Legal Research Articles

A TEORIA DA TRILIDADE COMO RELEVANTE FERRAMENTA NA INTERPRETAÇÃO E SUBSUNÇÃO DA NORMA JURÍDICA DE ORDEM PÚBLICA

One of the great challenges in the legal sphere, especially for those without legal training, is the ability to interpret legal rules by correctly subsuming their content to specific cases. This challenge arises because the normative field often relies on dualistic thinking: right or wrong. In many situations, particularly when dealing with public order rules, this binary approach can limit the interpreter's actions, who becomes conditioned by the relevant law's strictures. Thus, this study aims to demonstrate that other possibilities for interpreting legal norms may exist. The so-called “Theory of Trility and Human Reasoning” offers a significant contribution in this regard, emerging as a new way of approaching legal interpretation. The study investigates the extent to which these alternative interpretive methods can be beneficial in the legal field, particularly when we abandon the old habit of viewing reality through a dualistic lens. To achieve this objective, the study employed a review of specialized literature focused on the study of legal norms, their interpretation, and dialogue with scholars specializing in the Theory of Trility.

Legal Analysis of The Role of Notaries in The Drafting of Financing Agreement Deeds Based on Sharia Principles At PT. Bank Syariah Indonesia Batam Branch Office

In every transaction or agreement they observe, notaries are crucial in guaranteeing adherence to sharia rules. It is essential for notaries to comprehend sharia principles in muamalah (business transactions) in order to perform their duties responsibly and in compliance with applicable legal rules. Muamalah based on sharia principles addresses a number of topics, including justice, openness, unity, and adherence to Islamic legal norms. To determine if a transaction or agreement complies with the relevant sharia principles, notaries must comprehend and internalise these principles. This research aims to find out, analyse and explain in depth the role of notaries in making financing agreement deeds based on sharia principles, so that they can contribute to the development of Islamic banking law and notaries in Indonesia, and analyse and explain comprehensively the responsibilities of notaries both civilly, criminally, and administratively for the sharia financing agreement deeds they make, so that they can contribute to the legal protection of the par. This research uses a type of legal research that is Normative as well as Sociological (empirical). The findings revealed that the role of the Notary in the application of Sharia principles in contract deeds at Bank Syariah Indonesia KC Batam is not overly dominant, because the Notary's role is essentially limited to legalising the contract, while the bank determines the contract's content entirely. The notary bears accountability for the Sharia Financing Agreement deed and must read and comprehend its contents. With this reading, the notary can also amend any inaccuracies in the deed's contents. The Notary will refuse to legalise the deed if it violates the law, public order, or decency. The constraints of the absence of Notary competencies that are in accordance with and fulfill sharia provisions, make not all Notaries who are partners of Islamic banks lack understanding of sharia principles.

“Civilization”: terminological diversity And legal identity

In the article, in the paradigm of the history of the state and the theory of law, existing definitions of the phenomenon “civilization” are analyzed, an understanding of its content in various fields of knowledge is revealed, in particular, the relationship between the concepts of “faction” and “civilization” is established, their genesis is traced in the format of emergence and death. Particular attention is paid to the theoretical foundations of such concepts as “sovereignty of the state”, “Slavic-Russian civilization”, “state-civilization”, “Russian world”, “civilizational space of Russia”. In this regard, the theoretical and legal concepts reflected in the speeches of the President of the Russian Federation V. V. Putin and His Holiness Patriarch Kirill of Moscow and All Russia, other participants of the XXV World Russian People’s Council are analyzed. The author’s position is presented on a number of controversial issues in the format of history and theory of law.

Features of court decisions made based on the results of the consideration of separate proceedings

The article examines the features of court decisions made based on the results of the consideration of separate proceedings. It is emphasized that bankruptcy should be understood not only as a mechanism for the liquidation of a legal entity or relief from the debts of individuals, but also as a mechanism for restoring solvency. In the process of bankruptcy, it is sometimes necessary to consider property disputes in which the debtor is a party. Thus, there is a special type of proceeding in the bankruptcy procedure – a separate proceeding aimed at restoring the solvency of individuals or legal entities and meeting the demands of creditors. The fulfilment of the purpose of economic litigation depends on what decision will be made in these proceedings – the effective protection of violated, unrecognized or contested rights and legitimate interests of individuals and legal entities, the state. The principles on the basis of which the decision is made are analysed, namely the principles of the rule of law, legality and reasonableness. The interrelationship between the decisions adopted in the procedure of consideration of the bankruptcy case and the separate proceedings was studied. Court decisions adopted in separate proceedings are based on the principles developed by established European judicial practice. Their peculiarity is that they, like decisions in bankruptcy cases, are aimed at protecting the rights of the debtor and correspond to the task of economic justice defined in the legislation of Ukraine. The signs of implementation of the principles in the adoption of a court decision are singled out: compliance of the laws, on the basis of which the stated demands are subject to consideration and decision, to the Constitution of Ukraine; correct assessment of the evidence collected in the manner established by law in the case; establishment of the factual circumstances of the case, based on the ratio of the activity of the court and the competitiveness of the parties established by the procedural law; exact establishment of the norms of material and procedural law that are subject to application; application of substantive law norms aimed at restoring violated subjective rights and interests protected by law, taking into account the actual circumstances of the case. It is noted that decision-making in the economic court is aimed at resolving disputes, ensuring justice, protecting rights, creating legal precedents and maintaining order in the economic sphere. Court decisions act as the basis of the legal system, contributing to the efficient and fair administration of justice.

A dialog between Sino-Western legal traditions: Yan Fu’s translation of “natural law” in Montesquieu’s The Spirit of Laws

As an integral component of legal culture, legal concepts possess distinct cultural characteristics. Translating legal concepts between different cultures to facilitate effective cultural exchange and mutual understanding poses a significant challenge for legal translators. This paper examines Yan Fu’s Chinese translation of “natural law”, a key concept in Montesquieu’s classic The Spirit of Laws, as a case study to analyze the connection between legal translation and cultural traditions in the socio-historical contexts of the early 20th century China. By analyzing Yan’s choice of words, the paper unveils how Yan Fu reinterpreted Western natural law from both religious and ethical perspectives, thereby creating a dynamic dialog between Sino-Western legal cultural traditions.

Charting the Path to the Outsourcing of Discrimination Through School Choice

ABSTRACT The growth of state laws creating private school vouchers and charter schools has mounting and alarming ramifications for students’ rights, and those ramifications are shaped by a complex and shifting set of legal rules. This article explains the interplay between the increase of these school-choice programs, the U.S. Supreme Court’s recent free-exercise decisions, long-standing antidiscrimination laws, and the now-tenuous applicability of those legal protections for choice students. It concludes by considering the political ramifications of these changes, which will likely be very different in “blue” and “red” states.

REGULATING THE STATUS OF OFFICIALS OF THE REGIONAL INTERGOVERNMENTAL ORGANISATIONS IN SOUTHEAST EUROPE: A QUEST FOR AN INTERNATIONAL CIVIL SERVICE

The article explores how the constituent instruments and secondary rules of the selected three regional intergovernmental organisations in Southeast Europe (Energy Community, Transport Community, Regional School of Public Administration) have incorporated some key legal concepts related to the status of international officials - professional independence of international officials and exclusivity of international service; recruitment standards; and the legal remedies for protecting the rights of international officials. The article, at the first place, defines the notion of international civil service, and elaborates, based on the legal texts of a number of international organisations and theoretical writings, the international practice in regulating the above specified concepts. The article than analyses and assesses how these concepts have been addressed in the relevant legal documents of the selected organisations. Finally, the article concludes that the explored legal texts provide for the guarantees of professional independence of the officials and contain the elaborated rules on recruitment aiming at selecting qualified staff and ensuring the geographical equilibrium within the secretariats. However, certain shortages have been identified and explained in relation to the existence of adequate legal remedies for protecting staff, particularly through the judicial proceedings.

Legal Protection of Public Bus Service Users for Persons with Disabilities in Denpasar

Law no. 22/2009 concerning Road Transport Traffic states that people with disabilities have the right to support facilities for managing road traffic and transport. Providing access for people with disabilities on the Denpasar City Sarbagita Bus is not implemented in accordance with Law no. 22/2009 concerning Road Transport Traffic Gaps in regulations and implementation (das sollen and das sein). The problems raised in this research are a) What are the factors that cause the Road Transport Traffic Law and the Law on Persons with Disabilities to not be realized regarding providing accessibility for people with disabilities who use public buses in Denpasar? b) What are the government's efforts to achieve justice for disabled public bus passengers in Denpasar? This research uses empirical legal research with the rationale that this research will examine the government's efforts to achieve justice for disabled public bus passengers in Denpasar. The approach used in solving problems is through a statutory approach, a fact approach and also assisted by a legal concept analysis approach (Analytical and Conceptual Approach). The results of the research show that the factors causing the non-realization of Law Number 22 of 2009 concerning Road Traffic and Transportation and Law Number 8 of 2016 concerning Persons with Disabilities regarding providing accessibility for disabled people using public buses in Denpasar include: from in terms of costs, it must be adjusted to the budget/fees provided/budgeted by TAPD (the Regional Government Budget Team cannot just ask for funds, so that the facilities are adjusted to existing funds; there is rejection of additional facilities by the project owner (Ministry of Transportation); as well as minimal involvement of people with disabilities disabilities in formulating policies so as to avoid discrimination for people with disabilities. Government efforts to achieve justice for disabled public bus passengers in Denpasar include: the creation of Bali Provincial Regulation Number 9 of 2015 concerning the protection and fulfillment of the rights of people with disabilities; further efforts to collaborate and involve certain parties in formulating accessibility policies in public bus services in Bali; Advocacy for persons with disabilities in fulfilling their rights in public services; invite people with disabilities to participate actively; and invite the general public to be aware that people with disabilities must pay attention to their existence so that it does not cause the disabled community to become jealous of non-disabled people.

Building a Responsive Legal System Through Reforming the Indonesian Constitution

Legal politics or what is known as policy direction is important in order to provide direction on the form and material of law. However, in a study that examines the problems of law enforcement, in Indonesia, which was studied from a legal sociology perspective, it was stated that developments in the world today often give rise to various problems, whether in the form of violations of norms that exist in social life or rules that have a tendency to create a phenomenon that is contrary to moral and ethical rules as well as legal rules. This paper aims to find out the facts and legal political realities that occur on post-reform legislation in forming responsive laws. Using a normative writing method. The direction of legal politics in post-reform Indonesia is the desire to form a responsive legal system, this can be implicitly seen in several changes to the constitution. Change towards responsive law is not something instant and easy, there must be a commitment from the state and the people together to realize the ideal of this system. Although the current implementation of law still experiences many errors here and there, at least the existing legal products have led to laws that responsive, what is needed now are leadership figures who are able to bring Indonesia to the implementation of responsive laws that are in accordance with what was previously expected in order to achieve prosperity for the people.

Perlindungan Data Pribadi Serta Faktor-Faktor Penghambat Penyidikan Tindak Pidana Penyalahgunaan Data Pribadi Studi di Direskrimsus Polda Lampung

The object of discussion in this study is the form of personal data protection and the factors that hinder investigations into criminal acts of misuse of personal data. This research aims to determine the form of protection of people's personal data and the obstacles in the process of investigating misuse of personal data. This research method uses a normative juridical approach because it examines legal aspects and legal rules using literature material. The research specifications use descriptive analysis laws. The research results show that forms of personal data protection in Indonesia exist and are regulated in Law Number 27 of 2022 concerning Personal Data Protection, Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Information and Electronic Transactions, as well as Government Regulation Number 71 of 2019 concerning Implementation of Electronic Systems and Transactions. The inhibiting factors for the Lampung Regional Police's Ditreskrimsus in carrying out investigations into misuse of personal data include legal instrument factors, apparatus factors, facilities and infrastructure factors, community factors and cultural factors.

Protecting and Protesting Notarial Exclamations and Declarations (Peru, Chile, Seventeenth-Eighteenth Centuries)

The second half of the seventeenth century, and the eighteenth century, were characterized by political tensions between Lima, the seat of government of the Viceroyalty, and the Chilean General Captaincy, which was under its jurisdiction. In this context, a Chilean army captain made a statement before a notary in Madrid contradicting previous statements he had made during a judicial interrogation recorded in Lima two years earlier, in which he criticized the Viceroy of Peru. Considering the declaration made in Madrid, this article analyses a legal concept often recorded in notarial documents, called the exclamación (exclamation), made by men and women in the jurisdictions of Cuzco and Lima (Peru), and Santiago (Chile), during the seventeenth and eighteenth centuries. Exclamations were used by people seeking to protect themselves against future losses or to prevent the misuse of a previous written statement. Thus, they were official notarial deeds with a judicial purpose. Our hypothesis is that these notarial deeds liberated dominated voices. It allows us to delineate several functions of notarial writing, between justice and conscience. We question how truth and memory may or may not emerge from these documents, considering the location and gendering of protection and protest domination. We argue that the time factor is significant and that subalternity is not an inescapable condition.

Interpretasi Hukum Mutatis Mutandis Dalam Pembentukan Peraturan Daerah

Introduction: In the formation of regional regulations, one must look at the needs and existence of the region by prioritizing community welfare as an instrument in implementing regional regulations. This results in the formation of regional regulations having to be based on regional needs, not on legal rules, bearing in mind that application mutatis mutandis is the basis in seeing that need.Purposes of the Research: This writing aims to determine the study of mutatis mutandis legal interpretation in the formation of regional regulations. Methods of the Research: Normative legal research. The research approach is a statutory approach and a conceptual approach. The sources of legal materials used are primary legal materials, secondary legal materials and tertiary legal materials. The technique for collecting legal materials is through literature study and then analyzed through perspective using qualitative methods.Results of the Research: With the interpretation methods used such as literal, historical, systematic, teleological interpretation, or comparison with other laws. So that the formation of regional regulations by applying the mutatis mutandis principle becomes the main point in the formation of regional regulations based on more specific community needs, bearing in mind that this is useful for speeding up and making efficient the process of forming regional regulations.

GOVERNMENT ASSIGNMENT OF CONTRACTS TO STATE-OWNED ENTERPRISES TO PROVIDE INFRASTRUCTURE: INDONESIA’S EXPERIENCE

This paper aims to evaluate the peculiarities of a mechanism utilised by the Indonesian government to conduct infrastructure development, that is, the government’s assignment of contracts to state-owned enterprises (SOEs). This mechanism differs from public procurement or public-private partnership. This paper raises three questions: (1) What are the advantages and disadvantages of employing government assignment of contracts to SOEs? (2) What should be done to prevent the disadvantages? and (3) What lessons can be learned by other countries from the Indonesian experience? This paper employs qualitative legal research. It starts by analysing public satisfaction and dissatisfaction as reflected in the news, literature and interviews. The legal causes of dissatisfaction which are basically the problematic regulations, are then analysed. Finally, the legal principles and legal concepts enshrined within the regulations are examined to seek legal solutions. The advantages of the government’s assignment of contracts to SOEs are to simplify the tender process and to enable the government to quickly provide infrastructure. Nonetheless, the private sector feels aggrieved because the regulations that dictate when a project may be contracted to an SOE are unclear, and public funding is predominantly circulated among the SOE groups. To address these problems, the government should adhere to the globally recognised principles of equality and accountability and the concepts of competitive neutrality and the right to development. The bittersweet Indonesian experiences maybe not only the refinement of the Indonesian law and policy, but also their use as food for thought for any country considering infrastructure development.

The US Presidency: Power and Constraint

How much should we fear that a president will break the law to pursue power—then use their office to avoid legal accountability? Political scientists studying the presidency have often overlooked the risk of what we here call a criminal president. Donald Trump's presidency spotlighted that risk and has begun to shift the field's focus toward not just presidential power but presidential constraints. We believe this shift should continue. In this review, we aim to set an agenda that makes the danger of a criminal president central to understanding the presidency more broadly. Situating the criminal presidency within wider questions about legal and constitutional constraints on presidential power, we emphasize the unique risks to democracy that a president unbound by law can pose. We call for a greater focus on the legal rules governing the executive branch—especially unitary executive ideas—and the policies needed to hold criminal presidents accountable.

International Legal Concept and Basics of Readmission

International Legal Concept and Basics of Readmission

Fundamental Legal Conceptions and the International Law of (Civil) Jurisdiction

Fundamental Legal Conceptions and the International Law of (Civil) Jurisdiction

ABU AL-ʿABBĀS B. TAYMIYYAH’S SOCIETAL SECURITY PARADIGM: A PHILOSOPHICAL EXPLORATION IN ISLAMIC POLITICAL HERITAGE

This research endeavors to scrutinize the hypothesis positing the existence of a well-defined theoretical model embedded within the Islamic political heritage, specifically aimed at safeguarding societal identity, commonly denoted as "social security" in contemporary discourse. The focus of this investigation centers on assessing the contributions of Imam Ibn Taymiyyah, a pivotal figure in Islamic heritage. His era was marked by various internal and external challenges confronting the Muslim community, prompting him to respond actively through scholarly works, issuance of fatwas, and strategic measures to counter these threats. In an innovative methodological approach, the researchers have employed the "societal security" theory articulated by Bouzan, Waever, and De Wilde as a framework to elucidate the Taymiyyan model. This involved extrapolating, identifying, and analyzing the relevant texts authored by the Imam pertaining to the subject under scrutiny. The study's outcome presents a theoretically sound model derived from the principles and teachings of Islamic Sharia, in accordance with the perspective of Imam Ibn Taymiyyah. At its core, this model entails the provision of guidance through legal rulings and fatwas to safeguard the five necessities in Islam, namely Religion, life, Regeneration, intellect, and wealth, with a particular emphasis on the communal level. The defence of these communal necessities begins with the promotion of virtuous deeds and the discouragement of wrongdoing within society, employing mechanisms such as the "Hisbah apparatus". Ultimately, the preservation of the Muslim community's identity from potential disintegration or compromise in the face of encroaching civilizations or ideologies may necessitate resorting to the deployment of political and military force to repel aggressors.

The Legal Concept of Work

The Legal Concept of Work

Critical Analysis of The Law on Purchasing Gold on Credit

This study aims to understand the legal background of gold credit in Indonesia, we can explore more deeply how this product contributes to the development of Islamic banking, consumer protection, and financial market regulation more broadly. It also helps in identifying the challenges and opportunities faced in the implementation of Islamic financial practices in Indonesia. This writing uses a normative method where in this writing a literature search is conducted. Peter Mahmud stated that Legal Research must find a coherent truth, namely legal rules in accordance with legal norms or are there norms in the form of commands or prohibitions that are in accordance with Legal Principles and whether a person's actions are in accordance with Legal Principles or Legal Norms. Legal analysis of gold credit shows that this transaction involves various aspects that need to be considered, including the legal basis, sharia aspects (if applicable), financial risks, and legal treatment. It is important for financial institutions and customers to clearly understand their rights and obligations in gold credit contracts, and to comply with all applicable regulations to minimize risk and maintain fairness in this transaction.

A literature review of “lawful” text and data mining.

Text and data mining (TDM) is a process, typically automated, that looks for patterns in data that may otherwise remain unnoticed. In a world where data driven solutions play a progressively more important role, TDM has become a vital tool in sectors ranging from medicine, to commerce, gaining widespread attraction. Nevertheless, a variety of regulatory frameworks not always specifically attuned towards regulating TDM continue to apply concurrently. The literature within the context of regulatory frameworks governing TDM is a fragmented piecemeal of valuable insights into what “lawful” TDM resembles. This literature review adopts a grounded theory approach analysing 82 pieces of literature, collating views regarding “lawful” TDM, ultimately providing a holistic assessment of academics’ and practitioners’ views and opinions regarding the regulatory framework which governs TDM. A total of 7 categories were identified and each of these are analysed. Tables are provided in the Appendix (Refer to the extended data) highlighting which scholarly works were used for each section of the literature review, but also how those works were used. It is ultimately concluded that the regulatory frameworks that apply to users conducting TDM are multifaceted, and ever-changing on a case-by-case basis. There is an ever-growing need for a holistic interpretation of the regulatory frameworks which apply, creating a map which would allow for users conducting TDM to navigate this complex web of legal rules.