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Monday, February 3, 2020 | History

2 edition of Formal or substantive legality found in the catalog.

Formal or substantive legality

Jeanne Gregory

Formal or substantive legality

the future of protective legislation.

by Jeanne Gregory

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Published by Middlesex Polytechnic in London .
Written in English


Edition Notes

SeriesOccasional papers (Middlesex Polytechnic) -- no.3
The Physical Object
Pagination31, 4p. ;
Number of Pages31
ID Numbers
Open LibraryOL13713038M

A further distinction stemming from this is that between the statute or, more precisely, a decree with the force of law as an "interference with the freedom and property of the state citizen" and the administrative decree as an act that does not intrude on this sphere of freedom, but rather only applies "inside the organs of administrative authority" Anschutz. An Formal or substantive legality book equivalence of law with the results of any particular formal process, therefore, would only be blind subordination to the pure decision of the offices entrusted with lawmaking, in other words, a decision detached from every substantive relation to law and justice, and, consequently, an unconditional renunciation of any resistance. Otherwise, the legislative state would be a rather complicated absolutism; the unconditional claim to obedience would be an open, coercive act of domination; and the honorable renunciation of the right to resistance would be an irresponsible act of stupidity. We nonetheless insist that before the state can punish this miscreant, it must conduct a full-dress criminal trial that results in a verdict of guilty. It also defines the responsibilities and rights of the accused.

Article 2 3 FD states that offences can be added to that list by a unanimous decision of the Council, whereas Article 2 4 FD clarifies that the executing judge can still subject surrender to verification of double criminality if the offences on which the EAW is based are not included in the list. If, in contrast, effect or substantive factors decide, a lot would be law. Whether this will ultimately lead us to accepting Prof. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. Beforethere was no offence of rape within marriage.

And the courts may approach legislation on this initial assumption. When the concept of law is deprived of every substantive relation to reason and justice, while simultaneously Formal or substantive legality book legislative state is retained with its specific concept of legality concentrating all the majesty and dignity of the state on the statute, then any type of administrative directive, each command and measure, every order to any officer or soldier, and all detailed instructions to a judge, by virtue of the "rule of law," can be made legal and given the form of law through a decision of parliament or by the other organs participating in the legislative process. Formal justice is concerned with treating like cases alike, and substantive justice must specify what counts as alike. With its complicated restrictions and counterbalances-bicameral legislature, independent, royal government, supported by army and civil service, federal controls and counterweights-the legislative process contains sufficiently strong guarantees of moderation and an adequately secure protection of freedom and property against arbitrariness and misuse of the legal form. What is considered just may vary from person to person, yet the prevailing moral leaning of society will often dictate whether a law is seen as just Formal justice is concerned with ensuring that legal principles are applied in a fair way.


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Formal or substantive legality by Jeanne Gregory Download PDF Ebook

When the concept of law is deprived of Formal or substantive legality book substantive relation to reason and justice, while simultaneously the legislative state is retained with its specific concept of legality concentrating all the majesty and dignity of the state on the statute, then any type of administrative directive, each command and measure, every order to any officer or soldier, and all detailed instructions to a judge, by virtue of the "rule of law," can be made legal and given the form of law through a decision of parliament or by the other organs participating in the legislative process.

But would it conform to the rule of law, given the egregious affront to human dignity implied by unequal treatment? According to the decision, the transfer of authoritarian state grants of authority without a formal post should itself justify the properties of the civil servant by virtue of the "inner essence of the matter," because the opposing assumption would be "nonsense" and the lawmaker cannot institute "something that is legally impossible and not executable.

If formalities or intent matter, a lot of the informal output would not be law. In A Matter of Interpretation, Scalia defended textualism — and, by extension, formalism — saying: Of all the criticisms leveled against textualism, the most mindless is that it is formalist.

Rule of law

As a normative theory, legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers.

In Thailand, a Formal or substantive legality book that has had a constitution since the initial attempt to overthrow the absolute monarchy system inthe rule of law has been more of a principle than actual practice.

He fled to Belgium after being sentenced, and the Spanish authorities issued a European Arrest Warrant to have him extradited back to Spain. This volume is organized in four sections, where the topic is mainly explored from a comparative perspective, and includes case studies.

The paragraph 3 of the preamble of the Statute of the Council of Europe states: "Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy.

General Principles of Law

The "claim to fame" of common law systems is that the task of developing and updating law is best done incrementally by courts that keep in close touch with social, economic, and technological realities than by political organs that, every so often, will attend to legal reforms.

There can be conflicts of justice when the two try to operate side by side. If, in contrast, Formal or substantive legality book or substantive factors decide, a lot would be law.

They will be more familiar with the rules and can help you invoke the protections outlined in the procedural and substantive laws of your state. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it Formal or substantive legality book became apparent that letting judges decide for themselves all the facts in a dispute such as the extent of an injury in a worker's compensation case would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place.

Procedural law comprises the rules by which Formal or substantive legality book court hears and determines what happens in civil or criminal proceedings. All the dignity and majesty of the statute depends exclusively and directly, more specifically with directly positive-legal meaning and effect, on this trust in the justice and reason of the legislature itself and in all the organs participating in the legislative process.

In other words, substantive law deals with the substance of the case, how the charges are to be handled and how the facts are to be dealt with; while procedural law will give Formal or substantive legality book step by step action plan on how the case is supposed to proceed in order to achieve the desired goals.

It then is a small step to raise the question whether it is not possible or perhaps even more logical to view these prima facie non-legal phenomena as law. The Council of Europe[ edit ] The Statute of the Council of Europe characterizes the rule of law as one of the core principles which the establishment of the organization based on.

However, an amendment to the Spanish Criminal Code made in increased the maximum custodial sentence for that offence to three years.

During the debates on the legal nature of informal international lawmaking we continued to be confronted with the sources question, or at least with the question of the source of the authority which seems so clearly exercised by the actors involved.

However, at least in popular discourse, the term is used loosely. Examples of procedural laws include the time allowed for one party to sue another and the rules governing the process of the lawsuit. According to Otto Mayer, three features characterize such a legislative state: the statute's power to create law that is objective in contrast to the internal administrative order and instructions to subordinate organs and officials ; the primacy of the statute namely, primacy over all other conceivable types of state activity ; and the legislative reservation clause, more specifically, the monopoly to interfere in constitutionally guaranteed fundamental and liberty rights, which the statutory regulation has in contrast to all other types of state activity.as the tension between substantive rationality and formal rationality in the decision-making process.

The essay then moves on to discuss how key ele­ ments of the Western idea of legality, such as the notion of law as a restraint on government and law as formal and procedural justice, are in conflict withCited by: This paper is to introduce Weber’s formal and substantive rationality concepts, then to analyze how these two concepts are related to scientific management and human relation theory.

Formal rationality. Weber defines formal rationality as the degree to an action happens as a result of quantitative and appropriate calculations (Weber, ). If the principle of legality co-exists with the rule of law, then constitutionally authorised bodies could pass morally questionable law Rule Book Conception and the Rights Conception combines formal and substantive conceptions.

P Craig, 'Formal and Substantive Conception of the Rule of Law: An Analytical Framework' [] Public Law While waiting for pdf CJEU’s judgment, we can recognise that this case confirms that a pdf measure – such as the EAW FD – can have a significant substantive impact terms, and that raises doubts on the appropriateness of a making a formal distinction between the two fields when it comes to the principle of legality.Dworkin’s) are wedded to ‘substantive’ or ‘thick’ conceptions of the rule of law, whereas positivist theory is committed to a ‘formal’ or ‘thin’ rule of law ideal, is a misleading simplification.1 At least for positivists, the theory claim that the formal requirements of legality constituted what he dubbed.Chapter 6 Justice Introduction 1.

Particular justice a. The formal principle of justice b. Ebook principles of justice c. Using principles of justice d.

Legal formalism

The agency's role e. Procedural justice f. Discretion 2. Social justice Introduction a. Conditions of justice b. Justice as .