August 25th, 2011 by Hasham
Rights Of Procedural
The journal periodically touches upon the main issues of the Judicial System, judicial practice, commercial, international, constitutional, civil, civil-procedural, criminal, criminal-procedural rights, fight against the illicit drug circulation, detention and many other main issues in separate sections.After the adoption of Criminal and Civil Procedures, new Criminal and Civil Codes and other legislations, a necessity arose to constantly interpret the norms of the mentioned laws scientifically. Being the only periodical of the Association of Judges, it has published the Decisions of precedent importance of RA Council of Courts Chairmen and of the two Chambers of RA Court of Cassation.
It also touches upon the congratulations of birthdays, awards and titles of judges.It has become a tradition for the Association to organize anniversaries of appreciation of merit and celebration events of honor of retiring judges, organization of congratulatory messages.
Board meetings are held in the office of RA Association of Judges. The Board has ten members who fulfill appropriate works as per spheres.
From 2001 till now Vahe Yengibaryan, assistant professor, candidate of legal sciences, lecturer at YSU (Yerevan State University) Faculty of Law is the Executive Director of the Board of the Association.
Various issues on the Judicial System and on the protection of judges’ rights are being discussed and relevant Decisions adopted in the sessions of the Board of the Association.
For the purpose of protection of judges’ rights, the Board of RA Association of Judges appeared with response announcements in mass media in 2004 and 2006, to the announcements by RA Prosecutor’s Office concerning the activity of the Courts.
From 19-24 November 2005, the issue of the membership of RA Association of Judges was in the agenda of the 48th conference of the International Association of Judges taken place in Montevideo, capital of the Oriental Republic of Uruguay. In March 2004, the RA Association of Judges had applied with a request for membership expressing a wish to be a full-fledged member of the International Association of Judges. The issue of the membership of RA Association of Judges had been discussed in Rome, in the Central Council of the Association, and it was decided to invite the delegation of RA Association of Judges to the 48th conference. From Armenia Hrachik Sargsyan, Chairman of RA Association of Judges and Tigran Sahakyan, Chairman of RA Criminal Court of Appeal left for Montevideo.
In the conference session in 23 November, Giacomo Oberto, Deputy Secretary General of the International Association of Judges, judge at the Court of Turino City, presented the application of RA Association of Judges to the judgment of more than 200 judges, participants of the conference, arrived from various countries of the world. The conference was unanimous, and RA Association of Judges became the 68th member of the international organization. From CIS countries Moldova, Georgia, Ukraine and Kazakhstan are members of that structure.
In September 2007 the 50th anniversary annual conference of International Association of Judges took place in Trondheim city in Norway, in which participated also the delegation of the Association of Judges of the Republic of Armenia.
According to the Charter of the International Association of Judges, in the annual meeting, also the issue of the selection of place for holding the next annual meeting was discussed amongst other issues.
Hayek’s classical liberalism defends individual freedom in an ambiguous fashion. His liberalism does stipulate that no one should be coerced by the arbitrary will of another, and does restrict to a minimum the coercive powers of government. But it appears that Hayek does not assert individual freedom as an intrinsic good in itself which is founded in natural rights. For Hayek, individual freedom seems good primarily for utilitarian reasons as a means to assure the social good of attaining material and cultural progress.
Hayek’s liberalism is based on the discovery that the enforcement of certain universal rules and the protection of the private sphere of individuals results in a spontaneous order of human activity. This “invisible hand” generated order, (the impersonal mechanism that integrates the incomplete, dispersed knowledge of individuals), is far more complex and uses more knowledge and skills from individuals than any centrally directed order. The irremediable ignorance (or limited knowledge of any individuals), cannot contain and direct all the knowledge and resultant activity that a spontaneous order (catalaxy) accomplishes by dovetailing scattered plans into a finely meshed whole. The economic coordination of the market place and linguistic evolution are two examples of the free and spontaneous orders so generated. Such spontaneous order is open-ended, since we disagree about general ends, needs, and merits. Hayek also rejects a political philosophy based on some particular understanding of man, since human nature itself is indefinite or open-ended.
Hayek finds liberty or freedom necessary because of each individual’s limited knowledge. Freedom is beneficial because it allows the pooled knowledge of unfettered individuals to promote the social betterment through material and cultural progress. The important aspect of progress for Hayek is the acquisition and use of new knowledge. Individual freedom gains value primarily from its contribution to the cumulative growth of knowledge (“If there were omniscient men…there would be little case for liberty.”). Hayek believes we should value freedom not so much from the standpoint of the individual as from that of society. People are important as potential contributors to social progress rather than as individuals with natural human rights.
It is crucially important, then, to examine Hayek’s view of the “rule of law” in its implications to individual freedom and rights. Rejecting legal positivism and mere legality. Hayek’s “rule of law” is a metalegal notion. It seeks to define what “true” law ought to be by devising universal rules that foster a progressive, spontaneous order. True laws, for Hayek, must be general, certain, and equal. They must refer to conduct rather than ends. They serve as the rules of the game to enable a system of free individuals to work effectively. Thus freedom under the law, so defined, is intended to prevent any individual from being subject to another man’s will.
Hayek may be criticized for the inadequacy of his “rule of law” to protect individual liberty (certain laws arrived at by majorities may be oppressive to individuals). Hayek is somewhat vague on the limits of majority decisions in lawmaking. He needs to clarify what role discretionary power might play in his impersonal, general, and universal abstract enforcement of laws.
The Case for Government
* Harvard University
Anarchy, State, and Utopia.
A minimal state limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, etc., is justified. A more extensive state will violate individual rights. On examination we can uncover the limitations of utilitarianism, consequentialism, and redistributivism.
The argument consists of three parts, it: (1) justifies the “nightwatchman state” of classical liberalism and (2) contends that a more extensive state cannot be justified and proposes an “entitlement” theory of justice as an alternative to redistributivism à la Rawl’s A Theory of Justice; and finally (3) argues that the minimal state, despite its shortcomings, is inspiring as well as right; the coercive power of the state should not be used paternalistically to prohibit activities of people for their own protection and to force some citizens to aid others.
The entitlement theory holds that protection of property alone justifies redistributive taxation. Any other form of redistribution is unjustified. According to the theory: (1) an individual is entitled to holdings if they were first acquired in accordance with seemingly just principles; (2) property is justly held if transferred to an individual by just means by someone who acquired it justly; (3) a holding is just if acquired in recompense for past injustices in acquisition and transfer.
“Nozick on Anarchism.” Political Theory (USA),
Robert Nozick’s attempt to refute anarchism in Anarchy, State, and Utopia (1974) is invalid and fails to justify the state’s coercive monopoly of force in a given territory. Nozick creates bogus “rights” when he invokes “procedural rights” (each person’s right to resist, in self-defense, if others try to apply to him an unreliable, unfair, or risky procedure of justice). But even if such “rights” were valid, they would not justify the state monopolizing the protection of these “rights.” In fact, individuals could claim “procedural rights” and apply them to judge the state’s “risky” procedures. This would seem to bolster the anarchist case.
Nozick’s justification of the state attempts to derive the state through a natural and moral evolution by an “invisible hand” process. This process, in outline, occurs in four states. First, individuals living in a state of nature and possessing Locke an natural rights would naturally evolve protection associations. In a non coercive society, these would take the form of free market services, which would ward off immoral attacks on their rights by criminals. The second stage sees the many associations giving rise to one association of preeminent power in an area. In the third stage, the one preeminent association evolves into an ultraminimal state which “sells” its protection as an economic good but also exercises a monopoly on force. The fourth and final stage of Nozick’s evolution of the state sees the ultraminimal state turning into an identically functioning minimal state which makes a “redistribution” of protection to certain independents (nonclients of the ultraminimum state) at cost to the clients.
The crucial and fallacious stage is the third; the transition from the preeminent association to the ultraminimum state. Nozick fails to show how the latter can acquire its monopoly on force without violating individuals’ rights. The ultraminimum state claims the right to intervene and prohibit victims from privately enforcing justice claims against its clients because of the above described “procedural rights.”
Nozick contends that one may have a right (to self-defense), but does wrong to exercise it in the absence of nonrisky procedures guaranteeing fairness (i.e., procedural rights). First, however, even if procedural rights are valid rights, they hardly justify the state monopoly. For if it can punish violators of procedural rights, why cannot independent individuals also judge whether the state itself may violate procedural rights? What independent criterion guarantees that the state alone will follow nonrisky procedures?
But secondly, procedural rights are, in fact, a bogus concept which asserts rights to violate other rights or individuals. If individuals have the right of self-defense and have been injured, whether or not they follow “sound” procedures, they have a natural right to prosecute and punish an actually guilty party. To prohibit a victim from privately arresting and prosecuting his actual assailant is to violate an authentic right.
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