Rule Of Law In States Research Articles

Теоретико-методологические детерминанты концепции социального государства Роберта фон Моля

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

CONSTITUTIONAL-LEGAL BASES OF REALIZATION OF ELECTORAL RIGHTS OF THE CITIZENS OF UKRAINE


 
 
 The periodic conduct of elections and the renewal of the electoral legislation attest to Ukraine’s emergence as a democratic and rule of law state. The purpose of the article is to analyze the constitutional-legal foundations of the exercise of the electoral rights of the Ukrainian citizens. It is noted that one of the oldest and most widespread and effective forms of direct democracy is elections, an institution of democracy that allows one to vote and be elected. However, it is noted that in Ukraine from 1991 to 2020 there were several independent electoral systems, which implies the use of proportional and majoritarian systems, as well as mixed ones − their varieties for holding different types of elections.The constitutional provisions stated in the article testify to the orientation of the Ukrainian society to ensure in Ukraine the implementation of the constitutional guarantees regarding the electoral rights of the citizens and the importance of this right, along with other guaranteed rights. Attention is paid to the Electoral Code of Ukraine, adopted on December 19, 2019, which is a codified legislative act that defines the guarantees of electoral rights of the citizens of Ukraine to participate in the formation of the composition of representative bodies of the state power, representative body of the Autonomous Republic of Crimea and representative bodies and elected officials of the local self-government of Ukraine, regulates the organization and holding of different types of elections.
 
 

Theoretical and Practical Aspects of the Development of the Rule of Law State in Ukraine

The article is devoted to the analysis of socio-cultural and institutional-legal features of the development of the rule of law state in Ukraine. It is noted that the development of the rule of law state in Ukraine involves the interaction of several socio-cultural, ideological and institutional-legal aspects, the implementation of which at present is burdened with various difficulties of an objective and subjective nature. In particular, the most significant problems that need to be addressed immediately are optimization of the Ukrainian government system and improvement of the quality of law-making, increasing the level of professionalism and civil liability of officials of all levels, overcoming imbalance in government and effective legal support of this process, implementation of the principles of the rule of law state taking into account the European tradition of democratic governance.

Improving Economic Security through European Integration Reforms in Ukraine’s Social Sector

According to the Constitution of Ukraine (Article 1), Ukraine is a democratic, social and rule of law state. Developing a highly developed welfare state in Ukraine requires shaping its concept model and mechanisms of its functioning. Active and efficient social policy should become a solid foundation for comprehensive innovative, social development, integration into the European Union, the basis for developing a welfare state with a competitive socially oriented market economy capable of ensuring human development, decent standards and quality of life. This article substantiates the problem of ensuring the economic security of the state and suggests the ways to achieve European standards in the national social sphere. Ukraine has chosen the strategic course of the European integration as a priority of its domestic and foreign policy. This course provides for modernization of all spheres of life at the state and local levels in accordance with the broad context of the development strategy of the EU member states. Modern ideology, which is based on the principles of protection of citizens from major social risks (disability, impoverishment, etc.) and, partially, social paternalism, should be reconsidered in the context of principled of social inclusion. Improvement of existing approaches to social programming should start with a focus on the development and implementation of fundamental for social development state targeted programs on domestic and international social issues. Reorientation of domestic social policy requires correction of the forecast-monitoring system of implementation of multilevel social development programs, in particular state targeted programs in terms of revision of criteria for evaluating the effectiveness of social support programs.

Privatization of the Police

This paper deals with civilian private security in relation to public police. It first elaborates on the specific legal norms that govern public and private security personnel and shows that the rise of private security is not the outcome of privatization in the usual sense of the term. It proceeds to present some facts on private security, a large and fast-growing industry in many countries. The following section deals with the sources of the demand for private security and its impact on security. We show that this impact is conceptually different from that of public police in a constitutional rule of law state. Private security aims at achieving efficient levels of losses from crime. Public police aim at equal protection of citizens against crimes. The different objectives have different consequences on security and on the wealth distribution of citizens. Furthermore, private security usually does not create general deterrence. Also, deployment of security personnel generates crime diversion, which the public police take into consideration, whereas private security has no incentive to do so. We then elaborate on the diverging effects of private versus public security services on the rights of criminal suspects, on the rule of law, and on democratic accountability. The paper concludes with a review of empirical findings on the effectiveness of private security for reducing crime levels, which show significant effects.

Transformation of the constitutional-legal status of the prosecutor's office in Ukraine and foreign experience

The article is devoted to the analysis of the transformation of the constitutional and legal status of the prosecutor's office in independent Ukraine, from its Soviet model with broad control and supervisory powers to the prosecutor's office of a democratic, rule of law state, its place in the modern system of public authorities. In the article, the analysis of modern reform processes in the system of the national prosecutor's office is combined with the coverage of models in the latest world constitutional and legal practice to different branches of power, and from that place the role and importance of the prosecutor's office in the system of state power. In scientific constitutionalism, there are several options for attributing a prosecutor's office to a particular branch of state power, or even defining it as a separate body of state power. The option of attribution of the prosecutor's office to the executive power system has been successfully implemented in the states making practice of the USA, Denmark, France, the Netherlands, Germany, Austria, Poland, and Sweden. The model of including the prosecutor's office in the legislative branch has the right to life, but it has not become widespread. Contrary to this model, the prosecution's attribution to the judiciary became a reality in Spain, Bulgaria, Croatia and other countries. In the Constitution of these states, the provisions on prosecutorial authorities and the regulation of their activities are contained in the sections of the judiciary. In addition to these basic options for determining the constitutional status of the prosecutor's office, there are others that are less common. The problem of determining the position of the prosecutor's office in the system of distribution of state power in Ukraine was one of the constant topics of discussion, on which various concepts and long-standing scientific and theoretical disputes were raised. The Revolution of Dignity in 2014 stimulated the development of the current stage of the constitutional process and the introduction of amendments to the Constitution in the area of justice, which paved the way to reform of the prosecutor's office in Ukraine. Article 131 of the Constitution of Ukraine, which regulates the constitutional and legal status of the prosecutor's office, enshrined a new normalization of the bodies of the prosecutor's office, their place in the system of public authorities. Constitutional changes resulted in the exclusion of Section 7 of the Constitution of Ukraine Office from the Basic Law, and Article 131 took its new place in Section 8 of the Constitution of Ukraine Justice. Further development and clarification of the constitutional and legal status of prosecutorial authorities is acquired in the Law of Ukraine On Amendments to Certain Legislative Acts of Ukraine on Priority Measures for the Reform of the Prosecutor's Office of September 19, 2019. The Law introduces a new structure of the prosecutor's office, clarifies the law of the Prosecutor of Ukraine, the maximum number of employees of the prosecution bodies is determined, the requirements regarding the attestation of employees of the prosecution bodies are specified

Extremists: Criminals and Victims of Radical Violence

The radical political violence outgoing from extremist communities became the most dangerous trend in the modern criminal dynamics. The victims of crimes committed by suicide terrorists are not only those who are subject to political and ideological violence, but also absolutely random people outside the field of politics. The actual perpetrators of mass homicide, including the most brutal acts of terrorism, are extremists with homicide-suicidal syndrome, interested in the society’s attention to them, convinced, in an irrational way, that absolutely all people are guilty of their problems. The fate of extremists and victims of their radical violence is not always directly determined by the level of unemployment or organized relations between the rule of law state and other social management institutions. These well-known criminological determinants affect the form of extremist actions and crimes, they may lower the level of extremist aggression, but do not change the motives of criminals. The higher the quality of life in the country, the less frequently mass homicide will happen, but it is likely to use high tech. Limiting the use of firearms by extremists, we are confronted with their attempts to adapt vehicles for deadly purposes. The actions of extremists do not reflect any real political struggle for freedom and independence, for religious values, for social justice; in practice, there is irrational extremism — a new socio-political phenomenon of active criminal protest against the very idea of huma­nism. Violent extremism emerges against the background of a certain social situation: 1) low efficiency of social policy; 2) isolation of an individual from civil society institutions and state structures; 3) desperate human desire for self-realization that is set against universal indifference to the problems of an individual. Under the influence of criminogenic factors, an extremist’s personality may become the object of manipulation by terrorist groups and other criminal communities.

UNITY OF SCIENCE AND PRACTICE IN LEGAL EXPERTISE

The formation of Ukraine as a rule of law state, the improvement of the legal regulation of the use of special knowledge in order to properly and efficiently protect the rights and legitimate interests of individuals and legal entities and the state, eliminating the inconsistency of the provisions of the law regarding examination, objectively require an analysis of the current state of science and practice in forensic science activity. Forensic science covers a considerable number of scientific disciplines and actual problems of teaching expert science. The scientific article proposes to use the scientific potential of expert institutes, educational institutions and research institutions engaged in applied research. Cooperation between institutions involved in expert research, due to their scientific achievements and methodological developments, can increase professional ability in the investigation of certain categories of crimes, and will also contribute to the integration of forensic activities and will lead to the harmonization and improvement of national legislation, theoretical foundations of forensic activities, international recognition of its individual components and, in general, will increase professional masters of experts. Ways to improve the professional education of future judicial experts are analyzed. In this paper, the ideas for solving the urgent problem of unity and interaction of education, science and practice have been expressed, and hopefully they will be taken into account.

Russian and German Legislation on Personal Data: Comparative Analysis of Approaches and Practices

The paper analyzes the legislative acts on the collection and storage of biometric data of citizens and the changes in the idea of how the legal state can and should be arranged, what the guarantees of the security of providing such data to various structures in the Russian and German legislation are. The idea of a rule-of-law state was, as you know, was developed in Germany by C. T. Welker, R. v. Mohl, R.G. Gneist and J.C. Freiherr von Aretin and was borrowed by Russian statesmen — S. S. Alekseev, V. M. Gessen, N.M. Korkunov, A. F. Kistyakovsky, S.A. Kotlyarevsky, P.I. Novgorodtsev, N.I. Paliyenko. During the existence of our States, this concept has undergone many changes in both its Russian and German versions, which each time was dictated by a number of objective reasons. At the present stage, both powers are concerned with the problem of security, the threat of terrorism, fraud in the Internet space. Therefore, in the European Union, for example, the requirement for identification documents to contain biometric data is now mandatory for all member countries. European thought, as revealed in the analysis of existing concepts and experience of their implementation, was a few steps ahead — while in Russia laws are adopted without discussion with citizens infringing their rights guaranteed by the Constitution, Europe is concerned with the creation of a data storage system representing the cultural heritage of mankind. The rule of law state has become to a large extent a metaphor for which a particular citizen does not feel any content. The use of this term has become a technological tool for the state to achieve political and geopolitical goals, a way to prove that we are also among the civilized liberal democracies and market economies, which distorts the essence of the idea of the rule of law for a particular person. The Russians themselves often do not understand the idea of the rule of law and the mechanism for its achievement.

The Legal Mechanisms of Ensuring Regional Cooperation in Combatting Crime Within the Framework of the Council of Europe: Experience of Ukraine

Implementation of legal reform in Ukraine, the content of which can be defined as a gradual movement towards a democratic and rule of law state, makes the problem of counteraction to crime especially relevant. Nowadays it is the object of broad regulatory measures, in particular, international and legal regulation of cooperation between states in combatting crime. The multifaceted nature of modern international relations in one way or another causes expansion of the spheres of cooperation between states in counteracting crime, which requires universal and regional international cooperation. It is quite clear that universal international cooperation cannot cover all aspects of the cooperation of states. Regional international cooperation helps to get more effective cooperation between states located in the same geographic region. Cooperation of the states at the regional level in combatting crime is mainly carried out in the framework established by regional international organizations of both general and special competence. The regional level of international cooperation allows the states to react promptly to any manifestations in the criminal sphere that pose a threat of the international nature. In this case, the mechanism of such a cooperation and elements of control, as a rule, have a great degree of specificity and details. Regional international organizations in Europe have a great deal of experience in intergovernmental cooperation in the field of combatting crime, which is explained by the historically established process of economic and political integration. The problem of counteracting crime is given considerable attention within the Council of Europe, which is the most representative European intergovernmental organization established on May 5, 1949, aimed at achieving greater unity between its members in order to preserve and realize the ideals and principles that are their common good, as well as to promote their economic and social progress. The Council of Europe is a purely European organization, with 47 Member States.

Quod licet Jovi non licet bovi?: The Venice Commission as Norm Entrepreneur

The Venice Commission was created in 1990, as a part of a wider, generous project to help the former Communist countries with provision of Western expertise. The fledgling Eastern European democracies were meant to be able, in their effort to build constitutional, rule of law states, to tap at short notice on the knowledge and wisdom of an apolitical constitutional Areopagus. The Commission proved adroit at this task and its early track record generated a reputational snowball effect. More and more jurisdictions have joined it as members, observers or special status entities, spanning now almost all continents. Furthermore, the Commission has recently engaged in an intense, fast-pace effort at multi-layer cooperation, liaising with both other structures of the Council of Europe system and with counterparts in other international organizations (EU, OSCE/ODHIR, even the IMF). For instance, in the context of the recent EU ‘populist crises’, the EU Commission has increasingly relied on its Council of Europe colleague, in order to put out the populist fire with the help of a genuine expert in the field of ‘democracy and the rule of law’. In its newer role, however, the Venice Commission has often displayed an unsettling degree of militancy, also by way of cross-hybridizing policy imperatives and normative criteria. Its country reports and guidelines are sometimes difficult to reconcile with traditional constitutional understandings of various concepts and institutions (and, frequently enough, with one another). By the same token, such determinations reinforce, in a vicious circle, preexisting deficiencies of procedural, methodological, and institutional design. The paper offers a critical assessment of the Commission’s recent work, with a focus on recent Romanian developments, comparatively assessed.

Regional Constitutional Justice in the Context of Russia’s Aspiration to be a Rule of Law State

This paper examines regional constitutional justice in Russia as a microcosm of the struggle for the judicial branch of state power to assert its importance, in particular in relation to separation of powers. We consider the situation of republican constitutional courts and regional charter courts which have been established in some places to oversee compliance with the republican constitution or regional charter. We note that the limited number of these courts contrasts strongly with the widespread institution of the regional ombudsman (plenipotentiary for human rights). We also see that in recent years courts in some regions have encountered a pushback from the other branches of state power. The strength of the resulting defence of the courts’ legal status gives us some cause for optimism that the principles of separation of powers and rule of law are being strongly supported in some regions.

Using role theory to analyse British military intervention in the Syrian civil war during David Cameron’s premiership

This article uses role theory to study British military intervention in the Syrian Civil War during David Cameron’s premiership. It attempts to understand the Cameron government’s limited willingness to use force (or willingness to use limited force) in the conflict as a product of role contestation in parliament. By analysing three debates preceding votes on military action in August 2013, September 2014 and December 2015, it shows how MPs debated whether Britain should play three distinct roles—of ‘faithful ally’, ‘responsible great power’ and ‘rule of law state’—and discussed how far fulfilling each role meant being willing to intervene militarily. Their disagreements, the article argues, undermined the coherence of the government’s preferred strategy, but did so without fundamentally delegitimising the idea of using force—hence its constrained commitment to intervention. The article concludes that involving parliament in decisions about military action makes it an important site for domestic role contestation of this sort.

Methane emission factor of open deposits used to store swine slurry in Southern Brazil

Abstract: The objective of this work was to contribute to the establishment of a baseline for the methane emission factor for the management of swine manure, considering the current practice of raw manure storage in two open deposits in parallel, in Southern Brazil. Methane (CH4) emissions were continuously measured in three PVC tanks of 3 m3, during 180 days, in the summer. As the content of volatile solids of pig slurry ran out in approximately 130 days, the CH4 emission factor was calculated as B0= 0.48 m3kg-1VS. Although this value is higher than the B0 estimated by Intergovernmental Panel on Climate Change for Latin America (0.29 m3 kg-1 VS), it is in agreement with the B0 estimated for developed countries (0.45 and 0.48 m3 kg-1 VS, for the US and EU, respectively). The graphic of accumulated CH4-C emission x time fitted a sigmoidal, kinetic model (r2= 0.998) that showed a good correlation when tested with the emission data collected from a slurry deposit, under field conditions, in winter. This suggests that the model reproduces the CH4 emission kinetics in the region. By applying the reviewed state law rules (retention time of 50 instead of 120 days), estimates by the sigmoidal equation show that it is possible to reduce in more than 80% methane gas emission.

Toward a Constitutional Review of the Poison Pill

We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the corporate-law landscape. The Williams Act established a federal regime regulating unsolicited tender offers, but states subsequently developed a body of state antitakeover laws that impose additional impediments to such offers. In a series of well-known cases during the 1970s and 1980s, the federal courts, including the Supreme Court, held some of these state antitakeover laws preempted by the Williams Act. To date, however, federal courts and commentators have paid little attention to the possibility that the state-law rules authorizing the use of poison pills — the most powerful impediment to outside buyers of shares — are also preempted. Our study examines this subject and concludes that there is a substantial basis for questioning the continued validity of current state-law rules authorizing the use of poison pills. The Essay shows that these rules now impose tighter restrictions on unsolicited offers than those once imposed by state antitakeover regulations that the federal courts invalidated on preemption grounds. Preemption challenges to these poison-pill rules could well result in their invalidation by the federal courts. Finally, we discuss how state lawmakers could revise poison-pill rules to make them more likely to survive a federal preemption challenge. This could be done, we show, by imposing substantial limits on the length of time during which a poison pill can be used to block tender offers. Whether preemption challenges lead to invalidation of existing poison-pill state rules or to their substantial modification, such challenges could well reshape the market for corporate control.

LEGAL REFORMS IN UKRAINE AND POLAND: COMMON AND DISTINCTIVE FEATURES

The article investigates the processes of carrying out legal reforms in Ukraine and Poland, their comparative analysis is made. The author has studied Poland's experience in implementing legal reforms. It is found out that one of the most important factors influencing positive changes in this country is the separatedness of the Polish power from business. In addition, the fight against corruption has become one of the decisive factors for successful reforms. It is concluded that as a result of long-term reforms, in particular legal, Poland has become one of the most stable economies in Europe.It is determined that the creation of a civil society, the formation of Ukraine as a democratic, socially oriented, rule of law state, is impossible without legal reforms implementation. The author proves that Ukraine has made successful steps to bring up the national legislation closer to the EU legislation. It is stated that European integration for Ukraine is an opportunity to modernize the economy, attract foreign investments, overcome technological backwardness, create new jobs, increase the competitiveness of the domestic commodity producer, enter the world markets.The author has studied that the reform of the prosecutor's office is carried out in Ukraine and Poland at different legislative levels, which is related to a different legal status of these bodies. The reform of the judicial system of Ukraine is analysed, in particular, the transition to the tripartite system of courts, the formation of new higher specialized courts in the system of judicial system: the Supreme Court on Intellectual Property and the Supreme Anticorruption Court. The experience of the territorial communities functioning in Poland and Ukraine is studied, their main general and distinctive features are outlined.It is concluded that the legal reform in Ukraine should be conducted taking into account positive experience of the European Union countries, specifically, one of the closest western neighbors, Republic of Poland.

Концепция правового государства в дореволюционной России: история вопрос

Концепция правового государства в дореволюционной России: история вопрос

Payday Lenders, Vehicle Title Loans, and Small-Value Financing: The CFPB's Proposal to Regulate the Fringe Economy

The market for payday lenders, businesses that provide vehicle title loans, and other small-value financing players is rife with controversy. Some see them as predatory lenders that weave a web of never-ending debt designed to capture the weakest and most economically vulnerable of society. However, advocates of these financial institutions argue that for many Americans who are otherwise shut out of the conventional lending market, these players provide the only viable source of credit in times of economic hardship. Whatever the view, these businesses, their borrowers, and the credit markets that they together comprise are often referred to in legal and economic research and literature as the And interestingly, aside from a patchwork of state law rules, this area of the financial services sector is fairly unregulated.However, on Thursday, March 26, 2015 the U.S. Consumer Financial Protection Bureau released a report outlining the agency’s long heralded plans to impose nation-wide regulations on the fringe economy. The first part of this article gives an overview of the fringe economy, the types of services and products it provides, and gives a snapshot of existing, state-based regulations. The second part goes into the nuts and bolts of the proposed rules.

The concept of the State of Law

Political systems of various states are currently described as the rule of law states, lawabiding states, democratic states ruled by law, lawful states, or law-governed states?Mostly, it is noticed that the states ruled by law are characterized by the fact that thepower is exercised by the set of abstract principles which govern the conduct of all people(a general norm) by equal rules, in opposition to the state governed by people (the orderof an individual or group of individuals). Such a state acts on the basis of law and withinits limits. The above statement corresponds with the apprehension of the law-abidingstate. The law observing state is formally characterized by functioning on the basis of,and within the limits of law whereas its substantial dimension means that the law is equal(equal for everyone). This description is not sufficient to characterize the rule of the lawstate. It is only a fragment of even broader concept of the democratic state ruled by law.

On Heaven’s Lathe: State, Rule of Law, and Economic Development

AbstractWe propose a theoretical framework for understanding the evolution of the rule of law state, which is conceived as the equilibrium of a societal game in which actors accept the legitimacy of publicly enunciated legal rules. A meta-norm of respect for the sovereign legal power of the state is not self-forming on the basis of private conduct, but requires the coevolution of impersonal market exchange with effective state capacity to constitute and regulate markets. A functioning legal system must acquire the means not just to control private power but to constrain other organs of government. The emergence of such a ‘self-limiting state’ is an historical process which, while complementary to a market order, is also contingent and path-dependent, and is not preordained. Illustrating our argument with empirical evidence drawn from the contemporary experience of middle-income countries, with a focus on China, we argue that alternatives to the rule of law state, including interpersonal trust, closed networks and authoritarian political control, can only achieve limited scale and scope effects, and are prone to high deadweight costs arising from corruption and the capture of the public sphere by private interests. We also discuss the potential of transplants of legal rules and institutions to catalyse the transition to impersonal trade based on the rule of law, and present evidence, from time-series econometric analysis, that the diffusion of shareholder protection laws has the potential to support financial development in emerging markets. Evolution towards the rule of law state is, we conclude, one possible developmental path for middle-income countries.