Formal Legal System Research Articles

Indigenous Land Dispute Resolution in Indonesia: Exploring Customary Courts as an Alternative to Formal Judicial Processes

Indigenous tribes struggle to protect their lands, identities, and livelihoods throughout conflicts. Indigenous areas are threatened by resource exploitation and development-related land ownership conflicts, requiring efficient conflict resolution. International frameworks for post-conflict property recovery rarely address customary land rights. This study examines Indonesian traditional courts as alternatives to indigenous land disputes. It investigates the legal coherence, justice, and utility of traditional judicial proceedings using secondary legal sources in a juridical-normative manner. The study compares customary and formal legal systems, evaluates traditional court procedures for fairness, and examines their effects on sustainable land management and community empowerment. Customary justice procedures should be integrated into the legal system to promote inclusive and sustainable development and safeguard indigenous rights and traditions. The paper recommends stronger cooperation between formal and customary legal systems and suggests future research to resolve constraints and improve understanding of customary law dynamics in settling indigenous land issues in Indonesia.

True Crime Podcasting as Participatory Journalism: A Digital Ethnography of Collaborative Case Solving

True crime podcasts invite their listeners to crowdsource investigations online, solving cases that have fallen through the cracks of the criminal justice system. Through a cultural criminologist lens, this digital ethnography examines The Vanished podcast as a case study of how true crime listeners engage with solving cases in digital community spaces. Previous studies have dismissed true crime fans as pseudo police acting as digital vigilantes. Podcasting communities provide an important public service, working as participatory journalists to investigate the story and report the truth. Rather than depending on law enforcement permission to organize, online crime-investigation communities leverage the Internet’s function as an organizing agent for mobilization beyond the parameters of conventional social structures and formal government agencies. Findings reveal a six-step process of case collaboration between podcast producers, active listeners, and family and friends of missing persons. Other communities can apply this unique system to successfully investigate crime, suggesting implications for individuals within marginalized groups less likely to find justice through the formal legal system.

Study of Living Law and its Implication in the Formation of the Criminal Code (KUHP) in the Era of Decentralization of Indonesian Laws

This study explores the implications of living law in the formation of Indonesia's Criminal Code during the era of legal decentralization. Living law, comprising unwritten customs and traditions, continues to play a vital role in many Indonesian communities, particularly in the context of criminal justice. The research employs a juridical analysis and case study approach, focusing on regions where adat law (customary law) significantly influences legal practices. The findings reveal both the benefits and challenges of integrating living law into the formal legal system. While living law enhances cultural relevance and community-based justice, it also introduces concerns about legal fragmentation and potential conflicts with national human rights standards. The study recommends selective incorporation of living law into the Criminal Code, along with efforts to codify regional customs to ensure consistency and legal certainty. This research contributes to the ongoing debate on legal pluralism in Indonesia, offering insights into the future of criminal law reform in a decentralized system.

Contextualizing Human Rights in Multicultural Environments

This paper explores the intricate relationship between socio-cultural dynamics and human rights in multicultural societies. It examines how norms, belief systems, and power structures shape the perception and exercise of these universal principles. The study employs a qualitative research design, specifically using the Cultural Relativism Framework, to investigate how cultural norms and values influence the interpretation and application of human rights. Through the analysis of literature and case studies, the paper elucidates the interaction between cultural context and human rights interpretations. It acknowledges that human rights are not uniform but are influenced by diverse cultural contexts. Key findings underscore the significance of multiculturalism in human rights interpretation, the impact of social, cultural, and political contexts, the intersection of values, beliefs, and customs, and the roles of states, civil society, and international organizations in shaping human rights discourse. The paper advocates for educational initiatives, intercultural dialogue, inclusive policymaking, and legal reforms to promote and protect human rights in diverse societies. It recommends enhancing human rights education, facilitating intercultural exchange, empowering civil society, addressing discrimination and inequality, and integrating customary laws with formal legal systems. By fostering mutual respect and understanding, societies can uphold human rights and cultural diversity, enabling peaceful, equitable coexistence. This assertion is based on empirical observations and scientific principles that highlight the importance of mutual understanding in preserving human rights and promoting cultural diversity. This paper contributes to a deeper understanding of human rights, advocating for a balance between universal principles and cultural specificities.

COMPLAINT AS A LEGAL REMEDY, THEORETICAL AND PRACTICAL ASPECTS

In criminal procedure, a "remedy" refers to a legal solution or course of action that is available to individuals who believe their rights have been violated during the criminal justice process. Remedies are designed to protect the rights of defendants and ensure that the criminal justice system operates fairly and in accordance with the law. Of course, the complaint as a regular legal remedy can be exercised within the specified legal deadlines and in the previous legal procedure. It's important to note that not all legal remedies follow these exact stages, and the specific procedures can vary based on the legal system and the type of case. Additionally, some legal issues may be resolved through administrative processes or through negotiation without ever entering the formal legal system. The judgments issued by the court, with which the party is dissatisfied and which have not yet taken the final form, are struck with legal means. The legal remedies are regulated by the provisions of the Code of Criminal Procedure and serve to exercise the legal remedy in case of dissatisfaction with the court's decision, therefore we can rightly conclude that the legal remedies are a kind of guarantee for the respect of the rights of the parties in the procedure. The purpose of this paper is to find, through research methods, how these legal remedies are regulated, the changes that have occurred in criminal legislation, their application in practice, where through comparative, statistical, normative and other methods, it will be more easy for us to reach correct conclusions. With the conviction that this work will bring innovation and be a summary for all those readers who intend to study this field in the future.

Examining traditional methods of handling domestic violence in a Southeastern Nigerian state: the imperative for social workers’ involvement

ABSTRACT This study investigates the conventional methods used to combat domestic violence within cultural contexts in a local council in Nigeria’s Southeastern state. The study aims first to promote the use of traditional methods of resolving domestic violence that aim at ensuring family unity and second, the need for social workers’ engagement in conventional means of resolving domestic violence. A qualitative study methodology was employed, using in-depth interviews to elicit data from twelve adult Nigerians residing in a local council of a southeastern state. Thematic analysis was adopted to analyze the data. The study discovered significant factors, including poverty, anger, and patriarchal structures, as predictors of domestic violence with substantial repercussions on family cohesion and the mental health of those affected. The findings revealed that people in the study area are well-versed in traditional methods for handling domestic violence, with family elders and traditional and religious leaders playing a crucial role. The study reveals that people are unaware of social work professionals’ involvement in domestic violence management, mainly due to the relatively new and emerging nature of formal social work practice. We suggest the inclusion of social workers for effective and efficient use of traditional approaches in handling domestic violence. Their engagement becomes essential in propagating awareness about better system trust to encourage the use of conventional methods to ensure family protection, preservation, and reunification, unlike the formal legal system. The study, however, indicated that effective collaboration among social workers, policymakers, and community stakeholders is essential to develop comprehensive policies that effectively tackle the issue of domestic violence. Overall, the study recommends a collaborative effort by social workers and community stakeholders to develop strategies and identify adequate linkages to prevent possible social injustice resulting from patriarchal norms within the cultural context that may affect their intervention.

Constructionilsm of Functionlism: Belom Bahadat as Legal Culture of The Dayak Community In Palangka Raya

This research examines the concept of "Belom Bahadat" as a deep legal culture in the Dayak community in Palangka Raya, using the perspective of Max Weber and Talcott Parsons. This concept not only includes formal aspects of law, but also represents ethical-religious values ​​and social integration mechanisms that are important in the life of the Dayak community. Max Weber's perspective helps us understand how "Belom Bahadat" is closely related to religious values ​​and traditional legitimacy, while Talcott Parsons' perspective highlights the role of this concept in maintaining social stability and societal cohesion. Using a qualitative approach and documentation analysis, data was collected through participant observation and in-depth interviews with members of the Dayak community. The research results show that the concept of "Belom Bahadat" not only acts as a formal legal system, but also as a cultural foundation that regulates the behavior, social interactions and life patterns of the Dayak people. The ethical-religious values ​​represented by "Belom Bahadat" have a strong influence in shaping the social order and maintaining the continuity of Dayak community culture. The conclusion of this research is that the perspectives of Max Weber and Talcott Parsons provide valuable insight in understanding the complexity of the concept of "Belom Bahadat" as the legal culture of the Dayak community in Palangka Raya. By integrating these two perspectives, we can better understand the role of values, social structures, and integration mechanisms in forming and maintaining the concept of "Belom Bahadat" in the lives of Dayak people.

THE RIGHT TO A JUST REMEDY IN PRIVATE LAW—A RIGHT AND A HUMAN INSTINCT:AN ANALYSIS OF HOW GREED AND LAWLESSNESS REMOVES CONFIDENCE

This article explores the fundamental concept of justice and the right to a remedy in private law. Specifically, the question of whether the belief that justice will prevail is a spoiled concept to have, and only shared by populaces in places without corruption, rule of law issues, etc. The paper delves into the historical and global recognition of the rights of obligees, and scrutinizes the diminishing trust and conviction in justice, especially in jurisdictions plagued by corruption and weak rule of law. Bribery and corruption in judicial systems undermine access to remedies, particularly for the poor, and contribute to the erosion of faith in the judiciary. The analysis extends to non-state judiciaries, exploring the role of tribal courts in addressing private law matters in regions with challenges in formal legal systems. Ultimately, the paper contends that the instinct for justice is a timeless and universal human trait, inherent in the evolution of legal systems. While corruption and external influences can erode confidence, the desire for a just remedy remains engrained. Keywords: justice, corruption, judicial corruption, instinctive access to justice, sociology of remedies and their opinions, comparative legal systems

Quest for Maintenance and Welfare of Parents and Senior Citizens: A Socio-Legal Perspective

In Indian cultural ethos, parents’ care and well-being have been children’s priority in the well-understood family system. With the fast-changing life pattern, it has become necessary to deliberate on providing care and protection to parents and senior citizens in contemporary society. When individuals fail in fulfilling their pious and legal obligations towards parents, then it is the state that steps in the way and provides maintenance and looks after the well-being of the senior citizens through a formal legal system. The Maintenance and Welfare of Parents and Senior Citizens Act 2007 is the legislation that provides a legal mechanism for the maintenance and welfare of parents and senior citizens. This paper exhibits a debate on personal and public laws where certain pious, proprietary, and legal obligations of a son, grandson, and great-grandson, if not obeyed, then the public law enters the family affairs and provides due legal protection to parents and senior citizens. Further, in this paper, the authors attempt to analyse the legal provisions and judicial pronouncements on the maintenance and welfare of parents and senior citizens within family relations, failing which a formal legal mechanism as provided by the state in the said Act takes care of parents and senior citizens. At the end of the paper, the authors attempt to suggest suitable solutions to provide maintenance and welfare of parents and senior citizens, from the socio-legal perspective.

Conflict Resolution and Development of Skilled Leadership: Reconciliation between Muslim and Western Approaches

The present paper explores the multipurpose aspects of conflict resolution and skilled leadership that are essential for the smooth functioning of any group or organization. Practical conflict resolution skills enable individuals to navigate disputes and disagreements in a way that promotes understanding and cooperation. At the same time, skilled leadership is necessary to manage a group or organization effectively. Together, these two concepts play a critical role in ensuring that groups and organizations function effectively and efficiently. The paper concludes that conflict resolution is a complex process that requires a multifaceted approach. Western and Muslim approaches to conflict resolution have similarities and differences regarding their underlying principles, methods, and goals. Western approaches tend to be centered on using formal legal systems, while Muslim approaches often rely on Islamic principles and laws. Both approaches share the goal of resolving conflicts fairly and justly, and both recognize the importance of alternative dispute resolution (ADR) methods such as arbitration and mediation.

The Development and Progression of Alternative Dispute Resolution (ADR) In India

The journey of Alternative Dispute Resolution (ADR) in India can be traced back to ancient times when indigenous and community-based dispute resolution mechanisms thrived. These informal systems were characterized by mediation, arbitration, and consensus-building, reflecting the rich cultural diversity of the nation. However, as India evolved politically and socially, formal legal systems, such as litigation, took precedence. The resurgence of ADR in India can be attributed to several factors. The overcrowded judicial system, the exorbitant costs associated with litigation, and the need for expeditious resolution of disputes played a pivotal role in reviving interest in ADR methods. The Arbitration and Conciliation Act of 1996 served as a landmark legislative development, aligning Indian arbitration practices with international standards and promoting institutional arbitration. The Evolution of Alternative Dispute Resolution (ADR) in India represents a significant transformation in the country's legal landscape. This paper provides a concise overview of the historical development and key milestones in the adoption of ADR methods in India and provides a glimpse into the multifaceted journey of ADR in India, highlighting its historical roots, legislative milestones, judicial support, and its expanding role in modern dispute resolution. The evolution of ADR in India reflects a nation's commitment to fostering efficient, cost-effective, and accessible alternatives to traditional litigation.

Can social trust promote the professional division of labor in firms? Evidence from China

The informal institution of social trust has a crucial impact on economic activities. Based on social learning theory and social network theory, this study investigates the impact of social trust on the participation of firms in the professional division of labor. We find that firms in areas with a high level of social trust are more inclined to participate in the professional division of labor. Our results are robust to various measures of social trust and the professional division of labor, and are also robust after using the two-stage least-squares (2SLS) method to control for potential endogeneity. The mechanism analysis demonstrates that social trust can promote firms to participate in the professional division of labor by reducing search and contract costs. Further analyses show that social trust can improve total factor productivity (TFP) by promoting firms to participate in the professional division of labor, and that if the formal legal system cannot effectively protect the rights and interests of firms, social trust can play a substituting role.

Anti-Corruption in a Party-State: Constitutional Implications of China's Supervisory Reform

AbstractThe 2018 amendments to the People's Republic of China (PRC) Constitution saw the establishment of a system of supervisory commissions, which is a landmark development not only for anti-corruption, but also constitutional law in China. After providing an overview of the background and legal framework of the reform, this article discusses its constitutional implications from three perspectives. First, the reform alters the long-established state structure and creates interesting dynamics of institutional interactions among various branches of state structure. Second, it marks a reversal from the principle of ‘party-state separation’ and raises difficult issues of interface and transition between the party disciplinary system and the formal legal system. Finally, it legalises the previously extralegal practice of shuanggui (‘double specifications’) and affects the individual rights of those subject to investigation. The article concludes with some brief reflections on what this development indicates for the future of the rule of law in China, and highlights the potential for further research.

Discernment: Blurring and visual evidence

Researchers thinking about visual evidence in the legal system address quite a variety of empirical questions but share an absorption in the ways in which the evidentiary problem is rooted in the blurring of genres. The blurring is plural: between illustration and proof, between interpretation and requiring an interpretation, between knowledge and perception, and between argument and evidence. Because genres are an intimate and essential part of the functioning of legal processes, such blurrings in turn problematize long-standing practices and the design of governance processes. Their findings are important theoretically, as well, in three ways. They show that the model of fact production processes must begin a step earlier than does the Lockean model of the fact upon which “western” and “modern” society and “science” have relied. The model must continue on beyond where Locke and those who think about the social construction of reality, such as Berger and Luckmann, stop. And “contextual” matters such as warranting, provenance, and authority must be incorporated into our model of the information production chain itself. In combination, what we are learning from research on visual evidence is thus not only invaluable for addressing the profound real-world problems identified by the authors assembled by Sandra Ristovska in this special issue of First Monday and others, but for our understanding of challenges being presented to the nature of governance itself both within and beyond the formal legal system.

ALBANIAN CUSTOMARY LAW, ANGLO-SAXON LAW AND THE OLD WEST: HANDLING THE LAW ON YOUR OWN

Customary law in Albania, Anglo-Saxon law, and the legal system that prevailed in the Old West are all examples of legal systems in which individuals were, to a certain extent, expected to manage the law on their own. Customary law in Albania, commonly referred to as Kanun, is an ancient body of laws that has been verbally transmitted from generation to generation for hundreds of years. Under this system, each person was responsible for their own disagreements and was supposed to find a way to resolve them on their own, whether by mediation, negotiation, or even resorting to violence if that was the only option. The Kanun placed relatively little attention on the use of formal legal systems, instead placing an emphasis on the values of honor, family, and vengeance. Individuals were also expected to take responsibility for resolving disputes on their own under Anglo-Saxon law, which originated in England during the early Middle Ages. Despite this, however, there was a greater emphasis placed on the role that the king and the court system played in the process of upholding the law. Under this legal framework, individuals were afforded the right to a trial conducted by their contemporaries, and the king was accountable for both the appointment of judges and the implementation of their rulings. In the United States, another example of a legal system in which individuals were expected to handle the law on their own is found in the time period known as the Old West. Because there was a dearth of formal law enforcement and judicial institutions during this time in the history of the United States, individuals frequently had to take matters into their own hands in order to safeguard both their person and their possessions. There was a widespread practice of vigilante justice, and disagreements were typically settled through duels or gunfights.In spite of the fact that these legal systems may appear antiquated in comparison to contemporary legal systems, they serve to demonstrate the significance of human responsibility and self-reliance in the process of conflict resolution. However, they also underscore the disadvantages of depending too heavily on violence and revenge to resolve problems, as well as the necessity of formal legal institutions in order to create a system of justice that is fair and unbiased for all parties involved.

Local Self‐Governance and the State in South Sudan: Studying Gendered Tenure Relations in Times of Uncertainty

<p>With governance increasingly regarded as co-governance, states’ capacity to steer, correct, and discipline a wide range of self-governing actors becomes crucial for states’ effectiveness, efficiency, and democracy. This article investigates that capacity and the relationship between formal institutions and customary self-governance in areas of limited statehood. In South Sudan, the field of land governance can be regarded as an area of limited statehood. As land relations are closely connected to clan structures and intra-familial relationships, customary norms and institutions enjoy great legitimacy and are an important locus of local land governance and dispute resolution. The South Sudanese government has promulgated legal provisions for equal rights to property and inheritance that clash head-on with customary notions of gender roles in the family and the preservation of family land. By focusing on the case of women’s land rights in South Sudan, combining literature study with data from exploratory fieldwork in two South Sudanese towns, this article aims to reflect on the cohabitation of customary and formal norms and values and the role formal legal and administrative systems, in areas of limited statehood, can and do play in boundary setting for customary self-governance.</p>

Assessing the Effectiveness of the Village Court (VC) System in Promoting Access to Justice: A Case Study of Two Selected Villages in Noakhali, Bangladesh

This study aimed to assess the effectiveness of the Village Court (VC) system in promoting access to justice in rural Bangladesh. The formal legal system in Bangladesh is expensive and time-consuming, making it difficult for underprivileged rural people to access justice. The VC system is a combination of formal and informal dispute resolution processes and has been initiated by the government to address the demand for access to justice for rural people. However, several obstacles have hampered the efficacy of the VC system, making it impossible to acquire public satisfaction in the justice process. This case study examines the effectiveness of the village court system in promoting access to justice in two selected villages in Noakhali district, Bangladesh. The study evaluates various factors that impact the success of the village court system, such as policies, procedures, acts, rules, oversight mechanisms, legal awareness, and resources available to Union Parishad officials and community members. The findings suggest that while the village court system is functional in some areas, it heavily relies on government-supported projects and is largely ineffective outside of these areas. The study provides recommendations for improving the effectiveness of the village court system, including necessary amendments to the village court act/rules, proper government monitoring and supervision, improved financial and human resources for the Union Parishad, and greater accountability and competency of all stakeholders. By addressing these issues, the village court system could become a vital tool for promoting access to justice in rural Bangladesh.

Legal competence in Shari’a courts in Israel

ABSTRACT The activity of the Shari’a Court in Israel reflects a complex reality of ‘legal hybridity’. The Muslim tribunal serving the traditional Arab community is influenced by local circumstances and processes of internal change alongside the influence of Western modern culture. As a result, legal rulings and Shari’a terms that may sometimes express conservative perceptions operate alongside general state law that may sometimes reflect other perceptions. In this article, decisions of Shari’a courts in Israel are examined on questions of ‘legal competence’ in a sample of 24 cases from four Israeli local Shari’a courts as well as a couple of decisions from the Shari’a Court of Appeals (between 1993 and 2009). In view of competence being a key legal issue, examining the court decisions on this issue makes it possible to examine the complexity of the application of Israeli law and Shari’a law within a system of courts that on the one hand, are integral to the state’s formal legal system while on the other they see themselves as representatives of the Muslim minority and its culture.

Socio Juridical Review Of The Criminal Action Of Embraction Of Fiduciary Objects (Case Study Of Kabila District, Bone Bolango District )

This research aim to find out Socio - juridical review of the crime of embezzlement of Fiduciary Guarantee objects . This study raises two issues, namely how the socio-juridical review of the crime of embezzlement of Fiduciary Guarantee objects and what are the causative factors. This study uses an empirical legal research method with a sociological jurisprudence approach . The results of this study indicate that the socio-juridical review of the crime of embezzlement of Fiduciary Guarantee objects in Kabila District, Bone Bolango Regency is based on the socio-juridical scope, namely, first the law, Second , state institutions that function to form or make and enforce the law , and Third , the interactive relationship between the formal legal system and the legal order of society. Factors causing the crime of embezzlement of Fiduciary Guarantee objects, namely First, economic factors, where the provision of fees is one of the reasons KN is willing to lend his identity to be used in Fiduciary Guarantee agreements by AHI. The second is the social environmental factor, where the friendship relationship that exists between the perpetrators of embezzlement of Fiduciary Guarantee objects is one of the reasons KN is willing to lend his identity to be used by AHI in the Fiduciary Guarantee agreement.

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