Application Of Customary Law Research Articles

Participation of the Acehnese Indigenous People in the Formation of Legislation

This journal discusses the participation of the Aceh traditional society in the formation of laws and regulations in Nanggroe Aceh Darussalam. Aceh is a regional government that has a special autonomy related to one of the distinctive characteristics of using Islamic Sharia in forming its policies. Article 96, paragraph 1, of Law Number 13 of 2022 is the legal basis for the public to participate in the formation of statutory regulations. Public participation in the formulation of legislative regulations is the implementation of the objectives of Indonesia for the well-being of the entire Indonesian people. Seeing this, problems arise regarding how to apply Acehnese customary law in regional regulations and the participation of the Acehnese traditional community in the formation of regional regulations. The research method used in this writing is normative juridical, by examining library materials or secondary data. This research explains that the application of customary law in Aceh in regional regulations is called qanun, which is based on Islamic sharia. Then, Ulama and traditional institutions have an important role and certain authority in the formation of laws and regulations.

Implementasi Hukum Adat Sebagai Penanganan Restorative Justice Dalam Membangun Sistem Alternative Penyelesaian Hukum Pidana di Indonesia

In the implementation of the resolution of criminal law violations in customary courts, it is felt to be very effective in dealing with many criminal cases through a restorative justice approach which theoretically relies on values that are characterized by Indonesian harmony, balance and conduciveness to ensuring shared life in society. Therefore, all forms of recognition of customary law must be carried out through acceptance and granting legal status related to the existence of its implementation in areas where the application of customary law is very strong. This research is a qualitative type of research with a normative conceptual and juridical approach. The data source was obtained by examining positive legal norms in the form of applicable laws and customary law norms. The conclusions that can be drawn from this research are: In customary justice it is not considered as non-formal justice outside of the judiciary under the State judiciary institution. The Supreme Court is on par with other customary justice bodies. Customary justice is something that actually occurs in the midst of society, therefore the basis contains the principles of restorative justice which focuses on resolving criminal cases outside of court so that the value of justice can be accepted by each group and individual in the customary law that occurs in Indonesian society.

The Role of Customary Law in the Management and Protection of Customary Forests in the National Capital City (IKN)

Customary forests in the National Capital City (IKN) have an important role in the ecological, cultural and social sustainability of local communities. This research aims to examine the role of customary law in the management and protection of customary forests in the National Capital City (IKN). The method used in this research is the normative juridical method, namely by examining or analyzing secondary data consisting of literature and journals that discuss indigenous peoples and their customary rights. The application of customary law in the National Capital City (IKN) has provided a strong legal foundation for indigenous communities to safeguard their forests from illegal activities and adverse environmental changes. The research also identifies challenges and conflicts that arise in the implementation of customary law, including tensions with national law. The results of this study provide a deeper understanding of how customary law plays a role in the management and protection of customary forests in the National Capital City (IKN).

Model Agroforestri di Desa Leimea Sorinbalo Kabupaten Ermera Timor-Leste

Agroforestry is the management of optimal and sustainable land use, by combining forestry and agricultural activities in the same land management unit by taking into account physical, social, and economic environmental conditions. This research was carried out in Leimea Sorinbalo village, Ermera Regency, East Timor, in March and May 2021 using qualitative and quantitative methods. The data used in this study are data obtained directly from agroforestry farmers in Ermera District, East Timor by means of direct interviews with 30 respondents (farmers) regarding the agroforestry model with the help of questionnaires. Analysis of economic data using the three criteria of NPV, BCR and IRR, social and ecological analysis of Descriptive qualitative. The results of the financial analysis showed that the NPV was the results of the financial analysis showed that the NPV was $ 220,184.66, the BCR was 28.7 and the IRR was 35 %. The results the ecological analysis showed that the biodiversity is vanilla, chocolate, Agarwood teak, gamal, jackfruit, orange etc, and social analysis showed that the Local institutions and culture are studies on social aspects. The central institution that serves as a driving force for farmers The non-formal institution in Leimea Sorinbalo village is recorded only as a customary institution that maintains the preservation of agroforestry land through the application of customary laws. 
 Key words: Agroforestry model, ecologicalm, economy, social

APPLICATION OF CUSTOMARY LAW IN THE JUSTICE SYSTEM IN INDONESIA

Customary law is the original law of the Indonesian nation which originates from unwritten legal rules that grow and develop and are maintained by the community. Its unwritten nature is a weakness in its position as one of the laws in Indonesia. In practice, customary law does indeed have a place in the administration of justice. Therefore it is necessary to know how the application of customary law in the justice system in Indonesia. The purpose of this study is to determine the application of customary law in the justice system in Indonesia. The research method used in this study is normative juridical research as well as a conceptual approach. The data collection method used is the library study method. With a qualitative analysis method. The results of the research show that the application of customary law in the justice system is very important. Customary justice has become a place for solving problems faced by people in remote villages. In addition, most poor people prefer to settle their cases in customary courts rather than taking state law. However, in implementing this, there are not a few challenges faced, due to the fact that the role of customary justice has not been properly recognized. The unclear recognition of customary justice in laws and regulations has an impact on the existence of customary justice. The government needs to provide a clear position of customary law so that it can carry out its function as one of the laws in Indonesia.

IMPLEMENTASI MEDIASI PENAL MENGGUNAKAN PENDEKATAN HUKUM ADAT PADA MASYARAKAT ADAT DAYAK HIBUN

The development of globalization and the current standard of human life cannot be matched by the existing law enforcement process (human development is dynamic while law is static). So is the emergence of problems that occur related to existing law enforcement, especially criminal law enforcement through the criminal court system. The problem that arises is the number of cases in lawsuits and the capacity of the penitentiary. To eliminate this problem, it is necessary to think about seeking a settlement of legal issues outside the existing justice system (alternative dispute resolution) and one of the efforts that can be made is the application of customary law as a step to reconcile the disputing parties. The aim is that the disputing parties can resolve the problem with their own awareness and prioritize mutual understanding and respect for the rights of victims and perpetrators. As is known in customary law, namely efforts to resolve conflicts and restore balance.

PENERAPAN HUKUM DALAM PENYELESAIAN KASUS PIDANA TERHADAP OKNUM PANDITA (KAJIAN PUTUSAN NO 266/Pid.B/2021/PN Dps)

The purpose of this study is to find out how the law is applied to an individual Pandita who is a holy person (purified) according to Hinduism when he is exposed to a criminal case (immoral crime), and to find out what the judges consider in giving their decision as stated contained in Decision Number 266/ Pid.B/2021/PN Dps. In this study used 3 (three) approaches, namely: a. the statutory approach, b. Conceptual approach, c. Philosophical approach. In the application of law to an individual who is involved in a criminal case, there are two legal systems, namely the application of customary law, namely: with the revocation of the defendant's kesulinggihan status so that he returns to being a walaka (a person outside of the sulinggih) so that there is no word "excluded/specialized". Judges in the proceedings at trial carry out positive law, namely by applying the contents of article 289 of the Criminal Code and the proceedings using the Criminal Procedure Code as law The formal form is from the Criminal Code as its Material Law. That the judge's considerations in deciding this immoral case have studied carefully observing evidence and expert witnesses from doctors and from the Bali PHDI as well as conducting a study of the values that live in society, especially the law. Balinese custom a The Panel of Judges stated that the defendant had violated the contents of Article 289 of the Criminal Code and was sentenced to 4 (four) years and 6 months in prison

Features of the Psychographic Portrait of the Residents with Criminal Record living in Northern Territories and the Arctic Zone of the Khanty-Mansi Autonomous Okrug-Yugra and Yamalo-Nenets Autonomous Okrug

The psychographic features of the personality of residents of various regions of the Russian Federation are an interesting and insufficiently studied phenomenon from the standpoint of psychological knowledge. In our opinion, it is convenient to present such a phenomenon in the framework of personality research in the form of a psychological portrait - a kind of model structure reflecting the psychological characteristics of the object of research. The subject of the study is the elements of the psychological portrait of the personality of the studied contingent, the features of which constitute the content of the model of the psychographic portrait of the inhabitants of the northern territories. The parameters and model characteristics of the personality of the studied sample of residents of the region may be of interest to a wide range of very different practices – pedagogical, managerial, legal, professional and others. Separate, compositional parameters of model characteristics are presented in the study, which will form the basis of a general psychographic model of the personality of residents of the northern regions of Khma-Yugra and YANAO who have experience of illegal behavior. Such research is relevant and oriented in the practice of pedagogical, legal work with the population of the marked regions. If possible, a similar practice of scientific research on the presented topic can be transferred to other regions of the North and the Arctic zone of the Russian Federation. The solution of this task is a systematic part of the research project of the Russian Academy of Sciences under the general title "Experience in the application of customary law, history and humanization of penitentiary institutions of Ugra within the framework of European and Russian traditions (late XVI - early XXI centuries)". The research is of practical importance and its results, we hope, will be in demand by specialists from a wide range of various social practices. The main, generalized conclusion of the study is statistically confirmed personality traits of the studied contingent, reflecting the model characteristics of their originality regarding illegal behavior.

РУСЬКА ПРАВДА ТА ЇЇ ВПЛИВ НА СТАНОВЛЕННЯ І РОЗВИТОК УКРАЇНСЬКОЇ ПРАВОВОЇ ТРАДИЦІЇ

The article characterizes the place and role of the Rus’ Truth in the history of the state and law of Ukraine and determines its influence on the formation and development of the Ukrainian legal tradition. It is noted that legal traditions are directly related to the state traditions of the Ukrainian people. The state-legal traditions of the Ukrainian people are a centuries-old continuous process of development of the Ukrainian people, aimed at the formation of the state, passed down from generation to generation and preserved for a long time. The state-legal traditions of the Ukrainian people have an uninterrupted duration, since it includes not only the periods of the existence of the state, but also the periods of struggle for its restoration, national liberation struggles. The state-legal traditions in Ukraine began with the state of Antes, later the state of Kyivan Rus’, the Galicia-Volyn state, continued during the time of the Ukrainian Cossack state, and in the 20th century were represented by the period of the revival of an independent state on Ukrainian ethnic lands in 1917–1921 in the form of the Ukrainian People’s Republic under the Central Council, the Ukrainian State under Pavlo Skoropadskyi, the Ukrainian People’s Republic under the Directory and the West Ukrainian People’s Republic, the declaration of statehood and rights of Carpathian Ukraine (1939), of the Ukrainian state (1941); quasi-states and rights of the USSR. The state-legal traditions of the Ukrainian people embodied the desire to have their own state and law, republican forms of people’s power, electability of the state power, democratic principles of state construction and local self-government, freedom, equality, justice and orderliness in social relations, respect for a person, their life, health, dignity, attachment to private property, to the legal method of protection of violated rights, etc. The Ukrainian people, even during periods of prolonged stay under the rule of foreign states, without having their own state, preserved and developed their own national state-legal traditions and always showed an affinity for the traditions of Western European statehood and law. The state-legal traditions of the Ukrainian people are closely related to such a formulation as «the centuries-old history of Ukrainian statehood», an important component of which was the centuries-old struggle of the Ukrainian nation as an indigenous, titular nation for the right to create its own state. The foundation of national statehood is a long-term, complex process of birth, formation and development of Ukrainian statehood, which results in the creation of a Ukrainian state as a result of the Ukrainian nation development. Considerable attention is paid to the characteristics of the origins of the Ukrainian legal tradition, which go back to the legal culture of the Kyivan Rus’ state, where the foundations of law and the legal worldview were laid. As mentioned above, the formation and functioning of the Ukrainian legal tradition during the period of the Kyivan Rus’ state was positively influenced by the law-making of the Kyiv princes, the application of customary law, the reception of Byzantine and, through it, Roman law, trade and political ties of the Kyivan Rus’ state with Byzantium, Germany, France and other countries. Ancient Ukrainian law was codified for the first time in the Kyivan Rus’ state, the result of which was the adoption of the first legal code – the Rus’ Truth, a source of knowledge of the state-legal development on Ukrainian lands in the 9th-12th centuries, reflecting the level of socio-political, economic and cultural relations of the ancient Ukrainian society. It reveals the generalized legal worldview of Ukrainians regarding the legal foundations of their development, the peculiarities of the regulation of social relations. The Rus’ Truth was the fundamental normative legal act in the Kyivan Rus’ state. The Rus’ Truth was an important normative legal act that influenced the process of formation of Ukrainian law. The formation and development of the legal system of Ukraine began with Ukrainian customary law, princely legislation, and especially the Rus’ Truth in the times of the Kyivan Rus’ state.

TO DEVELOP OR NOT TO DEVELOP THE CUSTOMARY LAW: THAT IS THE QUESTION IN BHE

The decision of the Constitutional Court in Bhe v Magistrate, Khayelitsha, Shibi v Sithole, South African Human Rights Commission v President of the Republic of South Africa (2005 1 SA 580 (CC)) refers. In this important decision, the Constitutional Court in its majority judgment, delivered by Langa DCJ, struck down the male primogeniture rule in the customary law of succession as unconstitutional. In considering the various remedies available to the court, it chose not to develop the offending customary law rule in terms of section 39(2) of the Constitution. In his minority judgment Ngcobo J, however, did opt for the development of the customary law, as ameans to prevent the (permanent?) abolition of the rule. In this discussion the court’s different approaches to the question whether or not to develop the customary law of succession will be assessed, with a view to placing into perspective the court’s approach to the application of the Bill of Rights to customary law generally. A discussion of the constitutional viability of the male primogeniture rule, as well as the relation between the particular facts of Bhe and the rule, falls outside the scope of this discussion. Of particularimportance is our viewpoint that, whereas at a cursory glance the decision seems to impact significantly on the constitutionality of a particular customary rule only (that is, the male primogeniture rule), it has more significant and far-reaching implications for the recognition and application of customary law as a system generally.

Judicial discretion: problematizing the ascertainment and application of customary law by formal courts and relevant theories (Nigeria and South Africa)

Conceptualizing legal education in Africa according to western legal thought and theories has been a major setback in the manner that indigenous African law has been theorized in legal scholarship. This affects how it has been interpreted and applied by courts in its exercise of judicial discretion which is a field that is yet to be adequately explored with respect to the application of indigenous law by courts in a pluralistic legal system. This paper presents, based on empirical data, a theoretical basis for the utilization of judicial discretion in the ascertainment and application of indigenous law by formal courts in Nigeria and South Africa and offers an analysis using relevant legal doctrines of centralism, realism and pluralism. At the core of the analysis is Hart’s extrapolation of the conception of law and the place of judicial discretion and how indigenous law fits into it despite its exclusion by Hart.

Eksistensi Pemberlakukan Pidana Adat Bagi Masyarakat Di Luar Hukum Adat

Before the implementation of the Criminal Code in Indonesia, in several regions in Indonesia there was a norm that became the law and regulations that bind the behavior of local people known as customary law. Customary law has provisions that must be obeyed and cannot be violated by indigenous peoples. If a violation occurs in the future, it will be subject to customary sanctions. It should be understood that customary law is law that applies in certain areas, therefore the application of customary law can be used for certain areas in accordance with customary provisions. The application of customary law is not only for indigenous indigenous peoples but also for individuals who are outside the customary area if they violate local customary regulations. Taking into account the circumstances above, the formulation of this problem is regarding the application of customary law for non-customary communities.

Customary law and regulation: Authenticity and influence

In its origins, customary law is a product of tribal order, which lacked a genuine state organization and institutions to create and enforce the law (Pëllumbi, 2006). Albanian customary law (ACL) is one of the oldest and most exceptional bodies of European customary law. It is exceptional that it does not come from a legislator or state parliament, but it was transmitted across generations in its unwritten form since antiquity. ACL has been applied in Albanian territories alongside various state laws implemented by locals or invaders. The purpose of this paper is to bring closer the scientific knowledge regarding the application of customary law from the ancient period to the new time. This knowledge brings scientific data regarding the originality or the influence of the customary rights of foreign people on ACL. This paper, by using the comparative methods, theoretical and meta-analysis methods (Maloku, 2020), will present the views of some foreign and local authors on customary law throughout history, and in particular in the Kanun of Lekë Dukagjini (KLD) as a fundamental source of ACL. The KLD has had the greatest longevity. Japanese anthropologist Kazuhiko Yamamoto considered the KLD to be similar to ancient Japanese customary law and Homeric-era law (Yamamoto, 2015). This paper contributes to the existing scientific literature, especially in the legal field. Moreover, this paper can contribute to the work of criminologists, victimologists, sociologists, and historians of the rule of law who deal with the research on the impact of customary law in Albanian lands.

THE IMPOSITION OF COMMON LAW IN THE INTERPRETATION AND APPLICATION OF CUSTOMARY LAW AND CUSTOMARY MARRIAGES

South Africa has, over the past few years, seen the development of its jurisprudence in respect of the interpretation and application of African customary law under the new constitutional dispensation as it now also forms an integral part of South African law. Our courts are, in terms of the Constitution, required to apply African customary law when it is applicable, but like any other law, it is also subject to the Constitution. It is also submitted that due to the repercussions of the past, African customary law and laws regulating customary marriages are yet to reach their proper development, and this slow development is also caused by inconsistencies and the imposition of common law in the interpretation and application of African customary law and laws regulating customary marriages. Furthermore, African customary law should not be hinged on what colonisation bequeathed us, as the interpretation of our customary law through the prisms of common law frustrates the development of customary law — which has for a long time been prevented from developing securely alongside common law.

Filsafat Hukum Sejarah: Konsep dan Aktualisasinya Dalam Hukum Indonesia

Abstract: Society has own legal system, namely customary law which can be a source of national law. It exists and has been legitimized in the Indonesian constitution. With the recognition of customary law, law enforcers and lawmakers must consider it. Customary law is not made by the State, but exists, and develops with the development of society. In certain areas, the application of customary law or compliance with customary law is more binding than state law. The basic concept of customary law is from the thought of Friedrick Karl von Savigny through his various works, thus making him the philosopher who built the foundation for the School of Legal History. Keywords: Society; Customary Law; Legal History

Customary Law and Limitations to Constitutional Rights in Botswana

ABSTRACT The protection and enforcement of human rights are at the heart of any constitutional framework, which is usually inclusive of limitations aimed at securing a reasonable enjoyment of these rights for all persons. The extent to which the courts have been able to support the enjoyment of constitutional rights by, among other things, striking down laws that impose excessive limitations on such rights has become extremely important. The second chapter of Botswana’s Constitution provides for a catalogue of rights which contain inherent limitations and, in some cases, exemptions. One exemption relates to matters that appear to be insulated from the provisions of section 15 of the Constitution, namely the right to non-discrimination. It is an exemption which brings to the fore issues relating to the limitation of constitutional rights and the application of customary law in Botswana. This article provides insights into the courts’ approach in dealing with these limitations and exemptions, and their attempt to strike a balance between the enjoyment of constitutional rights and the application of customary law.

APPLICATION OF CUSTOMARY LAW IN PRESERVING THE KARAMPUANG TRADITIONAL FOREST

The title of this research is the application of customary law in conserving the customary forest of Karampuang, Bulupoddo District. This research was conducted with the intention of knowing how to apply customary law in preserving customary forests in Karampuang, Tompobulu Village, Bulupoddo District, Sinjai Regency. The method used in this study uses a qualitative approach. Types of case studies with data collection techniques through in-depth interviews and informants in this study are: Karampuang traditional stakeholders, Tompobulu village government, Tompobulu village indigenous peoples and the Sinjai district environmental and forestry service. The data analysis technique used in this qualitative research is an interactive analysis technique. The collected data is then reduced and the data presentation is then concluded. Based on the results of research and discussion on the application of customary law in conserving customary forests, it has been carried out, but has not been effective becauseUntil now the status of customary forests in Karampuang is not clear, customary law and the imposition of sanctions in the preservation of customary forests in Karampuang are still weak, there are no regional regulations governing the status of Karampuang customary forests.

Penyelesaian Tindak Pidana Pencurian Hewan Ternak Menurut Hukum Adat Masyarakat Kecamatan Alas Kota Madya Manufahi

Theft is related to the possession of other property without the permission of the owner, with various ways and modes of operation. The role of customary law in the settlement of criminal theft (livestock) is the implementation of state duties in combating criminal acts. This is a manifestation of Article 2 paragraph (3) and Article 59 paragraph (4) of the RDTL Constitution. The application of customary law in the Alas District (Posto Administrativo) is a positive response to the high desire of the community about a peaceful and serene life in their environment. Therefore, the term law enforcement is closely related to the idea of the rule of law or legal principles as the supreme power in the rule of law and democracy in East Timor.

Critiquing the Major Premises of Judith Verweijen’s & Vicky Van Bockhaven’s, 'Revisiting Colonial Legacies in Knowledge Production on Customary Authority in Central and East Africa' and Their Effect on the Interpretation and Application of Customary Law in Kenyan Courts

Critiquing the Major Premises of Judith Verweijen’s & Vicky Van Bockhaven’s, 'Revisiting Colonial Legacies in Knowledge Production on Customary Authority in Central and East Africa' and Their Effect on the Interpretation and Application of Customary Law in Kenyan Courts

JAJAO (Revitalisasi Kepemimpinan Lokal Masyarakat Kampung Gamta Distrik Misool Barat Kepulauan Raja Ampat)

The Gamta basin located in West Misool district has some unique aspects of its culture, where the culture of the community is influenced by the coming immigrants, thus forming a new culture that has been preserved by the people. Since the reign of the Tidore sultanate, the kings' rights were conferred on the Lilinta and Gamta territories only to control and conquer their territories, dividing Misool by some powers under King Lilinta, Jajao Gamta, Jajao Waigama and Captain Fafanlap. Currently, the public's understanding of Jajao is very low, not only for those outside the Gamta community, but also for the Gamta people in the area. Even in today's generation, where Jajao's leadership is not so visible. Research Outcome: The Tidore Sultanate has influenced the dissemination of cultural or complex features of the Tidore community to the West Misool community, introducing a new nature in the traditional leadership of the West Misool community. The duties and functions of the Gamta indigenous community are based on customary ceremonies, or issues of tenure and the application of customary laws that reflect social class and its role in indigenous society.