Concept Of Law Research Articles

ARRANGING REGULATORY POLICIES TO SUPPORT ECONOMIC GROWTH, INVESTMENT, INDUSTRIAL REVOLUTION 4.0, SOCIETY 5.0, AND THE GLOBAL ECONOMY WITH OMNIBUS LAW

<p>Arranging regulatory policies to support economic growth, investment, the Industrial Revolution 4.0, Society 5.0, and the global economy using the omnibus law turned out to be problematic. Among the people, there are pros and cons because it is not following the Indonesian legal system, which follows the "civil law" tradition. It is necessary to research the pros and cons of this research. The purpose of this research is to analyze the effectiveness of the omnibus law policy in managing regulations to support economic growth, investment, Industrial Revolution 4.0, Society 5.0, and the global economy. The research method used is normative legal research with a literature study approach. This study concludes that implementing the omnibus law policy in managing regulations to support economic growth, investment, the Industrial Revolution 4.0, Society 5.0, and the global economy is very effective and efficient because the formation is cheaper, faster, and avoids various political conflicts. Law policies formed using the omnibus law method are part of the national legal system. Therefore, the omnibus law policy in managing regulations must refer to the provisions and principles regulated in Law Number 12 of 2011 on the Establishment of Legislation as amended by Law Number 15 of 2019 and Law Number 13 of 2022 and its implementing regulations, Presidential Regulation Number 87 of 2014 and Number 76 of 2021, as well as general and universal principles, the principles and concepts of customary law or, in some instances, the principles and concepts of Islamic law. Everything is elaborated in a direction based on the omnibus law method so that the law developed based on the omnibus law method can create happiness for the Indonesian people, as mandated in the fourth paragraph of the opening of the 1945 Constitution.</p>

How Have the Courts Decided What De Minimis is in Tax Law?

This article analyses how South African courts have decided the applicability of the de minimis non curat lex maxim and, more broadly, considered the de minimis concept in tax law. A doctrinal research methodology is employed with the focus on an analysis of predominantly reported judicial decisions. The applicability of the maxim is found to be decisive in only one tax case: the Diageo SA (Pty) Ltd v Commissioner for the South African Revenue Service case of 5 July 2023. Consequently, this study thus also reviews judicial precedent in respect of the applicability of the maxim in other areas of the law with consideration of the relevance to tax law. Further, several tax cases that refer to the broader de minimis concept or to trivial or trifling matters are examined. As there is no one definitive test to determine the applicability of the maxim, the courts have used several factors to guide their determination. Through inductive reasoning, the following conclusions are drawn. (i) In respect of statutory interpretation: First, the primary factor in the determination of the applicability of the maxim is the purpose of the provision. This is aptly demonstrated in the Diageo judgment. Secondly, where the statute sets a clear, objectively verifiable limit or amount, there is essentially no room for the application of the maxim in interpreting the statute. Where, however, no such verifiable basis is provided, a purposive interpretation is paramount – which may in fact require the application of the maxim. (ii) The use of the de minimis concept in tax law appears to depend on whether the matter is one of principle (substance) or practicality (administrability). In the former case, the amount (the factor of extent or value) is irrelevant whereas in the latter, the de minimis concept has been applied.

Selling Natural Laws

This article describes the French naturist milieu of the early 1950s. In line with the questions raised by this special issue, I focus on the commercial structures of naturism, such as the selling of natural products and foods and the renting of bungalows and camping pitches, and on its “guiding function,” namely the rationalization of the irrational through the use of the concept of natural laws and the injunctions stemming out these laws. Based on this case study, I invite the reader to rethink the categorizations of “religion” and “business” by considering what underpins them.

Intermediate Appellate Courts and the Doctrine of Precedent: Lendlease Corporation Ltd v Pallas

The High Court of Australia appeal in Lendlease Corporation Ltd v Pallas raises a novel question of precedent: what approach should an intermediate appellate court (‘IAC’) take when faced with competing IAC authorities? The cases reveal that different approaches have been adopted: deferring to the home jurisdiction, favouring the most recent decision, and approaching the issue afresh. The principled answer to this question must be informed by the modern concept of a single Australian common law and the corollary rule that an IAC should not depart from a decision of another IAC on an issue of national operation unless convinced that the earlier decision is ‘plainly wrong’. It is argued that if Court B has found a decision of Court A to be plainly wrong, should the issue come before Court A again for determination, it is not open for Court A to defer to its previous decision or consider the matter afresh. In an integrated judicial system of equals working together to achieve a common goal, consistency demands that Court A give heightened deference to the decision of Court B.

Theories of constitutional interpretation in the United States of America

The article substantiates the judgment that in relation to that in relation to the theories of constitutional interpretation in the United States, paradigms constructed according to the type of binary opposition (originalism –the concept of natural law), are clearly insufficient. Therefore, private legal theories, which are theories of constitutional interpretation of the United States, should take into account the basic principles and institutions, doctrines of the branch of Constitutional Law of the United States: the concept of a “living constitution”, the theory of judicial precedent, procedural aspects of Constitutional Law, structuralist theories.

H.L.A. Hart's Lost Essay on Policies, Principles, and Adjudication

Abstract This introductory essay accompanies the publication of H.L.A. Hart’s “Policies, Principles, and Adjudication,” which I uncovered amongst Ronald Dworkin’s papers at Yale. Hart’s previously unpublished paper was composed between 1977 and 1982 and delivered at a seminar at Oxford. It offers an extended critique of Dworkin’s conception of “policies” in his Taking Rights Seriously. This critique is not reproduced elsewhere in Hart’s published work. The paper also provides an expanded version of Hart’s thoughts, in his “Postscript” to The Concept of Law, on judicial reasoning by analogy and the phenomenology of judicial decision-making. Hart’s essay adds significantly to our understanding of the so-called “Hart-Dworkin debate,” around which much of contemporary Anglophone jurisprudence continues to be structured.

THE IMPORTANCE OF ENVIRONMENTAL PROTECTION CONCEPT IN EUROPEAN CENTRAL BANK LAW

The subject of this paper is the introduction of the environmental protection concept in the central banking law to preserve natural resources and contribute to ensuring sustainable economic development. In that sense, the author will attempt to describe the potential contribution of green central bank legislation in managing and mitigating environmental issues, aiming to identify the ecological dimension of the European Central Bank (ECB) mandate, as the supreme monetary institution of the European Union (EU). The following text focuses on the functional analysis of the ECB’s potential legal mandate for environmental activities, their scope, limitations, and practical justification where the introduction of these new activities must be carefully managed without creating a collision with its primary task of maintaining monetary and financial stability.tability.

The dark side of law ‘in context’: ex parte populi law as a new

My strategy is to define the ‘dark side’ of law by contrast, starting from its ‘light side’. It seems to me that the latter can only be defined from what has been called the ‘logicist-positivist paradigm’ that identifies the clarity of law with the certainty of the judicial decision deduced from norms, assumed to have a clear meaning. This paradigm is based on the identity between normative text and norm, which has been commonly considered implausible by legal philosophers, but perhaps we could say by jurists, over the last seventy years. Nevertheless, the paradigm continues to be handed down and considered the framework for reflections on law. I argue, referring to Kuhn’s conception of a paradigm, that this is because the legal-philosophical thought of recent decades has been unable to develop an alternative paradigm, and I suggest that this is because the logicist-positivist paradigm appears inextricably linked to the liberal-democratic structuring of our legal systems: a law-making judge fundamentally denies the rule of the people through the legislature. As a starting point for the elaboration of a new paradigm, I propose a conception of law that is no longer regulative of people’s behaviour, but of public power. In it, the judiciary emerges as the interlocutor to whom one turns to transform the private troubles of marginalised and socially abandoned citizens into legal problems. I argue that this conception is able to recover, in the current context, the fundamental values of ‘democratic societies’.

“Si vis pacem, impera bellum”: The ICRC, international humanitarian law and peace

Abstract This article examines the links between the concept of peace and international humanitarian law (IHL). It takes a closer look at how the originator of IHL, the International Committee of the Red Cross, justified the existence of this body of law, which was supposed to regulate war, in the face of those who wanted to see war abolished once and for all. The article also questions the attitude of the International Red Cross and Red Crescent Movement, which, while wanting a peaceful society, did not give itself the means to achieve one.

Restitution of African Cultural Heritage: Revisiting Natural Law Concepts of Statehood and Property in the Context of Colonial Spoliation

Abstract In the late nineteenth century, Western Powers launched military campaigns in sub-Saharan Africa resulting in the colonization of vast territories and the spoliation of cultural property. To justify the conquest, they asserted the supremacy of Western culture and disregarded principles of international law in their dealings with African states, communities, and individuals. This article examines colonialist legal justifications such as the denial of statehood of pre-colonial sub-Saharan African societies, the notion that conquest and spoliation were justifiable, and the belief that African legal systems lacked concepts of property. The article details why these arguments contradict well-established nineteenth-century legal principles, particularly state sovereignty and private property, which together form the conceptual basis for the prohibition of spoliation. The universal nature of those principles allows for the nondiscriminatory application and interpretation of historical law and consequently the protection of African pre-colonial states and private as well as public cultural property.

Murabahah contract in subsidized home ownership financing deed by notary in Bogor district

Akad Murabahah is a contract that finances an item by describing its purchase price to the buyer and asking the buyer to pay a higher price according to the agreed profit. The purpose of this research is to know and analyze the role of Notary in making a deed of financing subsidized home ownership and to know and analyze the murabaha contract in the deed of financing subsidized home ownership by notaries in Bogor Regency. This research uses normative legal research methods with the approach of legislation, norms, and doctrine as the main study, but is also supported by empirical approaches such as interviews to complement existing juridical data. The results of the study found that the role of notaries in making deeds of financing subsidized houses with murabaha contracts has not been widely carried out by Islamic banks, notaries in this case public officials who make deeds play more of a role in making ordinary commercial house financing. whereas when houses are subsidized, not many Islamic bank partners use notaries. Currently, the murabahah contract is still the choice of customers in buying houses at Islamic banks, because the margins offered by banks are not large and certain. However, there is a need for a kaffah concept of Islamic law in making deeds, for this reason this research is expected to conceptualize the anatomy of a murabahah contract based on applicable legal principles and Islamic legal values.

Legal Nature and Classification of Smart Contracts in Crypto Exchanges: Challenges to Traditional Contract Law

This paper examines the legal nature and classification of smart contracts within the context of cryptocurrency exchanges, exploring the challenges they pose to traditional contract law. As blockchain technology continues to evolve, smart contracts have emerged as a novel form of agreement execution, blurring the lines between code and legal obligations. This study analyzes the unique characteristics of smart contracts, including their self-executing nature, immutability, and decentralized structure, and how these features interact with established legal principles. The research investigates the potential gaps in current legal frameworks and the difficulties in applying traditional contract law concepts such as offer, acceptance, consideration, and breach to smart contracts. Furthermore, it explores the jurisdictional and enforcement issues that arise in the decentralized and borderless realm of crypto exchanges. By synthesizing legal theory, technological understanding, and practical implications, this paper aims to contribute to the ongoing dialogue on how to effectively regulate and integrate smart contracts into existing legal systems, while addressing the specific challenges they present in the dynamic landscape of cryptocurrency exchanges.

APPLICATION OF THE PROPORTIONALITY PRINCIPLE IN COMMERCIAL CONTRACTS TO ENSURE JUSTICE FOR THE PARTIES

<em>Contracts play a very significant function in business. It is envisaged that applying the proportionality principle will aid in the realization of the contract's objectives and functions. The principle of proportionality governs the exchange of rights and obligations between parties in accordance with their proportions or parts, and it applies throughout the contract process, including the pre-contractual stage, contract formulation, and contract execution. Commercial contracts emphasize characteristics of partnership and business continuity, with the parties exchanging their rights and obligations in a fair and reasonable manner. To build a fair and mutually advantageous contractual partnership, ensure that the parties' interests (rights and obligations) are exchanged in balance. The notion of proportionality is vital not only for creating contracts that are just and mutually advantageous (substantial justice), but also for emphasizing fairness (fairness in procedures). The integration of contract law concepts is an analytical technique for dissecting the presence of contracts formed by the parties in order to manage the parties' various interests in a proportional manner</em>

The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.

Law and Public Policy in the Development of Tourism Villages in Bali (Between Legal Politics and Legal Pluralism)

The legal policy on tourism in Bali is fundamentally planned from a legal aspect as cultural tourism. The underlying thought is that Bali's legal politics of tourism is built on the values of Hindu religion, customs, local wisdom, and upholding the philosophy of Tri Hita Karana. Bali is culturally, religiously, naturally, and humanly unique, with the foundation of its social-religious organization being the customary village (desa adat). Based on this central idea, the legal issues explored are: (1) How is the construction of legal politics in public policy for tourism development (especially in Tourism Villages) in Bali? (2) What are the legal implications for the tourism villages developed in relation to community welfare? The socio-legal research method is interdisciplinary and "hybrid," which will explain the relationship between law and society in shaping public policy related to tourism villages. The research findings indicate that the legal construction in public policy for the development of tourism villages in Bali is built on a concept of law that is culturally meaningful. On one hand, it is constructed based on state law, and on the other hand, it can be managed by Bali's customary law, such as awig-awig, pararem, and customary village regulations (Peraturan Desa adat). The legal implications for customary villages managing tourism villages in Bali are ambiguous in legal choices, particularly in implementation within customary village areas. However, regardless of the legal choice by the customary villages in Bali, the legal goals of utility, certainty, and justice can serve as benchmarks for forming a law that brings happiness.

Property Law Theory and Building Encroachments from a Comparative Perspective

Abstract Conceptualism has a difficult standing in contemporary private law theory. This also affects discussions in property law, where the research agenda often seems primarily interested in deconceptualization. From a comparative perspective, this complicates the discourse, as many national codifications of property law still adhere to strong concepts. This anti-conceptualist bias also leads to the development of distorted narratives about concrete issues in property law. According to this narrative, property is a conceptualist barrier that prevents each case from being decided on its own merits. Accordingly, not only must property be broken down into a “bundle” of inter partes relations. The law should also focus on the outcome of disputes, which is best achieved at the remedial level. It is also in this sense that the prominent distinction between property rules and liability rules has been understood and applied. While realism serves the important purpose of preventing overly conceptualist tendencies, these narratives do not stand up to closer scrutiny of how property law concepts actually work. They also run the risk of destroying concepts where they are needed to decide cases. This essay will use the example of building encroachments in comparative property law to illustrate that anti-conceptualism often fights against the clichés created by its own protagonists. Building encroachments are, from a comparative perspective, a very concrete example of the adaptability and flexibility of property.

Keadilan Restoratif Sebagai Upaya Penyelesaian Tindak Pidana Dalam Sistem Hukum di Indonesia

The justice that has been taking place in the criminal justice system in Indonesia is retributive justice, while what is expected is restorative justice, namely a process where all parties involved in a particular criminal act work together to solve the problem, how to deal with the consequences in the future, not yet regulated by strict norms that prevent criminal cases from having to be resolved outside of court using restorative justice. Based on the background above, researchers are very interested in studying: 1) How is the development of restorative justice in the Indonesian legal system? and 2) What are the principles of restorative justice in resolving criminal cases in Indonesia? The type of research used in this research is normative legal research. The development of restorative justice in the Indonesian legal system is based on the lack of satisfaction from the existing criminal justice system process, where it is felt that it does not meet the needs of the community, because in a criminal justice system process the parties in conflict are not involved but only involve between perpetrators and the state. Victims and the community are not involved in conflict resolution, in contrast to the principle of restorative justice where victims and the community are also involved in conflict resolution. The principle of restorative justice in resolving criminal cases in Indonesia is not something relatively new in Indonesia because it is a dispute resolution model which is one type of alternative punishment in the criminal law system in line with the aim of criminal sanctions according to the concept of customary law, namely restoring cosmic balance, balance between The world was born with the supernatural world, to bring a sense of peace between fellow citizens or between members of society and their community.

Dinamika Positivisme Hukum dalam Perspektif Modernisme dan Postmodernisme

In this stud, the dynamics of legal positivism are explored through the perspective of modernism and postmodernism to understand changes in the concept of positive law over time. By analysing the evolution of legal views from these two paradigms, this research aims to identify transformations in the understanding of positive law over time. By paying attention to the influence of modernism which emphasizes rationality and legal certainty and postmodernism which highlights the diversity of interpretations on social contexts, this study will provide in-depth insight into the complexity of the dynamics of legal positivism in the contemporary context.

Ancient Greek laws of nature

The prevailing narrative in the history of science maintains that the ancient Greeks did not have a concept of a ‘law of nature’. This paper overturns that narrative and shows that some ancient Greek philosophers did have an idea of laws of nature and, moreover, they referred to them as ‘laws of nature’. This paper analyzes specific examples of laws of nature in texts by Plato, Aristotle, Philo of Alexandria, Nicomachus of Gerasa, and Galen. These examples emerged out of the closely intertwined Platonic and Pythagorean traditions, and these philosophers' texts make reference to laws of nature when describing arithmetical methods, arithmological doctrines, or medical theories. Nicomachus' laws of nature are especially noteworthy, because they have features that historians look for in the search for the origin of the modern concept of laws of nature. Nicomachus' laws of nature are mathematical, universal, and necessary. This paper raises the possibility that the ancient Platonic and Pythagorean traditions influenced the subsequent development of the idea of laws of nature in medieval and early modern Europe, including the conception of laws of nature deployed by Johannes Kepler and Isaac Newton.

Beyond intergovernmental relations in federal systems: the concept of intergovernmental law

Beyond intergovernmental relations in federal systems: the concept of intergovernmental law