Legal Arguments Research Articles

Corporate Personhood, Again?

The idea of the corporate person continues to present problems for politics, especially through the framing of corporate power and responsibilities as legal questions. Meanwhile, traditional theories of liberalism and pluralism struggle to comprehend the corporation as either a participant in politics or a site where politics occur. Theorists of democracy likewise express anxiety about the impact of corporations even while theorists of business ethics invoke the notion of corporate citizenship to restrain corporations through democratic ethics. This article analyzes recent contributions to debates about the role of corporations as legal persons. The article then argues that legal debates, while important, can also serve to limit an understanding of the social and political contexts in which economic actors like corporations exercise power. Recognizing those limits reveals the need for a broader range theoretical frameworks beyond the legal to comprehend corporate power.

JURIDICAL ANALYSIS OF JUDGES' CONSIDERATIONS IN DECIDING CASES FOR REQUESTS FOR DISPENSATION OF MARRIAGE IN THE LEGAL AREA OF THE BANTAENG RELIGIOUS COURT

This study aims to find out and analyze the implementation of requests for marriage dispensation at the Bantaeng Religious Court. To find out and analyze the factors that influence judges' considerations in deciding cases of marriage dispensation applications in the legal area of ​​the Bantaeng religious court, research, in general, can be classified into two types, namely sociological empirical research (field), namely research conducted with an approach to legal reality in society. This research is based on symptoms in the form of a gap between expectations (das solen) and reality (das sein) in law. Normative research, namely research conducted using an approach to legal norms or substances, legal principles, legal theory, legal arguments, and comparative law. In this study, the authors examined using a qualitative approach as mentioned above in a study. The results showed that the implementation of the application for marriage dispensation at the Bantaeng Religious Court was the Compilation of Islamic Law in Article 53, considering the benefit of the reasons put forward by the applicants and to protect children from early marriage. It is also hoped that the dispensation of the marriage age will benefit the community by providing convenience and solutions for problems. The factors that influence judges' considerations in deciding cases of applications for marriage dispensation in the jurisdiction of the Bantaeng religious court are social conditions, cultural factors, customs, and facts of the trial.

The ‘imbroglio’ of ecocide: A political economic analysis

Abstract In this article we adopt a political economic lens to analyse the revival of the concept of ecocide in present international legal scholarship and practice. The current campaign to codify the crime of ecocide under international criminal law represents the epitome of a problem-solving approach, which conceives of the law as external to society and as a corrective to its evils. Yet, a large body of critical literature has drawn attention to the constitutive role of international law and to the problems with its depoliticized approach when it comes to tackling global injustices. We build upon this diverse scholarship to illuminate how the technical, acontextual, and ahistorical legal debate on the codification of ecocide ends up normalizing the violent structures of extractive capitalism and its hierarchies. Further, we situate the proposed crime within the wider context of how international law regulates and constitutes the natural world. Drawing on critiques of sustainable development and of business and human rights discourse, we argue that the ‘imbroglio’ of ecocide, in its current legal definition, lies in presenting ecological preservation and devastation as simultaneously legitimate aims. The article ultimately raises the question of the role of international law in progressive political agendas, a question that could not be more pressing in times of entangled socio-ecological-economic disruptions.

PELATIHAN PENYUSUNAN ARGUMENTASI HUKUM DALAM OPTIMALISASI LEGAL ADVICE PADA BAWASLU

This study focuses on efforts to improve the ability of human resources through the form of training in producing legal argumentation as one of the strengthening skills of Bawaslu members in Donggala district. Legal Argumentation is essentially made to answer certain issues. This issue generally arises from the client. Therefore, a legal argumentation must be made in a focused, systematic, and proportional manner. Legal argumentation usually only consists of 3-5 pages. For this reason, legal argumentation must focus only on the issue in question, not discussing matters outside of it. Legal argumentation must also be systematic so that the description is easy to understand. There is no standard format for a Legal Argumentation, but at least an LO consists of: (1) the case, (2) identifiable and relevant legal basis, (3) legal opinion, and closed with (5) conclusion, which includes suggestions or recommendations.

Unaddressed regulatory issues in xenotransplantation: a hypothetical example.

The last few years have seen a significant increase in the use of technology to manipulate genetic sequences and generate animals as a source of xeno-organs. This has made the generation of genetically bespoke organisms a reality. This paper will analyze the regulatory and practical aspects of such an innovative approach to xenotransplantation on the basis of a hypothetical case study applied to Germany and highlight the gaps in the current regulation. This paper thus provides the basis for legal debate within a specific country. In addition, the identified gaps also pose a barrier toward the harmonization of international regulation. This publication therefore lays the groundwork for guiding the international debate regarding the regulatory framework for solid organ xenotransplantation toward specific issues.

Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between Golan v Saada and Brussels II-ter EU Regulation

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures.

Russia’s Case for War against Ukraine: Legal Claims, Political Rhetoric, and Instrumentality in a Fracturing International Order

ABSTRACT In seeking to justify its war of aggression against Ukraine, Russia has presented a wide variety of legal, quasi-legal, and normative claims, alongside political rhetoric and transparent revanchism. Drawing on a qualitative content analysis of Russian speeches and texts concerning the war, this article deconstructs Russia’s legal and political arguments and analyzes their rhetorical character as well as their intended audiences. It also assesses the instrumentality of Putin’s irredentist claims on “historic Russian regions” in Ukraine. The article concludes that this abuse of legal and normative discourse to justify not only a full-scale invasion but also territorial annexation is a central threat to core global rules and norms.

Argumentation and explanation in the law.

This article investigates the conceptual connection between argumentation and explanation in the law and provides a formal account of it. To do so, the methods used are conceptual analysis from legal theory and formal argumentation from AI. The contribution and results are twofold. On the one hand, we offer a critical reconstruction of the concept of legal argument, justification, and explanation of decision-making as it has been elaborated in legal theory and, above all, in AI and law. On the other hand, we propose some definitions of explanation in the context of formal legal argumentation, showing a connection between formal justification and explanation. We also investigate the notion of stable normative explanation developed elsewhere in Defeasible Logic and extend some complexity results. Our contribution is thus mainly conceptual, and it is meant to show how notions of explanation from literature on explainable AI and legal theory can be modeled in an argumentation framework with structured arguments.

Analysis of the Natuna Islands Conflict between Indonesia and China in the Perspective of International Law

This article aims to analyze the dispute between Indonesia and China regarding the Natuna Islands from an international law perspective. As a maritime country with many islands, Indonesia has abundant natural wealth in its territory. However, Indonesia and China's conflicting claims over the Natuna Islands have created tensions and disputes between the two countries. The dispute is related to the ownership and utilization of resources on Natuna Island which is in the Indonesian Exclusive Economic Zone. The impact of this dispute includes economic instability, divisions between countries, political losses, and social problems. In dealing with these impacts, it is necessary to carry out effective resolution efforts. Settlement of the Natuna islands dispute between Indonesia and China can be done through several strategic steps. First, regional border management is improved, economic activity is improved by exploring for oil in the Natuna Islands, then through an international legal approach, this article will review the relevant legal basis, legal arguments used by both parties, as well as possible settlement efforts.

Authority Dispute Between State Institutions Whose Authorities from Regulations Below the 1945 Constitution

The dispute over authority between state institutions whose authorities are based on regulations under the 1945 Constitution cannot be resolved through a decision (beschikking), considering that matters involving overlapping authority that has been included in the regulations (regelling) and will remain in effect unless one of the matters has been annulled. This research aims to elaborate the pattern of power restriction on state institutions and find out the resolution of authority disputes between state institutions whose authority is based on regulations under the 1945 Constitution. This research is a legal argumentation using a normative research approach. The results of the research show that each state institution obtains authority by attribution, which originates from the 1945 Constitution or from regulations under the 1945 Constitution. The annulment of material containing authority that is sourced from the regulations under the 1945 Constitution can only be carried out through a material test (judicial review) by the judiciary, namely the Supreme Court.

Authority Dispute Between State Institutions Whose Authorities from Regulations Below the 1945 Constitution

The dispute over authority between state institutions whose authorities are based on regulations under the 1945 Constitution cannot be resolved through a decision (beschikking), considering that matters involving overlapping authority that has been included in the regulations (regelling) and will remain in effect unless one of the matters has been annulled. This research aims to elaborate the pattern of power restriction on state institutions and find out the resolution of authority disputes between state institutions whose authority is based on regulations under the 1945 Constitution. This research is a legal argumentation using a normative research approach. The results of the research show that each state institution obtains authority by attribution, which originates from the 1945 Constitution or from regulations under the 1945 Constitution. The annulment of material containing authority that is sourced from the regulations under the 1945 Constitution can only be carried out through a material test (judicial review) by the judiciary, namely the Supreme Court.

The Joy of Justice: Les Misérables and Rosalie Abella

What makes a person a good judge? Which characteristics, abilities and commitments matter in the practice of adjudicating fundamental rights? Some factors seem crucial, or even indispensable, as illustrated by the work of Rosalie Abella before and on the bench. The first factor is a commitment to the rule of law not as an empty concept, but as a substantive guarantee, last not least a ‘never again’ to fascism and similarly autocratic regimes. Second, judges need a particular realism, informed by asking questions and giving people voice, to approach the world with a distinctly strong humility. Third, radical pragmatism allows for legal arguments that matter, both based in doctrine and moving beyond, while fourth, a nuanced understanding of universalism must inform any judges’ take on fundamental rights in the entangled world we live in today.

Legal argumentation in the court: native experience and foreign practice

The article is devoted to highlighting domestic experience and foreign practice of legal argumentation in court proceedings. The Great Legal Encyclopedia defines legal argumentation as the process of giving arguments legal meaning and establishing relationships between them, which acquires jurisprudence. forms when harmonizing logical rules with legal norms.
 It is stated that legal reasoning in court decisions is mandatory, since the acceptability of legal decision- making depends on the procedures of argumentation and the desire to achieve the truth in law. Therefore, the justice of court decisions is determined by their compliance with the requirements of legality, reasonableness and motivation.
 It is established that an argument is a statement containing premises and a conclusion, not all of which are expressed in real arguments. In legal argumentation, evidence is an auxiliary tool of argument.
 In practical discourse, in order to achieve the criteria of rationality and correctness, there is often a need to apply special knowledge, the bearers of which are experts. Opinions of experts provided within the limits of the examination appointed by the court are sources of evidence.
 Evidence must be proper, admissible, reliable, sufficient. That is why forensic experts involved in the judicial process must possess the skills of argumentation and oral communication, be professional, authoritative, and their conclusions substantiated and impartial. That is, the rules of legal discourse and the principles of legal argumentation necessarily apply to the judicial expert, who appears as one of the subjects of argumentation.
 It was found that domestic courts do not always trust the conclusions provided by experts. The results of a psychophysiological diagnosis of a person using a polygraph do not provide advantages in proof, but «are taken into account, along with other evidence».
 Involvement of experts in the legal process does not always provide grounds to include the conclusions they provide in the evidence base, let alone consider them as real arguments. There is a need for legislative regulation of the issue of the possibility of the participation of a polygraph specialist in the legal process.
 The evidence practice was outlined and the role of expert witnesses in Italy was clarified. Thus, in Italian civil proceedings there are two types of experts: the judicial technical expert appointed by the judge (CTU) and the expert appointed by the parties (CTP). The expert should not have any interests related to the proceedings. The appointed expert must agree to his own appointment and can reject it only for valid reasons assessed by the judge.

البنية المعرفية للحديث الضعيف عند الإمام النووى (631 - 676 هـ) وتأثيرها في الاستدلال به: دراسة تحليلية تقييمية

This research discusses the methodology of Imam al-Nawawi in formulating the concept of weak hadith and his approach in using it as dalil syar’i. Something needs to be clarified when al-Nawawi (d. 676 H) accepted the usage of hadith dha’if as an authoritative legal argument despite being part of the leading hadith experts who continually protect the authenticity of Prophet's Sunnah. This study addresses two main issues: How does al-Nawawi describe a hadith as dha’if, and how does he use dha’if hadith as a basis for legal rulings? The data analysis method used in this research is descriptive qualitative analysis. The researcher adopts a historical-philosophical approach for this study. This study reached two main conclusions: firstly, the definition of hadith dha’if proposed by an-Nawawi does not contradict the description of the majority of hadith scholars. However, an-Nawawi added some special provisions that must be considered, so there is no rush to weaken the hadith and ignore it to be practiced or make it a legal argument. He used hadith dha’if as supporting evidence or argument in specific religious matters under certain conditions. Secondly, the information leads us to conclude that an-Nawawi's social and scientific background played an important role in shaping his thinking and applying his religious methodology. It also shows that an-Nawawi paid close attention to the continuity of the sanad from when he acquired knowledge to when he passed it on to others. An-Nawawi's concern for sanad indicates its importance as everything establishes the religion's authenticity. Even if the quality of the sanad is weak, it is not a problem to be used as long as the weakness is explained and supported with other authentic sources. If it is not found, we can use other ijtihadi arguments, such as qiyas.

MENERJEMAHKAN KEMASLAHATAN DALAM PUTUSAN (Studi Terhadap Putusan Verstek Ekonomi Syariah di Pengadilan Agama Sijunjung)

The authority to adjudicate shari'ah economic cases has existed since 2006 but the Sijunjung Religious Court will only accept shari'ah economic cases in 2021. The decision was handed down in a verstek and inkracht manner, but Defendant did not carry out the decision voluntarily, so Plaintiff can submit an execution to the Sijunjung Religious Court. It's just that, if the guarantee is in the form of a fiduciary and has been transferred, then the decision that has been handed down by the judge is not carried out. Meanwhile, if the Plaintiff submits an execution and it turns out that the execution cannot be carried out, then this judge's decision does not benefit the Plaintiff. The type of research used is normative-empirical legal research with a qualitative approach. Primary data sources were obtained from sharia economic judges at the Sijunjung Religious Court. While secondary data sources, the authors obtained documentation data of the Sijunjung Religious Court, the Case Tracing Information System (SIPP) of the Sijunjung Religious Court. Techniques in data collection used in this study were interviews and documentation. The data analysis used in this study is an interactive model analysis from Miles and Huberman which divides the analysis into three parts, namely data reduction, data presentation, and drawing conclusions or data verification. Based on the research that has been done, the judge is the central point in decision-making. A good legal decision can be seen in the legal considerations. The legal considerations of the decision reflect the depth of the decision which is loaded with principles, theories, and legal arguments. In the absence of appeals and executions submitted by the parties, it shows that the verstek decision on the simple shari'ah economic lawsuit at the Sijunjung Religious Court has benefited the litigants.

Analisa Yuridis Putusan Pernikahan Beda Agama Ditinjau Dari Undang-Undang No 1 Tahun 1974

Religious weddings in Indonesia have been a difficult and tangled matter of legal debate. This study intends to produce legislation that governs themes the author discusses in light of current instances via this article, which applies normative research methodologies to solve its difficulties. The documentation of the legitimacy of interreligious weddings needs more legal assurance. Although Marriage Law No. 1 of 1974 makes it lawful, there still needs to be more work with administrative records under Population Act No. 24 of 2013, which enables opportunities for couples who may join in weddings of various faiths. Marriage between a Muslim and a non-Muslim is prohibited in Islamic law, according to Rule 40 of the Islamic Law Compilation, unless otherwise approved by relevant legislation. Article 2(1) of Marriage Act No. 1 of 1974 prohibits marriage between a Muslim and a non-Muslim. Interreligious couples must be given the same legal status and the same right to build a family via marriage under the 1945 Constitution and Law No. 39 of 1999 on Human Rights. In contrast, the Supreme Court of Indonesia issued letter 2 of 2023, urging judges not to stop interfaith marriage immediately. This essay highlights how difficult it is to attain legal clarity and certainty—better laws and policies and more exact legal interpretations.

Keadilan Dan Kepastian Hukum (Refleksi Kajian Filsafat Hukum Dalam Pemikiran Hukum Imam Syâtibî)

This paper aims to explore the philosophical roots of Syatibi's legal thinking on justice and legal certainty and its relevance to the Indonesian legal state. The theories used in this paper consist of the theory of justice, the theory of legal certainty and the theory of the rule of law. The theory of justice is part of the study of legal philosophy, which Syatibi calls moral and legal integrity. The theory of legal certainty is the basic norms (grundnorm) extracted from Syatibi's works. The method used in this paper is normative juridical with a philosophy of law approach. Philosophy of law is an intellectual activity that thinks rationally, systematically, comprehensively, integrally and critically. The results of the study show that Syatibi, a legal reformer of Granada in the 8th century H/14 AD who is of the Maliki school of thought, has laid the foundation and principles of the rule of law in realising justice and legal certainty through his three monumental works, al-Muwafaqat fi Ushul al-Syari'ah, I'tisam and Fatawa Syatibi. Syatibi's legal philosophy thinking on legal justice is formulated in three legal constructs namely al-maslahah, al-sahl and 'adam al-kharaj. Syatibi formulated legal certainty on five basic legal principles (grundnorm) consisting of: (1), Muqaddimah (preamble), (2). Al-Ahkam (laws), (3). Al-Maqasid (purpose or direction to be achieved), (4). Al-Adillah (legal arguments), and (5). Ijtihad (Legal Reasoning). The idea of the rule of law in the Indonesian context both in the perspective of the rule of law and rechtstaat is dominated by the legal system of Western countries which in general is the idea of the rule of law derived from the results of Western intellectual thought based on liberal and secular philosophies. Law is only limited to positivism, meaning that law is interpreted as an order from the law which results in law only in the form of legal certainty. Positivistic law separates legal justice from legal certainty or separates law from morals. In contrast to the thinking of Islamic legal philosophers such as Shathibi who combines law with justice.

JURIDICAL REVIEW OF THE ROLE OF THE SOCIAL OFFICE OF WOMEN'S EMPOWERMENT AND CHILD PROTECTION OF TULUNGAGUNG REGENCY IN PROVIDING PROTECTION TO WOMEN AND CHILDREN

To be able to understand the understanding of childhood itself can be seen from various aspects of life so that it approaches the correct meaning, namely religious, economic, sociological, and legal aspects. Therefore, we want to focus on the implementation of the role of Social Service and the Empowerment of Women and Children of Tulungagung Regency Number 23 of 2017 concerning the Implementation of Women and Children Protection. The normative legal research method is one of the approaches used in legal research to analyze applicable legal regulations. This method focuses on analyzing legal sources, such as laws and regulations, court decisions, and other legal documents. Normative legal research methods make an important contribution to understanding and analyzing applicable legal regulations. This approach helps in building a solid legal argument, providing a deeper understanding of the existing legal framework. the role of Social Services and Women Children Empowerment and Women Children Empowerment and Women and Children Empowerment in this context: 1. Policy formulation: 2. Program coordination and implementation 3. Supervision and monitoring: 4. Service and assistance. 5. Education and socialization: The Social Office of Women's Empowerment and Child Protection only makes efforts to resolve reported cases of violations of children's rights 2) its role as a concept that the Social Office of Women's Empowerment and Child Protection of child victims of violence has run quite well by meeting existing standard operating procedures.

Perlindungan Hukum Terhadap Anak yang Diterlantarkan

Children are a mandate and a gift from Almighty God, which is inherent in their dignity and their dignity as a whole human being. Children need special handling, but not all parents who sincerely accept children and give love. Parents sometimes don't care about parents' lack of care and affection for their children. Few parents accept disabled children with a sincere heart. This has caused many cases of parents who have abandoned their children. The method of this research is a normative legal research aiming to find and formulate legal arguments, through the analysis of the main problem. The technique of collecting legal documents is done by studying literature. The approach used in this study is the statutory approach, in particular by examining the legal rules applicable with regard to the legal protection of children abandoned by their parents. Interviews were conducted at the Integrated Service Center for the Empowerment of Women and Children (P2TP2A) in the city of Makassar, as support and to refine the normative analysis.

Hurdles, Hurdles, and More Hurdles: Strategic Litigation in National Security Cases

ABSTRACT Civil society organizations are adept and reactive advocates, using a range of strategies to promote their messages and respond to negative outcomes. For instance, even when unsuccessful in bringing legal arguments before the courts, such organizations can still use litigation as a platform for positive legal outcomes. In the national security context, however, things are not as straightforward. This piece analyses three unique ‘hurdles’ civil society organizations face in this context – judicial deference, lack of access to information, and secrecy – meaning their response to unsuccessful litigation becomes even harder. This piece provides an overview of current practice, while remaining optimistic for civil society’s response to the ‘hurdles’; concluding that, while a hard race to win, civil society can still prevail.