Jurisprudence Research Articles

LEGAL JUSTICE FOR LOW-INCOME COMMUNITIES IN BALANCED RESIDENTIAL DEVELOPMENT

This research investigates legal protection for low-income communities in the context of balanced residential development in Indonesia. The study aims to analyze the policies and regulations surrounding balanced housing development while identifying solutions to promote social justice for low-income people (MBR). Grounded in Law No. 1 of 2011 on Housing and Settlement Areas, which mandates the government to address housing needs for MBR, the research reveals various implementation challenges. Utilizing a normative juridical approach, the analysis employs legal protection theory, development law theory, and human rights theory as frameworks. Findings indicate significant obstacles, including limited land availability and rising land prices, which hinder low-income individuals' access to decent housing. The research underscores the necessity for stricter legal protections and adaptable policy measures to achieve the objectives of balanced housing development effectively.

Wife’s Obligations According to Marriage Law: Perspective of Legal Purpose Theory

Background. The wife’s obligations under marriage law are contrary to Islamic law.. This difference raises questions about the suitability of the law with social values. Social history records significant developments in the role of the wife in the dynamics of household affairs. Aims. To analyze the basis of Article 34 paragraph 2 of the Marriage Law concerning the wife's obligation to manage household affairs and theoretical views on the purpose of the law on the article. Methods. Normative legal research uses a conceptual approach to explore the understanding of the basis of law. Data were obtained through literature studies and analyzed descriptively based on the theory of the purpose of law. Results. Article 34 paragraph 2 iin terms of justice, reflects distributive and commutative justice. The fair division of roles between husband and wife is reflected and affirms equality in lineage and family identity. Justice will be achieved by avoiding exploitation or inequality in the exchange of roles. The wife's obligations in terms of benefits are considered an effort to achieve the greatest possible benefits for individuals and families. Consistent and clear application of the law is very important in terms of certainty. The history of marriage law shows the complexity in the interpretation and application of the law. Efforts to create legal certainty have been made through the unification and simplification of laws, as well as the affirmation of norms that regulate the wife's obligations firmly and unambiguously.

Судебная практика как юридический институт

Based on the analysis of the works of legal theorists and scholars devoted to judgments about the legal nature of judicial practice as a source of law, its role and place in the Russian legal system, the authors stated that the independence of judicial practice was recognized only at the doctrinal level, but the value of judicial practice for the activities of courts, the improvement of legislation and the fruit-fulness of science was not disputed. The study of the normative consolidation of the category of judicial practice in legislation made it possible to show the procedural nature of judicial practice as a procedural institution, and the definition of its subject classification will improve the procedure for systematizing judicial practice.

Legality - Theory and Practice

Legality is a multifaceted, complex legal phenomenon. This phenomenon is central to legal theory and can be considered from many different aspects: political - ideological, economic - social, ethical, and legal. Law is the method of organizing and exercising state power, the principles of organization and operation of agencies, organizations, officials, civil servants, and the behavior of individuals. Today, under the impact of the market economy, misconducts, corruption, and legal violations tend to increase, so it is necessary to apply synchronous solutions to strengthen the legality

Legal Nature and Classification of Smart Contracts in Crypto Exchanges: Challenges to Traditional Contract Law

This paper examines the legal nature and classification of smart contracts within the context of cryptocurrency exchanges, exploring the challenges they pose to traditional contract law. As blockchain technology continues to evolve, smart contracts have emerged as a novel form of agreement execution, blurring the lines between code and legal obligations. This study analyzes the unique characteristics of smart contracts, including their self-executing nature, immutability, and decentralized structure, and how these features interact with established legal principles. The research investigates the potential gaps in current legal frameworks and the difficulties in applying traditional contract law concepts such as offer, acceptance, consideration, and breach to smart contracts. Furthermore, it explores the jurisdictional and enforcement issues that arise in the decentralized and borderless realm of crypto exchanges. By synthesizing legal theory, technological understanding, and practical implications, this paper aims to contribute to the ongoing dialogue on how to effectively regulate and integrate smart contracts into existing legal systems, while addressing the specific challenges they present in the dynamic landscape of cryptocurrency exchanges.

Analysis of State Policy Towards the Citizenship Status of Families Sympathizing with ISIS According to International Law

The importance of an individual's citizenship status has led the international community to establish several legal instruments related to citizenship status. The right to renounce citizenship is based on the principle that individuals have the right to determine their own citizenship, subject to the reasonable requirements of the laws of the involved states. This research method employs a qualitative approach, focusing on examining the application of legal norms and principles to legal theories and doctrines. This involves identifying the policies of various states regarding the citizenship status of families who sympathize with ISIS. Consequently, the research aims to formulate policy considerations of states concerning international legal provisions

Access, Choice, and Pleasure: Towards a New Model of Disability Sexual Rights

The paper offers a comprehensive exploration of the concept of disability sexual rights by integrating insights from both legal and sociological frameworks. Sexuality is an integral and inseparable part of human existence, encompassing a wide range of biological, physiological, psychological, and social aspects. Our understanding of sexuality developed over time, and contemporary social models view sexuality as shaped by social, cultural, and political factors. The rise of disability studies and social and critical models marked a significant shift in the way disabled sexuality is perceived. These studies underpin social aspects and constructions that contribute to the disabling process. Current Literature situates disability and sexuality within broader sociological frameworks of sexual citizenship, disability legal studies, and human rights, emphasizing the importance of recognizing disability sexual rights in forming an inclusive society. We examine the evolution of human rights discourse, mainly focusing on disability sexual rights as a marginalized subject within the human rights and disability rights agendas. We conclude by weaving together theories from disability studies, sexual citizenship, and law, proposing a new theoretical model of sexual rights that situates them in the intersection of disability, sexuality, law, and society. The model suggests three essential elements that cover the full scope of disability sexual rights: Access, choice, and pleasure. These elements can be applied to all aspects of disabled sexuality, encompassing sexual needs, participation, and autonomy.

A CRITICAL LEGAL STUDIES PARADIGM OF THE PRESIDENTIAL THRESHOLD ELECTORAL SYSTEM IN INDONESIA

In the perspective of the Critical Legal Studies Paradigm, researchers do not have the intention to deliberately dismantle normative legal rules that are legally and constitutionally, but in this discourse the critical legal studies paradigm provides a lens that critical voices are voices that come from the people with a higher realm of awareness in view with the assumption of potential that will occur critically, involving the direction of thinking that tends to be deconstructive and very worthy of questioning. in this case the paradox that occurs between ontology and methodology or in simple language reality with normative methodological values itself, by separating political, sociological, historical, and ethical motives. In this case, the paradox that occurs between ontology and methodology or in simple language reality with normative methodological value itself, by separating political, sociological, historical, and ethical motives. in this study, researchers used a qualitative method based on the study of the normative rules of the 1945 Constitution. normatively in article 222 of Law Number 17 of 2017 concerning the election of the President and Vice President reads: The candidate pair is proposed by a political party or a coalition of political parties participating in the election that meets the requirements of obtaining at least 20% (twenty per cent) of the total seats in the DPR or obtaining 25% (twenty five per cent) of the national valid votes in the election of DPR members, before the implementation of the Presidential and Vice Presidential elections or the Presidential Threshold system if viewed deconstructively from the process of forming the rules of the Law or the legislature itself does not have a basic limiting framework of legal construction, With the pretext of strengthening the presidential system, the effectiveness of holding elections in an accountable manner, but ontologically or in reality this raises that the law is a political product is a reality and shows that political power is more dominant than the law itself, of course this is very paradoxical with the concept of a country that is considered democratic where political power should be subject to the law. In this foundation, something produced by the legal products of the legislature is worthy of criticism.

Understanding the Relationships Between Divorce and Work: A Conceptual Framework and Research Agenda

Despite the personal, financial, and social implications of divorce for employees, research on the intersection of divorce and work has been mainly conducted across disparate literatures, with limited attention paid within the organizational sciences. In this review, we bring together research on employee divorce across multiple disciplines, including sociology, public health, legal studies, economics, family studies, and psychology. We identify three major areas of prior research that can be applied to our understanding of divorce within organizational contexts: interrole interdependencies, economic dependency, and social dynamics. We also highlight overarching themes that emerge from prior research on divorce and work. Building on our review, we then provide recommendations about how to theoretically and empirically advance research on divorce and work. Finally, we discuss the practical implications of our review.

Обзор научно-педагогической деятельности и вклада отечественного ученого М. Н. Гернета в развитие уголовно-правовой и криминологической науки

Introduction. This scientific study provides a brief overview of the creative path of the great Russian and Soviet scientist, Professor of Lomonosov Moscow State University – Mikhail Nikolaevich Gernet. Based on the analysis of scientific works written during the Soviet period of M. N. Gernet’s life and activity, the author outlined his personal point of view on his role in the evolving of a number of legal branches, as well as in the development of Russian legal science. This research will enable young Russian scholars and practitioners, as well as specialists interested in studying the origins of Russian law, to gain better and more thorough understanding of the content of legal phenomena, events, as well as legislative processes unfolding at the present time. Methods. The methodological basis of this study was formed by private-scientific methods, primarily content analysis of documents and legal methods, as well as general scientific methods, including historical, system analysis, generalisation, modelling and others. Results. In the course of this research project, it was possible to convincingly prove that that M. N. Gernet made a significant contribution to the development of criminology within legal science. His profound, fundamental, and advanced scientific research, both theoretical and practical, not only advanced the field for his time but also had a lasting impact on the field. Today, criminology is a sub-branch of criminal law, and its influence on Russian criminal legal theory is substantial. In addition, the author concludes that in the scientific works written by M. N. Gernet, most of the author’s points of view are based solely on humanistic approaches. Even when considering issues related to criminal punishment, the author endeavoured to expand the use of the parole system. Most of Professor M. N. Gernet’s scientific ideas are imbued with the principles of justice. Throughout his life, he sought to bridge the gap between theoretical scientific concepts and practical applications.

Defeasible Reasoning in Islamic Legal Theory

Defeasible Reasoning in Islamic Legal Theory

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.