Legal Research Methodology Research Articles

THE BALANCE OF LEGAL CERTAINTY AND UTILITY IN BALI’S ALCOHOL REGULATION

Traditional alcoholic beverages hold a significant place in the culture of Indonesia, embodying the nation's rich heritage and diverse local wisdom. However, the regulation of these beverages presents critical concerns regarding public health and societal impact. This study critically examines how the principles of legal certainty and utility are reflected in Bali Governor Regulation Number 1 of 2020 (“Bali’s Alcohol Regulation”). The primary objective of this research is to analyze and evaluate the embodiment of these values within the regulation. Employing a normative legal research methodology, the study scrutinizes the regulation alongside the hierarchy of laws governing it. The findings reveal notable inconsistencies between Bali’s Alcohol Regulation and the definitions of traditional alcoholic beverages established in higher legislative frameworks, raising pertinent questions about the balance between legal certainty and the practical benefits offered by the regulation. Furthermore, the analysis indicates that the regulation fails to uphold several legal principles, leading to ambiguity in its enforcement. From a utility perspective, the regulation does not yield substantial benefits for artisans, producers, distributors, sellers, buyers, or the broader community. Consequently, it falls short of meeting adequate utility standards, underscoring the necessity for revision and enhancement to better accommodate the interests of all stakeholders involved in the traditional alcoholic beverage sector in Bali.

Changes in Pretrial Authority through the Decision of the Constitutional Court

Pretrial authority underwent changes in authority through the Constitutional Court Decision. This research aims to examine and analyze several judicial reviews of pretrial objects, consisting of Constitutional Court Decision Number 21/PUU-XII/2014, Constitutional Court Decision Number 109/PUU-XIII/2015, Constitutional Court Decision Number 102/PUU-XIII/ 2015 & Constitutional Court Decision Number 130/PUU-XIII/2015, which as a whole, the a quo decision changes pre-trial authority. The formulation of the problem in this research is 1). What is the role of the Constitutional Court in making legal breakthroughs regarding pretrial? 2). What are the dynamics and issues behind the Constitutional Court's decision in changing pre-trial authority? The research method used in this research uses doctrinal legal research methodology. This research concludes that: 1). The role of the Constitutional Court in making legal breakthroughs regarding pre-trial can be seen in, first: the Constitutional Court determines that the determination of suspects is included in the object of pre-trial. Second: The Constitutional Court limits the scope of pre-trial material law to the position of KPK investigators which cannot be equated with POLRI investigators, that KPK investigators stand alone with Law no. 30 of 2003 as amended in Law no. 19 of 2019 concerning the Corruption Eradication Commission. Third: ending the multiple interpretations of judges, discontinuing pre-trial applications when the case has been examined or entered the main case. Fourth: the submission of a notification letter for the start of an investigation is extended not only to the public prosecutor, but also to the suspect and the reporter/victim. 2). The dynamics and issues behind the Constitutional Court's decision in changing pre-trial authority, namely related to pre-trial authority in determining suspects, the dismissal of pre-trial petitions, the submission of SPDP, the entire Constitutional Court's decision has not been followed up in the form of a revision of the law

Legal Protection for Well-Known Trademark Rights Holders Against Trade of Counterfeit Goods Under the Osakafom Brand (Study of Supreme Court Decision Number: 1390 K/Pdt.Sus-Hki/2023)

This study examines the legal protection of well-known trademarks in Indonesia, focusing on the Osakafom trademark dispute. Using a normative legal research methodology, this research analyzes relevant legal norms, judicial decisions, and the enforcement of Law No. 20 of 2016 concerning Trademarks and Geographical Indications. Despite the existence of this legal framework, enforcement remains weak, allowing counterfeit goods to flood the market. Through an analysis of the Supreme Court Decision No. 1390 K/Pdt.Sus-Hki/2023, this study highlights the shortcomings in enforcement and the slow judicial process. The results indicate that while the law provides a basis for trademark protection, the delays in legal proceedings and the burden placed on trademark holders to monitor infringements reduce the law's effectiveness. The findings emphasize the need for stronger enforcement mechanisms, quicker judicial proceedings, and increased government involvement in monitoring counterfeit goods. This paper also suggests that international cooperation is crucial in addressing the cross-border nature of counterfeit operations and protecting the integrity of well-known trademarks in the global market.

Methodology of legal research in the security field

The relevance of the study lies in the fact that in the context of armed aggression against Ukraine, the most scientifically relevant issues are those related to the security and defense sector, and the development of effective practical recommendations in this area is impossible without proper theoretical substantiation. The purpose of the study was to determine certain aspects of the use of methodological tools in conducting legal research in this area. To achieve its purpose and objectives, the author used general scientific and special research methods. The main results of the study are the argumentation of the position that at the present stage, the most reliable and objective legal knowledge should be considered that which involves the use of special methods, techniques and compliance with the principles of knowledge acquisition. Today, the system of legal sciences is gradually developing its own methodology based on the general scientific principles of knowledge; legal science forms it in close connection with and in accordance with the subject matter of research, reflecting the peculiarities of the object of study and its specifics. The security and defense sector, in turn, also requires a separate scientific approach and research tools, since the activities of the State in this sector, which are its exclusive prerogative, involve ensuring the sovereignty of the State, its independence in the international arena, and protection of the population on its territory. The conclusions of the study are that the system of legal sciences in Ukraine is gradually developing its own methodology in accordance with the peculiarities of the object under study and the area in which it realizes its tasks. The research is devoted to the study of an issue which is of topical importance both for the practical activities of state bodies performing functions in the security and defense sector and for further scientific research.

Формирование полицейско-правовой теории: анализ и оценка полицеиста В. В. Ивановского

Introduction. The article is devoted to the work of Viktor Viktorovich Ivanovsky (1854-1926), a prominent jurisprudent of the Russian Empire, specialist in police law, sociologist, whose scientific activity was closely connected with the Kazan Imperial University. The contribution of V. V. Ivanovsky to the development of police and administrative law, political sociology, the theory of local self-government, and the methodology of legal research significantly influenced the development of police law theory in Russia. However, his ideological heritage has not yet received a comprehensive analysis. Methods. Methodological principles of research – the principles of unity of theory and practice, objectivity, complexity, comprehensiveness of the study of social processes and phenomena, the unity of historical and logical – are based on dialectics, acting as a general methodology of scientific cognition. The main methodological approaches of the study were systemic and value approaches. General scientific (historical, functional) and special (formal-legal, historical-legal, comparative-legal) methods of legal research were used. The method of problem-theoretical reconstruction and interpretation of legal ideas was very important. Results. V. V. Ivanovsky has showed himself as a jurist, scientist and historiographer. He characterised the formation of police-legal theory and identified the features of ideas about the means of public administration, models of relations between state bodies and the population of Western European and domestic thinkers.He revealed the interdependence of the sciences of police and administrative law; identified the features of the origin of the dogmatics of administrative law; substantiated the need to change the principle of regulation of public relations and the transition from the rule of law to the principle of administrative law.

The Legal Regulation of the Fictitious Crime in the Omani Legislation Analytical Descriptive Study

The fictitious crime is one of the crimes around which there are still many questions, as it represents criminal behaviour with the perpetrator's imagination only. For instance, for someone who wants to seize money, it turns out that the money belongs to him, which requires more detail and knowledge of the way the Omani legislator organizes this crime. Accordingly, the article will attempt to answer the research problem represented in knowing the legal implications of the fictitious crime in the Omani legislation. To achieve the objectives of the article, doctrinal legal research methodology using a qualitative approach was adopted. The article came to the conclusion that the fictitious crime is due to illusions based on the naivety and ignorance of the perpetrator and without involving the truth. So that the perpetrator believes that he/she is committing a criminal act, but the law does not punish him. The article also recommended that the Omani legislator stipulates explicitly that the fictitious crime should not be punished by an independent and clear text so that it leads to non-punishment for the act that a person commits with the intent of committing a specific crime, then it becomes clear that this person’s belief to achieve the result is based on his delusion.

Omnibus Law: Effectiveness of Online Licensing and Law Enforcement of the Capture Fisheries Sector in Indonesia

The government has carried out the task of simplifying several laws through the ratification of Law Number 6 of 2023 concerning the Stipulation of Government Regulation in Lieu of Law Number 11 of 2020 regarding Job Creation. This initiative aims to encourage investment and increase employment opportunities. A number of articles of the old law have been amended or deleted by this regulation. One of the laws in question is Law Number 31 of 2004 concerning Fisheries. In addition, Law Number 45 of 2009 is an amendment to Law Number 31 of 2004. This study applies a normative legal research methodology, where this type of research refers to scientific investigations of legal issues by conducting research through library sources or data related to secondary license issued by the OSS Institution through an integrated electronic system. This research approach is characterized by consideration of the risk-based licensing process, not only based on licensing criteria. Apart from the main goal of increasing user convenience, individuals with limited educational levels, such as fishermen, may face challenges when trying to access the OSS system. The application and implementation of criminal law as the main legal remedy poses its own challenges. Therefore, the utilization of the criminal justice system as a means to eradicate fish theft is mainly used as a final remedy (ultimum remedium). While other sanctions, such as administrative sanctions and actions, are generally used as the main means of law enforcement.

Has Indonesia Safeguarded Traditional Cultural Expressions?

The Government of the Republic of Indonesia recognized the importance of intellectual property in folklore since the 1982 Copyright Law was enacted (Article 10 of Law No. 6/1982). The study seeks to understand what obstacles Indonesia faces in protecting tribal peoples' communal rights over traditional cultural expressions, also called expressions of folklore in the digital age, and how other nations are resolving them. What is Indonesia's plan for developing and safeguarding traditional cultural manifestations in the digital age, as seen from other nations? The study employs a case-based, normative legal research methodology. The findings, an urgent need for specific institutions that control access benefit sharing from usage by foreign parties, as well as a special anti-theft task force for communal intellectual property rights in the digital era that takes the form of a support organization for tribal peoples. To increase cooperation in the inventorying and documentation of Tribal peoples who own collective intellectual property, optimization also calls for coordination of involvement between the federal government, local governments, and autonomous bodies operating under them, such as the Ministry of Tourism, the Creative Economy Agency, and Tribal peoples' organizations.

Regulatory Framework on Ocean Threats –Transportation Law Analysis to Multiple Oil-Spill Cases in Indonesia

This research aims to analyse the legislation pertaining to the environment and transportation as outlined in Article 1 point 1 of Law No. 22 of 2001, which deals with oil and natural gas. The Minister of Energy and Mineral Resources' Regulation No. 7 of 2019 Article 1.2 relates to the management and use of oil and gas. Articles 316, 318-322, 324-329, and 332 govern criminal offenses committed in the maritime domain. This study employs a doctrinal legal research methodology, using both conceptual approach and statutory approach. The agreement for the maritime transportation of commodities establishes rights and duties that the involved parties are required to fulfill. One of the duties and liabilities of the carrier is to maintain the security of the vessel and the merchandise it transports. The legal framework governing the transportation of commodities is established under Articles 466 to 520 of the Criminal Code. This concept is founded upon two additional ideas, i.e. strict liability and the absence of the necessity to establish the party responsible for environmental damage prior to attributing blame. The principle of strict responsibility in Indonesian national law is governed by Article 88 of Law No. 32 of 2009, which pertains to environmental protection and management. This article only focuses on the environmental degradation and marine contamination resulting from oil spills. The obligation for transportation in maritime agreements and the legal repercussions for causing marine pollution must be followed by all the sea transportations company especially carrying dangerous material.

Has Mutual Recognition in the EU Failed?—A Legal-Empirical Analysis on the Example of Food Supplements Containing Botanicals and Other Bioactive Substances

The European Union lacks comprehensive legislation pertaining to food supplements containing botanical or bioactive substances other than nutrients, resulting in disparate regulatory frameworks among European Member States. Previous studies predominantly focused on the doctrinal analysis of these diverse regulations at both European and national levels, offering limited insights into their practical implementation by governing bodies. This research endeavours to scrutinize administrative practices governing legislation on food supplements featuring botanical or other bioactive constituents, which are subject to varying approaches across Member States. Employing a combination of doctrinal and empirical legal research methodologies, this approach involved a meticulous examination of the regulatory landscape governing food supplements at both EU and Member State levels. Simultaneously, an empirical investigation, conducted through expert interviews, aimed to elucidate whether discrepancies among national legal systems translate into discernible variations in the operational strategies of competent authorities. Additionally, this empirical inquiry shed light on the efficacy of specific EU directives aimed at harmonizing food supplement regulations at the national level. These findings delineate a fragmented regulatory environment for botanical and bioactive food supplements across Member States. Noteworthy disparities were observed not only in national legislative frameworks but also in the enforcement practices of regulatory authorities. Union-level governance efforts in particular by adopting a mutual recognition approach to mitigate fragmentation proved ineffective. Consequently, this research underscores an urgent imperative to expedite the harmonization of regulations governing botanicals and other bioactive substances present in food supplements across the European Union.

Hamka’s Legal Methodology on Hisab–Ru’yah in His Book “Saya Kembali ke Ru’yah”

This research endeavors to explore the contextual shifts in Hamka’s perspectives on hisab-ru’yah and his methodological approach to legal reasoning. It adopts a normative legal research methodology with a conceptual framework. Primary legal sources are drawn from Hamka’s book “Saya kembali ke Ru’yah”. These sources are scrutinized through the lenses of uṣūl al-fiqh and the sociology of knowledge. The findings of this study indicate that the transformation in Hamka’s thinking stemmed from profound childhood experiences and culminated in a notable enlightenment during his participation in the International Islamic Conference in Malaysia. Ultimately, his stance evolved dramatically, concluding unequivocal support for the practice of ru’yah (moon sighting). Furthermore, there are also figures within Muhammadiyah who endorse both ru’yah and istikmāl (completing the lunar month if the moon is not sighted). This support has fortified Hamka despite facing considerable criticism. From the perspective of uṣūl al-fiqh (principles of Islamic jurisprudence), Hamka’s shift in legal reasoning appears primarily theoretical, although he does not explicitly delineate the specific theory involved. This can be inferred from his interpretation of the hadith of ru’yah in alignment with the principles of manṭūq (explicit meaning) or dilālah al-‘ibārah (indicative meaning). In expressing his views, Hamka incorporates the opinions of scholars, indicating his reliance on the qaulī method. His personal joy during fasting and holiday celebrations concurrently reflects his alignment with the maṣlaḥah theory, enhancing unity and cohesion. However, this unity can only be fully realized under government regulation as the ūlīl amr (ruler), particularly concerning the outcomes of ru’yah and istikmāl. Such submission, beyond mere compliance, also falls within the realm of maṣlaḥah al-mu’tabarah (considered public interest). This research underscores the necessity of approaching legal provisions from multiple perspectives, rather than a singular viewpoint, to achieve the intended legal spirit and realize genuine benefits. Hamka’s methodology exemplifies him as a contextual integrative Muslim.

Research Ideologies among Legal Scholars and Multidisciplinary and Interdisciplinary Academic Research Approaches

This article explores the dichotomy between traditional research methodologies and modern multidisciplinary and interdisciplinary approaches within the academic legal community in Nigeria. While disciplines such as pure science, social science, education, and arts have embraced collaborative research strategies to address complex issues, legal scholars predominantly adhere to the doctrinal style. This adherence creates a significant challenge in achieving consensus on research methodologies, data sources, and analytical techniques. The study highlights the reluctance of legal scholars and regulatory bodies like NALT to recognize the value of integrating diverse academic perspectives. By examining the current research ideologies among legal scholars, the article underscores the need for a unified approach to academic research that bridges the gap between traditional legal research and collaborative methodologies, ultimately enhancing the scope and impact of scholarly inquiry in the legal field. The research employs a qualitative design, utilizing interviews and surveys with legal students, scholars, educators, and regulatory body members to gather in-depth insights into their research practices and attitudes. Based on the findings, the article recommends promoting awareness and education on the benefits of multidisciplinary and interdisciplinary research, fostering a more inclusive research culture, encouraging regulatory bodies to endorse and support collaborative research initiatives within the legal academic community and develop a Okuma-NC (hybrid) research methodology and citation formula integrating aspects of OSCOLA, NALT, and APA, enabling seamless application in socio-legal, scientific, multidisciplinary, and interdisciplinary research within legal contexts.

Smart Robots and Civil Liability in Jordan: A Quest for Legal Synthesis in the Age of Automation

This paper embarks on a pivotal scholarly journey to scrutinize the civil liability implications of Artificial Intelligence (AI) within the Jordanian legal framework. As AI transforms from a speculative concept into an omnipresent reality, it presents unique jurisprudential challenges, particularly civil liability. This study aims to bridge the jurisprudential vacuum in Jordan, where an absence of judicial precedents highlights the urgency for legal exploration in this emerging field. Adopting a doctrinal legal research methodology, the study rigorously examines Jordanian liability theories and their applicability to AI and undertakes a comparative analysis with more advanced legal systems in AI regulation. The paper navigates the intricacies of AI in the context of traditional Jordanian legal theories, such as objective and personal liability theories. It extends to explore the challenges of attributing liability in the age of AI. Key findings reveal significant inadequacies in Jordan’s current legal provisions to address AI-induced liabilities, the disconnection between civil liability and AI accountability, jurisdictional ambiguities, and challenges in applying traditional legal concepts to the unpredictable nature of AI. The study proposes granting AI legal personality, legislative intervention, enforcing global accountability standards, advocating for international cooperation, and exploring technological limitations with ethical programming. This research contributes profoundly to academic discourse and policy formulation, particularly in the Jordanian context, highlighting the need for a comprehensive, adaptable, and robust legal framework that addresses the unique challenges posed by AI and robotics in the legal domain.

Legal research methodology: The nuts and bolts of research proposal

Legal research methodology: The nuts and bolts of research proposal

FOOD SECURITY ISSUES IN MALAYSIA AND INDONESIA: A COMPARATIVE ANALYSIS

Food security is becoming increasingly important as the world's population grows, particularly in emerging countries like Malaysia and Indonesia. In Malaysia, food security is crucial to ensure that Malaysians have access to enough food if the nation experiences any unplanned events. Several critical food security issues have been identified in Malaysia and Indonesia, including a lack of agricultural land, agricultural investment, and appropriate policies and innovative programs for the agriculture sector to boost food production. This study aims to examine food security issues in Malaysia and Indonesia and to analyse the laws, policies, and initiatives implemented in Malaysia and Indonesia to ensure food security. In addition, waqf has much potential to address food security issues. This study adopts a qualitative approach that involves data collection based on primary and secondary legal material. The data collected are comparatively analysed using content analysis. This comparative legal research methodology draws lessons from both jurisdictions. The findings can be used to develop best practices and inform policy decisions on food security issues.

PEMIDANAAN TERHADAP ANAK PELAKU TINDAK PIDANA PENCURIAN DENGAN PEMBERATAN DIKAITKAN DENGAN ASAS KEPENTINGAN TERBAIK BAGI ANAK

Providing insights and perspectives on the legal field, especially the trial of criminal cases involving minors in conflict with the law. The basis of normative legal research methodology, using a case-based approach to dissect legal issues in court decisions. The core of the investigation is contained in Article 70 of Law Number 11 of 2012 concerning the Juvenile Justice System, which safeguards the rights and welfare of children caught up in criminal justice. The critical analysis of how judges interpret and apply these legal provisions aims to explain the legal mechanisms for upholding the best interests of children in criminal proceedings, investigate the complex dynamics of ensuring that children in conflict with the law receive formal legal capacity, emphasise the importance of safeguarding rights and ensuring welfare during the legal process, and contribute insights that inform and enrich the discourse around the intersection between juvenile justice, criminal law, and the principle of the best interests of the child.

The Legal Research Methodology as a Method for Researching in Business Area: A Case Study Applied to Gymnasiums

Abstract: Purpose – The main objective of this paper is to understand how the analysis of laws and jurisprudence influences the decisions of gym managers in Portugal. Design/methodology/approach – For this purpose, the Portuguese tax law was investigated, particularly the Value Added Tax law and additional legal dispositions. It also researches the arbitral case law related to nutrition consulting in sports activity companies. Findings – The nutrition consultation is considered a medical act subject to the legal disposition of article 9º of the Value Added Tax Code, which means that when the medical service is provided by a professional, the beneficiary of the services can benefit from the VAT exemption. This disposition observes the European Union Directive 2006/112/EC of the European Council. Nevertheless, when a nutritionist provides these services through an entity that offers sports activities like gyms, some doubts are raised because it can be considered that nutritional monitoring has no therapeutic purpose. Customers could not benefit from the VAT exemption if some conditions were not observed. The arbitral tax court has been considering that it needs to keep some requirements for that exemption could be applied to the gym services. In several cases, fulfilling the conditions is complex and generates litigation between the Portuguese Tax Authority and gyms. In the personal sphere, there are two possibilities for the service's recognition i) if the service is recognized as a consultation, it could benefit as a medical expense in the personal income tax statement; ii) if it is not considered as a medical expense, each person can deduct 15% of the VAT in the same statement. Originality: This paper demonstrates the role that court rulings play in clarifying day-to-day issues for managers. It also shows that laws and court rulings are an essential source of data in management research. Research limitations/implications – This study only analyses the Portuguese case, it could be interesting to study other countries that do not apply the value-added tax law.

The Legal Culture to Prevent Radical Islamism by a Pesantren in Madura

This study examines the strategies implemented by several pesantrens (Islamic boarding schools) in Madura to curb the proliferation of radical Islam. It aims to uncover the various approaches these Islamic boarding schools employ to combat the rise of radical Islam, which has recently gained traction in the region. Utilising empirical legal research methodologies with socio-legal and anthropo-legal frameworks, the study reveals that pesantrens are proactive in teaching students—the Santri—to reject religious radicalism. Furthermore, these institutions foster religious communities, such as koloman, kamrat, and Majelis Shalawat, which have been effective in resisting radical influences in Madura. The success of these pesantrens can be attributed to their pivotal role in enhancing legal awareness among the community, steering them away from radical ideologies. This strategic influence is anchored in their capacity to modify legal behaviours through organisational structure, social control, and cultural integration. The findings affirm the critical role of pesantrens in promoting a secure, peaceful, and religiously tolerant Indonesia, highlighting their tangible contributions to national stability.

Child Maintenance after Divorce: Review on the practices in Malaysian Shariah Courts

This paper reviews the practices of the Shariah courts in Malaysia in determining child maintenance applications. It adopts the qualitative legal research methodology, where data was collected from international treaties, legislation, and child maintenance cases decided by the courts and analyzed descriptively and thematically. The study reveals the existence of non-standardization practices related to the assessment of the needs of the child and the father's ability due to the general provisions and the absence of guidelines for judges. This study highlights the need for establishing guidelines to ensure children can enjoy a better quality of life even after divorce.

Claim Types in Canada’s Refugee Determination System

This article overviews outcomes in different types of refugee claims in Canada. It critiques standard legal research methodologies in the refugee law field due to skews in publication practices. To address these skews, the article employs empirical quantitative research methods using administrative tribunal data and computational methods. It provides a snapshot of refugee claim numbers, countries of origin, claim categories, and outcomes. The article then underscores the benefits of supplementing doctrinal legal research with empirical quantitative research methods, outlines barriers to the adoption of such methods, and offers guidance and tools to assist other researchers in overcoming those barriers.