Black Letter Law Research Articles

Economical rights versus God’s rights: criticising of the implementation Shariah economic in Indonesia

PurposeThis study aims to evaluate the impact of Law No. 11 of 2018 on Islamic Financial Institutions in Aceh, Indonesia. It also aims to understand the balance between the economic rights of individuals under Shariah law and the broader concept of God’s rights, as interpreted by this legislation. In addition, the research argues that the implementation of Law No. 11 of 2018 is untimely, with a focus on examining its influence on the cumulative abnormal return (CAR) of Shariah banks and its slight contribution to the direct economic impact.Design/methodology/approachThis study adopts a mixed-methods approach that integrates qualitative and quantitative analyses. The qualitative aspect uses a black-letter law approach for legislative scrutiny, whereas the quantitative aspect assesses economic indicators and firm performance using an event study analysis. The study also includes a two-tailed assessment to test hypotheses related to the law’s direct impact on institutional performance.FindingsThe study reveals that Law No. 11 of 2018 had minimal impact on national-scale corporate performance and a notable increase in poverty indices in Aceh, indicating a potential misalignment between the law’s intention and its economic consequences. The results also show the law’s ineffectiveness in significantly influencing the CAR of Islamic banks, highlighting a clash of norms and a lack of substantial economic substance in the implementation of Shariah compliance.Research limitations/implicationsThis research is geographically and legally focused on Aceh, Indonesia, with a short-term analysis that may not fully capture the long-term impacts. It primarily considers the stock price performance of specific institutions for quantitative analysis and identifies potential clashes and disharmony-in-law implementation from a qualitative perspective.Practical implicationsThe findings suggest the need for legal frameworks that better comply Shariah principles with economic realities. Regional governments should consider modifying policies to balance religious values and economic objectives.Social implicationsThis research highlights the importance of balancing religious obligations with economic rights, indicating that strict interpretations of religious law can lead to adverse socioeconomic effects.Originality/valueThis study is unique in its comprehensive analysis of the convergence between religious law and economic rights, offering insights into the challenges faced in implementing Shariah-based economic policies in diverse economies, such as Indonesia.

IMPEACHMENT PATTERN OF REGIONAL HEADS IN INDONESIA USING REGIONAL AUTONOMY PARADIGM APPROACH

The issue of the dismissal of regional heads is often discussed in several expert circles because, if examined carefully, several juridical issues need to be comprehensively studied. The involvement of the central government in the process of dismissing regional heads is actually counterproductive to the paradigm of regional autonomy. Regional autonomy is oriented towards the independence of a region to manage its regional affairs. This paper discusses the pattern of impeachment of regional heads in Indonesia using the regional autonomy paradigm approach. The type of research used is doctrinal legal research (black letter law), which focuses on determining the law on certain issues. The results showed that there are four patterns of impeachment of regional heads and/or deputy regional heads. First, the process of dismissing a regional head involves the role of the Regional People’s Representative Council (DPRD) and the Central Government. Second, the dismissal involves the roles of the DPRD, Central Government, and Supreme Court. Third, the temporary dismissal of regional heads only involves the role of the Central Government. Fourth, dismissal occurs through the DPRD’s right of interpellation and investigation if evidence of criminal law is found. This shows that the pattern of dismissal of regional heads and/or deputy regional heads is centralized and even negates the spirit of regional autonomy because the DPRD does not have a role in dismissing regional heads. Apart from that, there are no clear provisions regarding public involvement in the impeachment process, which tends to have political nuances, making it neither accountable nor transparent.

Assessing the need for a deregulation of the insurance sector of Mauritius to combat money laundering: a comparative study with Singapore and UK

PurposeThe purpose of this paper is to assess the current legal framework on money laundering control in the insurance sector. Essentially, this examination is premised on the interrogation of whether it is still appropriate for Mauritius to apply such stringent, opaque and unyielding Anti-Money Laundering/Combating Financing of Terrorism norms and rules on general insurance when developed nations such as the UK and Singapore have done away with them for a more effective combat against money laundering. It would also be assessed why the financial services commission (FSC) is not able to draw inspiration from its British and Singaporean counterparts in fighting money laundering more effectively.Design/methodology/approachThis paper uses the doctrinal legal research methodology which is colloquially described as “black-letter law” approach. It is backed up by a contextual legal analysis that is based on an analysis of relevant legal provisions. It relies ground experience from the insurance industry through the experience of the authors. A comparative approach is used with Singapore and the UK as case studies given that there are significant commonalities to the Mauritian jurisdiction as well as useful differences.FindingsIt is observed that a move towards a de-regulation of the legal framework on money laundering in the insurance sector with a more relaxed approach is more effective for the Mauritian insurance sector. Evidence is drawn from the Singaporean and British models. A re-structuring of the FSC of Mauritius is also warranted for such an approach to be adopted.Originality/valueThis paper is among the first academic contribution that proposes a de-regulation and the adoption of a relaxed approach of and by the Mauritian Insurance Industry for a more effective combat against money laundering. It serves as a legal foundational basis for further research in this direction.

Sejarah Persempadanan Kelantan-Patani: Kesannya kepada Evolusi Ketamadunan Islam dan Politi Melayu Semenanjung The History of Kelantan-Patani Border Delineation: Its Effects to the Islamic Civilisational Evolution of Malay Peninsula Polities

The Kelantan-Patani border was determined through the Anglo-Siamese Treaty 1909. The treaty changed the previous border of the two states by giving the west bank of Golok River to Thailand (Patani), while giving the district of Jeli to Malaysia (Kelantan). This article intends to study a few objectives. They are inter alia, firstly to study the importance of rivers to Malay polities in general and to see its relations to Golok River. Secondly, this article studies the western part of Kelantan border before the 1909 treaty. Thirdly, this article also explains the border delineation process which was determined by the Anglo-Siamese 1909 Treaty. Fourthly, the article analyses the effects of Kelantan-Patani border delineation to the evolution of Malay Peninsula polities. The method of the research involves black letter law method and legal history method. Documents analysed include the Anglo-Siamese Treaty 1909, books, historical documents related to the negotiations in Kelantan-Patani border delineation process, as well as diplomatic correspondence between the British and Siamese officials. The study finds that the reorganisation process done by Britain and Siam did not only comprise the determination, acquisition and territorial losses by both powers, but also isolated Patani from other Malay Peninsula polities. Moreover, it brought unintended consequences due to the British failure in considering Malay civilisation and cultural factors in the process of determining the border delineation.

The Regional Energy and Climate Governance: Prospects for Energy Community Contracting Parties in the Aftermath of the European Green Deal

Abstract All research begins with questions, so here are three: (1) How does the European Green Deal, as a revamped growth strategy of the European Union, foster energy and climate governance in Southeast Europe? (2) What are the key legal instruments and their characteristics of a potential regionalisation of energy and climate governance in the Energy Community Contracting Parties? And (3), to what extent do extra factors of the Green Deal-related legislation expediate the development of a framework for such regional energy and climate governance? Tackling these questions, the research first conceptualizes the Green Deal by unveiling its ‘just transition’ dimension and legal implementation structures. Upon identifying EU’s ex post Green Deal external energy and climate competence, the paper further examines stringency of EU energy and climate governance mechanisms within the Energy Community. In doing so, it gauges the insights of the Governance Regulation and provides the rationale of soft instruments of network cooperation in the areas where blackletter law is somewhat cryptic and complex. Finally, this article outlines the perspectives for future research specifically focusing on the policy fields arising from the EU’s Fit-for-55 package.

How does the Appraisal Right with the Concept of the Fair Value Including Synergies Work?: Lessons from Japan

AbstractThis article presents how the appraisal right, with the concept of the fair value which includes synergies, has worked in Japanese corporate law. The appraisal right gives dissenting shareholders the ability to protect their interests. The Delaware courts calculate a fair value by excluding synergy effects in appraisal proceedings. One can criticise the exclusion of synergies because the petitioners of the appraisal right might receive less than the merger price. It would be interesting to analyse how the situation changes if the fair value includes synergies. Japanese corporate law gives a good illustration for this. The revision of the Companies Act of Japan in 2005 enhanced the role of the appraisal right by empowering the Court to include synergy value into the determination of fair value. However, Japan's Court developed the doctrine to use the deal price as a fair value with a relatively lax review of the fairness of the deal process. This has resulted in an unattractive situation for petitioners of appraisal remedies, because they rarely gain profits through the appraisal remedy. Empowering minorities in black letter law does not necessarily strengthen minority protection in reality.

The “just and equitable” test in New Zealand’s strata law: reflections and lessons for other jurisdictions

Purpose The purpose of the paper is to examine the phrase “just and equitable”, and associated terminology, within New Zealand’s strata law, to inform other jurisdictions. In particular, this paper temporarily suspends the notion of a statutory hendiadys to consider what kind of justice is reflected in judicial consideration of the phrase. Design/methodology/approach This paper takes a mixed-methods approach, drawing on a combination of black-letter law, property law theory and insights from literary and philosophical analysis. Findings While justice is often considered as “treating like cases alike”, this is not apparent from this study. The analysis shows that different kinds of justice outcomes emerge, with some emphasis on justice as economic efficiency. In addition, the paper highlights the inherent uncertainty in what is “just and equitable” and how associated disjunctive phrases, such as “unjust or inequitable” are still treated as hendiadys, but are no more clear. Research limitations/implications The research is limited to consideration of a single jurisdiction (New Zealand), though the useful degree of case law from this jurisdiction provides broad insight. Practical implications Among other things, the paper argues for further consideration of the usefulness of the “just and equitable” test in light of the kind of justice we want to achieve. The addition of mandatory considerations to existing statutory tests may allow more of a focus, beyond the exigencies of individual cases or narrow outcomes of economic efficiency. Originality/value While there is existing literature on the “just and equitable” phrase within strata law, the paper is the first, to the best of the authors’ knowledge, to provide an analysis focused on how suspending the statutory hendiadys normally inherent in “just and equitable” provides insight into the kind of justice that emerges from the application of this test within a single strata jurisdiction. As such, the paper provides lessons for other jurisdictions on how to improve relevant statute and case law outcomes.

Questioning the Contitutionality of Amandement Aceh’s Autonomy Law by Central Government: Who has the Authority?

This article criticized the decision of the House of Representatives of the Republic of Indonesia (Dewan Perwakilan Rakyat Republik Indonesia-DPR RI) to amend several articles regarding Aceh's autonomy authorities. The DPR RI should consult the norms of Aceh's autonomy to Aceh's Parliament. Unfortunately, the DPR RI tended to consult and involve Aceh's Parliament before making decisions. Most of the decisions regarding Aceh's autonomy had been decided by the DPR RI, creating a potential conflict of regulation in the year to come and distrust between central and provincial governments. This article used a qualitative method with the black letter law approach concerning some regulations as the primary data. The author claimed that the central government had ignored the principle of checks and balances between the central dan provincial governments and also broke the principle of consultation as stated in Law Number 11 of 2006 concerning the Aceh Government.

Toward Principled Background Principles in Takings Law

Oversights by lawyers, judges, and legal scholars have caused the Supreme Court’s opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court rewrote much of takings law by treating temporary and part-time entries by the government or third parties onto private property as per se takings. Prior to Cedar Point, these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there was a well-established rule of black letter law that California’s lawyers and amici failed to invoke in defending the Cedar Point union organizer’s access regulation: A physical takings claim accrues when a regulation authorizing third parties to enter private property is promulgated, not when the third party actually enters the land. A second timing rule was plausibly applicable too: Only the party that owned the land at the time the physical taking cause of action accrued can prevail, and Cedar Point Nursery acquired the land at issue decades later. As a result, Cedar Point Nursery’s lawsuit was filed decades too late. Quite possibly by the wrong plaintiff. California’s mistakes were probably outcome determinative.
 Moving beyond Monday-morning quarterbacking, we argue that the statute of limitations arguments available to governments in future cases help provide the essential limiting principles that went unmentioned in Cedar Point. In the aftermath of Cedar Point, prominent scholars denounced the opinion as a vehicle for gutting antidiscrimination law, labor law, environmental law, rent control, and other parts of the regulatory state. Our analysis reveals that these concerns are likely exaggerated because defenders of those longstanding limits on the right to exclude can invoke the statute of limitations arguments that California’s lawyers failed to raise. On the other hand, new restrictions on owners’ rights to exclude are vulnerable to legal challenge. Properly understood, contemporary takings law grandfathers in many longstanding limits on the right to exclude while constraining governments that wish to tackle collective action problems by restricting property rights in new ways. Moreover, statutes of limitations and related doctrines can provide courts with something that has been elusive since the Supreme Court’s 1992 takings decision in Lucas v. South Carolina Coastal Council: a principled and coherent account of what restrictions on owners’ rights are impervious to takings claims because they qualify as background principles of state property law.

Does Black-Letter Law Matter in Labor Rights Protection in China? - A Tale of Two Cities

Does Black-Letter Law Matter in Labor Rights Protection in China? - A Tale of Two Cities

Criticizing the Verdict of 18/JN/2016/MS.MBO of Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of Restorative Justice

This article is based on a critical review of the judgment in the Indonesian Islamic Court, known publicly as Mahkamah Syar’iyah, case number 18/JN/2016/MS.MBO. The tribunal process in the Indonesian legal system should present clear evidence that convinces all involved parties, including for sexual abuse cases. Unfortunately, during the tribunal process of the case, the judges had neither asked the prosecutor to show the evidence nor asked how the case had happened. After asking a few simple questions, judges have made consideration and finally a judgment. Two main research questions will be answered in this article; how is restorative justice applied for law-breaking cases in Acehnese view? Why has the punishment been imposed by the Mahkamah Syar'iyah in its legal considerations for the case? This article has used the black-letter law method and interview. The research results have indicated that the case seems weird and does not provide the due process of law principle. The tribunal procedure has not provided any sufficient evidence before the verdict had been decided. The connection between both evidence and judicial facts, in this case, is very blurred. The witness was simply based on the victim's evidence.

The effectiveness of station market development on state land managed by pt. Kereta api Indonesia

The land used for the construction of the railway infrastructure is state land under the management control of the Indonesian Railways Company or known as P.T. Kereta Api Indonesia (PT. KAI). If the land is not used based on its function, the government will take over to manage the land for development. The effectiveness of this development will have a positive impact in the future, which is better than before. An important issue, in this case, is related to the construction of a station market by the Regency Governments on state land managed by PT. KAI and creates discrepancies with the tenants as third parties. This study used the legal research method to analyze the problems with the black letter law paradigm. Data collection techniques in this study used library research by collecting legal materials. Legal materials were analyzed deductively using interpretation methods (hermeneutics). The results found that it is possible to take legal actions by transferring the fixed assets of PT. KAI in the form of land to the Ponorogo Regency Government. The legal action can later be made based on the agreement between the tenants as a third party, PT. KAI, and the Ponorogo Regency Government. The effectiveness of the construction of the station market can be achieved with the support of all parties, especially the management of the market and merchants as actors in economic activities in the market.

Ecolawriors: Knights of the Green Law Consciousness

Abstract This article introduces the connected concepts of ecolawfare—legal challenges to violations and violators of environmental law—and ecolawriors, its practitioners. These concepts are extensions of lawfare and lawriors, terms that emerged in this century’s first decade in a military context. The article examines sociological, political economic, and legal literature, as well as black letter law, and argues that many non-US jurisdictions have been eco-friendly trendsetters in law. The article examines the relationships of ecolawfare and ecolawriors with Green social movements, presents a Marxian perspective on intergenerational equity, the public trust doctrine, and rights of nature against the backdrop of capitalist extraction, the climate crisis, and related litigation, and posits a legal parallel between protecting ecosystems and protecting civil rights. The article argues that the climate crisis demands radically new approaches to the law, including lawyers who do not think like traditional lawyers.

Gothenburg Law Clinic and the use of Threshold Concepts in Clinical Legal Education

In 2014, the Department of Law at the University of Gothenburg launched the Gothenburg Law Clinic, or Rättspraktiken, to offer students a way to gain increased practical experience through applied studies rooted in the tradition of clinical legal education (CLE). The core pedagogical element of CLE can be described as anchoring teaching in grassroots legal realities as a means of enhancing student reflection on the complex interplay between black-letter law and law in practice. In one of the courses offered at the clinic, the welfare law course, the CLE approach was combined with the use of threshold concepts (Meyer and Land 2003). In this article, we present these two pedagogical ideas, describe their implementation in curricula, and discuss potential developments based on students’ experiences. Our aim is to describe the ways in which using a CLE approach in combination with Meyer and Land’s notion of threshold concepts has enabled students to obtain advanced-level learning of welfare law.

Everything You Always to Know About Farid but Were Afraid to Ask

Younger readers might be interested to know that Everything You Always Wanted to Know About Sex but were Afraid to Ask was a 1972 Woody Allen film that took its title from a book of the same name by David Reuben, M.D. Unlike the film, the book was not comedic. Indeed, Dr. Reuben was not happy about the movie and told the L.A. Herald-Examiner, “I didn’t enjoy the movie because it impressed me as a sexual tragedy. Every episode in the picture was a chronicle of sexual failure, which was the converse of everything in the book.” Jeff Stafford, Everything You Always Wanted to Know About Sex . . . But Were Afraid to Ask, TURNER CLASSIC MOVIES, http://www.tcm.com/thismonth/article/?cid=12726&rss=mrqe (last visited July 25, 2012). This Article suggests that the Farid story is more like Allen’s movie than Reuben’s book.Students engaged in the study of federal income taxation routinely examine the case of Farid-es-Sultaneh v. Commissioner, in which the Court of Appeals for the Second Circuit addressed a wife’s tax basis in stock she received under the terms of an antenuptial agreement. While the case invariably engenders a lively and engaging class discussion, the black letter law ultimately is straightforward: her basis equaled the fair market value of the shares on the date they were received because they were acquired for consideration (that being the release of marital rights in her future husband’s property). The government had argued that her basis was the same as her husband’s (a carryover basis) because she received the stock as a gift.Perhaps students’ enthusiasm for the case results from a sense that they simply do not know the full story. After all, why would an engaged woman accept stock worth $787,500 in exchange for the possibility of receiving over $33 million upon her husband’s death — particularly when her fiancé was twenty-five years her senior with a life expectancy of only sixteen and one-half years? The recital of facts in the court’s opinion reflects that the marriage was brief and, one might suspect, tumultuous. Students are also confused by the case name: how did an American citizen end up as Farid-Es-Sultaneh? Alas, neither the trial court nor the Court of Appeals betrayed even the slightest interest in the taxpayer’s motives or the details underlying what surely must have been a titillating tale

Black Bodies in America as the Metaphors for Oppression, Poverty, Violence, and Hate: Searching for Sustainable Solutions Beyond the Black-letter Law

Black people in America have often been labeled outlaws, deviants, and nonconformists who are disinterested in complying with the laid down rules. However, from a long range experience dating back to slavery, they recognize that rules in the American context whether the Slave Codes, Black Codes, Jim Crows, or the contemporary law, are machinations of the legal system to perpetuate oppression and violence against Blackness. Toward self-preservation, they have learned to radically resist acts of oppression such as wrongful arrests by the police and the functional denial of their rights to be presumed innocent, protest and bear arms, even if such resistance necessitates a stark disobedience to the law enforcement. The Stono Rebellion of 1739 and other slave uprisings used resistance to achieve the abolition of chattel slavery. In the contemporary times, the Black radical tradition pursues the eradication of criminal enslavement by promoting Black protests and resistance against wrongful arrests: wrongful arrests have been identified as the preliminary steps toward mass Black incarceration. In opposition to the mainstream perspective in American literature, this paper uses a functional-analytical approach to legal reasoning to analyze key legal, historical, and sociological issues surrounding the existence of Black people in America in order to show that slavery is still functionally alive: it argues positively for the legitimacy and appropriateness of the Black radical tradition as a reliable means of effectuating the myriad black-letter rights that started in 1865 under the Thirteenth Amendment.

Remarks by Sabeena Rajpal

Thank you, Monica. While the cases you mentioned or previous examples have involved uses of force where maybe not all observers felt that the black letter law on when use of force was permissible was satisfied, I do think that the current case is extremely distinguishable. When it came to both Kosovo and Iraq, there was agreement in international institutions that, for Kosovo, there was a grave humanitarian situation. For Iraq, that there was a certain threat emanating from Iraq. I think those international institutions supported addressing those situations one way or another, as evidenced by relevant UN Security Council resolutions.

The application of good Faith principle of precontract in common law and civil law contry

In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.

Implementation Of Legal Protection On Royalty Management Of Government Regulation Number 56 Of 2021

Abstracts This article examines Government Regulation Number 56 of 2021 concerning the management of royalties on song/music copyrights. This writing uses a normative juridical approach. This normative juridical approach is employed based on the statutes of black letter law and the conceptual method. The result of the study found that royalty management is carried out by LMKN depend on integrated data in the data/song center. Every public at large can enjoy songs/music commercially to public services by applying for a license agreement to the copyright holder or related rights through LMKN intermediaries.The Directorate General of Intellectual Property Rights is obliged to disseminate this regulation and build a data center to control the database of the song/music and ownership of copyright. Therefore, it requires cooperation between the Directorate General of Intellectual Property Rights, LMKN, creators/owners of related rights, and the general public who enjoy commercial songs/music. After the socialization, a strict penalty will be imposed on those who violate or deny paying the stipulated royalty in Government Regulation Number 56 of 2021. Keywords: Copyright;Legal Protection; Royalty Management; Music/Song

Polish dilemmas in compensating landowners in the vicinity of airports – black letter law vs. law in action

Negative externalities of airport operations, associated mostly with noise, are becoming increasingly onerous to homeowners, as air transport develops. In order to resolve the neighbour conflict, the legislator introduces restricted use areas (RUAs) within which noise levels may be exceeded. In these areas, limitations in the use of land are introduced in order to ensure rational development of land surrounding airports and compensation claims are awarded to landowners. These claims compensate planning restrictions concerning the use of land and costs spent on ensuring sound insulation of buildings. The practical application of provisions on RUAs diverges from their literal content bringing about the compensation of loss without a legal and economic justification and the abandonment of the provisions’ objectives. It is argued that a revision of current practice is required in order to fulfill the legal, social and economic objectives of the regulations in force.