of China, which abolished the terms limits of the Chairman of the People’s Republic of China, and it sums up that the constitutional amendment was legal from the formal point of view.

The Sources of International Law Legitimacy

The article is devoted to the question of where the international law legitimacy comes from. The author analyzes the consensual sovereign volition of international law subjects (states, nations, international organizations) as the main source of its legitimacy. The specificity of legitimacy depending on the type of international law norms is indicated. Types of international law legitimacy in the context of its sources are distinguished. Positions on the question of criteria of the legitimacy are given. The author points out the interrelationship between legitimacy of international and national law. It is concluded that legitimacy is an essential feature of international law, since the source of international law legitimacy is the same as the source of the creation and mandatory of its norms, namely, the consensual sovereign volition of the participants of international relations.

Skeptical challenges to international law

AbstractInternational and domestic law offer a study in contrasts: States' legal obligations often depend on their consent to specific international legal norms, whereas domestic law applies to individuals with or without their consent; enforcement in international law is weak and, for many international treaties, non‐existent, whereas states spend considerable resources to create centralized coercive enforcement mechanisms; and international law is characterized by much less institutional differentiation and specialization of functions than domestic legal systems are. These differences have invited a number of skeptical challenges to international law, 3 of which we explore in this essay. The first points to 1 or more of the deviations of international law's institutional structure from that of a modern state's legal system as a basis for denying that international law is really “law.” Central to the debates over international law's status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law's legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states' political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation.

Participação das comunidades tradicionais na lei de acesso aos recursos genéticos: diálogos com a Teoria Discursiva do Direito em Habermas

O presente artigo visa analisar a participação das comunidades tradicionais no processo legislativo que culminou na edição da Lei nº 13.123/2015, sobre o acesso aos recursos genéticos, bem como verificar se as disposições desta lei atendem aos interesses de tais comunidades. Para tanto, dialoga-se com a teoria discursiva do Direito em Habermas, marco teórico do artigo. Por meio da utilização do método de pesquisa bibliográfica e análise legislativa, percebeu-se que às comunidades tradicionais não foi proporcionado o direito de participação efetiva no processo legislativo, o que retira a legitimidade da Lei 13.123/2015, nos moldes da teoria de Habermas. Entretanto, a lei e o seu regulamento apresentam aspectos importantes para a garantia da autodeterminação desses povos, em que pese a existência de alguns retrocessos e relativização de institutos como a repartição de benefícios.