Law Discourse Research Articles

Diskursus Hukum Islam dalam Konteks Keindonesiaan: Memahami Kembali Nilai-Nilai Substantif Agama

This paper explain the discourse of Islamic law in the Indonesian context in order to understand the substantive values of religion in national life. The development of the times raises the complexity of problems in life, including the presence of Islamic law in the nation-state, this of course requires a comprehensive discourse in order to answer each of these problems. This paper uses a qualitative research method with a narrative approach by referring to secondary sources so that it can be concluded. First, the formulation of Islamic law in Indonesia needs to be considered in terms of prioritizing the application of the noble values of religion itself (substantive). Second, the role of religion is very large in public life, hence the exclusion of religion from the private sphere or vice versa (placing religious law into the public sphere) needs to be viewed from various aspects. Third, the formalization of Islamic law in several perspectives of the Indonesian legal system is relatively difficult to materialize because of historical, ideological, sociological, political, juridical, religious and cultural considerations, both at the national and international levels.

The Discourse of Procedural Criminal Law on Follow the Money Concept in Indonesian Anti-Money Laundering Act

Money laundering is an act attempts to conceal or disguise the origin of money/funds or wealth proceeds of crime through a variety of financial transactions in order to money or possessions that looked as if it came from a legitimate activity or legal. The term money laundering has been known since 1930 in the United States when the mafia buys a legitimate company and officially as one of its strategies. These illicit funds not only could damage the market, but also detriment the market, and always do not contribute towards the long-term economic development and stability of the markets where the fund is hidden. Problems of money laundering in English known as money laundering. Money laundering in Indonesia today has developed so alarmingly and requires serious treatment by law enforcement officials at both the police and the institutions established by the Anti Money Laundering Act, namely Transaction Reports and Analysis Center (INTRAC). This paper is intended to analyze the discourse of procedural criminal law on the following the money concept in the money laundering tracking process. This paper confirmed that some different interpretation and limitation has become one of the problems on money laundering tracking process. Especially on follow the money scheme in procedural criminal law. Moreover, it is also emphasized that some judgments have not enough power because of unclear determination in counting the amount of money laundering and counting the losses.

On the Status of Rights

On the Status of Rights

Implementing Good Practice Pedagogy to Support Law Students’ Writing Skills

The current focus on the standard of writing of both school and university students in Australia underscores the responsibility of law schools to support and develop their students’ writing skills. Good practice principles recommend that writing development at law schools should occur in an embedded context with subject matter content and led by law academics as experts in the discourse of law. Programs should also be informed by theory about how students learn literacy and developed in consultation with academic language and learning (‘ALL’) experts. However, there are few studies of embedded writing programs in law in Australia, and the impact of consultation with ALL experts is also not an issue which has been extensively explored. This article reports on the results of a mixed-methods study of an embedded writing program in law at a large regional Australian university. It demonstrates that it is possible to implement a writing program based on good practice pedagogy without making substantial changes to the existing curriculum. It also reveals the importance of focusing the support on the teaching academics, rather than on individual students, and ensuring that academics are supported by ALL expertise, to provide them with the tools to be able to talk to their students about language in their discipline. The quantitative aspects of this study also demonstrate that a writing program based on an understanding of how students develop academic literacy appears to lift the performance of students who may not have traditionally been admitted to law school.

Regional Approaches to International Law (RAIL): Rise or Decline of International Law?

The fragmentation of international law is both a renewed fear and a driving force in international legal thinking. The discourse of international law has thus always been careful to denounce anything that could undermine the universality and unity of international law, and in so doing, has developed new ideas and mechanisms that can help to curb any risk of fragmentation, supposed or real. In parallel with this movement, there are increasingly pressing calls, both from actors in international society and within international law, for greater consideration of multiculturalism and pluralism in society in the development and application of international legal rules. The present reflection focuses on the articulation of these two movements by asking whether regional approaches to international law (RAIL) pose a real threat to the coherence and integrity of international law. The article concludes that RAIL can be a source of enrichment and consolidation of international law if these approaches are conducted with a view to developing a truly universal international law and not to calling into question its foundations. To reach this conclusion, the paper invites international lawyers to revisit the dogmas of universality and unity in order to question the true meaning of these notions and to think about the future of their discipline.

The discourse of law and the discourse of power in the works by Yury Dombrovsky

The article is devoted to the study of the discourse of law and the discourse of power in the prose by Y.O. Dombrovsky. The authors have identified a number of aspects of law and power discourses in order to demonstrate how law and power, reproduced in the works by Y.O. Dombrovsky, can interact with socio-cultural realities. The study involved the axioms of law – fundamental legal principles that have developed because of centuries of law practice and have 7become statements that do not require proof. The analysis of a number of law axioms shows that in the totalitarian reality depicted by the author the law axiomatic is distorted, and fundamental legal laws cease to work. Attention was also drawn to the fact that court scenes are abstract in the prose by Y.O. Dombrovsky and the reasons for this absence are analyzed in the article. It was established that the court in his works can be depicted indirectly (through memories, protocols, etc.), but the hero himself does not participate in the court. In the controlled judicial system of the Stalinist period, the court disappears as an unnecessary instance, since the accused is guilty a priori. Due to the lack of a real advocateship in court, the arrested person can only defend himself if he makes a plea deal in order to get a shorter sentence. When studying the discourse of law and the discourse of power, we turned to the theory of speech genres by M. M. Bakhtin. We have identified and analyzed such genres of judicial and law discourse as the genre of interrogation, indictment, lawyer’s speech, arguments of the parties and protocol, as well as such imperative speech genres of power discourse as the genre of order, submission and possession. It was concluded that the characters by Y.O. Dombrovsky can oppose the ideas of stoicism to despotic power.

Winter Issue

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

SENTENCING MATTERS - FACTORS DETERMINING SENTENCE TYPE AND LENGTH: AN EXPLORATORY VIGNETTE STUDY

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

THROWING OUT THE BABY WITH THE BATHWATER: An Assessment of Dutch Policy Regarding Victims of Trafficking in Human Beings

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

THE OTHER SIDE OF TRADE LIBERALISATION

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

IN SEARCH OF THE BOUNDARIES BETWEEN HARMLESS AND HARMFUL TAX COMPETITION

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

Great Power Privilege

Amsterdam Law Forum (ALF) is the student-run 'International Law Journal' of VU University. Every year ALF publishes a winter, spring, and summer issue. The journal consists of three sections; scientific articles, opinion articles, and commentaries. As of this year, ALF also creates a section for inaugural speeches. In addition, ALF hosts a conference in spring with a relevant legal theme, where renowned speakers are invited to share their perspectives. Overall, ALF is a topical journal that provides a platform for established scholars and young academics to share knowledge, opinions and experiences and to make contributions to the international law discourse. Staff, PhD students and master students who have written a very good thesis are invited to submit an article to ALF. What is learned in the cradle is carried to the tomb: we are looking forward to sharing your articles on our website!

“Try Not to be Embarrassed”: A Sex Positive Analysis of Nonconsensual Pornography Case Law

Media, police, and educational responses to nonconsensual pornography (i.e. ‘revenge porn’) have been critiqued for relying on sex negative beliefs that result in victims of this act being blamed and shamed for their own victimisation. In this article I analyse judicial discourse in nonconsensual pornography case law to assess the extent to which sex negativity is embedded in legal responses. I find that, while overt victim blaming and shaming is not present in the judicial discourse, subtle forms of sex negativity are expressed in a minority of cases through references to consensual youth image sharing as inappropriate and through the framing of reputational harms. I argue that it is essential for legal responses to not only avoid sex negative narratives (as most currently do) but to actively reveal and counter the sex negative beliefs that underlie many of the harms associated with nonconsensual pornography.

The violence of odors: sensory politics of caste in a leather tannery

ABSTRACT Leather is a sensuous object marked by complex affects of desire and disgust. In India, this disgust is amplified due to the association of leather with caste. This paper examines the leather tannery as a space produced through the sensuous discourse of caste violence, which functions by marking leatherworking bodies with odors, that in turn perpetuate affectual and material possibilities of humiliation and discrimination. This violence of odors has no place in the deodorized discourse of law and yet in the sensuous ordering of caste there is nothing more repulsive than to carry the stench of tannery on oneself. The paper examines this intangible and sensual character of caste violence by closely following Paul Stoller’s methodological argument that sensuousness forms the field on which phenomena play out and through which they can be understood. Keeping in mind the value-laden and subjective nature of sensuousness, the paper also reflects on the ways in which the sensory politics of caste frames the interactions between the field and the body of the researcher – both of which are determined by the norms of caste. The ethnographic descriptions of caste and violence in the tannery on which this paper is based are thus mediated by multiple sensorial perceptions, including those of the researcher.

Rightism, Reasonableness and Review: Section 377A of the Penal Code and the Question of Equality

This paper examines the article 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of section 377A of the Penal Code (Cap 224, 2008 Rev Ed). This implicates interpretive method, construing legislative purpose in pre-Independence laws which have been legislatively debated and retained post-Independence, issues related to interpreting constitutional rights, and the judicial role in the face of morally contentious legal questions. The prevailing test of ‘reasonable classification’ and the accompanying presumption of constitutionality has been criticized in two primary ways. First, that it has been misapplied; second, that it constitutes deferential review, in according primary weight to the ‘reasonableness’ of Parliament and political constitutionalism, which detractors urge should be replaced by a more robust test of judicial scrutiny. The article contests the argument that section 377A fails to satisfy the reasonable classification test, particularly because it serves no purpose or an inadequate purpose given its original rationale. It argues that calls to revise the reasonable classification test in favor of a preferred vision of substantive equality constitute an unwelcome invitation to ‘rightism’ and a ‘living tree’ approach to judicial review, which trades in value arguments based on an egalitarian liberal theory of the good. It argues that scoping equality through the reasonable classification test remains appropriate within a communitarian polity, given the constitutional roles of the courts and Parliament, the wide-ranging reach of equality to any differentiating law, constitutional amenability and what might be described as a ‘moral questions’ doctrine, which informs a calibrated approach to judicial review.

POETRY AND “POST-MABO LYSIS”

John Kinsella is an important literary witness to the acknowledgement of native title in Australia, and Indigenous rights more generally. His writings also bear witness to continuing forces of resistance to those rights in Australian society. This paper traces Kinsella’s engagement with the Mabo case, the 1992 legal decision that recognised native title as part of Australian law, and rejected the fiction that Australia was terra nullius at the time of British colonisation. Focusing on “Graphology: Canto 5” and other texts, it argues that Kinsella presents a sustained reflection on the implications and the limits of this decision, in law and in wider cultural understandings and practices, through poetic allusions, paratexts and personal commentary. His writing since the mid-1990s reveals an acute awareness of how imported concepts of property and law are concealed within Western poetic traditions such as pastoral. To counter the effects of this ideology, Kinsella interpolates and appropriates terms from the discourse of property law, juxtaposing them against other ways of understanding and living in the land. In several collections, but especially in Jam Tree Gully, he seeks to develop an ethically reflective account of ownership of land taken from others, critiquing the dominant idea of property and articulating an alternative way of living in the land based on co-existence. The rights of the dispossessed traditional owners are central to a new mode of “writing the land.”

Omnibus Law in the Job Creation Bill-Making Process: An Online Natural Language Process Analysis

This study aims to: 1) capture the discourse of omnibus law on online media, 2) analyze the differences of omnibus law discourse on online media coverage, and 3) the government’s political communication in the policy-making process. Descriptions were identified through a content analysis performed using NVivo 12 Plus to the four online medias that reported the omnibus law the most during the first 6 months of the policy making process, they are Kompas.com, Detik.com, Tempo.co, and Vivanew.com. The result indicates that there are similarities and differences in online media reporting about the omnibus law policy-making process through the Job Creation Bill. First, the similarity lies in the dominant roles and interests of the government in the policy-making process. Second, there were different issues discussed and different news sentiments by online media, such as critical, positive, and proportional sentiments. Third, to achieve its goals, the government seems to be trying to approach the legislative, which plays crucial roles in the passing process from bill to law, but not to approach workers and various groups resisting the omnibus law.

On the Central Case Methodology in Discrimination Law.

The central case methodology captures the features that something must have in order for it to be that thing. As applied to the field of discrimination law, the methodology helps identify both the central cases of discrimination as well as the key features of discrimination law which address such discrimination. Theorists typically conceive central cases of discrimination law from norms prohibiting discrimination on particular grounds, such as race or sex. This gives the impression that discrimination based on more than one ground is not a central case of discrimination or not prohibited by discrimination law. This article challenges that impression. It argues that, although discrimination based on a combination of grounds (‘intersectional discrimination’) is considered no more than a peripheral case in discrimination law, it should actually be considered ‘more than’ a central case itself. This is because it is epistemically able to capture discrimination in a wider sense. With this, the article seeks to orientate the theoretical discourse in discrimination law to the correct application of the central case methodology which necessitates the consideration of intersectional discrimination.

Migrants in the Attic: The Case of Migrants with Disabilities and Resettlement Services in Serbia

The global migrant crisis triggered an unprecedented number of asylum seekers in the Balkan region. In this case study, the state of migrants with disabilities—a community notoriously overlooked during global conflict—is explored through field interviews of settlement service providers in Serbia. A human rights framework is espoused in first examining contemporary refugee law discourse and the corresponding gaps in current resettlement practice of migrants with disabilities. The study’s findings illuminate the need for a drastic shift in settlement services for those migrants most vulnerable to persecution in de facto destination countries. The discussion takes aim at “humanitarian silo” funding models and argues for international cooperation and transparency in accommodating migrants with disabilities internationally.

The Discourse and Practice of Islamic Family Law in Indonesia

Family law is the most powerful law practiced in Islamic history, but this does not mean that it avoids the demands of changing times. Today, there are no less than thirteen problems related to family law that have arisen in the Muslim world. This problem arises not only because of demands for changing times, but also because of efforts to unify, codify and legislate Islamic law in a number of Muslim countries. This problem requires not only solutions but also reforms. This study aims to examine the model of understanding, practicing, reforming and transforming Islamic law in Indonesia and its impact on the position of standard classical fiqh books and the independence of judges in the Religious Courts. This research is a non-doctrinal normative qualitative research type. This study found a variety of models in the exploration, practice and reform of family law in Indonesia. The impact of the reform and transformation of family law in Indonesia is that classical fiqh books are no longer used as the main reference and the Religious Court System is closer to the civil law system. However, the reform and transformation of family law in Indonesia did not reduce the independence of religious judges in exploring and discovering more contextual Islamic law.