Jurisprudence Research Articles

No Time for Justice? Obstetric Violence, Damages Claims and Prescription Periods in South African Law

Obstetric violence is currently not acknowledged as a form of gender-based violence in South African law. In this article I deal with the various issues associated with this failure to correctly categorise obstetric violence. One of the issues relates to access to legal recourse for survivors through delictual claims (torts). Delictual claims are wrongful acts or limitations of rights that can lead to legal liability in the form of monetary compensation. The current framing of obstetric violence as medical malpractice limits women's time to launch a case to only three years after the violation. To show how this issue of prescription (a legal principle where an outstanding debt can be extinguished after a prescribed time period) plays out, I focus on the 2020 report by the South African Commission for Gender Equality (CGE) on the forced or coerced sterilisation of women living with HIV at state healthcare facilities. I also examine the current case of the Centre for Applied Legal Studies (CALS), a university-based human rights law clinic, which represents over 40 women who have experienced different forms of obstetric violence at state-run facilities. In both of these examples, I explain how justice through legal recourse is denied to these victims or survivors through the mischaracterisation of obstetric violence as medical malpractice in current South African law. To show that the three-year ‘limit’ or prescription period to institute a legal claim is unjustifiable, I explore three reasons why women may not choose to or be able to proceed with a legal claim within that time period. The first of these relates to the ‘personal’ barrier women face around acknowledging they have experienced obstetric violence and bringing a claim against the state. The second, the ‘political’ barrier, includes the general and prevalent systemic gender discrimination experienced by women in South Africa and the specific barriers women face around access to dignified treatment in the country's public healthcare system. Finally, an ‘economic’ barrier is the general inaccessibility of legal representation for economically disadvantaged people in the country. Proceeding from the above, I then argue that by acknowledging obstetric violence as a form of gender-based violence and aligning it with legislation around prescription periods for other forms of gender-based violence (such as sexual offences), the burdens related to access to justice (at least in delict) can be lightened for survivors.

On the relationship of legality and social justice in law enforcement practice (to the 180th anniversary of the birth of A.F. Koni)

The problem of the relationship between law, legality and social justice is one of the fundamental problems of legal theory and law enforcement practice.The purpose of the study is to assess the problem field in the relationship between the principles of legality and social justice in domestic law enforcement practice and to substantiate the key role of the principle of social justice in its further development. The authors proceed from the position that the theoretical and practical experience of posing and interpreting this problem, accumulated in the history of world and Russian legal science, is an epistemological and worldview resource that has not only theoretical, but also quite practical significance.Methodology. Analytical methods were used to study the relationship between legality and social justice, historical-retrospective and hermeneutical methods in revealing the semantic meaning of these concepts, as well as a dialectical method in interpreting existing contradictions in their law enforcement practice.Results. The article, taking into account the current two main trends - on the one hand, towards “de-ideologization” and, on the other hand, towards “re-ideologization” of legal science - examines the relationship and interpretation of such concepts as “legality”, “law”, "legal proceedings", "social justice" in modern scientific (legal) discourse and in law enforcement practice. The development of the semantic content of the principle of social justice is shown through the concepts of “justice” (Aristotle), “moral perfection” (B.A. Kistyakovsky), “decent human existence” (P.I. Novgorodtsev), “proportionality” (A.F. Koni) etc. Based on a comparison of different theoretical and methodological approaches to defining these concepts, their content and role in law enforcement practice are revealed. A provision has been formulated on the need to expand openness and public principles in improving legal proceedings, since the encountered practice of closed legal proceedings does not correspond to the principles of openness and publicity. The problematic issues of the comprehend theory of law associated with the blurring of the concepts of “legality” and “social justice” in the context of existing ideological pluralism are revealed. In connection with the anniversary – the 180th anniversary of the birth of the outstanding Russian lawyer A.F. Koni, his contribution to the development of ideas about legal morality and judicial ethics is shown. In particular, his idea about the “spirit of legality”, that the “truth of life” should be higher than the “legal truth”.Conclusion. Taking into account the influence that ideology has on the law, a position has been formulated on the need to form a unified ideological view in determining socially fair legal content and its clear legislative codification. The main trends in the development of modern scientific ideas about the relationship between ideology and law have been identified. The thesis about the key importance of social justice in the development of law and legality is substantiated.

Li and Fa in Contract Law from the Perspective of Chinese Legal Philosophy

Li and Fa in Contract Law from the Perspective of Chinese Legal Philosophy

Not just new wine in old bottles: Seeing refugee law and human rights as entangled regimes

Abstract This article re-examines the relationship between international human rights and refugee law as a story of mutual interaction, by harnessing and developing the nascent concept of legal entanglement. While entanglement serves as an alternative starting point to understand how legal regimes mutually affect each other, this new concept still lacks sufficient clarity for making sense of the interfaces and development of international law. This article proposes an analytical framework for international legal theory by outlining a model of the normative, interpretive, and socio-political drivers of entangled regimes. It argues that new norms, interpretations, and socio-political shifts explain the rapprochement and distancing between refugee law and human rights over time. Acknowledging the risk that entanglement framing may become altogether too encompassing, the proposed approach to entangled regimes allows for precision and nuance in the empirical tracing of international law.

The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.

An Analysis of the Theory of Justice against the Standard of Proof Beyond Reasonable Doubt in the Judge's Decision in the Jessica Kumala Wongso Case

This research aims to find out the theory of justice that can be used by judges in proving criminal cases in Indonesia and the use of the theory of justice in the standard of proof beyond reasonable doubt in the judge's decision in the Jessica Kumala Wongso case. This research uses normative legal research methods with legal philosophy, legislation and conceptual approaches. The data source used is secondary data consisting of primary legal materials and secondary legal materials analyzed qualitatively with deductive inference, starting with general principles and concepts about the theory of justice and the standard of proof beyond reasonable doubt, the analysis moves towards specific propositions to determine the value of justice and the relevance of this standard in the judge's decision in the Jessica Kumala Wongso case. The study found that Gustav Radbruch's theory of justice can be applied by judges in Indonesian criminal cases, using six evidentiary parameters: theory of evidence, minimum evidence, evidence, presentation of evidence, burden of proof, and strength of proof. These parameters reflect Radbruch's legal values of justice, purpose, and legal certainty. Judges using Radbruch's theory prioritize justice, followed by purpose and legal certainty. In Jessica's case, despite doubts about the evidence, the judges found her guilty beyond a reasonable doubt, aligning with Radbruch's principle that justice should take precedence in the standard of proof.

The Contestation of Legal Foundations in the Resolution of Islamic Economic Disputes in Religious Courts

Prior to the issuance of Supreme Court Regulation No. 2 of 2008, judges in Sharia economic dispute cases primarily relied on legal sources from kutub al-turāṡ (classical fiqh texts), including those pertaining to fiqh al-qadā’ (jurisprudence on adjudication). However, following the implementation of this regulation, some judges have continued to incorporate the Civil Code in their legal reasoning. This article seeks to examine the legal framework for resolving Sharia economic disputes in Indonesia. The theoretical foundation applied by the author is Lawrence Meir Friedman’s legal system theory. This study employs a normative legal approach to explore the legal system governing Sharia economic justice in Indonesia’s Religious Courts. It examines decisions from the Religious Courts in Purbalingga, Banyumas, and Purwokerto, focusing on rulings made both before and after the issuance of the Supreme Court Regulation on the Compilation of Sharia Economic Law (KHES), as well as five decisions from 2018-2019. The study’s findings reveal that the legal framework for Sharia economic dispute resolution in Indonesia has adequately addressed community needs, with the Religious Courts holding exclusive jurisdiction over these matters. However, there is an ongoing contestation between Islamic legal sources and civil law, which is rooted in Dutch law, in the decisions analyzed. Moreover, the absence of a Compilation of Islamic Economic Procedure Law based on Islamic Law has contributed to the suboptimal implementation of legal substance and culture. As a result, according to Friedman’s legal system theory, the legal framework for resolving Islamic economic disputes has not yet functioned effectively from the perspective of Islamic law.

Tinjauan Filsafat Hukum Islam dalam Pembagian Ahli Waris Pengganti

This research examines the main question regarding the validity of substitute heirs from the perspective of Islamic legal philosophy, which has sparked debates among scholars concerning the application of justice and welfare principles in inheritance. The background of this issue stems from the absence of explicit provisions regarding substitute heirs in the Qur'an and hadith, while this phenomenon frequently occurs in modern inheritance practices. The novelty of this research lies in the legal-philosophical approach that links the concepts of justice, welfare, and continuity in inheritance distribution, exploring the views of both classical and contemporary scholars. This study uses a literature review method with a normative and comparative approach, analyzing Sharia principles and interpretations by Islamic jurists regarding substitute heirs. The findings reveal that while the concept of substitute heirs is not explicitly mentioned in the Qur'an, some scholars allow its practice based on principles of justice, welfare, and societal needs. This reflects the flexibility of Islamic law in addressing social dynamics without compromising core Sharia principles. The conclusion emphasizes the importance of considering social context and welfare in the application of Islamic inheritance law, while adhering to the justice principles taught by Sharia.

The concept of internet rights policy in Indonesia: A comparison from United States, European Union and Malaysia

The regulatory framework related to internet access is one of the criteria that influences a country’s level of digital competitiveness. Valuable lessons need to be learned from countries that have a better level of digital competitiveness than Indonesia. This article proposes a concept for regulating internet access rights in Indonesia in the era of digital transformation to increase Indonesia's digital competitiveness. Research methods used are analytic normatiques with a normative- based approach that USES secondary data sources of legislation, legal theories, principles of law and opinions by scholars. Research shows that there is a correlation between the framework's regulatory levels as a sub-grading factor with a country's final digital competitiveness rating so that a legal certainty can determine a country's digital competitiveness level. Indonesia has, to date, almost no certainty of the law. In contrast with countries in the United States, the European Union, and Malaysia, which already have clear, unequivocal legislation and regulation that govern Internet privileges.

Environmental law and systems theory

AbstractIn 1985, German sociologist Niklas Luhmann published a monograph on ecology, which appeared in English translation in 1989 as Ecological Communication. It contained many original insights for ecological thinking and, despite being well‐reviewed upon publication, has had a relatively minor impact on Anglophone environmental discourse. This inattention is also present in environmental law, which has recently seen an increase in legal theories that challenge its mainstream. This contribution first investigates why Ecological Communication has received scant attention, pointing to changes in the climatic context in which it first appeared and the reactionary nature of its arguments. Recognising that the work nevertheless contains critical theoretical insights for environmental law scholarship, the second aim of the article is to spotlight what from Ecological Communication remains relevant at the hand of three common claims progressive researchers level against mainstream environmental law: The critique of law's marriage to Cartesian dualism, that law should be better informed by climate science,of and law's anthropocentrism. Finally, environmental lawyers are called upon not to ignore Ecological Communication but to engage with it fruitfully.

Reality of Women in Indonesian Society: A Feminism Approach

Issues regarding gender in Indonesia are still ongoing, which cannot be denied that the patriarchal system is still very strong. Feminist law is based on feminist sociology, feminist philosophy and feminist history expansion of women's attention later in life. At the end of the 20th century, there were many feminist movements seen as a splinter of the Critical Legal Studies movement, of which there are many in essence provides criticism of the legal logic that has been used, its manipulative nature and legal dependence on politics, economics, the role of law in forming patterns social relations, and the formation of hierarchies by legal provisions is not fundamental. Feminist theories often ignore women's contemporary position, focusing on women historical past or utopian future. Focus on praxis often about creating revolutions, egalitarian reforms, or cultural utopias. Much of sociology is based on what are known as individual relationships with the world as it is and as it is maintained.

Legal Studies of Village-Owned Enterprises as Legal Entities for the Prosperity of Village Communities

A business entity established and owned by a village is designed to support the community in meeting their daily needs, enhancing their knowledge, and providing business and employment opportunities. This requires an institution capable of managing these activities effectively. The institution in question must be able to generate profits because the potential within a village is intended to promote the welfare of the local community. This study examines village institutions functioning as economic entities, commonly known as Village-Owned Enterprises (BUMDes). The study also explores the legal status of these entities and their role in implementing programs aimed at building a prosperous society. The research findings confirm that BUMDes, as regulated by Government Regulation Number 11 of 2021 and the Regulation of the Minister of Villages, Development of Disadvantaged Regions, and Transmigration Number 3 of 2021, have legal entity status. This means that these institutions are recognized and regulated by law, allowing them to engage in business activities legally, while also being responsible for adhering to applicable laws and regulations. The village government wholly owns these business institutions, and their mission is to manage and develop the village's economic potential. Additionally, BUMDes are intended to create jobs, enabling village communities to meet their basic needs, increase their income, and advance the local economy. The legal framework governing these institutions must be a focus for stakeholders to ensure the creation of legal justice, certainty, and benefits.

The automatic termination clause in the Fisheries Subsidies Agreement—brinkmanship for future negotiation or a time bomb for self-destruction?

Abstract The Fisheries Subsidies Agreement (FSA) is an important stride forward, but its future is uncertain because of the embedded automatic termination clause. There is a substantial possibility that this provision comes into effect. It would be prudent to focus on how best to utilize the FSA before that scenario materializes. Most notably, international law jurisprudence and World Trade Organization precedents posit that panels can continue to review disputes and issue decisions even after the FSA is terminated as long as the disputes are brought to them before termination. The automatic termination clause is a unique, unprecedented feature, which may kill the hard-earned momentum of the fisheries subsidies regulation. If managed well, however, the potential damage can be controlled and the new agreement can be utilized for the ultimate success of global fisheries subsidies regulation.

HINTs: Sensemaking on large collections of documents with Hypergraph visualization and INTelligent agents.

Sensemaking on a large collection of documents (corpus) is a challenging task often found in fields such as market research, legal studies, intelligence analysis, political science, or computational linguistics. Previous works approach this problem from topic- and entity-based perspectives, but the capability of the underlying NLP model limits their effectiveness. Recent advances in prompting with LLMs present opportunities to enhance such approaches with higher accuracy and customizability. However, poorly designed prompts and visualizations could mislead users into falsely interpreting the visualizations and hinder the system's trustworthiness. In this paper, we address this issue by taking into account the user analysis tasks and visualization goals in the prompt-based data extraction stage, thereby extending the concept of Model Alignment. We present HINTs, a VA system for supporting sensemaking on large collections of documents, combining previous entity-based and topic-based approaches. The visualization pipeline of HINTs consists of three stages. First, entities and topics are extracted from the corpus with prompts. Then, the result is modeled as a hypergraph and hierarchically clustered. Finally, an enhanced space-filling curve layout is applied to visualize the hypergraph for interactive exploration. The system further integrates an LLM-based intelligent chatbot agent in the interface to facilitate the sensemaking of interested documents. To demonstrate the generalizability and effectiveness of the HINTs system, we present two case studies on different domains and a comparative user study. We report our insights on the behavior patterns and challenges when intelligent agents are used to facilitate sensemaking. We find that while intelligent agents can address many challenges in sensemaking, the visual hints that visualizations provide are still necessary. We discuss limitations and future work for combining interactive visualization and LLMs more profoundly to better support corpus analysis.

Mining corruption, environmental damage, and the increasing unauthorized properties of state officials

Indonesia is blessed with natural resources in the form of minerals and coal. Their use must be directed towards the greatest welfare and prosperity of the people based on the 1945 Constitution. However, what is currently happening is the opposite. the Attorney General revealed case of alleged corruption in the trading system of tin commodities in the Bangka Belitung region. The suspects include businessmen, directors, crazy rich Indonesians, and artists who are now increasingly attracting public attention. The total state losses were equivalent to $16,667 billion USD. This research used a sociological legal research model. The research object was the legal behavior in the reality of society. It was found that to formulate appropriate law enforcement for mining corruption, Friedman’s legal system theory approach was used. This theory includes legal structures, with good synergy from each law enforcement institution. Concerning the legal substance, apart from using the Corruption Crime Law, perpetrators also need to be impoverished by regulating the crime of money laundering. In terms of legal culture, state officials should uphold ethics and integrity to achieve good governance. Meanwhile, restoration of environmental damage resulting from mining activities can begin with future environmental policies that are directed towards ensuring the safety and health of the human life as well as controlling the wise use of natural resources. The integration of environmental law and Islam can be carried out using a prophetic ethical approach. The prophetic paradigm interprets nature as something sacred as humans only borrow it and manage.

The status of municipal government in the sphere of ecological security

AbstractThe article covers the issue of ecological security in Poland with a view to international regulation, the objectives of which are pursued at the municipality level, i.e., the basic unit of local government. It is in local areas and at the source of any threat that a rapid response is often needed to eliminate environmental pollution and its effects. Accordingly, the municipal authorities have been equipped with a number of powers enabling them to take action for environmental safety. It should be assumed as a research hypothesis that, in terms of activities in the sphere of ecological security, a municipal authority is a body that complements the activities of the state resulting from EU obligations and other higher-level local government units and that these activities are aimed at issues closest to individuals. The study is characterised by a legal theory-based approach. The main research method used in the study is the doctrinal method, as well as the method of legal text analysis. It mainly draws on theoretical views presented in legal studies and those offered in case law practice.

GENDERED RESILIENCE: ISLAMIC LEGAL MAXIMS AND PANDEMIC RESPONSES AMID INDONESIA’S ENVIRONMENTAL AND SOCIETAL CHALLENGES

Objective: This study aims to explore the intersection of gendered resilience, Islamic legal maxims, and pandemic responses within the context of Indonesia's environmental and societal challenges. It seeks to understand how Islamic jurisprudence and gender dynamics can shape effective responses to crises, particularly in a nation grappling with diverse socio-environmental issues. Theoretical Framework: The research is grounded in the theoretical framework of gender studies and Islamic legal theory. It employs a gender-sensitive lens to examine how Islamic legal principles (maqasid al-sharia) can be applied to foster resilience amidst crises. The study also incorporates environmental sociology to contextualize the socio-ecological challenges faced by Indonesia. Method: Through qualitative methods, including content analysis of religious, legal texts, and case studies, the research examines practical applications of Islamic legal principles in crisis response. Results and Discussion: Findings reveal that gender-sensitive interpretations of Islamic legal maxims improve community resilience and pandemic responses by fostering equitable resource distribution. The study highlights successful case studies and discusses integration challenges in policymaking. Research Implications: Integrating gender perspectives into Islamic legal frameworks can enhance policy and resilience strategies, offering a model for similar contexts in Muslim-majority countries. Originality/Value: This study contributes to the limited body of literature on the nexus of gender, religion, and crisis management in Indonesia. It offers a novel perspective by integrating Islamic legal theory with gender studies, providing valuable insights for scholars, and practitioners aiming to enhance resilience through culturally relevant frameworks.

Decentralised autonomous organisations: targeting the potential beyond the hype

ABSTRACT Decentralised Autonomous Organisations (DAOs) aim at innovating the organisation forms for business activities. They are complex blockchain-based smart contracts, which allow token holders to participate directly in decision-making processes and decentralised entrepreneurial activities as much as possible. The advocates of this new kind of digital organisation argue that DAOs enjoy significant operational efficiencies and can effectively work outside of any legal recognition. This paper analyses DAOs through the lenses of the economic and legal theories on the firm and on business organisation. The analysis makes three contributions: first, it contributes to the literature on the theory of the firm, looking at the role of digital technology in innovating the organisation of business activities. Second, it enriches the literature on the legally recognised forms of business organisation, analysing the tension between the essential role of the law and the limitations of tamper-resistant technologies, such as the blockchain. Third, it overcomes the largely ideological and dichotomic debate on the promises of DAOs, providing analytical guidelines as to why current forms of sector-specific regulation fail to leverage the potential of DAOs.

Judicial Study: Parties' Opposition (Partij Verzet) in Proceedings to Execute Land Ownership Rights Under Civil Procedure Law

Court decisions that have legal force must be complied with, and execution carried out if the losing party does not voluntarily comply with the judgment. Issues arise when the losing party appeals or takes other legal actions, delaying execution and creating legal uncertainty. Execution is applicable only to condemnatory judgments and is often obstructed by respondent's resistance, a legal challenge from the party involved in the case. The researcher highlights three cases of legal resistance efforts: the South Jakarta District Court decision number 518/Pdt.G/1999/PN Jkt.Sel, Kendal District Court decision number 20/Pdt.Bth/2021/PN Kdl, and Kendal District Court decision number 9/Pdt.Bth/2022/PN Kdl. This study employs a normative juridical method, examining descriptive-analytical literature, and utilizes a qualitative juridical approach in analysis. The research reveals discrepancies between legal certainty theory and judicial practice, where cases may not align with facts or legal standing, leading judges to reject such requests. The study concludes that respondent's resistance is a legal recourse available to the executed party against execution, which does not automatically suspend execution unless there are clear and accepted grounds recognized by the court. The Indonesian Civil Code (HIR) and Civil Procedure Law (RBg) provide legal certainty and protect the rights of those aggrieved by court decisions through the mechanism of respondent's resistance.

Brain Death Between Jurisprudence and Medical Innovation

This study aims to explore the multiple concepts of brain death through jurisprudence and medical innovation. The study focuses on understanding the interaction between these concepts and analyzing the challenges and problems they face. To analyze the multiple concepts of brain death and provide a comprehensive and balanced understanding of this issue from different perspectives. And also to know the ethical and legal challenges associated with determining brain death. The study included the jurisprudential, medical, ethical and legal community interested in the topic of brain death. The study followed a multidimensional approach and is guided by the methodology of literature review, comparative analysis, and applied analysis of medical trials. Previous studies and research were reviewed, including jurisprudential, medical, ethical and legal studies. The results showed a significant discrepancy in understanding and application between the jurisprudential concept of death and recent medical developments to address the ethical and legal challenges associated with determining brain death. The recommendations and directions for health and legal policies were to achieve harmony between the jurisprudential, medical and ethical dimensions of the issue of brain death. The research indicates the need for further research and analysis to better understand the interaction between the multiple concepts of brain death and to apply comprehensive and balanced solutions.