Customary Law Research Articles

The influence of the reception of roman private law on the formation of higher legal education in the countries of the romano-germanic legal family

The article analyzes the historical aspects of the emergence and formation of higher education in the countries of the Romano-Germanic legal family. It has been found that the traditions of higher education are laid down in the University of Bologna, which became the first famous secular scientific and educational institution, whose professors and graduates enriched science and education with new ideas, thanks to which a new humanistic worldview was formed: law should be a measure of freedom and justice in the state and society. It is substantiated that the development of education has a civilizational significance in the state-building process, but the civilizational «growth» of the state requires professional human capital. An important source of information for acquiring a system of knowledge in medieval Europe was Roman private law, which was universal in application to new economic and other conditions, regardless of their complexity. The merit of the Roman jurists is that they formalized the customary law and supplemented and developed it according to social needs. It has been proven that Roman law was «safe» for medieval rulers and in fact indispensable for the maintenance of various types of private legal relations, so there was no reason to oppose its introduction into the educational process. It was concluded that the study of Roman law in the medieval universities of Europe led to the assimilation of the formation of the legal system in a number of European states and the formation of the Romano-Germanic legal family, because the principles and norms of Roman law formed the basis of European codifications. It is important that the law of the Romans was used as an active law even in those states that did not have a legal mechanism for solving controversial issues, especially in interstate relations, because this law is saturated with classic examples of solving various life situations. Addressing them contributed to the development of the student’s skills not only in legal analysis and thinking, but also in the practical selection and application of normative material in order to solve life’s legal problems.

PERLINDUNGAN HUKUM MELALUI PRANATA SURAT TUMBAGA HOLING DALAM MASYARAKAT BATAK ANGKOLA

This research analyses how the state protects the existence of surat tumbaga holing institutions as a costitutional right of the Angkola Batak community. This research is a normative legal research that is normative empirical in nature which is legal research to find legal rules in the principle of surat tumbaga holing in accordance with the principles of the Indonesian legal system. Primary data used are legal materials from the library and laws and regulations related to legal protection, social structure and local wisdom. To support this data, secondary data is added from the behaviour and values that live in the Angkola Batak community as a living legal norm. The theory used as an analysis knife in this research is Eugen Erlich's legal sociology, where Erlich sees positive law on the one hand and the law that lives in society on the other. Erlich sees that positive law will be effective if it is in line with and incorporates the values and laws that live in society. The results show that the tumbaga holing letter also has a role in resolving problems or criminal acts that occur, such as adultery, domestic violence, verbal insults, defamation or slander, as well as other criminal acts such as theft that can disrupt public welfare. In addition, the sanctions given as punishment to perpetrators involve actions such as being expelled from their customary community, paying a fine to the victim, apologising to the victim or their family in the presence of customary elders, as well as being obliged to cover all food costs incurred during the settlement of the crime. This reality is guaranteed by the state through Article 18 B paragraph (2) which ensures that the state protects, respects and recognises customary law communities and their traditional rights if they are still alive, in accordance with the principles of the Unitary State of the Republic of Indonesia and implemented through legislation. While juridically, it is determined that judges and constitutional judges as law enforcers are obliged to always follow the development of legal values and community justice in adjudicating and deciding cases before them as contained in the judicial power law.

Systematization of Ukrainian customary law: historical-legal aspect

The article is devoted to the historical-legal issues of research the systematization of the Ukrainian people's customary law. It was found that the systematization of customary law is a type of systematization of law and can be carried out both by incorporation and codification. Legal customs were recorded and placed in a collection in case of their incorporation. Instead, during codification, customary norms were adapted to the requirements of the form, structure and content of the legislative text. In contrast to simple written fixation, in the course of codification, the legislator had the opportunity to change, narrow or supplement the content of the norm of customary law. Customary law as a codification material played an important role in the process of formation legislation on Ukrainian lands. Norms of customary origin are present both in monuments of Ukrainian law and in low-known acts of local authorities. Based on the existing legal customs in society, the legislators intended to create a law that corresponded to the reality of that time. By studying the texts of ancient laws, there is an opportunity to discover the content of legal customs that were in effect before their adoption. On the other hand, the identification of provisions of the law, which have a customary origin, with legal customs is incorrect and does not correspond to the nature of this phenomenon. Legal customs, which were codified, were transformed into legislative prescriptions. The historical-legal research of the systematization of Ukrainian customary law has a number of problems. First, it is difficult to determine in which case the transformation of a norm of customary law into a provision of the law took place, and in which case - a record in the law book. After all, in ancient times, laws often resembled such law books or were de facto them, had a casuistic and fragmentary character. Secondly, it is sometimes impossible to prove that the corresponding provision of the legislation had a customary origin. Even if this is possible, there are difficulties in proving that this is a norm of the customary law of the Ukrainian people, and not of another nation. As we know, the legal customs of neighboring (and sometimes distant) peoples are often similar or even identical.

Menguji Kemampuan Membaca Al-Quran Calon Pemimpin Aceh dalam Prespektif Hukum Adat, Hukum Islam, dan Politik

Given Aceh's rich Islamic cultural traditions and foundations, reading the Quran is frequently regarded as a crucial prerequisite for future leaders in the area. The purpose of this study is to examine the significance of this skill in relation to politics, Islamic law, and customary law in Aceh. In order to provide a thorough knowledge of the problem from legal, social, cultural, and political perspectives, the study examines the perspectives of Acehnese society using empirical juridical research methods. It also reviews the pertinent legislation and the legal foundation. According to the research, the community expects leaders who comprehend and uphold Acehnese customary law and culture, and reading the Quran is considered a sign of good leadership abilities

Reimaging of the Angami collective cultural identity: kenyü and customary law in the select Angami folktales

ABSTRACT Although various studies have focused on the formation of ethnicity in Nagaland, little is known about specific aspects of collective cultural identity derived from the folktales of the Angami tribe. There is a lack of research in understanding the cultural analysis of the forms of kenyü (an Angami expression representing a ‘proscription of behaviour’ 1 ) and its role in the wider social process, owing to the folktales as narratives in the representation of the ethnic identity of the Angami. Selecting four folktales from the Angami tribe provides a useful way of conceptualising the relationality of kenyü and the collective cultural identity. This paper undertakes a textual analysis of the selected folktales and applies Stuart Hall’s concept of ‘cultural identity’ and Anthony Smith’s idea of ‘ethno-symbolism’ to foreground the identification of the concept of kenyü in understanding the folktales to reimagine collective cultural identity as a key aspect of ethnic identity.

Effects of Mebyakaonan Marriage Law in the Perspective of Balinese Customary Law: Study on Balinese Community, Rantau Jaya Village, Ilir District, Putra Rumbia, Central Lampung Regency

Marriage is the outward and inner bond between a man and a woman as husband and wife to continue their lineage. Marriage in Balinese customs is called pawiwahan. Pawiwahan is a sacred thing in the process of human life from the status of brahmacari to the time of grhasta. Mebyakaon marriage is marriage under the hand. The problem in this study is why mebyakaon marriage is taken by the parties to form a marriage and the legal consequences of mebyakaon marriage on their marital status in the community and the status of children born from this marriage in Rantau Jaya Ilir Village, Putra Rumbia District, Central Lampung Regency. This research is normative-empirical legal research with a descriptive research type. The problem approach used sociological juridical approach with data sources is primary data and secondary data. Data collection techniques with literature studies and field studies are interviews with informants and respondents who carry out marriage mebyakaon. Data analysis is qualitative analysis. The results of research and discussion show that the reason for the marriage is caused by several factors, namely economic factors, educational factors, mutual demen, parental desire factors, and the factor of men who are still legally married to other women. The marital status of mebyakaon is not the same as traditional Balinese marriage in general, what distinguishes it from mebyakaon marriage is that it lies in a traditional procession that has not been carried out completely. Based on the decisions and decrees of Parisadha Hindu Dharma Indonesia (PHDI), the validity of marriage is determined on condition that Tri Upasaksi. The legal position of mebyakaon marriage does not have a strong binding force so that this marriage may not have the same legal status as traditional Balinese married couples in general. Similarly, the legal consequences of marriage will be different. Couples who perform mebyakaon marriage may not enter the temple and participate in the massacre in the village because mebyakaon marriage is valid according to the parties only but, according to Balinese customary law this marriage is invalid and children born from mebyakaon marriage are extramarital children (anak astra) and marital property in mebyakaon marriage There is no legal certainty and there is no mixing of property between husband and wife.

Status and Inheritance Rights of Daha Tua in Balinese Customary Inheritance Law: Study on Balinese Indigenous People in Banjar Dewa Village, Banjar Agung District, Tulang Bawang Regency

Old Daha is an adult woman biologically menstruating, until old age. It is said that Daha Tua if his status does not carry out marriage until the end of reproductive ability. So Old Daha was an adult woman until she died with the status of never married. The situation of Old Daha will be set aside by his family members because it is considered a mere burden, so the issue of Old Daha's inheritance rights arises and the distribution of Old Daha's inheritance rights to his heirs in Banjar Dewa Village, Banjar Agung District, Tulang Bawang Regency. This research is empirical normative legal research, with a descriptive type. The problem approach used is a juridical-sociological approach. The data used are secondary data and primary data. Data collection techniques with literature studies and field studies are interviews. Data analysis is used qualitative data analysis. The results showed that Daha Tua in Banjar Dewa Village was not an heir, however, along with the development of the era, parents assumed that Daha Tua was entitled to receive his parents' property while still paying attention to customary law as a guideline that applies in the Balinese customary inheritance system. The distribution of inheritance rights belonging to Daha Tua to his heirs in Banjar Dewa Village will be inherited to heirs who are related to Purusa by blood, such as his chosen brother or by adopting the nephew of his brother as a legitimate child. These efforts were made to get heirs and shelter in old age.

The Proprietary Consequences of Customary Marriages: Challenges in the New Regime(s)?

The law governing marriage in South Africa is in transition. There are currently two proposals to reform the proprietary consequences of marriages in South Africa, namely a Marriage Bill [B43-2023], and a South African Law Reform Commission Discussion Paper to review aspects of matrimonial property law. This article assesses the effectiveness of the proposed reform in addressing the current regulatory challenges related to the proprietary consequences of customary marriages. It argues that the piecemeal jurisprudential development of the law has not been effectively reconciled, and this must be addressed in any future reform. However, the Marriage Bill proposed by the Department of Home Affairs is not an answer. The Bill ignores customary notions of property and creates several conceptual difficulties such as potentially leaving customary law marriages without a matrimonial proprietary regime. The South African Law Reform's Discussion Paper, which reviews aspects of matrimonial property law, holds great promise because it proposes a change in the default matrimonial proprietary system and the exclusion of family property from the marital estate. The proposals must be reconciled and informed by living customary law practices to deliver the much-anticipated law reform.

Celjski grofje kot fevdni gospodje in njihov fevdni dvor

German historiography refers to a group of feudal lord’s vassals as a feudal court (Lehnshof). At their zenith, the Counts of Cilli/Celje were perhaps the most powerful feudal lords in today’s Slovenian territory. The social and provincial allegiance of their vassals varied. The vassals were acquired through various means, sometimes even by force. Obligations, partly determined by both written and customary feudal law, were mutual. The feudal court of the Counts of Cilli, which also represented a source of personnel from which they recruited their court-territorial officials, was just as diverse as their feudal practices.

The Legal Status of the Customary Law of the Doreri Tribe in the Manokwari Regency within the Statehood of the Republic of Indonesia

The Customary Village is designated by the Regional Regulation of the District/City, which serves as the juridical basis for the recognition of customary law by the community. However, currently, only 2 (two) regencies in the West Papua Province have legitimized this by enacting a Regional Regulation. Based on this gap, this research aims to analyze the legal status of the customary law of the Doreri tribe in Manokwari Regency within the statehood of the Republic of Indonesia. The research method used is socio legal research. The results indicate that, at present, the legal status of the customary law of the Doreri tribe is not in accordance with the 1945 Constitution of the Republic of Indonesia and Law No. 6 of 2014 concerning Villages. Therefore, the customary law of the Doreri tribe lacks a strong juridical foundation because the Doreri tribe only has an association, namely the Empowerment Body for Doreri Community and Youth, with a deed issued by a Notary. This cannot serve as a strong legal basis as it is not recognized as a customary village or a unit of recognized customary law community but only as a legally sanctioned association. Therefore, it is expected that in the future, the Local Government of Manokwari Regency, especially the Regional People's Representative Council (DPRD) of the Regency, will propose a Regional Regulation (Raperda) regarding the recognition of the customary law community of the Doreri tribe.

Mahalaxmi Jatra: An Amazing Festival Tourism Product of Lubhu, Nepal

Lubhu is one of the historical and cultural tourist destinations located on Mahalaxmi municipality 8, Lalitpur district of Kathmandu Valley in Nepal. There can observe and have a wonderful experience of tangible and intangible cultural tourism properties within core of Lubhu. The people of Lubhu annually celebrate different colourful festivals and Jatras such as Mahalaxmi Jatra, Nepal Sambat, Buddha Jayanti, Dashain, Tihar, Yomahri Punhi, Gobrateswor Mahadev jatra, Gaijatra, Krishna Janmasthami, Naag Panchami, Gathemangal, Ram Nawami, Chaite Dashain, Holi, Shivaratri, Shree Panchami, Pishach Chaturdashi, Byaja Chaturdashi on the special auspicious occasions. Among them, Mahalaxmi Jatra is an amazing cultural heritage and festival tourism product of Lubhu. It celebrates in the month of Baishakha especially from Baishakha Sukla Tritiya till to Ekadasi which takes more than a week for its completion. It is considered a hallmark of indigenous cultural identity and a popular cultural tourism product of the destination. But, through the tourist and tourism perspectives this Jatra is still not adequately exposed. Hence it is necessary to recognize Mahalaxmi Jatra as a prominent tourism product of Lubhu. How it is celebrated? what its celebrating processes, processions, rites and rituals, customs and customary laws? how far it is considered as an important source for alluring tourists and what are the major problems and challenges that hindering over the promotion to it as a tourism product? are the major questions and research gaps which have been answered and addressed through this paper. Likewise, to explore the different aspects embedded with Mahalaxmi Jatra of Lubhu and to examine Mahalaxmi Jatra of Lubhu as an amazing cultural tourism product are the key objectives of the paper. In this paper both primary and secondary data and qualitative approach have been used and it is based on analytical and descriptive research design.

Prohibition of Civilians Transfer Under International Humanitarian Law and Its Relation to Genocide

Forcible transfers or forced displacements due to an international or non-international war often happen and cause suffering to those who become displaced by loss of their homes and livelihoods and survival resources. As an example of the current situation, there are many civilians from Gaza, especially Palestinians, who have had to leave their homes and have to seek shelter. Alarmingly, some of them have fled to refugee camps that have been housing Palestinian refugees since the 1948 and 1967 conflicts with limited conditions. While, it is commonly known that evacuation should only be temporary. This fact invites us to discuss and answer the following questions: 1) How is the rule of international humanitarian law or the law of war regarding the transfer of population and civilians in time of war?; 2) How could the displacement of civil population and civilian in time of war amount to genocide or ethnic cleansing?; and 3) How is the law enforcement against the violations of international humanitarian law on the transfer of civilian population? It is expected that the answers of these questions could be a reference to comment any news of displacement due to armed conflict. To answer these questions, normative research is conducted by literature study for collecting secondary data from international treaties and other sources of international law such as customary international law, court rulings, expert opinions and information or news from the field, including the implementation of international law in Indonesian national legislation. Analysis of data for taking conclusion is carried out qualitatively, and the reporting is made in an explanatory descriptive manner. The results showed that the international humanitarian law system has contained sufficient rules containing certain prohibitions and obligations for parties to the conflict. There are several prohibitions against deportation and forcible transfer of population. There are several obligations to prevent the forcible transfer or forced displacement of population. There are several obligations to strive for the safety and fulfillment of basic needs of civilians in the event of evacuation and to ensure that the displaced civilians can immediately return to their places of origin. In circumstances, acts that cause forcible transfers or forced displaced civilians might be categorized as war crimes, crimes against humanity and/or genocide. Concerning the violations of the international humanitarian law relating the forcible transfer of civilian population due to war, the state is obliged to carry out the law enforcement against the persons involved who are under its jurisdiction. In addition, no State shall be allowed to absolve itself of any liability incurred by itself in respect of breaches referred to the rules discussed

Twenty-first century customs fraud: how to effectively enforce EU sustainability requirements on imports

Abstract Countries increasingly adopt measures to make their economy more sustainable. These measures range from pricing carbon and protecting forests to promoting renewable energy and banning forced labour. This article examines how countries can effectively enforce such sustainability requirements on imports. Based on two case studies—the EU Carbon Border Adjustment Mechanism (CBAM) and the EU Deforestation Regulation (EUDR)—and other developments in EU customs law and practice, this article shows that customs inspection of elements that cannot be physically detected in the imported product as such is neither unique nor new. Similar challenges arise when dealing with massive inflows of small e-commerce consignments or having to check the origin or value of products. Indeed, for customs enforcement more generally, the trend is one away from physical inspection of products on a transaction basis at the point of entry, toward verification and control of firms before and especially after release of the goods. To implement this ‘product-to-firm’ shift, four back-up features are, however, crucial, focusing on data, penalties/circumvention, cooperation, and resources.

Protection on the territory and customary rights of Cibarani Wewengkon in Lebak Regency, Banten, Indonesia

This study examines the influencing factors of policies related to customary rights or Wewengkon implementation in the Cibarani indigenous peoples, affecting the destruction of Leuweng Titipan Mount Liman. The protection and supervision of the Cibarani Wewengkon are regulated by the Lebak Regional Government Number 8 of 2015 concerning the Recognition, Protection, and Empowerment of the Kasepuhan Customary Law Community. However, despite getting supervision and protection, natural damage caused by unlicensed gold miners continues to wreak natural harm. As a result, two hectares of forest on Mount Liman were deforested. This research used a qualitative research approach and collected data through a literature study. The results indicated that the influencing factors of inadequate protection for the Cibarani Wewengkon are the ignorance of the Lebak Regional Government regarding the supervision and protection of the Cibarani Wewengkon. Their insensibility is induced by the issues in transmission of information or poor communication between policymakers, such as the Lebak Regency house of representative and the regent, resulting in vague details on the authority to safeguard and supervise.

Diskursus Kampung Restorative Justice Dan Eksistensi Peradilan Adat Di Provinsi Jambi

This research delves into the discourse related to village restorative justice and customary law in the Province of Jambi in the context of the diversity of authority shifts between modern legal approaches and existing legal traditions. The research background refers to conceptual differences and perspectives on dispute resolution between the state and customary law. To examine the relationship between the concept of restorative justice and customary justice, this study employs a qualitative approach by conducting in-depth interviews with representatives from the prosecution, community leaders, as well as traditional leaders in several restorative villages in the Province of Jambi. The literature review involves a profound understanding of restorative justice, customary justice, and the interaction between state law and customary law. The research findings highlight the conflicts and convergences between the restorative justice approach and the existence of customary justice. Conflicts arise in the interpretation of rights, obligations, and authority held by each system. However, this research also reveals the potential synergy between these two approaches in resolving disputes with a more holistic and contextual approach. The findings of this research indicate the importance of dialogue and collaboration between the state and customary law in developing initiatives such as village restorative justice. In the context of the Province of Jambi, wise integration of state and customary law can bring benefits for the preservation of cultural values as well as the fulfillment of individual and community rights.

The Guarantee Measures of Educational Rights on the Traditional Communities of Southwest Papua

This research aims to know the guarantee measures of educational rights, and analyse its from custom law. This research is empirical study that uses field data as primary data sources. Data collection techniques were carried out from interviews, observation and documentation. The result show that absorption of at least 30% of the budget income and expenditure areas that must be absorbed by education No appropriate target, the spelled out small if compare with budget income and to much expenditure area and must capable to accommodate cost of school for 203 Papuan children. This all based on government programs as well not yet appropriate and take the good target. It should check again on many factors and reason that show many separated Papuan school and different area, distance and difficult geological area which impact to the student and decide not to continue their education including economic factor.

The mine, the community, and the chief–mining governance and community representation in conditions of legal pluralism

The corporate oxymoron “mine-hosting communities” implies a mutually beneficial relationship between mining companies and surrounding communities. This belies that many communities resist mining activities and downplays the salience of representation and decision-making power in mine-affected communities. Much mining occurs on lands of traditional communities, where mining companies often treat chiefs as uncontested representatives with decision-making power regarding communal lands, ignoring customary law’s nested and layered nature. Anthropological studies show that positions of traditional authority are currently highly contested due to chiefs capturing the spoils of land commodification and extractive resources. Concentrating on South Africa, this article explores how increasing contestation of the representative power of traditional authorities – in communities, the legislature, and the courts – impacts mining governance and studies the emergence, functioning and downfall of an alternative form of representation of traditional communities. It demonstrates how the hybridity of representative structures and the interaction of statutory and customary laws and institutions result in a configuration of legal pluralism that enables actors to skirt obligations of both legal registers. With its analysis of mining governance in South Africa, this article underscores the importance of a critical understanding of the complex and constantly renegotiated configurations of legal and institutional pluralism.

The Supply of Weapons to a Victim of Aggression: The Law of Neutrality in Light of the Conflict in Ukraine

Abstract The relationship between the customary law of neutrality and the contemporary rules of the jus ad bellum is notoriously unclear, especially when an international armed conflict stems from an act of aggression, but the United Nations (UN) Security Council has not mandated or authorized any measure pursuant to Chapter VII of the UN Charter. The issue has emerged once again during the recent international armed conflict in Ukraine, in which states not participating in the conflict have disregarded, among other things, the customary prohibition to supply weapons to either belligerent by supplying weapons to Ukraine – that is, the state victim of armed aggression – despite the deadlock in the Security Council. These acts of unilateral unneutral support have not been characterized by the supplying states as being pursuant to exceptions to the law of neutrality or by Russia or other states as being violations of it. This raises the question whether the law of neutrality still bears relevance whenever an act of aggression occurs. In the uncertainty as to the legal regime applicable in this case, the Ukrainian conflict offers an important instance of state practice that might help shed light on the applicability of the customary prohibition to supply weapons, as well as of the law of neutrality in general, when the international conflict is initiated by an act of aggression.

The Constitutionality of Inheritance Rights for Extramarital Children: Assessing the Legal Response under Balinese Customary Law

This article analyzes the inheritance rights of extramarital children under the post-Constitutional Court decision of Balinese customary law. Any child born of unmarried parents or out of adultery is stigmatized as an extramarital child (walad al zina) for his entire life and forbidden from inheriting an estate from his biological father. This legal issue is chosen as the main subject of this study is because of the legal circumstance in which the Balinese community does not grant status to extramarital children in matters of inheritance from the Purusa line. Hindu-Balinese religious leaders such as Parisada and the Traditional Village Council have never upheld the Constitutional Court’s ruling that states that children born out of wedlock have civil relations with their biological fathers. Islamic religious leaders have followed up on the Constitutional Court’s decision by issuing a fatwa of the Indonesian Ulema Council (MUI). The fatwa imposes an obligation on biological fathers to separate their wealth for a guarantee of life to children. Applying the statutory approach, conceptual approach, sociological approach, and case approach, it can be understood that children born out of wedlock (the Balinese call it begin at children) have no status as heirs in the Purusa line but have inheritance rights from their mother and their mother’s family.

Harmonization of State, Custom, and Islamic Law in Aceh: Perspective of Legal Pluralism

Indonesia recognizes several legal systems i.e., state law, customary law, Islamic law, and international law. Islamic sharia in Aceh is part of legal pluralism in Indonesia. This study aims to discuss the application of Islamic sharia from the perspective of legal pluralism. This normative legal study employed a legal pluralism theory analysis. Legal pluralism is a theory that views law not only as positive or written law made by the state but also as a recognition of the legal reality that exists in a pluralistic society. The study collected data by means of a literature review. Findings revealed that Islamic sharia in Aceh as part of the recognition of the concept of legal pluralism has been implemented well in the context of state law, custom, and Islamic law. The state has provided juridical legitimacy through laws in the context of legal substance and judicial institutions or sharia courts. Likewise, revitalization has also occurred in traditional institutions in terms of customary law and customary justice. The argument emphasized in this study is that Islamic sharia in the context of legal pluralism has succeeded in manifesting legal harmonization between the state, custom, and Islamic law