Rule Of Law Research Articles

On the Doctrine of the Direct Effect of European Provisions Regarding the Requirement of Enforceability

This paper analyses the interpretation of direct effect in terms of its contribution to the development of an efficient European legal system. A precondition for efficiency is the enforceability of provisions. The concept of direct effect, interpreted on the basis of a questionably adequate understanding of the concept of monism taken over from international law, should enhance enforceability by disabling national agents to interfere or to perform the “handover” of rights from the EU level to citizens. Such understanding leads to the national practice applying direct effect in a simplified, plain, and bureaucratic way, and distancing from the substance of provisions. In the cases where, intentionally or not, direct effect/direct applicability are sometimes denied and sometimes recognised to directives and regulations, the CJEU shows how to deal with such situations occurring in the activities of the European regulatory institutions. To fulfil its purpose, national agents applying European law should deploy the underutilised but demanding “shield and sword” approach regarding direct effect. Such an approach, which requires almost equally intense engagement as in the case of indirect effect (also insufficiently exercised at the national level), should defend individual rights from both national and supranational unfavourable influences. In doing so, fundamental rights and general principles encouraged and taken care of by the CJEU, which are and should be the cornerstone of the EU legal system, and which are ultimately a justification for the Member States to embrace the principle of supremacy of European law, should be taken into account.

Reconstructing the Cooperative Rule of Law as an Alternative for Economic Empowerment of Rural Communities in Indonesia

Cooperatives in the Indonesian economic system function as one of the efforts to achieve national development goals, namely creating a just and prosperous society in accordance with the principles of Pancasila and the 1945 Constitution. The legal basis of cooperatives in Indonesia is regulated by Law Number 25 of 1992 concerning Cooperatives. The purpose of this research is to study the development of cooperative law in Indonesia as an alternative to economic empowerment of rural communities, and analyse the legal construction of cooperatives as an alternative to economic empowerment of rural communities in Indonesia. This research is a normative legal research with a legislative approach and conceptual approach. The results show that the weaknesses in Law No. 25/1992 on Cooperatives, such as the unclear definition of cooperatives, unfulfilled principles, and lack of strict sanctions, indicate that the regulation needs to be reconstructed to address the existing problems and increase public trust in cooperatives. Thus, the reconstruction of Law Number 25 of 1992 on Cooperatives will not only improve cooperative governance, but also make a significant contribution to the economic empowerment of communities in Indonesia, especially in rural areas.

Sistem Pengelolaan dan Pengembangan Wakaf Secara Produktif di Pondok Pesantren Al-Uswah Kuala Kabupaten Langkat Menurut Undang-undang No. 41 Tahun 2004 Tentang Wakaf

The purpose of this study was to determine the productive waqf management and development system at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency, and also to find out the forms of productive waqf management and development at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency. This type of research includes empirical research with a qualitative approach. The subject of this study involved the Chairperson of the Al-Uswah Kuala Islamic Boarding School Foundation, Nazhir Waqf, and the Community, with a qualitative descriptive research analysis. The results of the research conducted show that the waqf management and development system productively at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency is carried out by administering and collecting data on waqf assets, then recording them in a notarial deed so that they have permanent legal force, and carrying out maximum supervision so that the utilization Waqf assets are in accordance with their function and main objective, which is to develop Islamic education as a place to nurture true Muslims. Then, the productive management and development of waqf at the Al-Uswah Kuala Islamic Boarding School in Langkat Regency is carried out in two forms, namely the physical form in which waqf assets are developed by adding and constructing various buildings needed in the educational process at the institution. Apart from that, it is also being developed in the form of waqf management policies especially for the needs of the students, for example providing free tuition fees for orphans and high achieving students so as to help the Muslim community (santri's parents). While the form of waqf assets is distributed to the surrounding community in the form of donations such as groceries and so on at certain moments. So that the productive management and development of waqf assets is in accordance with Law no. 41 of 2004 concerning Waqf.

Legal Review of Ship Certification After the Issuance of Law Number 11 of 2020 Concerning Job Creation

This research examines the shift in authority and processes related to the certification of fishing vessels in Indonesia after the enactment of Law No. 11 of 2020 on Job Creation. The primary objective of this study is to analyze the legal force and implications of the transfer of authority from the Ministry of Transportation to the Ministry of Marine Affairs and Fisheries (KKP) in issuing fish vessel certifications. Using a normative juridical approach, this study investigates the procedural changes, challenges, and impacts of the new regulatory framework on fishing vessel safety and compliance. The findings show that the Job Creation Law simplifies licensing procedures while ensuring the safety and seaworthiness of fishing vessels. However, the study also highlights the challenges posed by a shortage of qualified inspectors, leading to delays in the certification process. This research underscores the need for regulatory adjustments and additional inspector training to align the maritime sector with the law’s goal of promoting safety and business efficiency.

Ius Constituendum on the Doctrine of Unlawful Nature in the Law on the Eradication of Corruption After the Constitutional Court Decision Number 003/PUU-IV/2006

The unlawful teachings in the explanation of Article 2 paragraph (1) of the Law on the Eradication of Corruption have been considered by the Constitutional Court as a norm that is contrary to the Constitution of the Republic of Indonesia in 1945, and does not have binding legal force. This condition has legal implications for the meaning of unlawful elements in Article 2 paragraph (1) of the Law on the Eradication of Corruption, becoming vague (vague norm). The purpose of this study is to analyze the unlawful teachings in the Law on the Eradication of Corruption in Ius Constituendum. This research uses normative legal research, which formulates the aspired law (ius constituendum) on the meaning of the element against the law (wederrechtelijkeheid) in the Corruption Eradication Law after the Constitutional Court Decision Number 003/PUU-IV/2006. The results of the discussion show that by assessing the basis of the Constitutional Court's legal considerations (ratio decidendi) Number 003/PUU-IV/2006. The cancellation of the explanation of Article 2 paragraph (1) of the Law on the Eradication of Corruption which adheres to the teachings of the nature of the act of violating formal and material laws, because it is considered that the concept of materiele wederechtelijk, which refers to unwritten law, is an uncertain measure. The unlawful element in Article 2 paragraph (1) of the Law on the Eradication of Corruption Crimes is still interpreted as against formiele wedderechtelijkeheid and against materiele wedderecjhtelijkeheid in its negative function. As for its positive function, it must be considered contrary to the principle of protection and fair legal certainty regulated in Article 28D of the 1945 Constitution.

Land disputes on legal certainty in South Sulawesi South Sulawesi in 2023

Objective To begin with, the plaintiff is questioned about the contents of his claim. The judge can make a decision with the help of local examination. When it comes to the construction of evidence in civil cases, the duties and responsibilities of local examination of the object of land dispute is an issue that arises. shows that local examination based on Article 153 HIR, Article 180 R. Bg or Article 211 Rv as well as SEMA No. 7 of 2001 does not reflect legal certainty because it does not regulate the mechanism of local examination in the field thoroughly, which leads to many interpretations. In addition, it is still ambiguous whether local examination is a means of evidence whose value is left to the judge or whether local examination is only an examination tool or method of obtaining evidence. Research Results and Discussion Local inspection results are a valid source of evidence in civil cases, local examinations have the following legal consequences: (1) court costs if the judge requests a local examination; and (2) the evidentiary power of the local examination. Both of these are legal consequences that need to be clarified in future regulations. elements that need to be clarified in future regulations. Conclusion In civil cases, all cases relating to immovable property are required to ensure legal certainty in the future regulation of local inspection of land. to create legal certainty regarding local inspection, the diversity of this regulation is very important. In order to create legal certainty regarding local examination, diversity of regulation is essential. Regulations regarding local examination should be established at the level of a law so that they have strong legal force against all parties involved in the case, including judges, clerks, and all other parties.

EU Regulatory Polity 3.0 for Compliance with the Rule of Law: When Depoliticising Goals Lead to Uneven Politicisation

Abstract Since limiting judicial independence in Hungary and Poland, the politics of the rule of law crisis have been examined by various scholars discussing conflicts within and between EU and domestic institutions. The rule of law is no longer a purely national affair – it is of high political salience both for the Member States and the EU polity. The question addressed here is: how has the rule of law crisis reshaped the EU’s modes of governance? We argue that to safeguard this common value, the EU is evolving into a regulatory polity (3.0). This development marks a shift from Majone’s EU regulatory state’s focus on regulating markets (1.0) and regulation in core state powers in times of crises (2.0) to regulation on the core values of the polity (3.0). The article shows that in a context of growing dissensus over the rule of law, EU institutional actors have sought to strengthen “rulemaking,” “rule monitoring” and “rule enforcement” through a regulatory approach anchored in a market logic. It also shows that shifting from the traditional regulatory state 1.0 to regulation in core state powers 2.0, the regulatory polity 3.0 strengthens the EU’s institutional capacity to act when the rule of law is under strain through depoliticised “rule monitoring” and politicised “rulemaking“ and “rule enforcement“ as illustrated in the cases of Hungary and Poland discussed in this article.

Rule of law, economic structure and development

AbstractIf rule of law encourages relationship‐specific investments, then industries that use intermediates which require relationship‐specific investments should have a disproportionately low share of output or labour in countries where rule of law is weak. We find robust support for this prediction using data on industry composition for 189 countries. Using a standard preference framework to construct model‐implied income values from the estimated coefficients, we find that the interaction between relationship specificity and rule of law may be an economically significant determinant of aggregate outcomes through its influence on productivity and economic structure.

Breaking the Silence: Fighting Injustice with Anti-Marginalization Advocacy

This article delves into the persistent issue of human rights violations against Scheduled Castes SC and Scheduled Tribes ST in India, despite the country’s celebration of its 75th anniversary of independence from British rule. It critically examines the historical and ongoing suppression of marginalized communities through the lens of modern - day slavery under the rule of law, with a focus on the legal and societal frameworks that perpetuate such atrocities. The author, a law student, employs a multidisciplinary approach to explore the gaps in the enforcement of legal protections and the stark inequalities that exist within Indian society. Drawing on reports, legal statutes, and the Constitution, the article highlights the increase in crimes against SC and ST communities, underscoring the need for stringent enforcement of laws and a coordinated effort among various stakeholders to address these violations. It proposes remedial measures aimed at systemic transformation, including building capacity, streamlining processes, and sensitizing the public. The article concludes with a call to action for every citizen to contribute to the fight for equality and dignity for marginalized communities, embodying the principles enshrined in the Indian Constitution.

Legal Efforts for Owners to Regain Their Certificates Related to the Criminal Case of Embezzlement of Land Certificates by Notaries

In Indonesia, every land right, management right, waqf land and ownership right to a condominium unit are registered by recording them in a land book, which contains physical data and legal data of the land area in question and as long as there is a measurement letter, which is also recorded in the measurement letter. Normative research method. Civil Code (KUHPerdata) Article 1866 KUHPerdata: States that the legal owner of a land right has the right to prove his ownership. In cases of embezzlement, the owner can use legal proof of ownership to file a claim. Article 197: Regulates the restoration of lost rights, which can be used as a basis for filing an application for restoration of rights to embezzled certificates. Law No. 5 of 1960 concerning Basic Agrarian Principles (UUPA): Article 1 Paragraph (1), Article 37, Article 672. Government Regulation No. 24 of 1997 concerning Land Registration: Article 1 Paragraph (1). PP NO. 18 OF 2021: a series of activities carried out by the Government continuously, continuously and regularly including the collection, processing, bookkeeping and presentation as well as maintenance of physical and legal data from each plot of land owned by the community, legal entities and government agencies. In its implementation, the definition above is carried out based on the principles of simplicity, safety, affordability, up-to-date and openness. Basically, the issuance and cancellation of land title certificates can be done in two ways, namely cancellation due to a court decision and cancellation carried out by the BPN itself. because the court decision only assesses the validity / does not have legal force, while the cancellation of the certificate is the authority of the BPN, are two different things.

THE COLLECTIVE HUMAN RIGHT TO HISTORICAL REPARATION VERSUS THE PRECLUSION OF THE RETROACTIVE APPLICATION OF INTERNATIONAL LAW IN THE AREA OF STATE LIABILITY

It is unanimous in International Law that anyone who has committed an unlawful act must make reparations. However, there has been an increasingly pressing debate over whether it is possible to hold colonial powers legally liable for acts and crimes committed in the past in their former colonies. The rules of international liability indicate, among other issues, that time has already exerted its preclusive influence on possible claims for reparations, according to the rules of intertemporal law, which leads one to believe that International Law still seems incapable of helping those who were colonized and enslaved, since in practice the issue of the collective human right to historical reparations versus the preclusion of the retroactive application of International Law in matters of State liability is being discussed. However, some issues have arisen recently, such as the recent statement by the then Portuguese president, recognizing Portugal's responsibility for enslavement and crimes that occurred during the colonial period. Thus, and given the context of the current scenario, we seem to be witnessing an important historical step in a larger political-legal process. It seems premature to talk about a collective human right to historical reparation, however, it seems that a period of long and important debate is beginning, which is on the agenda of major newspapers, social networks and academic research. Thus, this movement may lead in some way to effective reparation for the serious violations committed in the past.

Judicial control cause and causation in the United Arab Emirates

Judicial control in administrative law has become a necessity in administrations. Given the significant role it plays in confronting illegal activities and preserving property, money and the security of individuals in society. This research aims to introduce judicial in the United Arab Emirates and discuss the relationship between cause and causation.The descriptive analytical approach was used to study the research problem.the research conclude that cause and causation the most important element that enables the judiciary control the legality of the administration’s decisions. It is of great importance safeguards to protect individuals from abuse of administration by informing the person concerned of the reasons for making the decision, since the administration, in exercising its powers, must respect the set of legal rules established for it in the State.the research recommend that the competent authorities to make causation an essential part of the cause and a failure to render administrative decisions null and void in order to ensure transparency and to affirm the rule of law, with the exception of acts of supreme sovereignty, in order to preserve the supreme interest of the State.

Sistem Pengelolaan dan Pengembangan Wakaf secara Produktif di Pondok Pesantren Al-Uswah Kuala Kabupaten Langkat: Studi Analisis Menurut Undang-Undang No. 41 Tahun 2004 tentang Wakaf

ABSTRACT The purpose of this study was to determine the productive waqf management and development system at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency, and also to find out the forms of productive waqf management and development at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency. This type of research includes empirical research with a qualitative approach. The subject of this study involved the Chairperson of the Al-Uswah Kuala Islamic Boarding School Foundation, Nazhir Waqf, and the Community, with a qualitative descriptive research analysis. The results of the research conducted show that the waqf management and development system productively at the Al-Uswah Kuala Islamic Boarding School, Langkat Regency is carried out by administering and collecting data on waqf assets, then recording them in a notarial deed so that they have permanent legal force, and carrying out maximum supervision so that the utilization Waqf assets are in accordance with their function and main objective, which is to develop Islamic education as a place to nurture true Muslims. Then, the productive management and development of waqf at the Al-Uswah Kuala Islamic Boarding School in Langkat Regency is carried out in two forms, namely the physical form in which waqf assets are developed by adding and constructing various buildings needed in the educational process at the institution. Apart from that, it is also being developed in the form of waqf management policies especially for the needs of the students, for example providing free tuition fees for orphans and high achieving students so as to help the Muslim community (santri's parents). While the form of waqf assets is distributed to the surrounding community in the form of donations such as groceries and so on at certain moments. So that the productive management and development of waqf assets is in accordance with Law no. 41 of 2004 concerning Waqf. Keywords: Management, Development, Productive Waqf.

Constitutional Overhaul, the War in Gaza, and the Puzzle of Civic Mobilization in Israel

Abstract Much has been written on the constitutional overhaul in Israel, and the attendant constitutional crisis in the first nine months of 2023. Since October 7, however, with the breakout of the Israel-Gaza war, the overhaul was seemingly shelved. This Article seeks to connect both events, by comparing the legal-political response to the overhaul with the legal-political response to the war. It asks why, given the intensity of the protest movement generated by the overhaul, there was a dearth of protest activity after the war, even though both events implicated similar values, namely the rule of law and individual rights, championed by the protest movement. I argue that a central reason for the disparity cannot only be explained by the dynamics of war but also due to the tensions and complexities inherent in Israel’s self-professed constitutional identity as a Jewish and democratic state. In particular, I argue that anti-overhaul protests appealed to liberal universalist values to garner bipartisan support, with the effect of bypassing substantive issues such as the occupation of the Palestinian Territories and discrimination faced by Israeli Palestinians. This explains the lack of Arab participation in the protests, as many perceived them to be an internal Jewish Affair. Thus, when post-war repressive measures mostly affected Israeli Palestinians, the protest movement failed to rally in their support. Although anti-overhaul protests could have brought about greater liberal consolidation in Israel, the relative lack of post-war mobilization casts lingering doubts on the possibility of long-term consolidation of liberal values in Israel. Attempts to depoliticize the protests, while perhaps successful in warding off the overhaul, and though impressive on their own, have likely failed in instilling deeper, more resilient, liberal values in Israel.

Mutualism: a model for managing risk in P2P sharing

Abstract This article explores how the risk structure currently adopted by the sharing economy, in particular the highly formalised and contrived systems of contract constructed by platforms, is largely constituted by the rules of property law. This effectively ties sharing activities to the old model of private property and its accompanying boundaries of privatised risk and value and undermines the efforts of collaboration to supersede those boundaries through peer-to-peer co-production of value. This article aims towards presenting an alternative model of risk distribution for the sharing economy that is more reflective of its collaborative nature. To this end, I will draw on ideas from commons and mutualism and propose the possibility of creative use of contracts to stipulate positive duties and obligations between collaborative partners as a device to construct a collective and/or mutual risk system.

Addressing the risks of generative AI for the judiciary: The accountability framework(s) under the EU AI Act

The rapid advancements in natural language processing, particularly the development of generative large language models (LLMs), have renewed interest in using artificial intelligence (AI) for judicial decision-making. While these technological breakthroughs present new possibilities for legal automation, they also raise concerns about over-reliance and automation bias. Drawing insights from the COMPAS case, this paper examines the implications of deploying generative LLMs in the judicial domain. It identifies the persistent factors that contributed to an accountability gap when AI systems were previously used for judicial decision-making. To address these risks, the paper analyses the relevant provisions of the EU Artificial Intelligence Act, outlining a comprehensive accountability framework based on the regulation's risk-based approach. The paper concludes that the successful integration of generative LLMs in judicial decision-making requires a holistic approach addressing cognitive biases. By emphasising shared responsibility and the imperative of AI literacy across the AI value chain, the regulatory framework can help mitigate the risks of automation bias and preserve the rule of law.

The Impact of Political Interference on the Judiciary: India Vs. Pakistan

This paper investigates the significant effects of political interference on the judiciary in India and Pakistan, two countries with a common colonial history but differing paths since gaining independence. The judiciary serves as a fundamental pillar of democratic governance, designed to function independently while protecting the rule of law and upholding constitutional rights. Nevertheless, in both nations, political influences have notably affected judicial operations, compromised judicial independence and eroding public confidence. Through a comparative examination, this study highlights important historical moments, landmark rulings, and constitutional frameworks that demonstrate the degree and nature of political interference within both judicial systems. In India, such interference has emerged through executive control over judicial appointments and crises, notably during the Emergency period from 1975 to 1977. In contrast, Pakistan's judiciary has experienced direct meddling from military governments and political authorities, frequently rationalized by the contentious Doctrine of Necessity. Additionally, the paper investigates how the judiciary has responded to these interferences, including instances of judicial activism and civil society initiatives that promote judicial independence, such as the Lawyers' Movement in Pakistan. Ultimately, this research emphasizes the urgent need for strong protections to ensure judicial independence, bolster public trust in the judiciary, and maintain democratic principles in both countries. By highlighting the comparative experiences of India and Pakistan, this study aims to enrich the broader discussion on judicial independence in South Asia.

Don’t forget institutions: a review essay of The Economics of Prosperity

AbstractExchange, division of labor, technology, capital accumulation, and entrepreneurship all contribute to economic growth. In The Economics of Prosperity, Ritenour explains how each of these concepts allow countries to develop and flourish. This book attempts to provide an extensive survey of Austrian literature surrounding development, while still preserving the author’s opinions around debated issues such as the person and function of the entrepreneur. Ritenour also takes the institution of secure private property rights as a given. This paper argues that strong private property rights must precede any discussion of exchange and specialization, particularly because exchange presupposes ownership. The ruler or ruling elites have to concede some power and uphold a strict rule of law to protect private property rights. Additionally, this paper also extends the discussion to cultural and institutional factors behind innovation and economic development, instead of relying on the Weberian work ethic to explain the Industrial Revolution. In short, economic growth requires good economic principles.

Analysis Of Differences In Evidence In District Court Decisions And Supreme Court Decisions: A Case Study On The Judicial Review Process

A judicial review (PK) is a legal mechanism given to parties who are dissatisfied with a decision that has permanent legal force, either in the District Court or the Supreme Court. In Indonesia, a PK application can only be submitted once, as regulated in Article 268 paragraph (3) of the Criminal Procedure Code, and often involves new evidence (novum) as a basis for requesting a judicial review. The objective to be achieved in this study is to analyze the differences related to the evidence in the District Court decision and the Supreme Court decision in the review process. The method used in this study is juridical normative where the legal material used covers the theory, concept, legal principles and some regulations in accordance with the discussion of research. The method of data collection used is literature study where secondary data are used such as books, laws and related journals. The results of this study indicate that the difference in evidence in conducting judicial review becomes one of the considerations for the acceptance or rejection of PK by the Supreme Court. However, in fact, the specification of the quality of evidence is still not clearly explained where it will only create a blur of norms. Therefore, it is not surprising when the Supreme Court rejected many of the judicial review considering that there was no eligibility for the quality of the evidence received

On judicial practice in the field of intellectual property

This article is devoted to the analysis of the legal positions of the Constitutional Court of the Russian Federation, formulated in its regular decisions in the field of intellectual property regarding the qualification of other forms of unfair competition, the administrative-judicial procedure for the protection of intellectual rights, the procedure for paying remuneration to authors of service objects of patent rights. It should be assumed that certain legal positions of the Court are not formulated quite correctly. In addition, it is concluded that certain legal positions contain rules of law, although of a temporary nature, the adoption of which is not within the competence of the Constitutional Court of the Russian Federation.